Human Rights

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Human rights and societies in transition
Human rights and societies in
transition: Causes, consequences,
responses
Edited by Shale Horowitz and Albrecht Schnabel
a United Nations
University Press
TOKYO u NEW YORK u PARIS
6 United Nations University, 2004
The views expressed in this publication are those of the authors and do not
necessarily reflect the views of the United Nations University.
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Library of Congress Cataloging-in-Publication Data
Human rights and societies in transition : causes, consequences, responses /

edited by Shale Horowitz and Albrecht Schnabel.
p. cm.
Includes bibliographical references and index.
ISBN 9280810928 (pbk.)
1. Human rights. 2. Human rights—Case studies. I. Horowitz, Shale Asher.
II. Schnabel, Albrecht.
JC571.H86 2004
323–dc22 2004004113
To our families
Contents
List of figures and tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x
Note on measurements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii
Acknowledgements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1 Human rights and societies in transition: International context

and sources of variation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Shale Horowitz and Albrecht Schnabel
Part One: Defining, delimiting, and understanding human rights

in societies in transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2 The Universal Declaration of Human Rights as a norm for

societies in transition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Johannes Morsink
3 Universalism and cultural relativism: Lessons for transitional

states. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Richard Lewis Siegel
vii
viii CONTENTS
4 From global norms to local change: Theoretical perspectives

on the promotion of human rights in societies in transition . . . . . 77
Geneviève Souillac
Part Two: Monitoring, promoting, and enforcing human rights . . . . 101
5 The United Nations and human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

W. Ofuatey-Kodjoe
6 The consequences of the war crimes tribunals and an

international criminal court for human rights in transition
societies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Paul J. Magnarella
7 International efforts to protect human rights in transition

societies: Right, duty, or politics? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Albrecht Schnabel
8 Democratic transitions and foreign policy: The United States . . 164

Barbara Ann J. Rieffer and David P. Forsythe
Part Three: Sources of human rights violations and their impact

on peace, democratization, and economic development . . . . . . . . . . . . 189
9 Sources and consequences of human rights violations in Iraq . . 191

Jenab Tutunji
10 Exploring the dynamics of human rights and reform: Iran,

Pakistan, and Turkey . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218
Mahmood Monshipouri
11 Causes and consequences of variation in post-communist

human rights practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 242
Shale Horowitz
12 Human rights and conflict in the former Yugoslavia . . . . . . . . . . . . 266

Aleksandar Resanovic
13 Human rights in transition societies: The cases of Somalia and

South Africa. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 291
Wafula Okumu
CONTENTS ix
14 Human rights and transition societies in Western Africa. . . . . . . . 315

Eghosa E. Osaghae
15 Political development and democratic rights in Greater China . 339

Man-To Leung
16 Human rights in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

D.R. Kaarthikeyan
17 Human rights, the military, and the transition to democracy in

Argentina and South Korea. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 389
Terence Roehrig
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
18 Protecting human rights in transition societies: Lessons and

recommendations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 415
Albrecht Schnabel and Shale Horowitz
Abbreviations and acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430
Contributors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 434
Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 440
Figures and tables
Figures
1.1 Interactive effects of regime type and other factors on

human rights practices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
16.1 Where children work. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366
Tables
11.1 Sources of frustrated national ideals in the post-communist

context . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 251
11.2 Democratization and other factors as predictors of human
rights practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 253
11.3 Cultural, economic, and conflict-related sources of human
rights practices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 254
11.4 Cultural, economic, and conflict-related sources of
democratization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
16.1 Crimes against women in India, 1990–2000. . . . . . . . . . . . . . . . . . 368
16.2 Crime rate against women in Indian states and Union
Territories . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 369
16.3 Composition of crimes against women by social status . . . . . 369
16.4 Sex ratio in India, 1901–2001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 371
16.5 Sex ratio and child population in the 0–6-year age group in
selected states of India in 1991 and 2001. . . . . . . . . . . . . . . . . . . . . 371
x
LIST OF FIGURES AND TABLES xi
16.6 Loss of life in Jammu and Kashmir since 1988 . . . . . . . . . . . . . . 372

16.7 Civilians killed by various terrorist groups in Assam . . . . . . . 373
16.8 Security force personnel killed by various terrorist groups
in Assam . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 373
16.9 Civilians killed by various terrorist groups in Manipur . . . . . 374
16.10 Security force personnel killed by various militant groups
in Manipur . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 374
16.11 Insurgency-related killings in Nagaland. . . . . . . . . . . . . . . . . . . . . . 374
16.12 Senas (caste militias) of Bihar . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 375
Note on measurements
In this volume:
1 billion ¼ one thousand million
1 trillion ¼ one million million
$1 ¼ 1 US dollar
xii
Acknowledgements
A number of individuals and organizations have provided invaluable as-

sistance and support at various stages of this book project.
First of all, we are grateful to the Japanese government and the United
Nations University for providing most of the funding for our work. We
thank Patrice Petro and the Center for International Education, Richard
Meadows and the College of Letters and Science, and Charles Kroncke
and the School of Business Administration for additional funding and for
hosting a most stimulating author meeting in early 2000 at the University
of Wisconsin-Milwaukee. We deeply appreciate the logistical and ad-
ministrative assistance offered for the entire duration of this project by
Yoshie Sawada of the Peace and Governance Programme of the United
Nations University. We are grateful to Monica Blagescu and Alina
Meyer for logistical and editorial assistance in the preparation of the
manuscript. We thank the UNU Press, particularly Gareth Johnston, for
patiently supporting us in preparing and improving the manuscript for
publication. We are grateful to two anonymous peer reviewers, whose
comments allowed us to make important improvements to the initial
draft manuscript; and we greatly appreciate the work of Heather Russell,
who has copy-edited the volume, and of Sylvia Coates who has produced
a most useful index. We would not have been in a position to work on
this project for over three years, were it not for the support and encour-
agement of our families. It is to them that we dedicate this volume.
Finally, we thank our contributors for sharing their insights with us and
xiii
xiv ACKNOWLEDGEMENTS
the readers of this volume. We hope that, as a team, we have produced a

useful examination of the challenges inherent in the advancement of hu-
man rights in societies faced with the difficulties inherent in political,
economic, and socio-cultural transition. We hope that the discussions and
findings presented in this volume will be of interest to both academics
and practitioners involved in enhancing our conceptual understanding
and in improving conditions on the ground.
Shale Horowitz
Albrecht Schnabel
August 2003
Introduction
1
Human rights and societies in
transition: International context and
sources of variation
Shale Horowitz and Albrecht Schnabel
Human rights violations are often particularly severe in transition soci-

eties that are undergoing significant political, social, and economic trans-
formation.1 Improving human rights practices in transition societies
should therefore be a central goal for domestic reformers and the inter-
national community alike. This makes sense, not only because of the in-
trinsic value of improved human rights protection but also because of the
indirect effects that such improvements have on democratization, eco-
nomic development, and conflict resolution.
To address transitional human rights problems constructively it is nec-
essary to understand both the international regime pushing for human
rights improvements and the main sources of continuing violations. The
international human rights regime consists of international and domestic
norms and standards, on the one hand, and of practical promotion efforts
by intergovernmental organizations (IGOs), non-governmental organi-
zations (NGOs), and sovereign state policies, on the other. The main
sources of continuing violations are hypothesized to be political regime
type and political leadership, political cultures and national identities,
economic structures and interests, and civil and international military
conflict. Transitional human rights violations are common because the
international and domestic factors favouring improved human rights are
so often overwhelmed by international and domestic factors favouring
continued violations. In future, more constructive efforts to promote
3
4 HOROWITZ AND SCHNABEL
transitional human rights should focus on building up the most promising

favourable factors and targeting the most readily changed unfavourable
ones.
This book represents a joint effort by 17 scholars from various parts of
the world – specializing in political science, sociology, law, and diverse
regional studies – to explore the contemporary international human
rights regime, the factors predominantly responsible for human rights vi-
olations in transition societies, and the long-term consequences of such
violations. The volume also tries to identify how NGOs, IGOs, and states
can most constructively act to pre-empt or correct transition-related
human rights violations and prevent the relapse of these societies into
government failure, economic devastation, communal violence, and,
eventually, war.
This introductory chapter begins by summarizing the main elements
of the international human rights regime. It then sets out some basic
hypotheses on important sources of transitional human rights prac-
tices. Next, it discusses some tentative findings concerning the sources of
human rights practices, and explores some preliminary implications (a
more detailed discussion of findings and recommendations is left to the
concluding chapter). The final section describes the organization of
the volume and summarizes the contents and findings of the individual
chapters.
The international human rights regime
Today’s international human rights regime consists of an accumulating

body of internationally accepted norms and legal instruments, along with
efforts by IGOs, NGOs, and national governments to promote improved
human rights practices. The post-World War II foundation for the inter-
national human rights regime is the 1948 Universal Declaration of Hu-
man Rights (UDHR). The UDHR went beyond the traditional civil
rights focus to embrace political rights and economic, social, and cultural
rights. This set the precedent followed by a long stream of subsequent
human rights conventions and resolutions. These provided more detailed
statements of recognized civil, political, economic, social, and cultural
rights and expanded human rights protection into new areas (such as
various group rights).2
Unfortunately, the process of abstract standard setting has made more
rapid progress than efforts to legitimize and enforce the standards in
practice. Practical efforts by IGOs and governments have been limited by
two main factors. First, the principle of non-intervention in the internal
HUMAN RIGHTS AND SOCIETIES IN TRANSITION 5
affairs of states is given great prominence in the UN Charter. Most states

view this principle as the most important legal guarantee of their sover-
eignty against intrusions by other, more powerful states and the objec-
tives and ideologies that animate them. A second, similar, constraint
operates from the direction of states and societies that more strongly
embrace human rights standards, both for themselves and for others. On
the one hand, such states are more likely to link an ideological embrace
of human rights with the complementary pragmatic view that expanding
human rights protection is in their national security and economic inter-
ests. Moreover, such states are most likely to harbour well-organized and
well-financed human rights NGOs. On the other hand, states’ pursuit of
their security and economic interests also tends to constrain their pro-
motion of human rights, particularly vis-à-vis the most powerful and im-
portant human rights-violating regimes. Both non-intervention norms
and limited interest in intervention explain the highly selective manner in
which the relevant UN bodies recognize and condemn human rights vio-
lations.3
Human rights NGOs and their individual and organizational sup-
porters are the final component of the international human rights regime.
NGOs are largely unconstrained by national interests. Although they
have their own ideological biases, competition among them produces a
large and relatively objective stream of information about human rights
practices around the world. Just as importantly, NGOs are engaged in
ongoing efforts to popularize and advance the whole panoply of human
rights causes around the world. These informational and advocacy func-
tions can potentially have significant impacts on élite and public opinion,
fertilizing and organizing local human rights traditions and movements to
the point where they become prominent and influential in domestic cul-
ture and politics. This slow, decentralized process of building human
rights awareness through local contacts is probably the international
human rights regime’s most powerful and consistent force for positive
change.4
Yet human rights NGOs and their supporters are strongly constrained
by local conditions. Most importantly, ruling regimes may impose strong
restrictions against organized human rights advocacy, to the point of im-
posing arbitrary, draconian punishments on all those who try. There are
also other types of barriers. On the basis of past national and local expe-
riences, human rights NGOs may be associated with undesirable imposi-
tion of alien standards and policies; furthermore, even when the will is
there, more pressing problems and threats – such as poverty, economic
instability, and civil conflict – necessarily limit locally available audiences
and resources.
Sources of transitional human rights practices
Our study focuses on four main factors that seem likely to influence hu-
man rights practices: political regime type and leadership; political cul-
ture and national identity; economic structure and interests; and civil and
international conflict. These factors can have a significant impact both
alone and in combination with one another. Apart from the direct effects
of the factors operating separately, two types of interactive effects seem
particularly likely: authoritarian political regimes are more likely to
adopt informational and cultural policies, economic policies, and conflict-
related policies that threaten human rights; second, civil and international
conflict is likely to destabilize democracies and make authoritarianisms
more repressive, which, as discussed, is likely to produce more unfavour-
able informational and cultural policies, economic policies, and conflict-
related policies.
Let us now return in more detail to these four factors and their impact
on human rights conditions. First, significant progress towards full de-
mocratization is usually associated with greater progress towards respect
for human rights generally. In contrast, authoritarian regimes are more
likely to employ various kinds of human rights abuses to forestall chal-
lenges to their political power.5
Full democratization necessarily involves free expression, freedom of
the press, and freedom of association for political purposes and organi-
zations, as well as free and fair elections to the positions of real political
power. A free political process usually incorporates an array of legal and
institutional human rights protections and facilitates mobilization for
human rights improvements through the political process. More well-
institutionalized and widely legitimate democratic processes are thus
typically associated with stronger human rights protection. Of course, the
association is far from perfect: extensive political freedom may exist
alongside severe restriction of other human rights. For example, arbitrary
and corrupt use of police and judicial powers might be significant, but not
typically directed at political targets. There might be significant restric-
tion of economic opportunities of individuals and groups, but these might
affect people of all political persuasions more or less equally. Traditional
forms of discrimination may flourish in the larger society, and political
efforts to stop them and to remedy their effects may be intermittent and
often ineffective.
However, the situation for other human rights is likely to be worse if
political rights and freedoms are weak or non-existent. Authoritarian re-
gimes and leaders typically use their discretionary power to attack and
weaken their political opponents and to prevent new opposition from
arising. This strategy usually goes beyond action against political free-
doms proper: authoritarian regimes are more likely to try to monopolize

control of the mass media and other ‘‘informational’’ institutions, partic-
ularly the educational system and religious institutions. This control will
be used to shut out opposition voices, including human rights advocates.
At the same time, the regime will argue that local traditions and histori-
cal experiences justify its own practices and that they are threatened by
the supposedly ‘‘alien’’ demands of the opposition. Authoritarian re-
gimes are also more likely to politicize economic subsidies and regu-
lations in an effort to build bases of support through patronage networks.
This results in more widespread discrimination and greater neglect in
providing public goods. Last, authoritarian regimes may initiate or per-
petuate civil and international conflicts, in order to divert public attention
away from political and economic difficulties that undermine their legiti-
macy.6 These likely interactions are shown in figure 1.1.
Second, norms and values associated with political cultures and na-
tional identities are likely to influence human rights practices in two
ways: (1) they may lead political élites to adopt compatible objectives
and to accept compatible constraints on their methods; (2) they make it
possible to mobilize mass support for regimes and policies on grounds
that go beyond calculations of individual self-interest. Political cultures
and national identities are likely to contribute indirectly to stronger pro-
tection of human rights if political or other human rights are viewed as
important means or ends in serving traditional values or fulfilling impor-
tant national ideals. Similarly, political cultures and national identities
are most likely to contribute indirectly to human rights violations where
political and other rights are viewed as directly or indirectly inimical to
traditional values or national ideals. There are many possibilities for
greater or lesser ideological or practical compatibility between human
rights norms and local political cultures and identities. Local political
cultures and identities can also be invoked in disputes over regime type,
economic policies, and civil and international conflicts. This can make it
more (or less) difficult to adopt political institutions, economic policies,
and conflict-related policies that affect human rights practices.7
Third, extreme poverty places intrinsic limits on public goods provision
and leads élites and masses to place less emphasis on non-economic ob-
jectives (including non-economic human rights). Further, economic struc-
ture and the associated economic interest group cleavages over economic
policies are an important determinant of what is at stake in the political
process. Extreme political polarization, which often pre-empts or threat-
ens protection of political and other rights, is sometimes due to disputes
over economic policies.8
Fourth, war is a serious direct and indirect threat to human rights pro-
tection. Directly, human rights tend to be pushed aside as they interfere
Authoritarian regime
Increased economic
discrimination and
corruption
Onset, perpetuation, More restriction and
or intensification of manipulation of mass
civil or international media and other
conflict cultural institutions
Figure 1.1 Interactive effects of regime type and other factors on human rights
practices
with maximum mobilization amidst a national emergency. Even if human

rights protection does not interfere with mobilization, national emer-
gency is a convenient pretext for attacking human rights.
In a number of related ways, war is also an indirect threat. The ideo-
logical polarization unleashed by war makes regimes both more willing
and more able to manipulate public opinion in a manner adverse to
maintaining human rights protection. War undermines economic perfor-
mance and involves a risk of military defeat. Both deteriorating economic
performance and military defeat weaken the popular legitimacy of the
existing regime, making it more susceptible to being overthrown through
mass political processes or coups. Such developments are a serious threat
to political regimes that uphold strong human rights protection. Such de-
velopments can also threaten political regimes that severely violate hu-
man rights practices. However, there is an important asymmetry between
the two types: as ‘‘violator’’ regimes are more likely to move pre-
emptively to forestall political threats, they are less vulnerable than
‘‘protector’’ regimes; in other words, war is a form of political ‘‘natural
selection’’ that is more dangerous for regimes that respect human rights.
War can be more safely used as a diversionary tactic by ‘‘violator’’ than
by ‘‘protector’’ regimes9 (see again fig. 1.1).
Tentative findings and basic implications

Although this volume’s country and comparative case studies provide
only a partial overview of the available evidence, they broadly support
the previous section’s hypotheses.10 Consider, first, political regime type.
In every country and region considered by the contributors, repressive
authoritarian regimes are judged to bear the most direct responsibility
for human rights abuses. This is true for the old military dictatorships of
Argentina and South Korea, in Saddam Hussein’s Iraq, in the authori-
tarian regimes of Iran and Pakistan, in Turkey’s partially authoritarian
regime, in post-communist authoritarian regimes such as the Federal
Republic of Yugoslavia under Slobodan Milošević, in Somalia and
apartheid-era South Africa, in most West African states, and in the Peo-
ple’s Republic of China. Authoritarian regimes often attack or ignore
non-political rights, but this is not always the case. For example, there
were improvements in civil and (especially) economic rights after the
South Korean military regime, and Deng Xiaoping’s People’s Republic
of China (PRC) embarked on successful economic development pro-
grammes. On the other hand, democracies are in every case responsible
for providing important human rights protection – although the extent to
which political rights protection is also complemented by the pursuit of
civil, economic, social, and cultural rights, varies considerably. This is
true for newly democratized Argentina and South Korea, for the Re-
public of China (Taiwan) since democratization, and for India.
There is little evidence that political cultures and national identities
directly lead human rights norms to be either strongly upheld or strongly
defied. Authoritarian regimes consistently use their control of the mass
media, the educational system, and religious and other social institutions
to interpret political cultures and national identities in self-serving ways.
However, there is no strong evidence that such manipulation generally
has a significant effect on public opinion. It is more likely to do so if the
regime’s policies are producing economic improvements or if genuine
‘‘elective affinities’’ (relatively strong logical and practical compatibil-
ities) exist between the regime’s policies and what appears to the public
to be implied by its traditions and collective goals. Similarly, in democ-
racies, political culture or national identity is likely to favour improve-
ments in non-political rights if ‘‘elective affinities’’ exist with the way the
public understands its traditions and collective goals.
Consider the so-called ‘‘Asian values’’ debate. This largely concerns
the priority to be attached to individual as opposed to collective rights
and goals. To begin with, this is far from being a specifically ‘‘Asian’’
issue. After all, the PRC regime has a decidedly Western ideological
lineage – a socialist rather than a liberal one. If correlations are exam-
ined, the strong current support for individual rights in South Korea and
Taiwan, and among opposition voices in the PRC and Hong Kong, would
not lead us to conclude that Confucian cultures are inimical to individual
rights norms. The same is true for the relation between Hinduism and
individual rights norms in India. These examples do, however, support
the idea that limitation of individual political and civil rights may be more
tolerable if the regime is delivering consistent economic growth and
broadly improved economic opportunities and social services. However,

they also indicate that such tolerance will fade if the limitations appear to
be unnecessary or excessive, or if economic difficulties arise. In other
words, popular support for an ‘‘Asian values’’ trade-off is likely to be
conditional and thus temporary.
Similar points can be made about countries with Islamic cultures. In-
dividual rights appear to have quite broad support in cases where regime
policies allow some space for individual expression, such as in Turkey
and in post-war Iran. Although some would argue that, in Turkey, these
norms were inculcated specifically against traditional Islamic norms, such
an argument can hardly be used in the case of Iran. There we see a fa-
miliar pattern: repressive policies justified with a particular interpretation
of Islam received popular support, or at least tolerance, for as long as
they appeared to serve important collective goals, such as overthrowing
the Shah’s regime and winning the war with Iraq. However, with these
events in the past and with the Iranian economy stagnant, the Iranian
populace and much of the Iranian élite have rallied strongly to the cause
of individual rights. These rights are viewed both as intrinsically valuable
and as a means towards restoring a more viable economic future and
avoiding military conflicts.
A similar pattern appears to exist among the post-communist coun-
tries. Superficially, correlation here supports the religious culture argu-
ment: the Islamic post-communist countries have the worst human rights
records, the Christian Orthodox countries the second-worst records, and
the Catholic and Protestant countries the best records. However, the ev-
idence is not as straightforward as it appears. It has traditionally been
argued that, owing to its more hierarchical organization and top-down
scriptural interpretation, Catholicism is less receptive to individual rights
norms than Protestantism.11 This is conveniently forgotten when Catho-
lic ‘‘successes’’ in Eastern Europe are used to argue for the importance of
religious cultures. More importantly, it appears that religion is only one
aspect of post-communist political cultures and national identities. The
most central ideological question was that of which policies would best
serve the political birth (or rebirth) of countries emerging from Soviet or
Yugoslav domination. Here, it seems that countries with experiences of
greater pre-communist economic development and pre-communist polit-
ical independence and power were most likely to embrace human rights
norms along with democracy and market reform. This was due to the fact
that these goals were associated with an alternative future that such
countries sought – and believed that they would have possessed had their
political systems and societies not been ‘‘hijacked’’ by a forcibly imposed,
alien, communist system.
Religious identity was only one element affecting variation in such
pre-communist experiences. This interpretation is supported by a closer

look at the political processes of post-communist transformation. The
countries with the best post-communist human rights practices featured
reform movements and parties that most strongly emphasized the
cause of national renaissance over that of political and economic ‘‘stabil-
ity.’’ These examples show that nationalist goals, which are inherently
collective, are not necessarily damaging to individual rights. They can
actually advance individual rights if these are widely perceived as being
consistent with national identity and as advancing collective goals such
as cultural rebirth, national independence and power, and economic
development.
The African case studies also support these lines of argument. In West
Africa, local cultures and identities do not appear to have been the main
influence on post-colonial regime formation and policy-making: rather,
the international ideological environment was one that emphasized state
building and economic development over individual rights. This provided
an influential ideological justification for the centralized authoritarian
regimes that were consolidated throughout West Africa. Similarly, the
end of the Cold War led to a collapse of legitimacy for these regimes.
Both centralized authoritarianism and more liberal and democratic re-
gimes could be justified by selective reference to local cultures and iden-
tities; in the long run, both are likely to be judged largely by the eco-
nomic results they deliver. Similarly, in South Africa, the transition from
apartheid was carried out after the end of the Cold War, in an ideological
atmosphere that emphasized equal rights for individuals. This was im-
portant in making the transition one that attempted to broaden to all the
rights previously enjoyed only by those of European descent, as opposed
to a transition that would have sought to impose on those of European
descent the restrictions hitherto endured by the African, Asian, and
mixed-race populations.
Extreme poverty does, indeed, limit public goods provision and pro-
vide a reason and an excuse for neglecting non-economic rights. This is
evident in many countries in West Africa, in Somalia, and in Pakistan.
On the other hand, India shows that neglect for non-economic rights
is not inevitable in the poorest countries. Middle-income countries are
likely to have larger educated classes, which are needed to provide a
reservoir of support for human rights norms and (where permitted) or-
ganizations. This can be seen in Argentina, in Iran and Turkey, in the
post-communist countries, and in South Korea and Taiwan. On the other
hand, rentier states, such as Iraq and Iran, are less dependent on popular
mobilization to sustain their economies: their regimes can, therefore, af-
ford to be less responsive to public and élite pressure to improve human
rights practices. Rapid economic development sustained over a long
period is almost invariably associated with broad provision of public

goods and relatively broad diffusion of economic opportunities. It is also
likely to lead to greater awareness of any restrictions on individual rights
and greater pressure to relax these restrictions. This tendency can be
seen in South Korea, Taiwan, and Hong Kong.
Civil and international conflict has, in all cases, led directly to severe or
catastrophic human rights abuses. This is true in Argentina, Iraq, Iran,
Pakistan, India, Turkey, the former Yugoslavia, a number of post-Soviet
states, Somalia, and many West African states. In addition, such conflicts
have indirectly facilitated greater state repression by both authoritarian
and democratic regimes. Greater state intolerance and repression as a
political by-product of conflict is evident in all cases: for instance, in
Azerbaijan, a promising democratic movement briefly gained power but
was unable to survive the effects of war. In the more democratic coun-
tries, the end or decline of conflict brought a revival of many freedoms –
as in the post-Yugoslav states and in Armenia. War was also associated
not only with direct economic costs but also with greater state inter-
vention and cronyism in the economy. In democracies, peace generally
brought a reversal of these interventionist and cronyist tendencies.
The most consistent forms of interaction between the four factors stem
from the tendencies of authoritarian regimes. Authoritarian regimes not
only tend to repress directly political and civil rights and to manipulate
self-servingly the mass media and other cultural institutions but also tend
to use state subsidies and regulations to build up supportive patron–
client networks, thus neglecting public goods provision, discriminating
against the mass of the population, and limiting economic growth oppor-
tunities. Furthermore, they tend to use civil and international conflicts as
diversions from internal political, economic, social, and cultural issues
that threaten their legitimacy. This tendency to perpetuate or cultivate
civil and international conflicts produces a second round of interac-
tions: conflicts directly lead to human rights abuses, but indirectly are
associated with intensified authoritarianism, economic cronyism, and
hardship. One or both of these types of interactions are evident in
authoritarian-era Argentina; in Iraq, Iran, and Pakistan; in the post-
Yugoslav states and in some post-Soviet states; and in Somalia and most
of West Africa. All these tendencies, particularly that of diversionary
military conflict, faced more resistance in democracies such as Turkey,
India, post-apartheid South Africa, and post-authoritarian South Korea
and Taiwan. At the same time, such interactions did not always occur in
authoritarian regimes – particularly where (as in Deng and post-Deng
China and authoritarian-era South Korea and Taiwan) authoritarian
regimes linked their legitimacy to the cause of rapid economic devel-
opment.
With this summary in mind, we can now return to the question of the
probable impact of the international human rights regime. Our conclu-
sion above was that creation of international human rights norms and
decentralized propagation of such norms by NGOs would be expected to
have a greater impact than actions taken by states – whether individually,
through their own foreign policies, or collectively, through decisions of
IGOs. We argued that this is because state policies reflect state interests
and, even under the best circumstances, are predictably inconsistent and
of limited scope.
These expectations are supported by the more detailed analyses of the
international human rights regime and by the country and regional case
studies. Although further discussion is given in the concluding chapter, it
is useful to review the evidence briefly here. Human rights norms have
become difficult for even the most repressive regimes to ignore. It is a
victory for the human rights cause that such regimes feel compelled to
concoct excuses for their abuses, thus implicitly admitting fault and ac-
cepting the need for remedial action. Wherever regimes allow sufficient
freedom, international NGOs help to nourish the growth of local human
rights organizations and cultures. As long as human rights norms can be
plausibly presented as consistent with local traditions and widely held
collective goals, they are liable to be embraced by wide segments of
public opinion – including not only the opposition but also important ele-
ments traditionally allied with authoritarian rulers. In this way, human
rights norms have been widely embraced in the post-communist coun-
tries, in many parts of post-Cold War Africa, in Argentina (and most of
the rest of Latin America), in Turkey, in South Korea and Taiwan, and in
India. Even in highly authoritarian countries such as Iran and the PRC,
human rights norms have been widely accepted by the opposition, much
of the population, and influential segments of the élite. In addition to
political repression, the other primary barriers to widespread acceptance
of human rights norms are extreme poverty and civil and international
conflict. People in extremely poor countries are less literate, have less
access to international information sources, and care less about non-
economic goals. War facilitates regime efforts to stifle alternative voices,
and creates personal and economic security risks that sideline most other
concerns.
From a human rights perspective, then, cultural globalization is more
important than economic globalization. However, international economic
integration also has an important role to play. Most directly, sustained
economic development efforts have involved international economic
integration – particularly increased reliance on international trade. Such
integration expands the economic opportunities available to the popula-
tion and interacts favourably with improvement in the provision of civil
rights and public goods. Such effects are evident in South Korea, Taiwan,
Deng-era and post-Deng China, and more recently in much of the post-
communist world, Turkey, and India. Of course, there are also significant
risks and costs associated with international economic integration –
particularly transitional economic downturns, periodic post-transitional
losses of international investor confidence, and the associated economic
hardship and political turmoil. These transitional and integration costs
are more difficult to bear in extremely poor countries, such as those of
West Africa. However, by the same token, the long-term gains are po-
tentially much greater if transitions can be effectively implemented and
sustained.
International economic integration probably has a more significant
impact on human rights norms simply by increasing personal and cultural
interaction with the rest of the world. This has all the beneficial effects
already mentioned, and sustained international economic integration
functions as a commitment to sustain such personal and cultural interac-
tion. This tendency is evident, for example, in authoritarian-era South
Korea and Taiwan and in the Deng-era and post-Deng PRC. Of course,
this assumes that individual human rights norms continue to remain
prominent in international culture and among NGOs. As the early post-
colonial experience in West Africa attests, however, this can by no means
be taken for granted.
Before summarizing the contents of the volume, two fundamental
issues – one theoretical, the other historical – should be mentioned. First,
this volume does not attempt to settle the issue of whether human rights
are more important or fundamental than other values or goals:12 here, it
is simply assumed that human rights are an important and interesting
object of empirical study and, hence, that examination of their causes and
consequences is worth while. As already mentioned, however, many
linkages between human rights and factors such as political institutions,
economic structure and development, and cultures and national identities
are discussed in detail. This provides important evidence for those inter-
ested in ethical or philosophical debates about the importance of human
rights.
In the aftermath of the 11 September 2001 terrorist attacks in New
York and Washington, some commentators have argued that human
rights principles appear to be under siege.13 On the one hand, the attacks
themselves, along with the authoritarian institutional and ideological en-
vironments that often nourish terrorism, reflect a widespread rejection of
human rights norms – not only in much of the Islamic world but also in
East Asia and other parts of the developing world. On the other hand,
the terrorist threat may lead many developed states of the West to com-
promise civil liberties – as has often been the case during periods of war
and international tension. However, it can be argued that the September
11 attacks will also have a favourable impact on human rights practices.
The attacks have produced a renewed conviction that human rights
abuses can have dramatic negative consequences across borders. There is
much disagreement about the priorities in fighting terrorism and about
the means to be used in doing so. Nevertheless, improving human rights
practices is probably the strongest common denominator among the rival
points of view. Similarly, in countries with better records of human rights
protection, it is almost universally accepted that anti-terrorism measures
must be reconciled with the strongest possible protection of existing
rights. In retrospect, we believe it is more likely that September 11 will
be viewed not as the high point of global human rights protection but as
a warning against ignoring the likely consequences of extreme human
rights abuses in much of the world.
Contents of the volume
The volume begins, in chapters 2–8, by summarizing and analysing the

most important elements and processes of the international human rights
regime. Then, in chapters 9–17, it offers case studies of human rights de-
velopment in a wide variety of countries and regions. For reasons of
space, the case studies are not able to give equal attention to the four
main factors influencing human rights practices; instead, they focus on
the factor or factors of greatest importance. The concluding chapter sum-
marizes local and regional tendencies and offers more detailed policy
recommendations. Brief chapter summaries are provided here, so that
readers can focus on issues of particular concern to them – for example,
on particular aspects of the international human rights regime, on the
development of human rights practices in particular countries or regions,
or on particular causes of worsening or improving human rights practices.
In chapter 2, Johannes Morsink examines the influence of the UDHR,
particularly its implications for transitional societies. Morsink describes
how the UDHR became the central moral inspiration and practical ref-
erence point for the spread of human rights norms and laws around the
world. He focuses on three elements of the UDHR as particularly rele-
vant to formulating and implementing human rights in societies in transition:
emphasizing protection of women and minorities from discrimination;
including social, economic, and cultural rights; and including a right to
democratic political participation.
In chapter 3, Richard Lewis Siegel examines universalist and relativist
positions on, as well as conflicts and tensions between, various human

rights. He favours an ‘‘expanding core’’ approach that integrates the most
important insights of the universalist and relativist positions, and views
increased intercultural and ‘‘intercivilizational’’ dialogues as important
means towards consensual expansion of core rights. He argues that an
‘‘expanding core’’ approach is also most practical for states that are fac-
ing human rights-related transitional challenges.
Geneviève Souillac, in chapter 4, looks at how global norms foster lo-
cal change. Human rights are viewed as ‘‘architectural norms’’ affecting
the formation of states’ political identities and political objectives. This is
particularly relevant to transitional states, which are, by definition, going
through a process of rapid political and economic change. Global human
rights norms are most likely to have an impact through a gradual process,
in which local structures and traditions are co-opted into the interna-
tional human rights discourse as their political identities and priorities
are being redefined domestically. International and local human rights
networks can play a central role in this process, by engaging the local
structures and traditions in a sustained dialogue aimed at reconciliation.
In this way, international norms can be refitted for domestic use, so that
it is less likely that they will be viewed as imposed from the outside.
W. Ofuatey-Kodjoe, in chapter 5, traces the United Nations’ role in
developing international human rights standards and practices. He argues
that standards have been much more extensively developed than prac-
tices; however, despite significant progress, standards still often remain
poorly defined. Practices involve ‘‘indirect protection’’ of human rights,
in which UN bodies attempt to hold members to account for human
rights violations, and ‘‘direct protection,’’ in which the United Nations
intervenes directly in states’ internal affairs to protect human rights. In-
direct protection has made significant progress but, for political reasons,
remains selective. Direct protection is in its infancy and, in view of states’
oft-perceived interests in avoiding unwanted intervention in their inter-
nal affairs, is likely to make only slow progress. Long-run improvements
are likely to depend on ‘‘general acceptance of both human rights norms
and the legitimacy of the protective activities of the international com-
munity.’’
In chapter 6, Paul J. Magnarella traces the development of interna-
tional legal tribunals from Nuremberg (the International Military Tribu-
nal) to Yugoslavia (the International Criminal Tribunal for the Former
Yugoslavia) and Rwanda (the International Criminal Tribunal for
Rwanda), to today’s International Criminal Court. The evolution of the
tribunals is traced in terms of definitions of crimes, jurisdiction, rules of
procedure, proceedings, and other matters. He then analyses how the
Nuremberg, Yugoslavia, and Rwanda tribunals have contributed to pro-
moting and protecting human rights in the past, and how the International
Criminal Court may do so in the future. He comes to the conclusion that
international legal tribunals are most likely to fall short of their objec-
tives when it comes to deterring future human rights violations.
Albrecht Schnabel, in chapter 7, examines the concept, legality, and
practical record of international efforts to protect human rights in transi-
tion societies. He argues that the focus of international involvement
should be at pre-conflict stages or, failing that, at post-conflict stages. His
analysis of legal, political, and moral considerations leads him to con-
clude that international military interventions for humanitarian causes
are likely to receive worldwide support and UN authorization only in
cases of extreme, genocidal, violence. Military intervention in response to
lower levels of violence – with or without the blessing of the United Na-
tions and the wider international community – is likely only if there are
particularly pressing political, strategic, or economic reasons. Therefore,
international action to protect human rights in transition societies should
emphasize pre-conflict support and assistance, enhanced by diplomatic
pressure, to address the structural violence that usually accompanies
transition processes. Schnabel shows that human rights conditions are
extremely useful indicators of a state’s capacity and performance in
managing transition processes – indicators that should be better utilized
by the international community to offer assistance in trouble-shooting
deteriorating human rights conditions, thus preventing further violations
and eventual escalation to armed violence and to state and society col-
lapse.
In chapter 8, Barbara Ann J. Rieffer and David P. Forsythe examine
how foreign policies of sovereign states can affect human rights practices
in transitional societies. Focusing on the example of the US foreign pol-
icy, they find that foreign policies towards human rights are likely to be
affected by national identity as well as by military and economic interests.
The main US human rights-promotion efforts are made through bilateral
diplomacy and aid programmes and through multilateral standard-setting
regimes and aid programmes. The United States seeks to promote de-
mocracy and related civil rights abroad, in a manner consistent with the
central place of US political institutions and civil rights norms in its na-
tional identity. Similarly, the relative US emphasis on civil and political
rights compared with economic and social rights also reflects US tradi-
tions. However, human rights promotion is also widely viewed and justi-
fied as serving US military and economic interests. Military and economic
interests are also evident in the way that diplomatic efforts and aid are
targeted towards countries more important to the United States and in
the way that political and civil rights standards are sometimes compro-
mised to maintain good relations with such countries. Finally, Rieffer and
Forsythe argue that limited resources for promoting human rights – as

well as variation in local cultures, limited economic development, and a
variety of political factors – constrain the impact of states’ human rights
promotion efforts.
Jenab Tutunji, in chapter 9, describes the evolution of human rights
practices in Iraq under the Ba’th regime, particularly under Saddam
Hussein’s rule. He argues that the economic and ideological nature of the
political regime, which insulates it from social pressures and leads it to
assume an exclusive legitimacy in the country’s life, were at the root of
severe human rights violations. Tutunji argues that Iraq’s decolonizing
context after World War II contributed more strongly to the formation of
its ‘‘rentier ideocratic’’ character than did Islamic tradition. The resulting
institutional potential for abuse was exacerbated by Saddam’s personality
and by his willingness to use virtually any means – including risky wars –
to solidify and increase his power. These wars had further, massively
negative effects on human rights practices in Iraq. Directly, they facili-
tated minority revolts and bloody repressions of such revolts and they
laid waste Iraq’s relatively developed economy. Indirectly, they under-
mined legitimacy derived from state provision of economic goods, lead-
ing the regime to substitute with increasing repression. Another indirect
effect was international sanctions. Although the sanctions were not able
to force Saddam Hussein to give up his programmes of weapons of mass
destruction they exacerbated Iraq’s economic collapse, with disastrous
effects for the civilian population. Turning to consequences, Tutunji ex-
plains that increased human rights abuses, including political repression
and economic cronyism, badly set back the prospects for democratization
and economic development.
In chapter 10, Mahmood Monshipouri compares the human rights sit-
uations in Iran, Pakistan, and Turkey. He argues that authoritarian po-
litical institutions and leaderships are most responsible for human rights
violations but that cultures and identities, civil and international conflicts,
and economic structures and interest groups also play significant roles. In
Pakistan, both military and civilian authorities have used Islam to try to
hold their ethnically divided country together. This has contributed to the
use of the Kashmir conflict with India to divert attention from internal
problems and related legitimacy crises. In turn, this has led to intensified
violence and repression both in Kashmir and in Pakistan itself. In Iran
and Turkey, by contrast, strong historical memories of national greatness
have focused élites more on advancing differently conceived missions of
national development. In Turkey this has traditionally been defined
against Islam, which in its more traditional forms has been viewed as a
barrier to economic development and increased national prestige and
military power. The Turkish military reserves the right to restrict human
rights as necessary to protect and advance these modernizing methods
and goals. The associated modernizing, national-assimilationist ideology
has made it more difficult to settle the Kurdish conflict, which has re-
sulted in severe human rights abuses. Since Iran’s Islamic Revolution, the
controlling religious élites have defined the national mission in terms of
putting Iran in the vanguard of Islam. These ruling élites were able to
consolidate their power during the war launched by Iraq’s Saddam Hus-
sein. However, since the end of the war, internal repression has produced
a widespread backlash within society and among the moderate élites.
These groups felt that Islam has been over-politicized, and they seemed
determined to fuse local religious and national-historical traditions with
modernist norms emphasizing human rights. In all three countries, the
security forces have played central roles in imposing national objectives
and policies. Over time, this has given the state a more dominant role in
the economy, contributing to stagnation and crises. Both the military and
private interest groups have developed significant stakes in the state-
owned sector and in the state-subsidized private sector. This has made it
more difficult to design and implement effective market reforms, particu-
larly because the more economically vulnerable elements in society can
be politically activated during post-reform recessions. Poverty and cor-
ruption are particularly severe in Pakistan, making significant economic
progress difficult to achieve and leaving large parts of the population
susceptible to political radicalism. This encourages civilian and military
leaders to fall back on populist appeals, creating a more permissive envi-
ronment for human rights violations. In all three countries, weak human
rights protection threatens democratization and economic development
efforts and makes it more difficult to settle civil and international con-
flicts.
Shale Horowitz, in chapter 11, examines the causes of variation in hu-
man rights practices in the post-communist world. He hypothesizes that
political institutions, cultures and national identities, economic develop-
ment, and ethnic conflict should have significant impacts. These hypoth-
eses are tested statistically for the 28 post-communist countries at three
different time intervals following the collapse of the old regimes. The re-
sults indicate that economic development has a relatively weak positive
influence and war a relatively strong negative influence. Culture defined
in terms of ‘‘frustrated’’ national identities has by far the strongest and
most consistent impact. Cultures and national identities are here not an-
alysed for their intrinsic value-content and traditional institutions; rather,
they are distinguished in terms of their forward-looking tactical compati-
bility, in a specific historical context, with stronger human rights prac-
tices. Turning to consequences, stronger human rights practices appear to

play an important role in advancing and conserving the democratization
process and in facilitating further economic development. In contrast,
human rights practices appear to have a more ambiguous and complex
relationship to conflict resolution.
In chapter 12, Aleksandar Resanovic analyses the development of hu-
man rights practices in the Federal Republic of Yugoslavia (Serbia and
Montenegro), Croatia, and Bosnia and Herzegovina. Resanovic argues
that the more extreme human rights abuses were due to authoritarian
leaders’ use of war to take power and to pursue their objectives coer-
cively. Historical grievances and mistrust among the Yugoslav peoples,
along with tangled settlement patterns and rival territorial claims, made it
extremely difficult to achieve a peaceful breakup of the Socialist Federal
Republic of Yugoslavia. In this volatile situation, authoritarian-minded
leaders used provocative rhetoric and unilateral actions to ride national-
ist grievances to power; this made war unavoidable. Apart from the hor-
rific human rights abuses committed against enemy peoples in the course
of fighting, the war provided a pretext for consolidating authoritarian rule
and committing a range of internal human rights abuses. Authoritar-
ianism and war were also used to build crony networks that widely mo-
nopolized state resources and market opportunities. This worsened the
already devastating economic effects of war. In the case of the Federal
Republic of Yugoslavia, all of this was compounded by an international
economic embargo and, later, a NATO bombing campaign. Human
rights practices improved dramatically only after the wars in Croatia,
Bosnia and Herzegovina, and Kosovo had ended. In peacetime, authori-
tarian leaders found it more difficult to maintain power. Eventually,
newly aroused political oppositions and civil societies were able to es-
tablish democratic systems and end the worst human rights violations.
While wars lasted, human rights abuses made it virtually impossible to
make progress towards democratization and economic development; with
the wars now over, continued human rights improvements will be essen-
tial to consolidate democracy, sustain economic recovery, and maintain
the fragile peace.
In chapter 13, Wafula Okumu uses a ‘‘most different systems’’ ap-
proach, with a focus on Somalia and South Africa, to analyse human
rights practices in transitional societies in Africa. Somalia’s atrocious hu-
man rights record is rooted in corrupt colonial and post-colonial regimes.
These regimes used state power to benefit politically connected groups
and, not coincidentally, failed to provide basic public goods. Ethnically
motivated wars of expansion further undermined public institutions and
norms. All of this set the stage for a military take-over. State institutions
became intensely personalized for the benefit of the dictator and his re-
tainers, and military conflict erupted once more. This period ended with
the collapse of central authority, civil war, and the emergence of local
warlord regimes. By contrast, South Africa has made a successful transi-
tion from the apartheid regime to a rights-based democracy with a hope-
ful future. This was possible because human rights norms were an im-
portant part of the campaign against apartheid and because these norms
were upheld by responsible leaders and supported by the public. This
experience shows that African traditions are compatible with human
rights norms. Okumu argues that the most important role for the inter-
national community is to inculcate human rights norms in transitional
discourses, processes, and institutions. Looking to the future of transi-
tional societies, human rights norms are also crucial in creating and pre-
serving both democracy and peace.
In chapter 14, Eghosa E. Osaghae examines human rights in West Af-
rican transitional societies. Authoritarian regimes, whether of military
factions or ruling parties, have been the main source of human rights
abuses. These regimes were able to take root so easily for a number of
reasons. Economic backwardness and colonial rule weakened civil soci-
eties and exacerbated ethnic divisions. Ideologically, such regimes were
legitimized by the post-colonial emphasis on collective peoples’ rights
over individual and group rights. The predominant emphasis on the anti-
colonial struggle and on the post-colonial state-building and economic
development missions rationalized the unaccountable centralization of
state power. Authoritarian regimes abused human rights directly in their
efforts to take and keep power. Other common characteristics had similar
effects. State-led economic development strategies opened the way for
extensive use of state subsidies and legal and regulatory preferences to
build political support networks, commonly along ethnic lines. For the
same reason, provision of public goods and services was neglected. This
perpetuated poverty and exacerbated ethnic grievances. Corrupt (and
often violent) authoritarian rule and heightened ethnic tensions fuelled
civil conflicts, which usually raised human rights violations to new levels.
The end of the Cold War brought paradoxical changes: on the one hand,
the post-colonial ideology of state-led development largely collapsed,
leading to a new emphasis on individual rights and ethnic minority rights;
this was often associated with democratization and efforts to restructure
state-dominated economies; however, high expectations were largely
dashed by the difficulties of managing political and economic transi-
tions consensually, given the heightened ethnic tensions, still-weak and
poverty-stricken civil societies, and intense transitional economic down-
turns. Significantly, authoritarianism and widespread human rights
abuses are no longer legitimate; however, under the prevailing difficult
conditions they remain entrenched for lack of politically sustainable al-
ternatives. Sustainable human rights improvements are themselves cen-

tral to sustainable democratization, economic development, and conflict
resolution. These goals remain in pressing need of international support,
both ideologically and financially.
Man-To Leung, in chapter 15, examines the development of civil and
political rights in the PRC, Hong Kong, and the Republic of China
(ROC; Taiwan). In all three cases, the objectives of ruling political re-
gimes are the key to progress. International human rights norms and
cultural and economic integration have had an effect in all three cases.
Internal economic reforms and long-term economic development have
created increased internal pressures for reform, particularly in Hong
Kong and the ROC. Although these international and internal changes
favour further development of civil and political rights, the determining
factor is likely to be whether authoritarian élites are willing to sacrifice
their exclusive power to achieve other objectives. This has happened in
recent years in the ROC, but it is unclear if it will happen at any time in
the near future in the PRC and, by extension, in PRC-controlled Hong
Kong.
In chapter 16, D.R. Kaarthikeyan looks at human rights practices in
India. After giving a brief history of local human rights traditions and
movements, Kaarthikeyan describes problems in a number of areas,
namely children’s and women’s rights, caste and communal violence,
political violence and terrorism, state violence, prisoners’ rights, and en-
vironmental protection. He then discusses the roles of the Indian Consti-
tution, the judiciary, government human rights commissions, and human
rights NGOs in enforcing and enhancing human rights protection. De-
spite India’s strong democracy and legal protection and an increasingly
active civil society, there are numerous important causes of ongoing hu-
man rights violations. First, many social violations – relating to the status
of women and children and to caste and communal divisions – are
strongly rooted in historical traditions and social structures. Second,
many economic violations are related to the social violations and other
forms of discrimination, inadequate public goods provision and social
services, and poverty per se. Third, political violence is also related to
many of the same problems. Improvement depends largely on institu-
tional reforms of the legal and political systems, more efficient provision
of public goods and social services, and sustained economic growth.
In chapter 17, Terence Roehrig looks at the causes of human rights
abuses under military regimes in Argentina and South Korea, and then
examines how efforts to punish such abuses have affected subsequent
transitions to democracy. Military leaders seized power and perpetrated
human rights abuses in response to what they saw as fundamental inter-
nal and external threats to the nation. Military rule and its abuses ended
once the perceived threats had subsided and large segments of civil soci-
ety had mobilized against continued military rule. He argues that, al-
though it is desirable to punish those chiefly responsible for human rights
abuses, such punishment should not threaten transitions to democracy:
punishment should target a small group of top military officers, to avoid
the impression that the military as an institution is targeted; punishment
should be delayed until the military has been reliably restored to civilian
control; and punishment should not appear to unleash or re-create fun-
damental threats to the nation similar to those that prompted the military
coups in the first place.
In the concluding chapter, Albrecht Schnabel and Shale Horowitz
review regional variations. They also offer policy recommendations to
NGOs, states, and IGOs involved in improving human rights practices in
transition societies.
Notes
1. Amnesty International Report 2002, New York: Amnesty International USA, 2002; Hu-
man Rights Watch World Report 2002: Events of 2001, New York: Human Rights Watch,
2002. See also the Freedom House evaluations and rankings of countries at hhttp://
www.freedomhouse.orgi.
2. See, for example, Ian Brownlie, ed., Basic Documents on Human Rights, New York:
Oxford University Press, 1981; David Forsythe, The Internationalization of Human
Rights, Lexington, MA: Lexington Books, 1991; Theodor Meron, Human Rights Law-
Making in the United Nations, New York: Oxford University Press, 1986; Johannes
Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent,
Philadelphia: University of Pennsylvania Press, 1999.
3. See, for example, Hayward R. Alker, Jr. and Bruce Russett, World Politics in the Gen-
eral Assembly, New Haven: Yale University Press, 1965; Stephen F. Burgess, The United
Nations under Boutros Boutros-Ghali, 1992–1997, Lanham: Scarecrow Press, 2001;
George J. Lankevich, The United Nations under Javier Pérez de Cuéllar, 1982–1991,
Lanham: Scarecrow Press, 2001; Bruce Russett, ed., The Once and Future Security
Council, New York: St. Martin’s, 1997; Ramesh Thakur and Albrecht Schnabel, eds.,
United Nations Peacekeeping Operations: Ad Hoc Missions, Permanent Engagement,
Tokyo: United Nations University Press, 2001.
4. See, for example, Lynda Bell, Andrew J. Nathan, and Ilan Peleg, eds, Negotiating Cul-
ture and Human Rights, New York: Columbia University Press, 2001; Jack Donnelly,
Universal Human Rights in Theory and Practice, Ithaca: Cornell University Press, 1989;
Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds, The Power of Human
Rights, Cambridge: Cambridge University Press, 1999.
5. See, for example, Kenneth L. Cain, ‘‘The Rape of Dinah: Human Rights, Civil War in
Liberia, and Evil Triumphant,’’ Human Rights Quarterly, Vol. 21, May 1999, pp. 265–
307; Jack Donnelly, ‘‘Human Rights, Democracy, and Development,’’ Human Rights
Quarterly, Vol. 21, August 1999, pp. 608–632; Rupert Emerson, ‘‘The Fate of Human
Rights in the Third World,’’ World Politics, Vol. 27, January 1975, pp. 201–226; Mark
Gibney, ‘‘Prosecuting Human Rights Violations from a Previous Regime,’’ East Euro-
pean Quarterly, Vol. 31, March 1997, pp. 93–110; Conway Henderson, ‘‘Conditions Af-
fecting the Use of Political Repression,’’ Journal of Conflict Resolution, Vol. 35, March
1991, pp. 120–142; Rhoda E. Howard and Jack Donnelly, ‘‘Human Dignity, Human
Rights, and Political Regimes,’’ American Political Science Review, Vol. 80, September
1986, 801–817; Sakah S. Mahmud, ‘‘The State and Human Rights in Africa in the 1990s:
Perspectives and Prospects,’’ Human Rights Quarterly, Vol. 15, August 1993, pp. 485–
498; Neil J. Mitchell and James M. McCormick, ‘‘Economic and Political Explanations
of Human Rights Violations,’’ World Politics, Vol. 40, July 1988, pp. 476–498; Mike
Oquaye, ‘‘Human Rights and the Transition to Democracy under the PNDC in Ghana,’’
Human Rights Quarterly, Vol. 17, August 1995, pp. 556–573; Steven C. Poe and C. Neal
Tate, ‘‘Repression of Human Rights to Personal Integrity in the 1980s: A Global Anal-
ysis,’’ American Political Science Review, Vol. 88, December 1994, pp. 853–872. For
more qualified views, see Akwasi Aidoo, ‘‘Africa: Democracy without Human Rights?’’
Human Rights Quarterly, Vol. 15, November 1993, pp. 703–715; Fareed Zakaria, ‘‘The
Rise of Illiberal Democracy,’’ Foreign Affairs, Vol. 76, November–December 1997, pp.
22–43; Amin Saikal and Albrecht Schnabel, eds, Democratization in the Middle East:
Experiences, Struggles, Challenges, Tokyo: United Nations University Press, 2003.
6. Examples of relevant work in the ‘‘democratic peace’’ literature include Henry S.
Farber and Joanne Gowa, ‘‘Common Interests or Common Polities? Reinterpreting the
Democratic Peace,’’ Journal of Politics, Vol. 59, May 1997, pp. 393–417; Scott Gates,
Torbjørn L. Knutsen, and Jonathan W. Moses, ‘‘Democracy and Peace: A More Skep-
tical View,’’ Journal of Peace Research, Vol. 33, January 1996, pp. 1–10; Zeev Maoz and
Bruce Russett, ‘‘Normative and Structural Causes of Democratic Peace,’’ American
Political Science Review, Vol. 87, September 1993, pp. 624–638. For a discussion of di-
versionary theories of war, see Kurt Dassel, ‘‘Civilians, Soldiers, and Strife: Domestic
Sources of International Aggression,’’ International Security, Vol. 23, Summer 1998, pp.
107–140.
7. See, for example, Joanne Bauer and Daniel A. Bell, The East Asian Challenge for Hu-
man Rights, Cambridge: Cambridge University Press, 1999; Samuel Huntington, ‘‘The
Clash of Civilizations?’’ Foreign Affairs, Vol. 72, Summer 1993, pp. 22–49; Bonny Ibha-
woh, ‘‘Between Culture and Constitution: Evaluating the Cultural Legitimacy of Hu-
man Rights in the African State,’’ Human Rights Quarterly, Vol. 22, August 2000, pp.
838–860; Douglass C. North, Institutions, Institutional Change and Economic Perfor-
mance, Cambridge: Cambridge University Press, 1990; Lucien Pye and Sidney Verba,
eds, Political Culture and Political Development, Princeton: Princeton University Press,
1965.
8. Alexander Gerschenkron, Bread and Democracy in Germany, Ithaca: Cornell Univer-
sity Press, 1989; Douglass C. North, Structure and Change in Economic History, New
York: Norton, 1981; Amartya Sen, Development as Freedom, New York: Random
House, 1999; United Nations, Human Development Report 2002, New York: Oxford
University Press, 2002; World Bank, World Development Report 2000/2001: Attacking
Poverty, New York: Oxford University Press, 2000.
9. See, for example, Rodney G. Allen, Martin Cherniack, and George J. Andreopoulos,
‘‘Refining War: Civil Wars and Humanitarian Controls,’’ Human Rights Quarterly, Vol.
18, November 1996, pp. 747–781; Kenneth L. Cain, ‘‘The Rape of Dinah: Human
Rights, Civil War in Liberia, and Evil Triumphant,’’ Human Rights Quarterly, Vol. 21,
May 1999, pp. 265–307; Rupert Emerson, ‘‘The Fate of Human Rights in the Third
World,’’ World Politics, Vol. 27, January 1975, pp. 201–226; Shale Horowitz, ‘‘War after
Communism: Effects on Political and Economic Reform in the Former Soviet Union
and Yugoslavia,’’ Journal of Peace Research, Vol. 40, January 2003, pp. 25–48; Steven
C. Poe and C. Neal Tate, ‘‘Repression of Human Rights to Personal Integrity in the
1980s: A Global Analysis,’’ American Political Science Review, Vol. 88, December 1994,
pp. 853–872; Karen Rasler, ‘‘War, Accomodation, and Violence in the United States,
1890–1970,’’ American Political Science Review, Vol. 80, September 1986, pp. 921–945;
Bruno Sinama and Andreas L. Paulus, ‘‘The Responsibility of Individuals for Human
Rights Abuses in Internal Conflicts: A Positivist View,’’ American Journal of Interna-
tional Law, Vol. 93, April 1999, pp. 302–316; Edward Newman and Albrecht Schnabel,
eds, Recovering from Civil Conflict: Reconciliation, Peace and Development, London:
Frank Cass, 2002.
10. See also the chapter summaries in the following section.
11. The original statement is in Max Weber, The Protestant Ethic and the Spirit of Capital-
ism, New York: Scribner, 1958.
12. For a recent survey, see Tim Dunne and Nicholas Wheeler, eds, Human Rights in
Global Politics, New York: Cambridge University Press, 1999.
13. See, for example, Michael Ignatieff, ‘‘The Attack on Human Rights,’’ Foreign Affairs,
Vol. 80, November/December 2001, pp. 102–116.
Part One
Defining, delimiting, and
understanding human rights in
societies in transition
2
The Universal Declaration of
Human Rights as a norm for
Johannes Morsink1
A recent study of how international human rights norms cause domestic

change identifies some of the most important mechanisms involved in this
process. In their introductory essay, ‘‘[the] socialization of human rights
norms into domestic practices,’’ Thomas Risse and Kathryn Sikkink, two
of the editors of the volume, identify three causal modes of interaction
(adaptation, argumentation, and institutionalization) and five stages in
which this causal work is done. I believe that these stages are recogniz-
able as quite realistic and as applicable to most of the nations discussed in
this volume. These stages are as follows: (1) repression and activation of
the international network; (2) denial by the oppressing state; (3) tactical
concession by the oppressor; (4) ‘‘prescriptive status,’’ which occurs when
the society involved starts to embrace the international norms in various
ways, such as signing and ratifying treaties; and (5) rule-consistent be-
haviour.2 This means that since the adoption of the Universal Declara-
tion of Human Rights (UDHR) in 1948, in which these international
norms were first delineated, the human rights movement has come a long
way. We now have enough empirical data for scholars to develop causal
models about how the human rights norms of the UDHR are brought to
domestic audiences around the globe. That is a huge success story.
However, it is based upon the grand supposition that the norms of the
UDHR are, indeed, valid moral (if not exactly legal at the time of adop-
tion) norms that are worthy of implementation. In the concluding essay
to the volume, Thomas Risse and Stephen C. Ropp (the third editor of
29
30 MORSINK
the volume) point out that ‘‘[o]n the fiftieth anniversary of the UDHR we
thought it appropriate to evaluate the processes by which human rights
principles and norms found their way from the international into the do-
mestic political arena.’’3 This leaves open the question of the validity of
these international or universal norms in the first place. Also, it does not
explain how the norms of the UDHR are appropriate targets for societies
in transition. The creation of these norms on the international level itself
breaks down into several stages, and those of the UDHR are among the
earliest ones.4 For that reason, if we are interested in how these moral
norms came to be internationally accepted (before they could be trans-
lated into various domestic settings), we would do well to study the adop-
tion debates of a document like the Declaration.
The document itself was drafted and adopted when world society as a
whole was reacting to the failures of the League of Nations and the hor-
rors that were brought to light when the Nazi camps were liberated. The
drafters tell us in their second recital that the ‘‘barbarous acts’’ of World
War II gave them new insights into the dignity of every human being,
which they then presented to the world as ‘‘a common standard of
achievement for all peoples and all nations.’’ I argue that the broad scope
of these insights makes the Declaration a very helpful guide for societies
in times of transition. First, I discuss drafting details that make the Dec-
laration a moral norm that transcends any society. When societies come
out of a crisis and are forced to make a transition to a more normal and
stable state of affairs, they have both a need and an opportunity to make
radical changes: the UDHR was written to meet this need. After I intro-
duce the Declaration as the free-floating norm that it is, I make three
more specific points that are particularly relevant to societies in transi-
tion. First, I point out that the Declaration expands on the short United
Nations Charter list of non-discrimination items and (unlike the Charter)
directly aims to protect members of minority groups. I then show how it
came to embrace social, economic, and cultural human rights. Third, I
argue that it sets up democracy as the mandatory form of government for
any society that wants to respect the full range of human dignity. As I
enumerate these four topics, I make occasional references to the work of
theoreticians of human rights, which supports or conflicts with my read-
ing of the Declaration.
The Declaration as a freely floating moral norm
Initially, the UDHR was envisioned as a legal document similar to the

two international covenants that came into force in 1977; however, the
tensions of the Cold War prevented this from happening. Distrust be-
THE UDHR AS A NORM FOR SOCIETIES IN TRANSITION 31
tween the United States and the Soviet Union grew so intense in 1946 –
which is the year the preparations for the Commission that was to write
the Declaration started – that many believed that a third world war was
imminent. This holding back on enforcement questions was a great dis-
appointment for many of the smaller nations.5 On the positive side,
however, this distrust also suddenly set the drafters free to become moral
visionaries. As I see it, the Cold War’s effect on the writing of the Dec-
laration was a blessing in disguise: the necessity created by the Cold War
became the mother of moral invention and discovery. For as long as they
suspended questions of enforcement, the drafters agreed fairly easily on
the provisions to be included in the Declaration. Not being able to fight
about legal niceties and intricacies of implementation and so being
‘‘forced’’ to look at the big, moral picture, they discovered that they had
far more in common than cultural, economic, and religious differences
would lead us to suspect.
This view of the 1948 Declaration as being a type of document signifi-
cantly different to the two later-adopted international covenants takes
exception to Jack Donnelly’s ‘‘Universal Declaration (UD) model’’ of
international human rights.6 In his model, Donnelly collapses the three
main texts of the International Bill of Rights (the Declaration and the
two covenants) into one unified model, and he quotes from them to make
general points about the model. As the two covenants are obviously ad-
dressed to states, Donnelly makes the mistake of treating the Declaration
in the same fashion. He describes his UD model of human rights as one
with a ‘‘state-centric conception.’’7 No doubt Donnelly is correct when he
argues that ‘‘the modern state has emerged as both the principal threat to
the enjoyment of human rights and as the essential institution for their
effective implementation and enforcement.’’8 However, he steps over the
line between possession and enjoyment with the assertion that what it
means for X to have a human right is that ‘‘[e]ach state has the authority
and responsibility to implement and protect the right to X within its ter-
ritory.’’9 The authority of states is, in my eyes (and in the eyes of most of
the drafters of the UD), not involved in this question of meaning. The
Declaration’s first recital (with the ideas of inherent dignity and inalien-
able rights) and Article 1 (with the notion of being born free and equal)
give us the meaning of what it is to have a human right, while the two
covenants are among the most important practical measures of imple-
mentation. Donnelly’s unified model blurs this division of labour.10
One of the problems with Donnelly’s unified model is that the UDHR
was not addressed to states. Toward the end of the drafting process the
Third Committee adopted (by a vote of 47 to none, with one abstention)
an Egyptian motion that formalized one of the rules that the drafters had
been following all along. This motion stated that, ‘‘[t]he Third Committee
32 MORSINK
decides that the declaration of human rights shall be limited to the for-
mulation of principles relating to human rights which presuppose the ex-
istence of corresponding duties on the part of States and defers the for-
mulation of principles relating to the duties of States for incorporation
to an appropriate instrument.’’11 It turned out to be two instruments in-
stead of one – the International Covenant on Civil and Political Rights
(ICCPR) and the International Covenant on Economic, Social and Cul-
tural Rights (ICESC) – both of which came into force in 1977. This de-
ferral did not take place simply because there had been no time to deal
with the duties of states: it was also a conceptual question of keeping the
statement of moral principles on the possession of human rights separate
from the measures of implementation among which the duties of states
would rank foremost.
As they were writing, the drafters came to realize that, if they were to
write a standard that would improve the human condition (which, after
the war, they all wanted to do), they would have to keep out all state
references that might cripple the transcendent character of any of the
rights they planned to include in their document. They did this very con-
sistently, which is why there are only two references to the role of the
state in the entire document – one in Article 16(3) (which indicates how
intent they were about protecting the family) and one in Article 22
(which I mention below). For the rest, there is a resounding silence that
speaks volumes about the transcendent (to, for instance, the power of
sovereign states) moral character of the rights proclaimed. On a number
of important occasions the USSR delegation submitted amendments that
would have injected state references into the very conception of the right
being considered. As Andrei Vyshinksky (who later was to be the prose-
cutor at Stalin’s infamous conspiracy trials) put it, ‘‘Human rights could
not be conceived outside the State; the very concept of right and law was
connected with that of the State.’’12 The great majority of drafters dis-
agreed with this Benthamite, positivist interpretation of the rights to be
listed. They rejected communist amendments that sought to inject state
references into Articles 12, 15, 17, 18, and 29, where the USSR delega-
tion proposed the phrase ‘‘democratic state’’ instead of ‘‘democratic so-
ciety.’’13 The Saudi Arabian delegation encountered a similar rebuff
when it wanted to insert into the marriage rights of Article 16 the clauses
‘‘legal matrimonial age’’ and ‘‘as defined in the marriage laws of their
country.’’14 It is not a coincidence that both of these delegations ab-
stained in the final vote on the Declaration. Since there were six com-
munist delegations, the Saudi one makes for seven abstentions. The
eighth abstention came from the Union of South Africa, which felt that
many of the articles of the Declaration – in particular, the one on free-
dom of movement – conflicted with the prerogatives of what a state can
and cannot do to its citizens.15 However, the point of proclaiming the

Declaration was precisely in order to take that unlimited prerogative
away from the state.
The subservient role of the modern state pressed itself home on the
drafters when they came to consider the human rights to movement
across borders in Article 13, to asylum in Article 14, and to citizenship in
Article 15.16 State constitutions typically do not address themselves to
these issues because they see themselves as setting out the rights of those
who are already inside their legal domains, either as citizens or as aliens;
they do not typically think of writing a list of rights that people have
simply as persons. The three rights to movement across borders, to asy-
lum, and to citizenship raise the question of which rights – our rights as
citizens or our rights as human beings – take precedence. These Articles
brought out into the open a latent feature of all human rights – namely,
that they are possessed by persons first of all and that the states where
these (citizen, alien, or refugee) persons happen to reside are nothing
more than (although still the most important) part of the implementation
machinery.
The pain of not yielding enough sovereignty is most clearly evident in
Article 14, which gives everyone the right ‘‘to seek and to enjoy in other
countries asylum from persecution.’’ Unlike the unqualified right to a
nationality in Article 15, Article 14 makes the enjoyment of the right to
asylum dependent on its already having been granted. It does not state
directly that (genuinely) persecuted people have, as persons, the human
right to be granted asylum. The politics of what to do about the waves of
refugees that were fleeing the newly created state of Israel interfered
with the ability of some of the delegations to remain at the abstract
level.17 On the whole, however, it is remarkable how infrequently the
politics of the real world interfered with the fundamental project of
drafting a moral code that could (and therefore possibly would) serve ‘‘as
a common standard of achievement for all peoples and all nations.’’
In addition to this glaring absence of state references in the document,
the text of the Declaration also contains numerous positive indicators of
this same moral transcendence. I mention some of the more obvious
ones: the words ‘‘inherent’’ and ‘‘inalienable’’ in the first recital; the
phrase ‘‘conscience of mankind’’ in the second recital; the ‘‘essential’’
connection between the right to rebellion and the rule of law in the third
recital; the word ‘‘common’’ in the last recital and in the operative para-
graph; the word ‘‘born’’ in Article 1; the words ‘‘arbitrary’’ in Articles
9, 12, 15, and 17; the word ‘‘degrading’’ in Article 5; the phrase ‘‘regard-
less of frontiers’’ in Article 19; the word ‘‘reasonable’’ in Article 24;
the word ‘‘prior’’ in Article 26; and the phrase ‘‘just requirements’’ in
Article 29.
34 MORSINK
Rene Cassin, the French delegate who belonged to the core group of
drafters, fought an uphill battle to have his colleagues recognize the fact
that the United Nations was the key organization through which the
transcendent moral rights of the Declaration could, in a first step, be
brought down to earth. Following this, more regional regimes and na-
tional constitutions could finish the job.18 He often lost; nevertheless, as
the phrases ‘‘international cooperation’’ in Article 22 and ‘‘international
order’’ in Article 28, as well as the reference in Article 29 to ‘‘the pur-
poses and principles of the United Nations’’ indicate, they did recognize
this viewpoint.19 The two later-adopted international covenants were
written and are being administered under UN auspices.
Protecting women and minorities through

non-discrimination
With regard to discrimination based on sex, I should emphasize the re-
markable ‘‘cleanliness’’ of the Declaration as a document.20 In the late
1940s it was clearly ahead of its time, and it remains relevant for many
parts of the world today. With the exception of clauses such as ‘‘his
country’’ in Article 21 and ‘‘himself and his family’’ in Article 25, a strong
women’s rights lobby ensured that women were given a status very much
equal to that of men. This fits with the stress on gender equality in the
formation of UN structures, much of the early credit for which should go
to the Commission on the Status of Women, which at that time was
chaired by Bodil Begtrup from Denmark. When societies are caught
in transitions of war, civil strife, poverty, or natural disasters, women
and children almost always bear the greatest burden.21 The causes of
women’s rights and of children’s rights therefore weighed heavily on the
drafters of the Declaration.22 They spent a great deal of time in ensuring
that these rights were acknowledged in the appropriate places through-
out the text.
When it comes to the protection of members of minority groups, which
frequently is a point of contention when societies are in transition, the
UDHR presents us with a problem, for it does not contain a specific ar-
ticle devoted to the rights of members of these groups, such as that in
Article 27 of the ICCPR. We therefore need to ask how the UDHR can
be a good blueprint for societies in transition. If the document does not
go out of its way to protect members of minority groups, how then can it
help forestall the continued clash between cultural groups that has do-
minated the news in recent years? My answer is that the drafters of the
UDHR did go out of their way to protect members of minority groups.
They did not do it by way of a special minority rights Article, as they well
might have done (and almost did); however, they did make an effort by
intentionally going far beyond the short (‘‘race, sex, language, and reli-
gion’’) Charter list of non-discrimination items. To clarify this, and to
combat the misconception that the UDHR does not protect members
of minority groups very well, I enumerate below some of the pertinent
drafting details.
It is important to do this because a growing number of communitarian
thinkers are criticizing the liberal model of politics that we find in the
UDHR as being woefully inadequate. The liberal model seeks to protect
members of minority ethnic, linguistic, and religious groups solely by way
of first setting up a list of rights for all citizens and then forbidding any
kind of discrimination on the basis of standard characteristics such as
those mentioned in the Charter list cited. Critics say that this simple (and,
to them, simplistic) non-discrimination approach is not enough. They
support Charles Taylor’s thesis, ‘‘The Politics of Recognition,’’ in the
volume Multiculturalism, where he argues that liberal democracies must
add overt measures of support for all minority groups because these
groups and their members are at a disadvantage when majorities inevita-
bly shape state policies to their own advantage.23 Taylor and other com-
munitarians (such as MacIntyre, Rorty, Kymlicka, and Brown)24 do not
believe that there is, or can be, a neutral state which treats all cultural
traditions equally. To them, the absence of a minority rights article in the
UDHR is a grave defect. I, myself, at one time also argued for an
amendment to the document to correct this defect;25 however, as I am
reconsidering, I draw attention to the defence of minority rights that the
document does provide. Even as it stands, members of minority groups
receive a great deal of protection under this universal umbrella. This
does not mean that the UDHR is fully conversant with the third genera-
tion of human rights, comprising the rights of peoples, for it is not; how-
ever, it does mean that the liberal model, as we find it expressed in the
UDHR, is not nearly as defective as a rapid reading of the text might
lead one to think.
The UN Charter contains seven references to ‘‘human rights and free-
doms,’’ but it does not give us a list of them: it simply states four times
that these rights and freedoms are to be implemented without discrimi-
nation on the basis of ‘‘race, sex, language, or religion.’’26 The UDHR
was written to flesh out these inadequate Charter references. When they
came to the question of non-discrimination, the drafters took their as-
signment as an opportunity for great expansion of this short Charter list.
From the very beginning of the drafting process, the communist dele-
gations (being led by the USSR) were very insistent that the UDHR
36 MORSINK
should contain a clear and precise prohibition of discrimination. In the

First Session of the Commission, Vladimir Koretsky, the delegate from
the USSR, made the point ‘‘that one of the first principles to be adopted
in the formulation of an International Bill of Rights must be the destruc-
tion of discrimination and inequality.’’27 With one glaring exception, and
with very significant assistance from the Indian delegation, the commu-
nists were largely successful in putting their non-discrimination stamp on
the document.
The push to expand did not come from around the North Atlantic but,
rather, from India and the communist delegations. Upon the recom-
mendation of Minocheher Masani, the expert from India on the Sub-
Commission on the Prevention of Discrimination and the Protection of
Minorities, the item of colour was added to the non-discrimination list
of Article 2.28 His point was that, as there was no scientific definition of
race, it was quite an open matter as to whether discrimination based on
(skin) colour was included in the Charter’s use of the word ‘‘race’’; he
wanted to ensure the addition of the term ‘‘colour’’ to the list: with
the help of the French and Iranian experts, he had a note sent to the
Commission on Human Rights suggesting that this should be done.29
The item of national origin was added upon the recommendation of
the Soviet Union. Because Mr Borisov, the Soviet expert on the Sub-
Commission, did not want to use the term ‘‘ethnic,’’ the Sub-Commission
sent this item to the Commission on Human Rights with a gloss indicating
that it wished ‘‘to make it clear that the words ‘national origin’ should be
interpreted by taking this conception, not in the sense of citizen of a
State, but in the sense of national characteristics.’’30 The Human Rights
Commission concurred with this reading by adopting the item as pre-
sented with this gloss.
Similar details explain the addition of the items ‘‘birth,’’ and of ‘‘prop-
erty or other status.’’ There is no conflict between the occurrence of the
word ‘‘born’’ in Article 1 and the expansion of the Charter list with the
item of birth in the non-discrimination list of Article 2. The use in Article
1 fits with the metaphysics of inherent rights to which the phrases ‘‘in-
herent dignity’’ and ‘‘inalienable rights’’ of the first recital also point. The
economic and sociological meaning of the item birth in Article 2 comple-
ments this idea of inherent dignity. Article 1 says that we are all born
with these rights and Article 2 explains that they may therefore not be
denied on the basis of any externally acquired (even if through one’s own
family) position or status.
A very interesting expansion of the short Charter list is the addition of
the non-discrimination item of political or other opinion. This was ini-
tiated by the Canadian jurist John Peters Humphrey, who (as the first
Director of the Secretariat’s Division of Human Rights) wrote the first

draft of the UDHR. Charles Malik, the delegate from Lebanon, believed
that ‘‘politics was one of the fundamental activities of man.’’ He there-
fore urged his colleagues to decide ‘‘whether or not discrimination was
allowable on the basis of political belief,’’31 which he felt was just as
objectionable as any other kind of discrimination. Because of a desire not
to go beyond the Charter list, many eyebrows were raised in the Sub-
Commission about this item. Again, it was Masani, the Indian expert,
who pressed for its retention. The item was adopted and kept in, over
strong communist objections and their repeated manoeuvering to have it
removed.32 We can understand the worries of the communists for, if we
combine this item with the right of Article 21 to ‘‘take part in the gov-
ernment of [one’s] country’’ and to do so through ‘‘genuine elections . . .
or by equivalent voting procedures,’’ we come to the conclusion that the
UDHR calls for multi-party democratic systems of government. I return
to this point in the last section of this chapter.
Article 2 tells us that ‘‘[e]veryone is entitled to all the rights and free-
doms set forth in this Declaration, without distinction of any kind, such
as race, color, sex, language, religion, political or other opinion, national
or social origin, property, birth, or other status.’’ When combined with
any of the other articles in the UDHR, this list of prohibitions pro-
vides enormous protection for members of all kinds of minority groups.
The UDHR provides societies in transition with a moral warrant to
create more inclusive societies with fairer, and therefore more stable,
basic structures. The dual assignment indicated in the title of the Sub-
Commission on the Prevention of Discrimination and the Protection of
Minorities is significant, because it demonstrates that the founders of the
United Nations were aware of the historical linkage between people be-
ing discriminated against for various reasons and their being members of
minority groups. In our interpretations of the meaning and range of the
items in Article 2, we need to keep this linkage in mind. The list of Arti-
cle 2 provides a double protection for members of minority groups – first,
because the list of Article 2 is so long and, second, because each item on
the list can be applied in the context of ‘‘all the rights and freedoms set
forth in this Declaration.’’ As there are 30 Articles and therefore roughly
30 rights, and 12 items on this non-discrimination list, this yields 360 as-
pects of life that are being protected. For example, when we add the
language item of Article 2 to the legal personality right of Article 6, we
obtain the result that no one may be denied the right to ‘‘be a person
before the law’’ based on the language he or she most naturally speaks.
Apply this to the millions of refugees in the world and the radical char-
acter of the UDHR becomes immediately apparent.
38 MORSINK
The inclusion of social, economic, and cultural rights
Since the end of World War II, world society has moved on two parallel
tracks. On the one hand (call it the moral track) it created human rights
regimes that now cover most of the globe. From this normative point of
view, all the nations in the world are in transit toward the goal of im-
plementing the UDHR and they all have learned to speak the language
of human rights in discussions about their developmental progress. Also
in the late 1940s, world society established various economic institutions
– the World Bank, the International Monetary Fund, and the General
Agreement on Tariffs and Trade (GATT; which became the World
Trade Organization). These organs were to help nations that lagged be-
hind in development to catch up with the industrialized ones, to create
stability in exchange rates between various national currencies, and to
promote international trade; let us call this the economic track. For quite
some time these two tracks did not communicate. This division of labour
was induced by the Cold War when, in 1966, the United Nations adopted
two international covenants instead of one – one for civil and political
rights and one for social, economic, and cultural ones. This split in im-
plementation instruments gives the incorrect impression that there are
two kinds of human rights and that (depending on one’s ideology) one
kind is more important than the other: the communists stressed social
and economic rights, and the North Atlantic nations and their allies em-
phasized civil and political rights.
Recently, however, these two tracks have started to ‘‘talk’’ to each
other and a convergence is taking place that restores the UDHR to its
pre-eminent place in international law and affairs. Unlike the two coven-
ants to which it gave birth, the UDHR itself contains the entire scope of
human rights; it can, therefore, better serve as the norm for the merger of
the two tracks that is now taking place. Economists such as Amartya Sen
have forsaken the strict language of the market-place and of economic
man and have pulled the human rights track into the economic sphere.33
From the other angle, human rights philosophers such as Alan Gewirth,
Martha Nussbaum, and Thomas Pogge have started to take human de-
velopment issues seriously in constructing their theories of human
rights.34 Sen and (especially) Nussbaum have developed a bridge theory
(called the capabilities approach) that links human rights and human de-
velopment questions. Recent publications by the United Nations Devel-
opment Programme and by the World Bank also testify to the merger of
these two tracks.35 In this section I demonstrate how the document came
to be so inclusive that it now can be the moral umbrella under which both
tracks find philosophical justification.36
Transitions from crises to more cooperative frameworks last only if

that cooperation is forged on fair terms. For that to be the case, societies
need to acknowledge the full scope of human rights and not just the first
half of the UDHR, which is devoted to civil and political rights. Some
critics do not agree with this: they think that juridical complications and
the cost of implementation justifiably relegate these liberal rights to
second-class status.37 Maurice Cranston, for instance, believes that social
and economic rights are only ‘‘supposed’’ human rights and that their
‘‘utopian’’ flavour undercuts the moral authority of the ‘‘real’’ civil and
political human rights.38 Many libertarians still feel this way, even now
that the two tracks have started to merge. Whatever the philosophical
merits of Cranston’s case,39 the drafters of the UDHR let these liberal
rights in from the very beginning. The great majority of them wanted to
see these liberal rights included because they felt that these rights were
comparable on moral grounds to the civil and political rights.40
John Peters Humphrey (who wrote the first draft) was a Canadian ju-
rist and a socialist with a great interest in Latin American affairs. In the
1940s the great majority of Latin American nations had hit a democratic
stretch, allowing them to speak with one voice when the United Nations
was organized in 1945. They pushed for the inclusion of a Bill of Inter-
national Rights in the UN Charter. When that failed, three Latin Ameri-
can nations (Cuba, Panama, and Chile) were the first to submit drafts of
such a bill to the Commission of Human Rights. When that Commission
turned to the Secretariat for help with a first rough draft, Humphrey (as
he tells us in his memoirs) freely borrowed from these liberal Latin
American proposals to help him to do that job. The Panamanian draft
was prepared by the American Law Institute and the Chilean draft by the
Inter-American Juridical Committee. The American Federation of Labor
also submitted an early draft.
Humphrey’s first draft had 48 articles, 14 of which were grouped in a
chapter on ‘‘social rights.’’ To write this social rights chapter, Humphrey
borrowed more than 50 per cent of his text from his liberal or socialist
Latin American sources. This is how the rights to health care (Art. 25), to
education (Art. 26), to work and good working conditions and pay (Art.
23), to extra public assistance even when employed (Art. 23(3)), to social
security in old age and bad times (not of one’s own making) (Art. 25), to
food and housing (Art. 25), to rest and leisure (Art. 24), and to partici-
pation in culture and the benefits of scientific research (Art. 27) entered
the UDHR on the ground floor. Most of these rights were sponsored for
inclusion in the document by Hernan Santa Cruz, the delegate from
Chile. Since Rene Cassin, the delegate from France (who was asked to
streamline the Humphrey text and shorten it), was himself a unionist, he
40 MORSINK
trimmed Humphrey’s suggestions slightly, but made almost no cuts.41

Having survived the Drafting Sub-Committee, the text, with these liberal
rights in it, was passed on to the full Commission. From that point on, the
burden of proof was on any delegation to gather enough votes to have a
certain unwanted right removed from the text – an action very difficult to
achieve, as its existence on paper tends to be an indication of objectifica-
tion and reification.
Most of the threats to remove these liberal rights came in the Third
Session of the Commission, which met in May of 1948 and was ready to
make drastic cuts in what had become a long list of human rights. The
United Kingdom teamed up with the Indian delegation and presented a
greatly shortened text. The new social and economic provisions provided
a tempting area for cuts; however, voting as a block, the Latin American
nations preserved the UDHR’s commitment to these socialist values.
Also, after World War II the world’s unions engaged in a campaign to
have the United Nations honour the contributions that workers had
made to the war effort. One result was that the Economic and Social
Council (ECOSOC, the parent body of the Commission that was writing
the UDHR) gave the drafters a mandate to include union rights some-
where in the UDHR. The Commission obliged, and the result is to be
found in Articles 23(4) and 20(2).42 We can look at the right to join a
trade union as a human right, or as a step to implement either the human
right to fair working conditions or the human right to association. The
Commission’s minutes indicate its inclusion in the general right to asso-
ciation, but they also listed it specifically in 23(4). The drafters accepted a
communist argument that the right to leisure time is meaningless if not
paid for (Art. 24), but rejected a Swedish proposal to have the right to
strike counted as an independent human right.43
If we place ourselves on the fence between stating a standard and im-
plementing it, we can see how Article 25’s rights ‘‘to food, clothing,
housing and medical care and necessary social services’’ can be seen as a
way of implementing Article 3’s right to life. These rights can be viewed
as raising questions of public policy or, alternatively, as raising the issue
of what is to count as a constitutionally protected right of an individual.44
The North Atlantic delegations had a mostly public policy perspective,
whereas the communist and Latin American nations took the basic rights
approach: they wanted to see these rights transferred from their own
constitutions to the new international standard being written. For in-
stance, when the delegations of the UK and India proposed cutting some
rights from the above-cited clause of Article 25, many North Atlantic
delegations were tempted to go along. Upon insistence by the Soviet
delegation, and with crucial assistance from the International Labour
Organization (ILO) representative to the proceedings, the items of hous-
ing and medical care were kept in the UDHR. It took an equally strong
insistence by the Chinese delegation to keep the items of food and clothing
in the UDHR: when he saw the threat to these two rights, Chung Chang
pleaded with his colleagues in the crucial 71st meeting of the Third Ses-
sion. He told them that he ‘‘did not see what possible objection there could
be to that phrase when millions of people throughout the world were de-
prived of food and clothing.’’ These rights were retained by 11 votes to 3.
These liberal items are regular staples of what benevolent Confucian kings
used to set before their people and what millions of persons living in soci-
eties in transition badly need. The UDHR makes the point that the world’s
poor have a right to have these and other such basic needs met. The other
list in Article 25 pertains to ‘‘[social] security in the event of unemploy-
ment, sickness, disability, widowhood, old age, or other lack of livelihood
in circumstances beyond his control.’’ Because of the ECOSOC mandate
to pay attention to union rights, and strong union delegations among the
drafters, the particular items on this list were never questioned after
Humphrey and Cassin had written them in.
When most of the social, economic, and cultural rights had been
adopted, the drafters voted to give these ‘‘new’’ rights their own covering
Article 22: ‘‘Everyone, as a member of society, has the right to social se-
curity and is entitled to realization, through national effort and interna-
tional cooperation and in accordance with the organization and resources
of each State, of the economic, social and cultural rights indispensable for
his dignity and the free development of his personality.’’ Critics of the
liberalism in the second half of the UDHR are not correct when they
seek to use the clauses italicized in the above citation as an indication
that liberal rights have a lower status in the document. The motivation
behind these clauses was not that the drafters doubted the authenticity of
liberal rights as being genuine human rights; on the contrary, the Minutes
of the meetings show that they inserted Article 22 with these clauses be-
cause these liberal rights were new or newly discovered, they usually re-
quire somewhat more material involvement on the part of the State, and
they call for greater international cooperation.45
This greater need for material and international involvement was
highlighted so that states would be aware of it and not shirk their correl-
ative duties: it is for this reason that the drafters called upon them to set
up frameworks of international cooperation. Article 22 was designed to
make sure that these liberal rights would not starve for lack of resources.
However, this special attention to social, economic, and cultural rights
does not mean that civil and political rights do not require financial lay-
outs and international cooperation: by the late 1940s the costs of these
(old) rights had been borne for almost two centuries. The general neces-
sity for international cooperation in this area was also underscored when
42 MORSINK
the drafters adopted Article 28 without significant opposition: ‘‘Everyone

is entitled to a social and international order in which the rights and
freedoms set forth in this Declaration can be fully realized.’’46
The inclusion of a human right to democratic participation
It is remarkable how many of the points raised in present-day discussions

about democracy were anticipated when the UDHR was being drafted.
More than twenty international law scholars wrote lengthy contributions
to a recently published volume entitled Democratic Governance and In-
ternational Law.47 These scholars agree that we are witnessing the birth
of a new internationally recognized human right called democratic en-
titlement. They are not all equally sure of the content of this right or of
the depth of its anchor in international law. However, none argue that no
birth at all is taking place; they simply differ on how far the birthing pro-
cess has developed. Space limitations allow me to mention only three of
these essays.
Looking at the enormous election monitoring activities of the United
Nations and the European and Latin American regional bodies, Thomas
Franck concludes that ‘‘the opinions of mankind have begun in earnest to
require that governments, as a prerequisite to membership in the com-
munity of nations derive their just powers from the consent of the gov-
erned.’’48 Franck believes that, as a result of all this election aid and
monitoring activity, ‘‘a global canon of legitimate rules and procedures’’
is developing and that, with this canon, we can judge ‘‘the democracy of
nations.’’ He also thinks that this canon ‘‘has trumped the principle of
non-interference’’ enunciated in Article 7(2) of the UN Charter.
Gregory Fox investigated international legal texts and court decisions
and came to the same conclusion as did Franck, namely, ‘‘that the right to
political participation has established a firm grounding in both treaty law
and international practice.’’49 ‘‘The particulars of a human right to polit-
ical participation,’’ observes Fox, ‘‘once a flashpoint for grand ideological
battles, now appear rather pedestrian. That receipt of an electoral man-
date bestows legitimacy upon governments, that genuine choice in an
election requires multiple political parties, that incumbent regimes can-
not monopolize the mass media during a campaign, and that the other
elements of fair elections must be provided, all seem to flow inevitably
from treaties announcing commitment to representative government.’’50
He wrote this after a thorough investigation of the text of Article 25 of
the ICCPR and of decisions by the Human Rights Commission, the Hu-
man Rights Committee (of the ICCPR), the European Commission, the
European Court, the Latin American System, the African System, and
the Helsinki Accords of the Organization for Security and Cooperation

in Europe (OSCE).
Both Franck and Fox mention Article 21 of the UDHR as the moral
and legal anchor for these developments, but they do not give it nearly
the attention it deserves. Franck mentions Article 21 of the UDHR only
in passing, instead (briefly) mentioning the political implications of Ar-
ticles 19 and 20. Fox begins his analysis of treaty law with a discussion of
Article 25 of the ICCPR, making only a passing reference to discussions
by the drafters of the UDHR as to whether ‘‘ballot secrecy was appro-
priate for States with a high percentage of illiterate voters, and the ma-
jority concluded that ballot secrecy was a fundamental aspect of a fair
election and should be retained.’’51 At this point, Fox put in a note ob-
serving that the UDHR does provide for ‘‘equivalent voting procedures,’’
although this option was dropped from Article 25 of the ICCPR.
The presence of Article 21 in the UDHR is a clear sign that the out-
look of the drafters differed from that of their predecessors in the eight-
eenth century. In the debates of the 1789 French Assembly, the right to
political participation was grouped with the ‘‘rights of citizens’’ and not
with the ‘‘rights of man.’’ The 1948 Declaration makes no such distinc-
tion and calls all the rights that it lists – including the political ones in
Articles 19 (of expression), 20 (of association), and 21 (of participation in
government) – human rights. This suggests that people obtain these
rights by birth (as Article 1 explicitly says they do) and that their imple-
mentation in the state in which they live is a secondary, although crucial,
matter. However, if the form of government under which one lives makes
no difference as to the possession (which is not the same thing as its en-
joyment) of this right, then it cannot be the case that this right is given to
people by the procedures or processes of democratic governments, how-
ever defined. Millions of people have always lived – and still live – under
forms of government that exhibit none of the features described in Arti-
cle 21. Yet these people are said to have the human right to ‘‘democratic
entitlement.’’ How can this be?
The UDHR was written in a shared mood of rebellion (metaphysical
and otherwise) against the Nazi abuses of state power. Although we
might be inclined to see the inclusion of Article 21’s democratic entitle-
ment to be a piece of Western ethnocentric thinking, the drafters them-
selves had no such compunctions. The only occasion on which they raised
any kind of qualification was upon the addition of the clause ‘‘or by
equivalent free voting procedures’’ at the end of 21(3). This was done
upon the insistence of the Haitian delegation, which reminded the mem-
bers of the Committee that they were drafting a declaration that was ad-
dressed not solely to the Western hemisphere but to the entire world and
that (according to figures supplied by UNESCO) illiteracy was still very
44 MORSINK
common, with 85 per cent of the world population remaining illiterate.52

The drafters of ICCPR Article 25 (which was copied from UDHR 21)
deleted the clause; nevertheless, in 1998 about one-quarter (24.8 per
cent) of the world’s adults (over 15) were still illiterate.53
We know, of course, that military and other dictatorial regimes can
manipulate elections so that they appear free but, in reality, are not. The
UN election-monitoring teams are sent to prevent these abuses from oc-
curring. In the 1948 debates the Lebanese delegate also raised this point:
the fact that elections would be held periodically and by secret ballot
would not ensure that they would be free. The Nazi government could
have subscribed to all those ideas and its elections would still not have
been free, he argued. One factor that prevented Hitler’s elections from
being free was the intimidation and incarceration of opposition party
figures, which indicates the reason why the communists wanted to keep
the item ‘‘political opinion’’ from the list in UDHR Article 2.
When Article 21 was discussed in the First Drafting Session, Hernan
Santa Cruz of Chile suggested that a provision concerning the right to
form political parties be added to the article. At that point of time,
UDHR Article 20 (on the right to association) included a list of legiti-
mate reasons (which included political purposes) for which association
should be allowed, resulting in the Chilean suggestion being viewed as
unnecessary; unfortunately, that list was later deleted. When the Belgian
delegate, Fernand Dehousse, brought up the same point later in the
Third Committee, he ran into solid opposition from Mr Pavlov, the So-
viet representative, who gave his colleagues a lecture on the benefits of
one-party systems in peoples’ democracies. When Dehousse withdrew his
suggestion, Eduardo Plaza, the Venezuelan delegate, openly regretted
this conciliatory Belgian gesture. I conclude that the weight of the evi-
dence suggests that the kind of democracy called for by the UDHR is
a multi-party one. This gives added sanction to recent pronouncements
by various human rights judicial organs as to what a ‘‘genuine’’ election
entails.
As I have previously stated, the communist delegations fought to have
the item ‘‘political opinion’’ removed from the non-discrimination list in
UDHR Article 2. They realized that, together with Article 21, this item
implies that democratic multi-party forms of government are the only le-
gitimate form of government. Any other type of government, whether a
single-party system or a dictatorship, is a violation of the human rights of
the people living under its jurisdiction. Related fights occurred when Ar-
ticles 19 and 20 came up for adoption. The communist delegates wanted
an exception built into these rights so that they could not be practised by
Nazi and fascist-type groups or persons; they lost all of these drafting
battles. The resulting Article 21 of the Declaration delineates a sub-
merged (because it requires us to combine an item of Article 2 with

UDHR 21) but otherwise unencumbered right to democratic participa-
tion.
Article 21 of the UDHR makes the following statements:
1. Everyone has the right to take part in the government of his country, directly
or through freely chosen representatives.
2. Everyone has the right to equal access to public service in his country.
3. The will of the people shall be the basis of the authority of government; this
will shall be expressed in periodic and genuine elections which shall be by
universal and equal suffrage and shall be held by secret vote or by equivalent
free voting procedures.
By locating the authority of government in the will of the people and

then also spelling out how that will is to be determined, Article 21 con-
flicts with what, until recent years, was standard procedure in interna-
tional law and practice: that practice was for nations not to judge how
other nations came to have control over their people and territory. As
long as governments were seen to have firm de facto control and could be
relied on for treaty purposes, they were judged legitimate. UN member-
ship is, for instance, (still) not based on the character of the government
that asks to join the organization. Article 21 creates a vastly different
picture: as Frank and Fox have shown, if Article 21 is to serve as a com-
mon standard for all nations, then the good standing of nations or peo-
ples within the community of nations must, at least in part, be judged by
whether they have an electoral democratic type of government; they
must all be in transit to this goal. If this is not the case, Article 21 remains
the most Western ethnocentric Article in the document. The broader
rights stated in Articles 19 (to freedom of expression) and 20 (to freedom
of association) also become heavily political when combined with Article
2. However, Article 21 is the only one that is explicitly political, even
stipulating electoral democracy as the mandated form of government.
The third essay from the recent volume on democratic government in
international law discussed is Fox and Nolte’s piece, wherein the differ-
ence between procedural and substantive democracies is delineated. In
procedural democracies there are no limitations on the rights to free
speech and association that would prevent opposition figures and their
parties from participating in elections, after which point they could then
throw away the very ladder by which they climbed into office. They give
as examples the Nazi quest for power in 1933 and the 1991 Algerian mil-
itary coup that prevented a similar scenario from taking place. The
question remains how far democracies are allowed to go to prevent
themselves from being taken over by parties or dictators who, once they
46 MORSINK
have secured power with much popular support, proceed to eliminate

elections and the rest of UDHR Articles 19, 20, and 21. Can such de-
mocracies ban individual citizens – and even whole parties – from freely
speaking out and standing for office? Fox and Nolte argue that they can
and should be stopped. Democracies can legitimately put substantive re-
quirements in their constitutions (or elsewhere in their legal systems)
and, in that way, can safeguard their democracies from being overtaken
from within. As examples of weak (which they call tolerant) substantive
democracies, they discuss France, Canada, and India; they pick Germany,
Israel, and Costa Rica as examples of strong (meaning militant) substan-
tive democracies.54 Their examples of procedural democracies are the
United Kingdom, Botswana and Japan (weak), and the United States
(which they see as a militantly procedural democracy). Without com-
menting on their choice of examples, I wish to point out that, given their
classification scheme, we must rank the UDHR as calling for a substan-
tive, not a procedural, democracy.
The story is a complicated one, as it appears initially as if the UDHR
puts no limitations, other than those of Article 29, on the rights to free
speech and free association, even for political purposes. The Soviet dele-
gation repeatedly sought to have limitations added to Articles 19 and 20
that barred the use of these rights to Nazi groups; however, they failed in
their attempts.55 The idea was that, although the Nazis and other axis
powers were not invited to help write the UDHR, once a democracy has
been set up on the basis of respect for human rights, it should be quite
tolerant of groups that are themselves known to be intolerant. Contem-
porary democracies differ on this issue. The procedural democracies ex-
amined by Fox and Nolte allow anti-democratic individuals and parties
the same rights to free speech and association as other individuals and
parties, whereas substantive democracies have constitutional and other
safeguards to protect themselves against such citizens and their political
parties. My reason for saying that the Declaration takes a substantive
path is the much-overlooked last clause of the second sentence of Article
7. In the Second Session of the Commission, the communist delegations
received an important assist from the Belgian delegation.56 The result
is the following sentence, the last clause of which I have italicized: ‘‘All
are entitled to equal protection against any discrimination in violation of
this Declaration and against any incitement to such discrimination.’’ The
UDHR leaves open the question of how democratic governments are to
provide this protection to their citizens, except that they did not want in-
dividual citizens’ speech to be cut off at the start.57
We also need to call to mind Article 30 of the Declaration: ‘‘Nothing in
this Declaration may be interpreted as implying for any State, group or
person any right to engage in any activity or to perform any act aimed at
the destruction of any of the rights and freedoms set forth herein.’’ The
adoption discussions for this Article are quite relevant to our own on-
going discussions of how democracies should deal with hate crimes and
fanatical political parties. The drafters saw this issue as one of the spirit of
the laws. A legal system can superficially appear thorough but in its spirit
and application may flaunt human rights regularly, especially in cases
where political opponents of the regime are involved. Eleanor Roosevelt,
the American delegate, pointed out that ‘‘Nazi Germany had appeared to
be legally fulfilling the duties and obligations of the state, but in practice
had been destroying all human rights and liberties.’’58 It was her opinion
that no text could protect the spirit of the laws. Charles Malik, the Leb-
anese representative, countered that this was precisely the reason why
such an article should be included in the UDHR. He received support
from Pierre Ordonneau, the French representative to the Third Session
of the Commission, who felt that it ‘‘was essential that the Declaration
should at least recall the dangers of Nazism’’ and that ‘‘it was wrong to
deny a possible recurrence of Nazism.’’59 He saw the ‘‘danger against
which Article [30] was aimed [as] a serious one.’’60 When, in the later
Third Committee meetings, the United States continued to object to Ar-
ticle 30, Pavlov, the Soviet Union’s delegate, argued that this particular
article ‘‘was the only one that could be used as a weapon against Na-
zism.’’ Moreover, ‘‘[h]e appealed to the committee to consider its re-
sponsibilities before rejecting the article, which might in the future serve
as a weapon against Nazism and fascism.’’61
Present-day discussions of what the democratic entitlement entails
seem to suggest that Pavlov’s future is here. The question that newly
born (and, therefore, often fragile) democracies face is precisely that of
how tolerant they should be of members of militant political groups, who
abuse the freedoms of Articles 19 and 20 to come to power and then re-
fuse to implement Article 21. To void this scenario, Pavlov was a strong
supporter of a French amendment to insert the word ‘‘group’’ into the
text of Article 30. The French proposed this amendment because ‘‘expe-
rience had shown that it was rarely States or individuals that engaged in
activities aimed at the destruction of human rights; such activities in re-
cent times had been pursued by groups sometimes acting on the instruc-
tions or with the connivance of states.’’62 After Pavlov pointed out how
the paths to power of both Hitler and Mussolini had been paved ‘‘by
constant infiltration and propaganda,’’ he added the example of the Klu
Klux Klan in the United States. He wanted to answer the argument of
those who belittled the influence of these kinds of hate groups be-
cause ‘‘their membership was very small and their activity of little conse-
quence.’’63 That rationale, he said, was exactly what had also been used
in the early stages of Hitler’s and Mussolini’s political careers; ‘‘the di-
48 MORSINK
sastrous consequences of such indifference were unfortunately all too

well known.’’64 Dehousse also agreed that the drafters should ‘‘prevent a
repetition of the experiences of a number of countries in the years im-
mediately preceding the war.’’65 The word ‘‘group’’ was included in Ar-
ticle 30 unanimously by 42 votes, with just one abstention, as was the
entire Article without any abstentions.66
I interpret these votes as an assertion that the drafters of the UDHR
did not intend to let democracies be taken over from within, by military
coups, by individuals, or by subversive groups (under which we may
count political parties that have no intention to honour and respect hu-
man rights once they gain power by ‘‘legitimate’’ means such as the ballot
box). This is the paradox of democracy: in the same manner that, in de-
fence of personal liberty, political theorists of all persuasions argue that a
person has no right to sell him/herself into slavery and, thereby, lose the
very condition of liberty that allows him/her to perform this action, so,
too, a democracy must protect itself against subversion from within and
adopt measures and tactics that help it to accomplish this. That, I believe,
is a strong, substantive kind of democracy – namely, the kind that cannot
be undermined by its own procedures. It is the kind called for by the
UDHR and supported by recent developments in international law.
Notes
1. This study is part of a larger project on the intellectual challenges posed by the Uni-
versal Declaration of Human Rights (UDHR).
2. Thomas Risse and Kathryn Sikkink, ‘‘The socialization of international human rights
norms into domestic practices: Introduction’’ in The Power of Human Rights Interna-
tional Norms and Domestic Change, Thomas Risse, Stephen C. Ropp, and Kathryn
Sikkink, eds, Cambridge: Cambridge University Press, 1999, pp. 22–35.
3. Ibid., p. 235 [emphasis added].
4. The Bogota Declaration adopted by the nations of Latin America in April of 1948 pre-
ceded the adoption of the Universal Declaration in December of that same year, but it
is not really an international set of norms. For its influence on the drafting of the Dec-
laration, see Origins (see note 5), chapters 4, 5, and 6, but especially sections 4.1 and 4.3.
5. For the effects of the Cold War on the drafting of the Declaration and the facts of this
section, see Johannes Morsink, The Universal Declaration of Human Rights: Origins,
Drafting and Intent, Philadelphia: The University of Pennsylvania Press, 1999, section
1.3. In the text and in the notes I refer to this volume as Origins, and then give the rel-
evant section or sections.
6. He bases most of the second edition of this book (Universal Human Rights in Theory
and Practice, Ithaca: Cornell University Press, 2003) on his analysis of this unified
model.
7. Ibid., p. 34.
8. Ibid., p. 35.
9. Ibid., p. 34.
10. He does recognize the ‘‘paradox of possession’’ (p. 9), claiming that we have our human
rights because of our human nature (e.g. pp. 10, 25 (note 4), and 90), but that nature is
not connected to the basic human needs of which scientists speak; rather, it is a moral
posit of societies reacting to the onslaughts of modern markets and states (section
1.3.B). I evaluate these more metaphysical and epistemological claims in a forthcoming
volume on the intellectual challenges of the UDHR.
11. UN DOC (1948) A/C.3/94th Meeting, p. 81.
12. UN DOC (1948) A/C.3/94th Meeting, p. 924.
13. Origins, p. 342.
14. UN DOC A/C.3/240 and see Origins, section 1.4, for discussion of the proposal.
15. UN DOC A/C.3/240 and see Origins, section 1.4, for discussion of the proposal.
16. UN DOC A/C.3/240 and see Origins, section 1.4, for discussion of the proposal section
2.5.
17. Ibid.
18. In East and Central Europe alone, there were 25 new or revised constitutions written
since the end of the Cold War. Since 1990, more than 20 new French African constitu-
tions were published. Most of these contain bills of rights that were inspired by (and
sometimes make explicit reference to) the UDHR. See the Comment in Henry J.
Steiner and Philip Alston, eds, International Human Rights in Context: Law, Politics,
Morals, Oxford: Oxford University Press, 2000, p. 990.
19. For drafting details see Origins, section 6.4.
20. For numerous details on the effects of the women’s lobby summarized here, see Origins,
section 3.5.
21. See Christine Chinkin’s essay, ‘‘Gender Inequality and International Human Rights
Law,’’ in Inequality, Globalization, and World Politics, Oxford: Oxford University Press,
1999, pp. 95–122, as well as the statistics of the works cited in note 29.
22. For the protection of the rights of children in the Declaration, see Origins, section 7.2.
23. Charles Taylor, ‘‘The Politics of Recognition,’’ in Amy Gutmann, ed., Multiculturalism,
Princeton: Princeton University Press, 1994.
24. See Alasdair MacIntyre, After Virtue, Notre Dame, Indiana: Notre Dame University
Press, 1984; Richard Rorty, Contingency, Irony, and Solidarity, Cambridge UK, Cam-
bridge University Press, 1989; Will Kymlicka, Liberalism, Community and Culture, Ox-
ford, UK: Clarendon Press, 1991; Chris Brown ‘‘Universal Human Rights: a critique,’’ in
Human Rights in Global Politics, Tim Dunne and Nicholas Wheeler, eds, Cambridge,
UK: Cambridge University Press, 1999.
25. See Johannes Morsink, ‘‘Cultural Genocide, the Universal Declaration, and Minority
Rights,’’ Human Rights Quarterly, Vol. 21, No. 4, November 1999, pp. 1009–1061.
26. Article 1(3), Article 13(1b), Article 55(c), and Article 76(c).
27. UN DOC E/CN.4/AC.1/SR.5, p. 5.
28. For the adoption story of Article 2, see Origins, sections 3.3 and 3.4.
29. There his compatriot Hans Metha argued that, in the draft Covenant that was also being
written, the item of ‘‘colour’’ did follow the item of ‘‘race,’’ and that the same should
therefore be done with the Declaration. With strong support from the Lebanese and
Philippine delegations, this item was lifted from the note and put into the text of the
Declaration.
30. UN DOC E/CN.4/AC.1/Sub.2/SR.21, p. 5.
31. UN DOC E/CN.4/AC.1/SR.12, p. 12.
32. Origins, section 3.4.
33. See Amartya Sen, Inequality Reconsidered, Cambridge, Massachusetts: Harvard Uni-
versity Press, 1992, as well as his more recent Development as Freedom, New York:
Random House, Inc., 1999.
50 MORSINK
34. See Alan Gewirth, The Community of Rights, Chicago: University of Chicago Press,
1996; Martha Nussbaum, Women and Human Development: A Capabilities Approach,
Cambridge, UK: Cambridge University Press, 2000; and Thomas Pogge, World Poverty
and Human Rights, Oxford, UK: Blackwell Publishers Ltd, 2002.
35. United Nations Development Programme, Human Development Report 2000, New
York: Oxford University Press, 2000; and The World Bank, World Development Report
2000/2001: Attacking Poverty, New York: Oxford University Press, 2000.
36. The reader will find supporting references for the drafting claims I make in this section
in chapters 4, 5, and 6 of Origins.
37. There are always exceptions to general statements like this. See, for instance, Martin
Golding, ‘‘The Primacy of Welfare Rights,’’ in Ellen Frankel Paul et al., eds, Human
Rights, Oxford: Basil Blackwell, 1984, pp. 119–137.
38. Maurice Cranston, ‘‘Human Rights, Real and Supposed,’’ in Morton E. Winston, ed.,
The Philosophy of Human Rights, Belmont, California: Wadsworth Publishing Com-
pany, 1989, pp. 121–129.
39. I think that these have been laid to rest by Henry Shue’s discussion of the distinction
between positive and negative rights (which is what Cranston and others relied on) in
his book Basic Rights, Princeton: Princeton University Press, 1980.
41. The only outright cut he made was the right everyone has to (as Humphrey put it) ‘‘an
equitable share of the national income as the need for his work and the increment it
makes to the common welfare may justify’’ (UN DOC E/CN.4/AC.1/3/Art.39).
47. Gregory H. Fox and Brad R. Roth, eds, Democratic Governance and International Law,
Cambridge, UK: Cambridge University Press, 2000.
48. Thomas M. Franck, ‘‘Legitimacy and the Democratic Entitlement,’’ in Fox and Roth,
p. 26, note 42. His evidence is that ‘‘as of late 1997, approximately 130 national gov-
ernments were legally committed to permit open, multiparty, secret ballot elections with
universal franchise’’ (p. 27). He points out that just in the year ‘‘1996–97 elections were
observed in Algeria, Ghana, Madagascar, Mali, and Yemen; further [that] electoral as-
sistance was also provided to Bangladesh, the Comoros, Gambia, Guyana, Haiti, Libe-
ria, Mali and Mexico’’ (p. 31). And he is of the opinion that a failure like the one in
Angola is ‘‘balanced by successes in Namibia, Cambodia, Nicaragua and El Salvador’’
(p. 41). A lot of election monitoring was done in Eastern Europe with the post-1989
transition from communism. To facilitate the emergence of this right to democratic
participation, the United Nations added an Electoral Assistance Division to its Secre-
tariat in 1992.
49. Gregory H. Fox, ‘‘The right to political participation in international law,’’ in Fox and
Roth, p. 50, note 2.
50. Ibid., p. 89.
51. Ibid., p. 55.
52. See Origins, p. 60.
53. See United Nations, Human Development Report 2000, Oxford: Oxford University
Press, p. 171.
54. Gregory H. Fox and Georg Nolte, ‘‘Intolerant Democracies,’’ in Fox and Roth, p. 411,
note 42.
55. See Origins, section 2.4.
56. See Origins, pp. 69–72.

57. See Origins, section 2.4, for further discussion of this topic.
58. UN DOC E/CN.4/AC.1/SR.28/p.4.
59. The Ordonneau and Pavlov citations are from UN DOC E/CN.4/SR.74/pp.7 and 8.
60. Ibid.
61. Ibid., p. 7.
62. The citations in this paragraph are from UN DOC GAOR, 1948, Third Session, Pro-
ceedings of the Third Committee, pp. 666–674.
63. Ibid., p. 671.
64. Ibid.
65. Ibid., p. 667.
66. Ibid., pp. 672–674.
3
Universalism and cultural
relativism: Lessons for
transitional states
Richard Lewis Siegel
Throughout the post-1945 era there have been disagreements among

scholars, officials, and others concerning the universal applicability of all
or some human rights. This chapter discusses these ongoing debates be-
tween advocates of universalism and cultural relativism. It also suggests
how experience gained from complex global and national efforts to deal
with such critical contemporary issues as human immunodeficiency virus/
acquired immunodeficiency syndrome (HIV/AIDS) and transitional jus-
tice can help to defuse the debate and broaden support for an expanding
core of universally accepted human rights.
A search for common ground that advances the global implementation
of fundamental human rights is of even greater importance to transitional
societies and states than to established democracies. Transitional states
tend to be highly dependent on foreign economic and political support
during their often-prolonged emergence from authoritarian rule, war, re-
gional hegemony, and highly regulated and protected economies.1 This
dependence tends to make such states and regimes highly susceptible to
persuasion and pressure from powerful states and IGOs seeking to ad-
vance a universalist approach to human rights: their support for human
rights may well be critical to their ability to gain material and political
support from the international community. Further, some transitional
states (e.g. South Africa and Poland) are in a position to play influential
global and regional roles in support of human rights.2
52
UNIVERSALISM AND CULTURAL RELATIVISM 53
Partisans of universalist positions usually argue that either the entire

body of internationally recognized human rights or some core subset of
such rights are applicable to all humans and to all states and societies.
These rights are viewed as universally applicable standards that may le-
gitimately challenge laws and practices that exist anywhere in the world,
and any cultural or political contexts that reject, violate, or ignore those
recognized norms and rules. The universalist position is rarely absolutist
concerning how agreed rights are to be implemented. None the less,
proponents of universalism nearly always reject efforts to justify norms
and approaches deemed contrary to agreed elements of human rights on
such grounds as tradition, religion, region, stage of economic develop-
ment, and political culture.
The bases for acceptance of comprehensive universalist conceptions of
human rights may be the recognition of the wide array of binding and
non-binding prescriptive documents approved by authoritative organi-
zations or forums, conceptions of natural or divine origins or rights, or
recourse to perceived objective reason or morality.3 While any such pro-
cess produces conceptions of universal rights that evolve from century to
century, there is an important distinction to be made between supporters
of universalism who view their own or a consensus universalist position
as already established and others who think of universalism in terms of a
quest for future agreement. Peter Van Ness notes that the diverse views
on Western and Asian perspectives on human rights in his book share ‘‘a
notion of universalism as a continually changing, negotiated, and tenta-
tive definition of human rights.’’4
Such an evolving conception of universalism, however, does not seem
to be the approach argued most often in political forums. Furthermore,
whereas many scholars and officials are working to achieve common
ground through dialogue, others would defend a universalist consensus
with an array of strong political and other measures.5 Although there are
fundamental human rights that certainly deserve such strong support,
how broad an array of rights should be defended by invoking financial,
military, or political weapons?
The arguments presented at various global conferences concerning
human rights, and in a host of scholarly contributions to this debate, re-
flect two overriding realities of the new century. First, the twentieth cen-
tury is over, but its struggles relating to ideology, religion, and interests
are far from fully resolved. Not even fascism and Marxism–Leninism are
entirely dead; and the legacies of colonialism, racial apartheid, and mili-
tary rule continue to have impacts together with such powerful forces
as ethno-nationalism, militarism, and religious-based communalism. If
the twentieth century involved a struggle to overcome ‘‘the age of ex-
tremes,’’6 there was only a very incomplete conquest of the forces that
54 SIEGEL
created and perpetuated war, genocide, and other forms of oppression,

misery, and poverty. Modern universalist thinking about human rights
gains political support from those seeking to challenge such surviving
forces and conditions.
Shaped by, and seeking to interpret, these contemporary conditions
are diverse conceptual and theoretical approaches to international rela-
tions and human rights. There is little doubt that international relations
theory was slow to apply itself to international human rights, an issue
area generally regarded as marginal by political realists and affirmed as
self-evident by idealists. Nevertheless, by the 1990s, the academic and
official commentators on the place of human rights in world affairs had
achieved a critical mass and additional perspectives had emerged from
identifiable realists (classical realists and neorealists), liberal internation-
alists, and proponents of various schools of critical theory.7
Generally, human rights scholarship has expanded in recent years from
a locus in idealist and liberal internationalist approaches to a more com-
prehensive literature that increasingly also applies realist and critical
theory. Andrew Hurrell, Tony Evans, David Forsythe, and Michael Ig-
natieff are among the human rights scholars who have addressed such
explicitly realist dimensions of human rights as power, national interests,
and polarity.8 Although such a work as that by Risse, Ropp, and Sikkink
is framed largely in terms of neoliberal internationalism, it also incorpo-
rates such valuable realist elements concerning human rights in transitional
societies as the impacts of evolving power and polarity.9 Furthermore,
critical theories have been advanced in relation to the nexus of global-
ization and rights, as well as in critiques of American hegemony and
empire:10 such works have often linked feminist, neo-Marxist, and post-
modernist approaches in order to reach conclusions concerning the illu-
sions of discourse and the subtleties of social construction of rights.
The remainder of this chapter is written, explicitly and implicitly, to
suggest the value of combining approaches to the study of universalism
and pluralism generally and in relation to transitional societies. Some
realist and critical approaches are invoked in order to denigrate much
of the human rights enterprise.11 However, it is argued here that many
expressions of each of the approaches noted above are far more com-
plementary than conflicting. As such, the study of universalism and plu-
ralism in transitional societies clearly benefits from the incorporation of
idealistic long-term goals, the mastery of the neoliberal internationalist
terrain of international regimes, the deep-seated scepticism of contem-
porary globalism and human rights itself offered by critical theories, and
the cautioning lessons of realists concerning power politics.
It is not only the remnants of twentieth-century adversaries of liberal-
ism that challenge universalist claims for human rights in the present de-
cade: even if evidence of an economic ‘‘race to the bottom’’ is contested,

there is little doubt that economic globalization has had both negative
and positive impacts on fundamental human rights.12 In addition to its
direct effects in particular countries and regions, globalization has pro-
vided opportunities for states and other international actors to utilize
trade, diplomacy, and other instruments of policy both to support and to
constrain efforts to implement universalist approaches to human rights.13
Resistance to universalist approaches contributed to the May 2001 vote
in the UN Economic and Social Council (ECOSOC) that excluded the
United States from its customary seat on the Commission on Human
Rights. Although masked by secret balloting, this vote undoubtedly re-
flected, at least in part, secular and religious ideas, forces, and interests
opposed to intrusive universalism. Although democracy has advanced
through its ‘‘third wave’’ and beyond,14 the current world is riddled with
shallow or bogus national versions of democracy and constitutionalism
that seek to mask the continuity of authoritarianism.15
Careful studies of many national political systems and the major world
religions have failed to support simple linear theories concerning the
global advance of human rights. The number of Islamic republics with
strict interpretations of Shar’ia have increased in recent years, even as
more moderate regimes in predominantly Muslim states face severe po-
litical challenges and make policy concessions that violate universalist
conceptions of human rights.16 Yet certain Muslim states are moving in
progressive ways regarding such particular internationally recognized
human rights as freedom of the mass media and free association, and the
impacts on rights of the post-11 September 2001 US-led military inter-
ventions and occupations are too recent to be fully evaluated.17
Islam and Roman Catholicism, among other religions, offer alternative
universalist perspectives on human rights and human dignity, even as
some of their fundamental religious and political teachings are contested
internally. The Catholic doctrines of Pope John Paul II have had potent
effects on the current debates on the substance of fundamental human
rights, with the Vatican seeking to move the consensus to the left on such
issues as the death penalty and global poverty and to the right on such
social and cultural matters as abortion, euthanasia, birth control, and gay
and lesbian rights.
Although none of the forces and trends noted here are consistently in-
imical to human rights or their universal application, it is evident that the
post-Cold War world lacks a universal vision concerning all human rights
that is supported by a genuine global consensus. This is true despite nu-
merous efforts of non-governmental and intergovernmental forums to
proclaim such a universal consensus. In the next part of this chapter var-
ious political efforts to proclaim a universalist vision are reviewed.
56 SIEGEL
The effort to declare universally applicable human rights

standards
Despite continuing resistance to global agreement concerning universally
recognized human rights standards, there is substantial documentation of
apparent consensus on comprehensive universalism. Such evidence in-
cludes the huge scholarly literature supporting universalism, the contrib-
utors to which are spread around the world.18 However, this support is
primarily the product of great efforts by officials of national governments,
NGOs, and IGOs to secure strongly worded endorsements of universal-
ism at major international forums.
The scholarly justifications and the political efforts at international
forums have endorsed either comprehensive or selective perspectives on
the scope of human rights deemed universally applicable. Advocates of
a comprehensive approach argue that all of the major globally adopted
human rights instruments are interdependent and collectively applicable
to the entire international community. They insist on the equality of
economic, social, and cultural rights with civil and political ones and
the inclusion of such collective rights as national self-determination
and the right to development, together with traditional individual rights.
Proponents of more selective approaches suggest, instead, that a core
set of fundamental norms and principles are universally applicable. These
are selected from comprehensive lists of rights on such bases as their
non-derogable status, their designation by certain IGOs or interna-
tional forums as fundamental as well as universally applicable, and their
claimed designation as customary international law.
The origins of such efforts to proclaim universal standards included
pre-1948 efforts to abolish the slave trade, object to massacres and atroc-
ities of war, protect national minorities and colonized peoples, and es-
tablish minimum labour standards.19 Charges of crimes against humanity
made at Nuremburg and Tokyo, and claimed to be applicable universally,
lacked a strong basis in international law before the 1948 Genocide
Convention but had genuine historical antecedents.20 Critical steps to-
ward universalistic application of human rights norms included the ac-
ceptance of universal jurisdiction for such crimes as piracy and slave
trading.21
The root of any universalist approach is the conviction that human
rights ‘‘ ‘inhere’ universally in all human beings, throughout their lives,
in virtue of their humanity alone.’’22 Claims of universal applicability
are generally pressed in order to legitimize and justify the progressive
strengthening of the international human rights regime.
Amartya Sen is one of the many Asian scholars who insist that con-
temporary conceptions of rights have deep roots in non-Western as well

as in Western societies. He notes in Development as Freedom that:
It will not have escaped the reader that this book is informed by a belief in the
ability of different people from different cultures to share many common values
and to agree on some common commitments. Indeed, the overriding value of
freedom as the organizing principle of this work has the feature of a strong uni-
versalist presumption.23
Sen views human rights as a system of ethical reasoning that is the basis
of political demands involving basic political liberties and civil rights in
rich and poor countries alike. Although he focuses his argument on the
universality of a wide array of civil and political rights and rarely invokes
economic, social, and cultural human rights explicitly, he offers consider-
able substantive evidence on behalf of the latter set of rights.
Arguments for a comprehensive and interdependent universalism are
rooted in natural rights doctrine, the overwhelming 1948 vote favouring
the UDHR,24 and international court rulings that this Declaration and
certain other major and wide-ranging human rights instruments consti-
tute parts of customary international law. Interdependence relates to the
idea that civil–political and economic, social, and cultural rights, among
other individual and collective rights, help to make each other viable and
cannot be fully effective without all rights being respected.
The substantially increased intensity of global human rights super-
vision and enforcement in the last quarter of the twentieth century pro-
duced a backlash against the universal applicability of at least some parts
of the ‘‘international bill of rights.’’25 The ideological basis of this assault
is reviewed below. In political terms, the multifaceted challenge to uni-
versalism constituted, by the early 1990s, a major perceived threat to
universalist assumptions and expectations.
As a result, the 1993 Vienna Conference on Human Rights, the 1994
Cairo Conference on Population and Development, and the 1995 Beijing
Women’s Conference all involved efforts to articulate and reassert uni-
versalism definitively. The Vienna delegates declared ‘‘all human rights’’
universal, indivisible, interdependent, and interrelated, adding that ‘‘the
universal nature of these rights and freedoms is beyond question.’’26 The
Vienna Declaration and Programme of Action amply incorporate third-
generation rights as much as first-generation civil and political ones.
Those rights given especially strong endorsement relate to national self-
determination, development (with accompanying duties of international
assistance), freedom from extreme poverty, and asylum from persecu-
tion. Although many key first-generation rights (e.g. freedom of expres-
58 SIEGEL
sion and freedom of religion) are given rather little attention in the
Vienna documents, the matter of which groups should benefit from the
principle of equal protection and treatment is addressed broadly and with
renewed intensity.27 In comparison, the affirmation of comprehensive
universalism in the United Nations Millennium Declaration, issued in
September 2000 in the name of the heads of state and government of
each member state, was rather perfunctory.28
Other concrete steps toward a comprehensive universalist approach
have included the development by various global treaty-supervisory
committees of ‘‘core minimum obligations,’’ designed to give concrete
meaning to many kinds of socio-economic as well as civil–political
rights.29 Such efforts to make a wide array of adopted human rights more
enforceable have been reinforced by rulings of national and regional
courts, especially those that have referred explicitly to international hu-
man rights law in areas such as housing and gender discrimination.30
Comprehensive approaches also can be found in the leading Inter-
American and African human rights documents.31
Despite their participation in these global affirmations of universalism,
various Western officials generally avoid stating or endorsing positions
that link economic, social, and cultural rights with civil–political ones or
combine the rights of individuals with collective rights. Their periodic
endorsement of comprehensiveness has been the price paid for the affir-
mation by others of universalism concerning civil and political rights.
None the less, the Charter of Fundamental Rights of the European
Union, adopted at its Nice European Council meeting in December 2000,
can be seen as a small step towards Western acceptance of a compre-
hensive universalist approach in a single document, an action that gen-
erated considerable controversy at that forum.32
Comprehensive universalism has certain flaws and limitations that
weaken its global support. One source of concern is the politically moti-
vated inconsistencies reflected in its formal endorsement at various
meetings. At Vienna, several Western states, most notably the United
States and the United Kingdom, agreed reluctantly to include the entire
corpus of economic and social as well as collective rights as part of a
comprehensive package of universal rights. Certain developing states
acknowledged comprehensive universalism at that forum, despite their
strong ongoing political campaigns to delegitimize the concept. They ac-
cepted compromise formulations that gave some standing to cultural rel-
ativism and avoided the negative political and economic consequences
that might have resulted from the defiance of stronger states at that
forum. Some of these developing states view the further recognition of such
less well-established rights as that of development and self-determination
to be worth the perceived negative impacts of global endorsement of

comprehensive universalism.
Further, fully comprehensive approaches subject human rights norms,
principles, and rules to a ‘‘weakest link’’ challenge. Those listed rights
that arguably are least applicable to many poor developing states serve as
lightning rods for broad attacks on the inclusive list.33 These include ref-
erences in the ICESCR to the rights to paid holidays and universal social
insurance, as well as to the idea that some economic and social rights are
immediately applicable in all ratifying states.
Comprehensive sets of rights also maximize difficulties relating to con-
flicts among rights.34 This does not imply intrinsic contradictions between
civil–political and socio-economic rights in general; rather, such conflicts
primarily exist in relation to confluences of particular rights. For exam-
ple, very serious conflicts occur when the protection of intellectual and
other property rights confronts the rights to health and life. This is epit-
omized by the struggle to supply vitally needed pharmaceuticals and
vaccines in the global context of HIV, tuberculosis, and other diseases
that threaten the viability of entire nation-states as well as the lives of
tens of millions of individuals. In such cases, deference to due process
and other protections relating to intellectual and other property may
threaten successful political and economic transitions as well as the right
of millions to survive with dignity. This conflict illustrates the weakness of
comprehensive universalist positions on human rights when certain in-
terests of global capitalism and wealthy states confront the desperate
needs of a growing number of developing and transitional states. Such
trade-offs exist among economic rights as well as between socio-economic
and other kinds of rights.
An inherent conflict very troubling to many advocates of universalism
pertains to indigenous peoples’ claims to self-determination and the
maintenance of traditional approaches to justice, property, and religious
practices that may be objectionable to the majority culture. Western and
other supporters of universalism probably are much more sympathetic to
such claims from indigenous peoples that may violate generally accepted
standards of due process or other human rights than to similar demands
from mainstream or majority groups. The basic issue is the extent to
which every internationally prescribed human right can be reconciled
with appropriate respect for the cultures and practices of indigenous and
other protected subgroups.35 This problem is, perhaps, more difficult
for advanced democracies and transitional states than for authoritarian
states that do not aspire to maintain strong respect for human rights for
the larger society.
Such arguments point to a need for supporters of universalist posi-
60 SIEGEL
tions to be open to some more flexible approaches to human rights that

may diverge from some norms, principles, and rules championed as uni-
versally applicable. Such pragmatism commonly informs international
courts and human rights supervisory committees and commissions and
is reflected in the language of the ICESCR concerning the progressive
realization of most of such rights. Advocates of universalism need to ac-
cept some pragmatic choices by transitional states, even as they legiti-
mately challenge unjustified state efforts to excuse clear violations of core
rights.
A core rights approach to universalism

The international community has combined its support of comprehensive
universalism with endorsements of various sets of rights as core or fun-
damental, as well as universal. The political documents that articulate
what Western states view to be core universally applicable human rights
include such regional documents as the 1975 Helsinki Final Act and sub-
sequent declarations of the member states of the OSCE. The European
Convention on Human Rights and Fundamental Freedoms, the Charter
of Fundamental Freedoms of the European Union, and the UN-adopted
ICCPR also reflect the scope of their consensus. Nevertheless, it has long
been clear that no set of core rights entirely or largely limited to civil and
political rights will be accepted as the basis for global consensus.
The progress made towards defining the subject-matter jurisdiction of
the proposed permanent International Criminal Court is only one piece
of evidence that universalism is most effective and relevant when an ex-
panding core set of fundamental rights are affirmed and implemented.36
In July 1998, in Rome, some 120 countries adopted a statute for the pro-
posed tribunal that included an expansive set of crimes against humanity
and pointed towards universal jurisdiction and individual accountability
for each such crime.37 The Rome Statute built on such initiatives as the
several Geneva Conventions on Crimes of War, the Genocide Conven-
tion of 1948, the 1987 Convention Against Torture, and the statutes and
court decisions of the international tribunals for Rwanda and for the
former Yugoslavia. It also incorporated and extended path-breaking ef-
forts on behalf of the rights of women and against racial apartheid. Other
concrete steps in support of a core rights approach to universalism have
included bold rulings by national and regional courts in relation to Au-
gusto Pinochet and other individual targets of transitional justice.38
Because of global political considerations and the varied nature of the
most fundamental rights, it is essential that any core rights approach to
universalism should incorporate fundamental aspects of second- and
third-generation human rights as well as civil–political ones. As such, it

was highly significant that the 1995 World Social Summit and the 1998
International Labour Conference (of the ILO) agreed on the same short
list of universally applicable core labour or worker’s rights. These funda-
mental rights relate to forced labour, freedom of association, collective
bargaining, child labour, and non-discrimination in employment.39
However, which criteria should be applied when deciding on a core
rights approach to universalism? It appears that both growing consensus
and considerable remaining confusion mark efforts to decide which rights
are most legitimate and appropriate for universal application. Various
writers have focused on the non-derogable status of a particular right –
the determination that no state can legally suspend (or justify the over-
riding of) a given right.40 Others stress the recognition of core rights by
one or more IGOs or by major international conferences addressing
rights.41 It is also pertinent to core designation that a given right has
been the particular focus of binding international instruments (e.g. those
concerning torture and apartheid), that special procedures have been
created to implement certain rights (as in the ILO review process for
freedom of association), and that certain legal instruments have been
ratified by exceptionally large numbers of states or have been declared
by courts or other authoritative bodies to constitute customary interna-
tional law.42
Although such criteria incorporate standing as binding international
law and the priorities of the member-states of particular international
organizations, they do not guarantee that legitimacy and fundamental
status will be decided objectively or rationally. A given right may well
be excluded from an authoritative list of core human rights because it
conflicts with interests, national or traditional law, religious or secular
teachings, or practices in a small number of influential states. The actual
decision-making processes primarily reflect the realities of national
power and interests, the politics of international organizations, and the
power of certain normative logics more than others.43 None the less, cri-
teria such as those noted above are the best evidence available of the
nature and breadth of global consensus on important rights and stan-
dards.
It is a central contention of this chapter that an expanding core-rights
approach to universalism offers the soundest strategy for maximizing
effective global acceptance and implementation of human rights. The
expanding core approach avoids most of the inherent weaknesses of
comprehensive universalism: it builds upon areas of strong scholarly and
political support and allows for the further development of the univer-
salist consensus in terms of geographic breadth, binding authority, inter-
pretation, and implementation.
62 SIEGEL
The United States: Universalist or relativist?
Comprehensive universalism is also weakened when some of its strongest

nominal state supporters – in particular, the United States – frequently
act in ways inimical to its advancement. Such failures relate to civil and
political rights as well as second- and third-generation ones. They involve
refusals to ratify critical human rights instruments and actions that block
major steps directed at effective universal enforcement of standards. It
is not argued here that the United States consistently opposes the ad-
vancement of the international human rights regime: Kosovo stands out
as an example of US leadership, and it is acknowledged that the loss by
the United States of a seat on the Commission on Human Rights in 2001
was also related to America’s assertiveness in regard to violations of
human rights by particular authoritarian states. Also, the United States
occasionally rejects or offers reservations to global civil–political rights
instruments for arguably bona fide reasons of civil liberties. Neverthe-
less, even the record of the US delegation at various sessions of the Com-
mission on Human Rights has been interpreted negatively in relation
to universalist criteria.44
Several authors suggest that the formally universalist positions of the
United States are, in many respects, culturally and politically relativist.45
America and several allied states were largely responsible for the re-
strictive approach to the right to work that was incorporated into the
ICESCR. The United States worked assiduously to avoid binding inter-
national obligations concerning the right to development in 1986 and
opposed the Charter of Economic Rights and Duties of States passed by
the General Assembly in 1975.46 Washington has also refused to ratify
most ILO labour rights conventions, as well as such global and regional
instruments central to comprehensive (and even core) approaches to
universalism, such as the ICESCR, the global conventions on the rights
of the child and discrimination against women, and the American Con-
vention on Human Rights. Other key human rights instruments have
been ratified by the United States only after decades of political effort
and with major (and, in some cases, arguably illegal) reservations and
understandings. America holds to its own positions on hate speech, the
death penalty (most egregiously in relation to youths under the age of 18
years),47 and other issues on which it stands apart from most strong ad-
vocates of universalism. Recent US opposition to the global land-mine
convention, age limits concerning child soldiers, and the International
Criminal Court have reinforced perceptions of America’s relativism and
helped to clarify the idea that support for pluralism is not only a product
of authoritarianism, religious fundamentalism, and tradition. The rela-
tivism of the United States and its rejection of intrusive universalism
regarding the application and implementation of human rights to its na-

tionals derives in part from the power of the military and the US Senate
in Washington, politics, parochialism, disrespect for international law,
federalism, and a legacy of racism. Some of the orientations and patterns
that support this resistance to universalism are core aspects of American
culture, democracy, and constitutionalism. Others are intrinsic to the US
role as a global hegemon, particularly in the present era of pax Ameri-
cana and its war on terrorism.
Cultural relativism’s challenge to universalism
Opposition to universalism derives from many sources and takes many

forms. Various opponents have rejected comprehensive and core ver-
sions of universalism, basing their arguments on the legitimacy of moral
or cultural pluralism as well as on the need to adjust human rights stan-
dards to various stages of economic and political development. Such ar-
guments are put forward by many Western commentators, as well as by
many scholars and officials from Asia, Africa, and Latin America.48
Cultural relativists typically contend that many proclaimed human
rights are inapplicable or of limited validity in many or most non-
Western settings. They argue that particular rights are alien to certain
values, practices, and purposes critical to human dignity. Various as-
serted rights, in the view of some relativists, reflect Western imperialism
or hegemony and should be subordinated to religious authority and na-
tional or popular sovereignty. As noted by Donnelly, ‘‘[t]he doctrine of
cultural relativism holds that at least some variation cannot be legiti-
mately criticized by outsiders.’’49
Advocating respect for diverse customs and cultures, relativists also
often allege that the ‘‘licence’’ promoted by the universal or Western
consensus produces detrimental social effects. Many call for a rights
agenda more compatible with community, sovereignty, order, and/or re-
ligious authority and claim that certain aspects of democracy and human
rights are incompatible with the essence of various legitimate cultural and
political traditions. Advocates of these positions frequently emphasize
that the West’s liberal consensus supporting human rights developed
rather recently in broad historical terms and that the developing world’s
need for time to shape each societies’ own synthesis of human rights and
other cherished values must be respected.
Relativist positions focus on two primary human rights battlegrounds.
One line of argument defends limitations on democracy and constitu-
tional rights in the interest of economic development, order, political
stability, and continuity. The other – which may well be combined with
64 SIEGEL
the first – stresses the need for and value of preserving traditional and
religious approaches to issues of equality, family, gender, children, sexu-
ality, and related matters. The former focus has been strongly challenged
as an ideological mask of authoritarian regimes seeking to defend re-
pression and hold onto power. Both perspectives are often widely shared
by large proportions of citizens as well as by élites in various authoritar-
ian and transitional states.50
Radical, strong, and weak versions of cultural relativism can be distin-
guished. Donnelly notes that the radical position holds that culture is the
‘‘sole source of the validity of a moral right or rule.’’51 He suggests that
the strong relativist position views culture as the principal basis of their
validity and that weak relativism perceives culture as an ‘‘important
source’’ of the validity of a moral or human right.52 This American po-
litical theorist also offers this useful categorization of the possible rele-
vance of cultural relativism to different aspects of human rights:
In a rough way, three hierarchical levels of variation can be established, involving

cultural relativism in the substance of lists of human rights, in the interpretation of
individual rights, and in the form in which particular rights are implemented.53
The latter formulation opens doors to the adaptation of core universally

accepted rights in diverse cultural and political settings.
It is increasingly recognized that there are radical as well as more
moderate versions of universalism, as well as relativism. According to
Donnelly, the radical universalist stance reflects ‘‘the view that all values,
including human rights, are entirely universal, in no way subject to mod-
ification in light of cultural or historical differences,’’ and that ‘‘there is
only one set of human rights that applies at all times and at all places.’’54
To a considerable extent, Donnelly is offering conceptual straw men to
be knocked down when he defines radical versions of both universalism
and relativism.
The voice of relativism has been heard most loudly in the speeches and
writings of such South-East Asian leaders as Lee Kuan Yew and Maha-
thir Bin Mohamad,55 at preliminary regional forums of major interna-
tional human rights conferences and at periodic gatherings of regional
and global IGOs. The 1981 meeting of the Islamic Conference, the Asian
Preparatory Meeting of the 1993 Vienna Conference, the 1994 meeting
of the League of Arab States, and the Organization for African Unity’s
1981 session consciously targeted aspects of universalism and supported
key elements of moderate to strong cultural relativism.56 Such other
international forums as the 1994 Cairo Conference on Population and
Development and the 2002 UN General Assembly Session on Children
also demonstrated the absence of global consensus on some of the most
vital human rights issues pertaining to personal autonomy and human

dignity.
Relativism is not only expressed officially in minority or regional votes
on key global instruments and initiatives: World Trade Organization
(WTO) ministerial meetings have repeatedly rejected intrusive univer-
salist responses to core labour and environmental standards, with large
majorities equating the policing of minimal labour standards through
the WTO with Western protectionism and hegemony. Most of the same
states proceed to argue that their rejection of binding labour and envi-
ronmental standards does not reflect opposition to those standards per se
but, rather, rejection of their application to developing states that require
more time and economic development to afford investment of the re-
sources required. It should be noted, however, that not all such standards
require investment of substantial resources by those states: equality of
treatment of groups within the labour force and free association of
workers are among the standards at issue.
Pluralist realities are reflected in the refusals of many governments to
ratify certain human rights conventions and their additional optional pro-
tocols. They are strongly manifested in reservations and understandings
on rights involving such subjects as discrimination against women, family
law, and the rights of children. The relationships of human rights stan-
dards to Shar’ia, custom and tradition, national emergencies, stages of
economic development, social harmony, and preferences for particular
political systems are claimed bases for reservations offered and for resis-
tance to implementation of certain rights.57 Such policy positions and
actions operate to lessen global consensus on human rights.
Transitional societies and intercultural dialogue

A more genuine universalism can best be shaped by building upon exist-
ing consensus in support of one or more sets of core human rights,
agreement expressed through the broadest possible global endorsement,
and explicit provision for meaningful scrutiny of violations and effective
enforcement. As noted above, such consensus is strongest now in regard
to a growing list of crimes against humanity, and can reasonably be
claimed for the core labour standards identified in the 1990s. It also in-
cludes the non-derogable elements of the leading global human rights
conventions.
In the view of this writer, a globally accepted core must reach beyond
these agreed rights and standards, incorporating other key aspects of
civil–political and economic, social, and cultural rights. Although the ad-
dition of other core rights can be logically derived from areas of agree-
66 SIEGEL
ment in the entire body of regional and national as well as global human
rights instruments, further steps should be taken to legitimize an ex-
panding core of rights that should be singled out for more effective global
implementation. The hierarchy of rights implied in the enforcement work
of the Human Rights Committee and the Committee on Economic, So-
cial and Cultural Rights is a start to such a process.58
The broadening of these sets of core rights requires what has been
termed ‘‘intercultural’’ or ‘‘intercivilizational’’ dialogue. This effort must
be made, even if we accept pessimistic predictions concerning global
order, peace, and stability in the decades ahead.59 Such dialogues have
been skilfully managed in recent decades at conferences and symposia
organized by diverse sponsoring organizations.60 Progress in under-
standing diverse perspectives and seeking ways to bridge gaps is evi-
dent in books and other publications, such as those edited by Berting
(with others), Bauer and Bell, and Van Ness. The meetings that helped
to generate the present book constitute another valuable effort at glo-
bal dialogue. Vitally important communication occurs among NGO
representatives and delegates before and during major human rights
conferences – efforts that periodically contribute to the expansion of a
core universalist consensus.61 Needless to say, such dialogue also poses
risks of hardened positions as outcomes, but this is a gamble worth taking
when the meetings are well prepared and major participants on all sides
have open minds and freedom to find common ground.
Various advocates of universalism who work actively in traditional Is-
lamic and other societies have convinced this writer that the advance-
ment of rights for women, children, religious minorities, and others
depends on dialogue, persuasion, and compromise within particular states
or on a pan-religious basis.62 That is, the past and current demands
made by proponents of Shar’ia and other religious or traditional doc-
trines and practices must be answered internally in order for progressive
approaches to equality and tolerance to emerge and develop. There is a
very real risk that external criticism of traditional societies will be
counter-productive if it occurs while such internal dialogues and political
efforts proceed. Yet, in the long run, the internal and international dia-
logues must proceed together and should be combined with global pres-
sure when (as in Sudan, Myanmar, and Afghanistan) particularly severe
approaches to inequality and intolerance are adopted.
Various transitional societies offer both great opportunities and major
risks for internal and intersocietal dialogue relating to tradition and
human rights. Respected quantitative research finds that transition
status correlates positively with greater violence and ‘‘life-integrity vio-
lations.’’63 Transitional states moving away from stable authoritarianism
confront an exceptionally wide array of destabilizing forces and risks:
these include such seemingly intractable problems as exceptionally high

rates of unemployment, civil and international war, foreign military oc-
cupation, corruption, the need for profound economic restructuring,
AIDS and other devastating diseases, and vulnerability to (often unpre-
dictable) manifestations of economic globalization and natural disasters.
Further, a substantial proportion of transitional societies continue to
struggle with policy issues concerning transitional justice. Even states
that ended military or other repressive regimes many years ago did not
escape entirely the negative consequences of their choices concerning
justice, truth, reconciliation, risks to the anticipated democratic transition,
and other considerations.64 States’ choices to pursue such approaches as
truth and reconciliation commissions, prosecutions, amnesties and other
measures, or to refuse altogether to confront past grave violations of
rights, significantly affect their subsequent responses to multilateral asser-
tions of universalism as well as to global and regional, legal, and political
initiatives concerning such issues as torture, war crimes, disappearances,
and genocidal massacres. Decisions by particular states concerning tran-
sitional justice also affect their consideration of such cutting-edge norms as
the prohibition of military coups designed to oust elected governments.
The confluence of such dangers and pressing issues make intersocietal
and internal dialogue on human rights norms concerning equality, toler-
ance, justice, and other such values both more difficult and far more nec-
essary. This is true in part because there are inherent limitations on the
ability of outside forces to compel acceptance of such values and obliga-
tions.
Learning from experience with critical issues

The acceptance of advice from activists in Islamic and other countries
concerning the need for domestic dialogue as well as legal and political
efforts on behalf of human rights is but one example of necessary social
learning. Various other insights can be discovered by studying the grass-
roots struggles in transitional and other states concerning such issues as
HIV/AIDS, transitional justice, war crimes, exploitation of women and
children, and other critical issues.
One of the most important lessons learned from the HIV/AIDS pan-
demic is that there is no meaningful line separating the right to life from
the right to health, gender equity, education, and development. Preven-
tion and treatment are central to the control of this catastrophic disease,
and these require individual and collective rights to both maximal na-
tional political efforts and increased international assistance.65 For most
of the post-1945 life of the contemporary global human rights regime
68 SIEGEL
there has been a struggle to take the right to life seriously in relation to
genocide, war crimes, and other crimes against humanity;66 however,
infectious disease constitutes no less a threat to the right to life, and it
is necessary to invoke effective approaches that are global, are multi-
faceted, and that build upon an expanding conception of universally ap-
plicable human rights.
The HIV/AIDS pandemic also suggests the need for more astute ap-
proaches to certain traditional and religious ideas and practices that
many see as impeding efforts to bring the disease under control. This
crisis, particularly in various parts of Africa, has forced states and com-
munities to utilize traditional medical practitioners, to engage in dialogues
with religious authorities concerning the need to reinterpret traditional
conceptions of morality and sexuality, and to study carefully the impacts
of patriarchy on the pandemic. In some of the most successful highly af-
fected countries, bearers of tradition are effectively mobilized and pre-
vention campaigns are adjusted to gain the support of culturally diverse
élites and others.67 Unfortunately, there are more examples of failures to
overcome such perceived barriers than to co-opt or transform them, and
national leaders who fear the loss of certain benefits of economic global-
ization are often the leading voices of national denial concerning the
pandemic. But admonitions concerning the need for inclusive strategies
are being advanced by the Joint United Nations Programme on HIV/
AIDS (UNAIDS) and its constituent organizations, even as national
élites and others gradually abandon their various rationalizations for
denial concerning the level of crisis and the solutions needed.
Lessons from the past two decades of experiments with transitional
justice also suggest opportunities to embrace relativism on behalf of
universalist conceptions of rights. South Africa has taught us how Chris-
tian and traditional religious ideas can contribute to the shaping of ap-
proaches to reconciliation.68 Whether the South African effort to balance
truth, amnesty, and prosecution has helped to entrench the rule of law
will long be debated. It contributed to these larger goals by allowing the
crimes of the victorious forces to be investigated and reported together
with those of the apartheid state. According to Alex Boraine, Deputy
Chairperson of South Africa’s Truth and Reconciliation Commission,
‘‘Every attempt should be made to assist countries to find their own so-
lutions provided that there is no blatant disregard of fundamental human
rights.’’69
South Africa’s (and some other states’) experiences with amnesty and
reconciliation have evoked mostly positive responses from the interna-
tional community. International criminal tribunals in Tanzania and, es-
pecially, the Hague, offer models of transitional justice that mesh diverse
legal procedures and traditions, avoid the death penalty, and assert as
crimes against humanity such atrocities as systemic rape and sexual slav-
ery.70 Yet many transitional states have failed to respond meaningfully to

grave violations of fundamental rights and have demonstrated an inabil-
ity or unwillingness to provide appropriate procedural rights.71 The un-
willingness of such states as Cambodia, Nigeria, and Serbia–Montenegro
to respond to grave violations results from many factors, including the
continuance in power of participants in the prior regime, concern for the
fragility of domestic peace and of the transition itself, and unwillingness
to bow to external pressures for prosecutions and other measures.
The present writer has argued elsewhere that states have a duty to
bring major individual perpetrators to justice in cases of grave violations
of human rights.72 Geoffrey Robertson and Diane F. Orentlicher also
stress this point, citing as authority major international conventions and
decisions of national and international courts.73 There clearly have been
abuses of amnesty, especially where departing leaders have negotiated
their own immunity. None the less, the experiences of South Africa and
many other states suggest that no single approach to justice and truth
can, or should, be applied globally. The goals of transitional justice are
varied, including the need to reject impunity for grave violations of hu-
man rights, the revelations of the scale and character of examples of
those violations, and the furthering of national reconciliation and the rule
of law. Each transitional society needs to shape a balanced approach
consistent with its political culture, recent history, and power relations.
Many other lessons relating to cultural relativism and the expansion of
core universally applicable rights can be learned from national, regional,
and global efforts to deal with other critical contemporary issues. These
include crises of religious tolerance; cultural and physical threats against
indigenous peoples; denial of the fundamental rights of women and girls;
and persistent forced labour, slavery, and exploitative child labour. These
violations illustrate both the necessity of a universalist approach to an
expanding core set of human rights and the enormous cultural and polit-
ical challenges to their effective implementation.
Conclusions
This chapter has drawn attention to developments that have contributed

to the recognition of an expanding core of universally accepted human
rights. It argues for markedly expanded dialogue in pursuit of broad
consensus on the scope of universally applicable rights and suggests that
efforts to find additional common ground with religious and other tradi-
tional forces are needed in order to advance human rights and dignity in
many transitional societies. Although there is a need to confront violators
of core universally recognized rights through a wide array of national,
regional, and global multilateral responses, coercive efforts should not be
70 SIEGEL
allowed to destroy opportunities to broaden and deepen the existing core

universal consensus. For example, prosecutions undertaken after the fall
of tyrannical regimes must respect the rule of law and demonstrate a fair
and even-handed approach to violators on all sides of international and
internal conflicts.
Any set of core human rights deserving universal consensus must tran-
scend civil and political rights and extend to second- and third-genera-
tion standards. This is true because the several generations of rights
are genuinely interdependent. As seen in the context of the HIV/AIDS
pandemic, a particular socio-economic right such as health and a third-
generation right to international assistance are both integral to a first-
generation right to life.
It is not very productive to adopt universalist statements in major hu-
man rights documents when these are based on clumsy compromises.
This occurs when support for universalism is combined in conference
statements with references to relativism that can be read to justify a
broad rejection of universalism. Although it is important to strengthen all
the rights adopted in major multilateral instruments, an approach that
demonstrates clear positive results on behalf of a core set of fundamen-
tal and universally accepted rights can do more to advance human rights
in transitional and other societies than a comprehensive approach to
universalism or a relativist position that rejects even a core universalist
consensus. After all, the goal of the effort to expand respect for, and im-
plementation of, human rights is to make concrete advances on the
ground and to achieve progress in areas that are recognized as priorities
by experts and ordinary citizens alike.
Numerous transitional states, from Africa to the Balkans and from the
Ukraine to Central America, confront (or have recently faced) such
threats to the human right to life as HIV and other infectious diseases,
natural disasters, genocide, war crimes, and the collapse of state author-
ity. Their critical needs necessitate generous levels of international assis-
tance for development, at least minimal standards of justice and political
participation, institutions that prevent exploitation of weaker groups, and
the ability to remove corrupt and despotic governments. The expanding
core approach to universalism helps to create and build upon agreement
concerning such rights and obligations and increase the likelihood of
successful transitions.
Notes
1. It can be argued that almost every society strongly affected by economic and cultural
globalization is transitional. However, the consensus of the authors of this book is that
the term should be employed more narrowly.
2. Andrew Moravcik presents evidence that ‘‘new democracies’’ were vital to the devel-
opment of a strong European human rights regime that focused on civil–political rights
both in the aftermath of World War II and in the 1990s. He argues that the insecurity of
their situation as new democracies motivated their support of a strong regional human
rights regime that would serve as ‘‘a bulwark against tyranny.’’ Moravcik, ‘‘The Origins
of Human Rights Regimes: Democratic Delegation in Postwar Europe,’’ International
Organization, Vol. 54, No. 2, Spring 2000, p. 237.
3. Michael Freeman, ‘‘The Philosophical Foundations of Human Rights,’’ Human Rights
Quarterly, Vol. 16, 1994, pp. 491–514.
4. Peter Van Ness, ed., Debating Human Rights: Critical Essays from the United States and
Asia, London and New York: Routledge, 1999, p. 11.
5. Thomas M. Franck, ‘‘Are Human Rights Universal?’’, Foreign Affairs, Vol. 80, No. 1,
January–February 2001, pp. 203–204.
6. Eric Hobsbawm, The Age of Extremes: A History of the World, 1914–1991, New York:
Pantheon Books, 1994.
7. For a wide-ranging introduction to such schools or approaches see Scott Burchill and
Andrew Linklater, Theories of International Relations, New York: St Martin’s Press,
1996. For an excellent edited volume that applies several of these approaches to con-
temporary foreign policy, see C. John Ikenberry, ed., America Unrivaled: The Future of
the Balance of Power, Ithaca, NY and London: Cornell University Press, 2002. The
leading presentation of neorealism is Kenneth Waltz, Theory of International Relations,
Reading, Mass.: Addison-Wesley, 1979. For liberal internationalism see M.W. Zacher
and R.A. Mathew, ‘‘Liberal International Theory: Common Threads, Divergent
Strands,’’ in Charles W. Kegley Jr, ed., Controversies in International Relations Theory,
New York, 1995, pp. 107–150. A leading and controversial recent work reflecting sev-
eral schools of critical theory is Michael Hardt and Antonio Negri, Empire, Cambridge,
Mass. and London: Harvard University Press, 2000.
8. Michael Ignatieff et al., Human Rights as Politics and Idolatry, Princeton: Princeton
University Press, 2001, especially pp. 3–52; Andrew Hurrell, ‘‘Power, Principles and
Prudence: Protecting Human Rights in a Deeply Divided World,’’ in Tim Dunne and
Nicholas J. Wheeler, eds, Human Rights in Global Politics, Cambridge and New York:
Cambridge University Press, 1999, pp. 277–302; Tony Evans, ‘‘Introduction: Power,
Hegemony and the Universalization of Human Rights,’’ in Evans, ed., Human Rights
Fifty Years On: A Reappraisal, Manchester and New York: Manchester University
Press, 1998, pp. 2–23; and David Forsythe, ed., Human Rights and Comparative Foreign
Policy, Tokyo: United Nations University Press, 2000.
9. Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink, eds, The Power of Human
Rights: International Norms and Domestic Change, Cambridge and New York: Cam-
bridge University Press, 1999.
10. See Austin Sarat and Thomas R. Kearns, eds, Human Rights: Concepts, Contests, Con-
tingencies, Ann Arbor: University of Michigan Press, 2001; Michael Ignatieff et al., Hu-
man Rights as Politics and Idolatry, pp. 53–98; Alison Brysk, ed., Globalization and
Human Rights, Berkeley: University of California Press, 2002; and Upenda Baxi,
‘‘Voice of Suffering Fragmented Universality, and the Future of Human Rights’’ and
Anne Oxford, ‘‘Contesting Globalization: A Feminist Perspective on the Future of Hu-
man Rights,’’ in Burn H. Weston and Stephen P. Marks, eds, The Future of Human
Rights, Ardsley, New York: Transnational Publishers, 1999, pp. 101–156, 157–186.
11. For such a realist version see Henry Kissinger, White House Years, Boston: Little,
Brown & Company, 1979, especially pp. 54–70.
12. See Yash Ghai, ‘‘Rights, Social Justice, and Globalization in East Asia,’’ in Joanne R.
Bauer and Daniel A. Bell, eds, The East Asian Challenge for Human Rights, Cambridge
and New York: Cambridge University Press, 1999, pp. 241–263.
72 SIEGEL
13. See Ann Kent, China and the United Nations, and Human Rights: The Limits of Com-
pliance, Philadelphia: University of Pennsylvania Press, 1999; Ming Wan, Human Rights
in Chinese Foreign Relations: Defining and Defending National Interests, Philadelphia:
University of Pennsylvania Press, 2001.
14. See Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Cen-
tury, Norman: University of Oklahoma Press, 1991.
15. For a view of this matter that is more positive than mine see Adrian Koratnycky, ‘‘A
Century of Progress,’’ Journal of Democracy, Vol. 11, No. 1, January 2000, pp. 187–
2000; for more negative views see Renske Doorenspleet, ‘‘Reassessing the Three Waves
of Democratization,’’ World Politics, Vol. 52, April 2000, pp. 384–406, and Fareed Za-
karia, The Future of Freedom: Illiberal Democracy at Home and Abroad, New York:
W.W. Norton Publishers, 2003.
16. Numerous Muslim states have based reservations concerning ratified human rights
conventions on the necessity of maintaining policies based on Shari’a. See Radhika
Coomaraswamy, ‘‘Reinventing International Law: Women’s Rights as Human Rights
in the International Community,’’ in Van Ness, ed., Debating Human Rights, pp. 167–
168.
17. Abdullahi An-Na’im, ‘‘Human Rights in the Arab World: A Regional Perspective,’’
Human Rights Quarterly, Vol. 23, No. 3, August 2001, pp. 701–732.
18. One major source of such scholarly arguments is Joanne R. Bauer and Daniel A. Bell,
eds, The East Asian Challenge for Human Rights, Cambridge: Cambridge University
Press, 1999. Their volume also includes opposing views.
19. Several of these historical efforts are reviewed in Paul Gordon Lauren, Power and
Prejudice: The Politics and Diplomacy of Racial Discrimination, Boulder, CO and Lon-
don: Westview Press, 1988. See also documentation in Henry J. Steiner and Philip
Alston, eds, International Human Rights in Context: Law, Politics, Morals, 2nd edn.
Oxford: Oxford University Press, pp. 56–125.
20. Louis Henkin et al. refer to the 1945 Nuremberg Charter as ‘‘the first formal assertion
of an international law of human rights.’’ They cite Adam Hochschild to the effect that
the phrase ‘‘crimes against humanity’’ originated with a letter concerning the atrocities
in the Congo from George Washington Williams to US Secretary of State Blaine dated
15 September 1890. Henkin et al., Human Rights, New York: Foundation Press, 1999,
p. 73. See also Hochschild, King Leopold’s Ghost, New York: Houghton Mifflin Co.,
1998, pp. 111–112.
21. See Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen,
Philadelphia: University of Pennsylvania Press, 1998, pp. 38–45; and M. Cherif Bas-
siouni, ‘‘Universal Jurisdiction for International Crimes: Historical Perspectives and
Contemporary Practices,’’ Virginia Journal of International Law, No. 42, Vol. 1, 2001,
pp. 82–162.
22. Paul Sieghart, International Law of Human Rights, Oxford: Clarendon Press, 1983, p. 17.
23. Amartya Sen, Development as Freedom, New York: Alfred A. Knopf, 2000, p. 244.
24. Because most other human rights instruments adopted at the global level have been
more narrowly focused, the UDHR is a rare example of wide-ranging first-, second- and
third-generation rights in a single official document.
25. This term includes the UDHR and the international covenants on civil–political and
economic, social, and cultural rights adopted by the General Assembly in 1966. Efforts
to implement a more or less comprehensive universalist approach include the activation
of several treaty-based UN human rights supervisory committees in the 1980s and
1990s. These committees help implement conventions on economic, social, and cultural
rights and civil–political rights as well as conventions to overcome discrimination based
on gender and race and to advance the rights of children, among others. Further, NGOs
such as Human Rights Watch utilize an increasingly comprehensive approach to their

annual surveys. The effectiveness of such efforts grew with the increased participation of
NGOs in some UN organs, the adoption of additional optional protocols allowing non-
state complaints, and a broadening scope of inquiry (including such issues as AIDS and
violence against women) on the part of the UN Commission of Human Rights and its
Sub-Commission on the Promotion and Protection of Human Rights.
26. Vienna Declaration and Programme of Action, Adopted 25 June 1993, UN Doc. A/
CONF. 157/23, para. 5.
27. For a review of the Vienna documents that includes the argument that religious toler-
ance was treated inadequately by the delegates see ‘‘Introduction,’’ Special Issue of The
Review: International Commission of Jurists, No. 50, 1993, p. 5. Notable attention is
given to the rights of girls, the disabled, and linguistic minorities in the documents, and
racial and gender discrimination are treated expansively.
28. ‘‘United Nations Millennium Declaration,’’ adopted 8 September 2000, in UN Chroni-
cle, No. 3, 2000, pp. 38–47.
29. For examples of such positions by supervisory committees see Gina Bekker, ed., A
Compilation of Essential Documents on Economic, Social and Cultural Rights, Pretoria,
South Africa: Centre for Human Rights, University of Pretoria, 1999. See also ‘‘The
Maastricht Guidelines on Violations of Economic, Social, and Cultural Rights,’’ in Hu-
man Rights Quarterly, Vol. 20, No. 3, August 1998, pp. 691–704, and Audrey Chapman
and Sage Russell, eds, Core Obligations: Building a Framework for Economic, Social
and Cultural Rights, Antwerp and Oxford: Intersentia Publishers, 2002.
30. Courts of the Council of Europe, the European Union, India, and South Africa have
been among those that have made important rulings implementing economic, social,
and cultural rights. See Henry J. Steiner and Philip Alston, International Human Rights
in Context: Law, Politics, Morals – Text and Materials, 2nd edn. Oxford: Oxford Uni-
versity Press, 2000, pp. 158–315.
31. These include the 1948 American Declaration of the Rights and Duties of Man, the
1969 American Convention on Human Rights (with its additional 1988 protocol on
economic, social, and cultural rights) and the 1981 African Charter on Human and
People’s Rights.
32. ‘‘Charter of Fundamental Rights of the European Union,’’ 2000/C364/01, Official Jour-
nal of the European Communities, 18 December 2000; ‘‘The EU’s Growing Pains,’’
Foreign Policy, March–April 2001, pp. 76–77.
33. See Theodor Meron, ‘‘On a Hierarchy of International Human Rights,’’ American
Journal of International Law, Vol. 80, No. 1, January 1986, p. 21.
34. It is acknowledged that any set of prescribed constitutional or human rights engenders
serious conflicts among those rights. This section emphasizes that a comprehensive and
non-hierarchical approach to rights exacerbates the potential for, and scope of, such
conflicts.
35. A strongly cultural relativist position on this question has long been strongly supported
in the discipline of anthropology. This was reflected in the American Anthropological
Association’s 1947 Statement of Human Rights, which can be found in American An-
thropologist, Vol. 49, No. 4, 1947, pp. 539–543.
36. As noted by Meron (see note 33), this involves ‘‘the quest for a hierarchy of interna-
tional human rights.’’ Meron, ‘‘On a Hierarchy of International Human Rights,’’ p. 1.
37. See Michael P. Scharf, ‘‘Results of the Rome Conference for an International Criminal
Court,’’ ASIL Insight, August 1998.
38. See Geoffrey Robertson, Crimes Against Humanity: The Struggle for Global Justice,
New York: The New Press, 1999, especially pp. 203–400; and Gary Jonathan Bass, Stay
the Hand of Vengeance: The Politics of War Crimes Tribunals, Princeton and Oxford:
74 SIEGEL
Princeton University Press, 2000. A limiting development is the 2001 decision of the
International Court of Justice concerning immunity of an incumbent Minister of Foreign
Affairs of the Congo from Belgium’s claimed jurisdiction. Democratic Republic of the
Congo v. Belgium, 14 February 2002.
39. See Organization for Economic Cooperation and Development, Trade, Employment
and Labor Standards, Paris: OECD, 1996, pp. 10–28. These rights were justified in part
on the basis that they provide ‘‘framework conditions’’ that make other labour stan-
dards possible.
40. Christina M. Cerna, ‘‘Universality of Human Rights and Cultural Diversity: Implemen-
tation in Different Socio-Cultural Contexts,’’ Human Rights Quarterly, Vol. 16, 1994,
p. 744.
41. Organization for Economic Cooperation and Development, Trade, Employment and
Labor Standards, pp. 10, 26.
42. Cerna (see note 40), pp. 745–749; Meron (see note 33), ‘‘On a Hierarchy of Interna-
tional Human Rights.’’
43. On normative logics relative to human rights see Richard Falk, Human Rights and State
Sovereignty, New York and London: Holmes and Meier Publishers, 1981, pp. 33–62.
44. See Human Rights Watch Press Release, ‘‘UN: Progress on Disappearances Pact
Hailed,’’ 26 April 2001, available at hhttp://www.hrw.org/press/2001i.
45. See David P. Forsythe, ‘‘US Foreign Policy and Human Rights,’’ pp. 27–38, and Daniel
W. Wessner, ‘‘From Judge to Participant: The United States as Champion of Human
Rights,’’ in Peter Van Ness, ed., Debating Human Rights: Critical Essays from the United
States and Asia, London and New York: Routledge, 1999, pp. 255–277.
46. Richard Lewis Siegel, Employment and Human Rights: The International Dimension,
Philadelphia: University of Pennsylvania Press, 1994, pp. 65–71; Seyom Brown, Human
Rights in World Politics, pp. 29–30. The vote on the Charter was 120 to 6 with 10 ab-
stentions.
47. Although abolition of the death penalty has advanced significantly as an internationally
recognized human rights standard, particularly in the past two decades, full abolition is
not yet a universally accepted aspect of the right to life, or cruel and inhuman punish-
ment. None the less, major inroads have been made. Abolition has been adopted as a
binding regional norm in the growing domain of the Council of Europe and has pro-
gressed as a norm accepted in Latin America and Africa and in relation to the mentally
ill and developmentally disabled, as well as those under the age of 18 years. See William
A. Schabas, The Abolition of the Death Penalty in International Law, 3rd edn, Cam-
bridge: Cambridge University Press, 2002.
48. For scholarly support for relativism see Jan Berting et al., eds, Human Rights in a Plural
World: Individuals and Collectivities, Westport/London: Mechler Corporation, 1990;
Richard A. Wilson, ed., Human Rights, Culture and Context: Anthropological Perspec-
tives, London and Chicago: Pluto Press, 1997; and Adamantia Pollis and Peter Schwab,
Human Rights: Cultural and Ideological Perspectives, New York: Praeger Publishers,
1980.
49. Jack Donnelly, Universal Human Rights in Theory and Practice, Ithaca and London:
Cornell University Press, 1989, p. 109.
50. Abhullahi An Na’im states this point as a common feature of Arab States in An
Na’imm, p. 722. For a somewhat more positive view of democratic prospects see Adrian
Karatnycky, ‘‘The 2001 Freedom House Survey: Muslim Countries and the Democracy
Gap,’’ Journal of Democracy, Vol. 13, No. 1, January 2002, pp. 99–112.
51. Donnelly, Universal Human Rights in Theory and Practice, pp. 109–110.
52. Ibid., p. 110.
53. Ibid.
54. Jack Donnelly, International Human Rights, second edition, Boulder, CO: Westview
Press, 1998, p. 33.
55. See Lee Kuan Yew, The Singapore Story: Memoirs of Lee Kuan Yew, New York:
Prentice-Hall, 1999.
56. See Declan O’Sullivan, ‘‘The History of Human Rights Across the Regions: Universal-
ism versus Cultural Relativism,’’ The International Journal of Human Rights, Vol. 2, No.
3, Autumn 1998, pp. 31–34, 37–43 and Olusola Ojo, ‘‘Understanding Human Rights in
Africa,’’ in Jan Berting, et al., Human Rights in a Pluralist World, pp. 115–124.
57. See O’Sullivan, ‘‘The History of Human Rights Across the Regions,’’ pp. 28–29.
58. This includes the effort to achieve consensus on core minimum obligations of states as
well as to hold states parties to what the US Supreme Court would call ‘‘strict scrutiny’’
for designated elements of each multinational convention.
59. Pessimistic prognostications are presented in Samuel Huntington, The Clash of Civi-
lizations and the Remaking of World Order, New York: Simon & Schuster, 1996 and
Robert D. Kaplan, The Coming Anarchy: Shattering the Dreams of the Post Cold War,
New York: Vintage Books, 2000.
60. These have included UNESCO, the UN Human Rights Centre, The Netherlands Com-
mission for UNESCO, the Carnegie Council on Ethics and International Affairs, the
Association for Asian Studies, and the Bulletin of Concerned Asian Scholars.
61. Examples of such progress have occurred recently in relation to child soldiers, exploit-
ative child labour, violence against women, and a permanent international criminal
court. Although not necessarily producing new core universally accepted rights, such
developments clearly constitute steps in that direction.
62. See Norani Othman, ‘‘Grounding Human Rights Arguments in Non-Western Culture:
Shari’a and the Citizenship Rights of Women in a Modern Islamic State,’’ in Bauer and
Bell, The East Asian Challenge for Human Rights, pp. 169–192.
63. See Helen Fein, ‘‘More Murder in the Middle: Life-Integrity Violations and Democracy
in the World, 1987,’’ Human Rights Quarterly, Vol. 17, 1995, pp. 170–191 and Steven C.
Poe, C. Neal Tate, and Linda Camp Keith, ‘‘Repression of the Human Right to Per-
sonal Integrity Revisited: A Global Cross-National Study Covering the Years 1976–
1993,’’ International Studies Quarterly, Vol. 43, 1999, pp. 291–313.
64. For the most comprehensive set of essays and documents on the choices made see Neil
J. Kritz, ed., Transitional Justice: How Emerging Democracies Reckon with Former Re-
gimes, 3 volumes. Washington, D.C.: United States Institute of Peace Press, 1995; see
also Robertson, Crimes Against Humanity.
65. I discuss these themes in Siegel, ‘‘AIDS and Human Rights,’’ Human Rights Quarterly,
Vol. 18, No. 3, August 1996, pp. 612–640; see also Helen Epstein, ‘‘Time of Indiffer-
ence,’’ The New York Review of Books, 12 April 2001, pp. 33–38.
66. See Samantha Power, ‘‘A Problem from Hell’’: America and the Age of Genocide, New
York: Basic Books, 2002.
67. See Lawrence K. Altman, M.D., ‘‘In Africa, a Deadly Silence about AIDS Is Lifting,’’
New York Times, 13 July 1999, p. D7.
68. See Alex Boraine, A Country Unmasked: Inside South Africa’s Truth and Reconciliation
Commission, Oxford: Oxford University Press, 2000, especially pp. 340–378; and Pris-
cilla B. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity, New York
and London: Routledge, 2001.
69. Boraine, ibid., p. 433.
70. Robertson, A Country Unmasked, pp. 306–307; the rape cases include Prosecutor v.
Akayesu, Trial Chamber, International Tribunal for Rwanda, 1998. Case No. ICTR-96-
4-T, hwww.ictr.org/ENGLISH/judgements/AKAYESU/akay001.htmi, printed in part in
Steiner and Alston, International Human Rights in Context, pp. 1178–1188.
76 SIEGEL
71. This has characterized the approaches to transitional justice in some South American
and African countries and the failure to this date to begin prosecutions in Cambodia.
72. Siegel, ‘‘Transitional Justice: A Decade of Debate and Experience,’’ Human Rights
Quarterly, 20, No. 2, May 1998, pp. 431–454.
73. See Robertson, A Country Unmasked, especially pp. 248–256, and Orentlicher, ‘‘Set-
tling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime,’’
Yale Law Journal, Vol. 100, 1991, pp. 2537–2615.
4
From global norms to local change:
Theoretical perspectives on the
promotion of human rights in
Geneviève Souillac
Behaviours by states and other groups are increasingly the object of

scrutiny in our globalized world. Ever more, the legitimacy of state action
depends on prior consultation, dialogue, and agreement with other states
regarding the achievement of common goals. One of these common goals
has become the respect and implementation of human rights, as the com-
mon ethical basis of political and social development activities. On a
global, multilateral level, numerous ratifications by states testify to the
increasing legitimacy of human rights norms. However, how human
rights norms are domestically integrated into legal practices, political in-
stitutions, and social policies is unclear. In Western liberal democracies,
human rights norms are typically implemented through the rule of law
and cycles of challenges to, and reform of, social policies. Transitional
communities with differing historical, political, social, and cultural back-
grounds are a major challenge to the effective globalization of human
rights norms. Whether because of local power and economic struggles,
cultural and social challenges to human rights definitions, or competing
strategies of implementation on the part of external agencies, clear com-
munication on human rights issues seldom exists.
Implementation of human rights-related policies and projects include
a complex heuristic process of definition, interpretation, and commu-
nication, involving consultation between different interest groups and
consensus-building. This work occurs in the gap between the abstract,
generalized nature of human rights norms, and the concrete, context-
77
78 SOUILLAC
dependent level of institutionalization. The communication of human

rights norms can be problematic to the point of antagonizing local pop-
ulations. Vague claims to human rights on the part of Western parties are
not conducive to sound, context-sensitive policy, and all too often reflect
a lack of flexibility in the appeal to certain rights and not to others. This
does not help the ‘‘ethical’’ cause of human rights (or even democracy)
but, rather, serves as a reminder of the potential purpose of the promo-
tion of human rights – the spread of the liberal socio-political cause.
Clarification of the needs of different contexts; debate about which norms,
institutional approaches, and persuasive strategies best suit different sit-
uations; these are necessary steps to the achievement of human rights
goals in societies in transition. Formulating these issues at a micro-level
reflects a more self-aware (and, even, possibly self-critical) approach to
complex assistance by international organizations (IOs) and international
non-governmental organizations (INGOs) in transitional societies.1
Although such empirical analyses help to elucidate the concrete prob-
lems and issues faced by international assistance, they also raise im-
portant theoretical questions. How can a highly abstract level of norms
originating in a particular set of countries be communicated to societies
that have not experienced those originating conditions? How does the
internalization of human rights norms by local actors occur, and what
implications does this have for the relationship between global norms
and local change? Finally, how does this relationship relate to the goal
of integrating states in a legitimate international order on the basis of
transparency and accountability? These are the types of theoretical
questions on human rights norms that are relevant to societies in tran-
sition. This chapter explores some of the theoretical implications of re-
lating global human rights norms to transitional conditions. It does not
propose ‘‘solutions’’ or concrete policy directions for the complex process
of international cooperation in transitional societies; rather, it explores
some theoretical points recently developed in the international relations
and international organization literature and seeks to present them in a
way that is relevant for the future study of transitional societies and
transitional administrations.
There are two parts to the chapter. The first part looks at key points in
recent efforts to theorize the nature and role of international norms and
the resulting increase in the ideational dimension of globalization. Rec-
ognizing the specific character of human rights as ‘‘architectural’’ norms
provides a constructive basis from which to understand the integrative
power of human rights norms. Given the current historical context of a
growing need for common ideational forms of political legitimacy, the
second section assesses theoretical developments in the description of the
ideational communicative processes. It examines the role of theories of
FROM GLOBAL NORMS TO LOCAL CHANGE 79
communication and socialization in conceptualizing the influence of hu-

man rights norms on social and political change. Particularly in the con-
text of transitional societies, an important issue is political identity for-
mation in the production of a new state. Finally, I raise some points from
recent debates in human rights theory regarding the need to keep a crit-
ical awareness of the essentially liberal ideology which Western actors
transmit in transitional contexts, and the formalization of a universal/
local dialogue about human rights ideas.
Human rights and global norms
Values on the good or right form of political organization are relative,

and reaching a consensus on certain core universal values is a difficult
process.2 In the context of good governance, however, it is possible to
develop an alternative reasoning regarding the nature and role of human
rights as global norms. The drive for a cohesive international society
regulated by global norms illuminates the functional role of human
rights: the notion of human rights as abstract values recedes and their
normative function is highlighted. Yet the notion of human rights as
norms may unnecessarily emphasize their coercive function for the ad-
mittance of new states into the international community of states. The
notion of human rights as architectural norms conveys their constructive
function in the building of new and legitimate political institutions in
transitional societies. This leaves more scope for local communities to
renew their own political cultures within this ‘‘imported’’ framework and
emphasizes the positive, reformist aspect of this process from the point of
view of these communities. However, as discussed later, it is also imper-
ative for various human rights actors to retain a critical perspective to-
wards the communicational format of human rights norms.
Human rights as ‘‘architectural’’ norms
The language of human rights in the international public arena has

sometimes taken the form of a discussion of the social and political values
that they represent. The potential conflicts in values that they may gen-
erate as the liberal-democratic model of governance seeks to win univer-
sal appeal is typically a key point of discussion. From a historical point of
view, human rights have emerged as a system of values making the hu-
man individual worthy of protection and flourishing. The classical argu-
ment in political philosophy, which made individual human rights a core
principle for balancing absolutist power, has developed into a social and
80 SOUILLAC
political theory of liberal democracy based on freedom and equality.3 In

liberal democracies, democratic representation, legislation, and domestic
policies ensure that basic conditions for individual human safety and de-
velopment are met. Furthermore, each new set of rights carries with it
implications for a shared understanding of what constitutes a progressive
and ‘‘civilized’’ international society. In this way, human rights commu-
nicate social and political purpose and will, and personal and universal
relevance for policy-making. As Jürgen Habermas argues, ‘‘human rights
institutionalize the communicative conditions for a reasonable political
will-formation.’’4 The result, ideally, is the management of plurality and
potential conflict through a form of social and political equilibrium based
on free communication and the existence of a consensus on standard op-
erational political principles.
To add to this implicit understanding about human rights, there has
recently been a noticeable shift towards a normative terminology in the
analysis of international relations and international violations of human
rights, emphasizing global justice and states’ obligations,5 in an effort to
coordinate and integrate the international community. Essentially, global
governance6 is placing human rights principles even more firmly at the
basis of a global architecture, as essential building blocks for a new in-
ternational system of legitimacy and regulation of political behaviour.
The institutions articulating global governance ‘‘govern’’ at an interna-
tional rather than national level by expressing a new type of legitimacy
centred around notions of equitable justice, accountability, and human
security. Falk discusses how a social and political equilibrium is currently
being sought at the global level, and reveals the tensions in the contem-
porary vision for a global justice system built on the basis of human
rights. Human rights exist in a complex network of relationships involv-
ing entitlements and responsibilities. These include issues such as claims
of economic equity versus economic growth, of present versus future
generations, economic versus public interests, and public consensus ver-
sus the rights of minority groups.7 Recent notions of human security
based on the human right to life and integrity of the body may even
override the principle of state sovereignty. On a global scale, the notion
of global governance mobilizes collective human rights resources to ren-
der main actors accountable for their actions and to voice and coordinate
a multiplicity of competing interests. Falk argues that his writing
. . . proceeds on the central assumption that achieving a human rights culture and
realizing global justice are intertwined and mutually reinforcing goals. The over-
arching aim of normative commitment is to incorporate rights and justice into a
framework of humane governance.8
Understanding the nature of human rights as architectural norms re-

inforces their functional, legal, and political meaning, whereas human
rights as values are typically associated with personal and cultural frame-
works. Whereas the role of values is to define, that of norms is to provide
limits on political behaviour. Once destructive patterns of behaviour can
be identified and generalized from empirical observation, norms can be
generated to put brakes effectively on this behaviour. Another perspec-
tive is that provided by Ramesh Thakur: norms may be distinguished
from the law but, as norms provide the underpinning of the law, both
norms and laws end up being mutually reinforcing in the system of law.9
Ideally, the aim of human rights as architectural norms is to make the
international community more cohesive, thus playing a potential key role
in structuring legitimate relations between states. In the case of tran-
sitional societies, the espousal of human rights principles through the
establishment of appropriate forms of governance provides added struc-
tural legitimacy in the international community. To understand this pro-
cess of integration into a broadly defined international community, it is
necessary first to consider what is meant by the ‘‘power’’ of norms such as
human rights, in the theoretical context of international norm dynamics.
International norm dynamics
Whereas international actors are talking of an international order, we

find ‘‘disorder’’ at the level of norm definition, formation, consolidation,
and implementation. Mireille Delmas-Marty, a French international
lawyer, refers to a ‘‘normative disorder,’’ whereby the law generated
from humanitarian concerns is deemed ‘‘fuzzy law.’’ This is reflected in
the current system of global norms, as the quest for ‘‘higher’’ humanitar-
ian norms reaches an ever-increasingly abstract level of legitimacy.10
Delmas-Marty reminds us that the process of universalization and glob-
alization we are witnessing today finds its roots in Enlightenment philos-
ophy, namely in Kant’s essay On Perpetual Peace. For Jürgen Habermas,
globalization ‘‘has since a long time objectively unified the world to turn
it into an involuntary community founded on the risks incurred by all.’’11
This last distinction is important for the current discussion on the nature
of global norms. Norms regulate behaviour, and justifications for them
derive from various understandings of what constitutes a legitimate
brake on certain behaviours. However, norms emerge against a backdrop
of ‘‘non-norms,’’ in a continuous process of identification of what con-
stitutes non-legitimate behaviour.
Recent theoretical developments on the dynamics of norm dissemina-
tion explore the potential ‘‘might’’ of ethical claims against the power of
82 SOUILLAC
‘‘realist’’ claims related to territory, sovereignty, and state interest. In a

now classic article, Alexander Wendt argues for the relevance of the
agent–structure model to explain modifications in the system of interna-
tional relations, especially regarding the alleged influence of certain wil-
ful aspects of power and domination on the making of foreign policy.12
The interpretative argument for state interest formation is helpful to
reconceptualize state autonomy away from the notion of territorial in-
tegrity. Latitude for transformation may exist where a proper system is
conceived: Finnemore and Sikkink point out the important distinction
between regulative norms and ‘‘constitutive norms, which create new ac-
tors, interests, or categories of action.’’13 This has implications for a his-
torical interpretation of the development of international relations along
different paradigms that are in constant evolution. In this interpretation,
agency plays a role in the modification of structural constraints, rather
than following a chaotic model of unequal power relations:
If we replace the premise of states’ essential autonomy with the broader inter-
pretive assumption that constitutive norms can exist at the level of systems, we
allow for an explanation of the conditions under which states are relatively au-
tonomous actors in a particular historical era.14
Human rights-related claims have played a crucial role in the challenge

to neorealist claims. They further ensure the unique position of hu-
man rights values as architectural norms providing the basis and motiva-
tion for institutional construction and reinforcement. As Delmas-Marty
writes, ‘‘it remains to transform this involuntary community into a true
community, that is ‘voluntary,’ or at least desired – which brings us back
to human rights.’’15
The acknowledgement of a political will to provide regulations is in-
creasingly becoming a feature of theoretical interest. It expresses a
‘‘constructive dimension’’ to an otherwise ‘‘immutable’’ system of in-
ternational relations articulated around relations of power, domination,
and influence.16 The constructive element in the progressive espousal of
human rights-sensitive policies on the part of states is thus a crucial ele-
ment in the development of ideational concerns in international politics.
Theories of the ‘‘social construction’’ of the international order, derived
from critical theory and the emphasis on the role of language in the
‘‘construction’’ of social reality, have recently strengthened the move-
ment towards increased legitimacy of an ideational perspective versus a
pragmatist or (neo)realist perspective.17 The defining aspect of norms is
their constraining nature and hence their problematic relationship with
political will, when political will is classically understood as expressing
the political interest of states in policy formation. However, it has also
been argued that the type of political will associated with the emergence
and consolidation of norms – especially internationally binding norms –
cannot be explained as a progressive adaptation to risk and threat, nor
solely in terms of self-interest but, rather, as following a complex and
wilful process. This ‘‘life cycle’’ of norms, which determines their evolu-
tion and influence,18 includes the emergence of norms; then a period of
norm ‘‘cascade,’’ involving various degrees of acceptance by states; and,
finally, a third moment of internalization following a ‘‘tipping point,’’ at
which ‘‘a critical mass of relevant state actors adopt the norm,’’ on the
basis of a complex array of motivations. In the final stage of internaliza-
tion, the norms in question are no longer the object of public debate and
scrutiny as to their value, and work can continue for their ongoing im-
plementation.19
These theoretical findings have implications for the transformative role
of global human rights norms on foreign policy and on states’ definitions
of their identity and interests. This can be witnessed in the revival of in-
terest in the relationship between ideas and politics, notably in studies of
the impact of foreign policy on both domestic and international politics.
Kathryn Sikkink argues for a more systematic understanding of the in-
tegration of human rights ideas into foreign policy in both the United
States and Europe. According to Sikkink, understanding this process
helps to shed light on the ‘‘impact’’ of human rights norms upon policy-
making in general. As she convincingly argues, ‘‘[t]he emergence of hu-
man rights policy is not a simple victory of ideas over interests. Rather, it
demonstrates the power of ideas to reshape understandings of national
interest.’’20 An architectural system of human rights norms influences
policy in ways that are profoundly transformative of states’ understand-
ings of their own interest and location in the world system. As Sikkink
argues:
A realist or neorealist explanation of foreign policy has trouble accounting for

the adoption and implementation of human rights policies, except by dismissing
them as insignificant. . . . But the essence of a multilateral human rights policy –
acceptance of compulsory submission to the court’s jurisdiction and of the right of
individuals to petition regional and international organizations – involves accep-
tance of uncertainty about future outcomes, which does not coincide with a stan-
dard interpretation of furthering security interests.21
To a certain degree it also empowers individuals to international legal

recognition of their humanity, in the face of potential abuse from gov-
ernmental power. Human rights treaties are ethically efficient at least in
that they impose obligations on states to their treatment of nationals. The
nature of norms as a ‘‘dynamic’’ aspect of international relations becomes
84 SOUILLAC
clear in this ‘‘constructivist’’ sense. According to Sikkink, ‘‘the doctrine

of internationally protected human rights offers one of the most powerful
critiques of sovereignty as the concept is currently understood.’’22
I would argue further, however, that there are problematic considera-
tions that ensue from increased state identification with human rights
values. As human rights agendas are placed in the international arena,
increased identification with universal norms implies increased commit-
ment to treaties that are globally binding and, in turn, a proliferation of
multilateral relationships. Yet the ‘‘fuzziness’’ of human rights norms lies
in the fact that, although they appeal to a ‘‘highest’’ or ‘‘irreducible’’
ethical principle of the value of human life and security, the definition
and interpretation of human life remain only historically defined, in re-
action to social, economic, and cultural circumstances and developments
of various kinds. In other words, the terminology of norms may have
helped tighten the perceived legitimacy of human rights values, but the
element of value remains at the core of the definition of rightful behav-
iour. National interest may be enhanced by an association and identifi-
cation with human rights norms. The connection between power and
‘‘legitimate social purpose’’23 confers an ‘‘enhancement’’ of the ‘‘image’’
of power, something central to foreign policy. However, as the intricate
network of norms, interests, and identities is drawn tighter in an in-
creasingly globalized international community, state interests as con-
ceptualized from nationalistic, cultural, and other context-specific con-
cerns may have trouble reconciling the whole gamut of human rights
concerns within their own political and social cultures.
Thus, in any discussion about the communication of human rights
norms, challenges to classical prioritization of human rights norms, as
well as considerations about different types of political cultures asso-
ciated with these rights priorities, must be acknowledged. Typically, as
noted earlier, the implicit assumption is that the nature and function of
the human rights concept justifies the evolution of human rights norms in
a liberal socio-political framework, which accentuates the priority of in-
dividual rights to personal freedom and which claims the indivisibility of
human rights under such a priority. For Jack Donnelly, for instance, the
justification of the global emancipatory function of human rights requires
a coherent theoretical account of human rights as a bounded and in-
divisible concept.24 For Donnelly, the universal claim to human rights
serves an emancipatory function within the global trend ‘‘toward political
liberalization and democratization.’’25
Furthermore, in his conceptual distinction between right as rectitude
and right as entitlement, the latter emerges as the key on which rests his
later refutation of culturalist challenges to the Western concept of human
rights.26 In an article written with Rhoda Howard, entitled ‘‘Human
Dignity, Human Rights, and Political Regimes,’’ the vindication of a lib-

eral world-view appears even more clearly.27 In the article, Howard and
Donnelly contend that international human rights standards require ‘‘a
particular type of ‘liberal’ regime, which may be institutionalized . . . only
within a relatively narrow range of variation.’’28 As such it is not adapt-
able to a variety of social structures and political regimes, since ‘‘[c]on-
ceptions of human dignity vary dramatically across societies, and most of
these variations are incompatible with the values of equality and auton-
omy that underlie human rights.’’29 This argument for the ‘‘necessary’’
connection between a liberal political culture and human rights typically
expands on the priority of individual freedom and does not leave much
room for dialogue regarding the prioritization and institutionalization of
rights.
To conclude this section, it may be argued that human rights norms are
architectural in providing the elements needed to build legitimate in-
stitutions on a common set of liberal-democratic political and social
principles. Their transmission at a global level is now recognized as an
integral source of a stronger ideational level in international politics and
a weakening of classical realist anarchy. As such, their aim is far-reaching
– namely, to bind states together at an ideational level. This architecture
is, however, built upon several tensions. Human rights are principles that
have a definite history but also make universal claims of suitability and
sustainability. The postulate of the possibility of reconciliation of local
and global levels at such a complex ideational level raises the question of
the role of identification with global norms from a local perspective, in
the process of integration into the international system. As discussed be-
low, the link between local contexts and global norms can be articulated
by considering how the communication between non-governmental ac-
tors and states helps to disseminate human rights norms, as well as the
importance of the inclusion of a critical perspective on the substantive
content of human rights norms.
A transitional process: Norms and identification
The last section proposed a sketch of the picture now generated by the
growing influence of morally significant ideas and of a universal model of
regulation of political behaviour. It delineates a framework whereby an
ideally constituted international society is continuously attempting to
communicate its norms. Human rights norms form an architectural model
that burgeoning political societies are encouraged to follow. International
organizations such as the United Nations and INGOs include such en-
couragement as part of their conditions for complex assistance. Yet, from
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the growing understanding of the constructive power of norms emerge

two necessities: the first is to theorize the modalities of their communi-
cation; the second is to keep an awareness of the substantive nature of
their content and of the need to engage in a constructive dialogue with
local customs. There are two models that are helpful to consider the the-
oretical implications of the communication of ideational norms. First,
constructivist theoretical perspectives help to draw attention to what is
inevitably a long process of socialization and internalization of global
norms within domestic frameworks. Second, the assumption of an ideal
communicative situation must be problematized if we are to move away
from a real or perceived imposition of international norms on local
contexts.
Constructivism and identification
The impact of constructivism on norm theory highlights the role of ideas

in generating policy-relevant relationships between the domestic and the
international levels. This framework is helpful in understanding the ‘‘so-
cial construction’’ of multilateral relations based on the normative prin-
ciples of human rights, within a group of states already engaged in co-
operative activity. The process of integration of these states on a pattern
of more or less resistance is fairly clear. Human rights are of functional
relevance to the building of a global system based on some common
ideas about good governance. What is less clear is the perception of an
ideational international order, from the perspective of domestic structures
that are historically, politically, or culturally more distant from a system
of ideas emphasizing human rights. Although the analytic notion of tran-
sitional societies is distinct from that of domestic structures, they are
comparable on such a scale of ‘‘integration’’ into the international order
and the convergence to global norms. For these states, the reception of
the ‘‘message’’ of human rights norms exists in a gradual process of
‘‘adaptation’’ of local patterns of governance and political behaviour, to
conform to global standards. This can involve radical political and social
change. Transitional societies typically experience powerful demands
from the exterior regarding their self-definition. If anything, transitional
societies are even more crucially aware of their process of self-definition
than are relatively stable domestic structures, as they are grappling with a
traumatic past and conflicting approaches to that past. Their people and
representatives are defining both their internal social and political struc-
tures and their external boundaries. They are making crucial choices
about the cluster of ideas that will govern the behaviour of their institu-
tional actors.
Theoretical literature on the translation of ideas into international
trends of meaning is helpful for thinking about these issues. A first way of
identifying a process of ‘‘identification’’ with global norms lies in the
theory of the impact of ‘‘external’’ normative ideas on domestic struc-
tures through transnational advocacy. The theoretical insights of recent
scholarship on the nature and role of transnational advocacy formulates a
flexible approach to the communication of norms. Transnational advo-
cacy is now recognized as a unique form of norm entrepreneurship.30
First, research into the causes of change in foreign policy preceded
scholarship on transnational advocacy networks but gradually drew at-
tention to the existence of ‘‘networks’’ of ideas. Thomas Risse-Kappen
convincingly explores the idea that ‘‘ideas do not float freely,’’ based on
an empirical analysis of the changes in Soviet foreign policy.31 In the
past, transnational coalitions were ideological movements of ideas based
on a philosophical framework. The most famous examples were the vari-
ous interpretations of Marxism in different nationalist settings and strug-
gles for emancipation, from Russia to China, Viet Nam, Laos, and many
more. The ambition of these movements was often expansive, and their
strategies resembled the religious model of conversion, as they aimed at
transforming the consciousness of collectivities rather than altering the
behaviour of states oppressing their own people. The political life of
ideas, however, shifted in focus as states became both more emancipated
from other (mostly Western) states’ influence and, wishing to secure their
interests vis-à-vis these states, more accountable to a growing interna-
tional community. Such paradoxical interdependence has been illustrated
by arguments that security interests may have been reconceptualized
from the growing influence of the Western liberal internationalist com-
munity, which was formed into transnational networks and encouraged
the emergence of ‘‘new thinkers’’ in the former Soviet Union.32 This in-
vestigation of the relationship between a variety of agents, their ideas,
and the development of these ideas into norms, bridges the framework of
human rights as global norms and the studies of their promotion by state
actors in foreign policy or through norm entrepreneurship.33
More recent theories examine the ‘‘power’’ of principled ideas to exert
political pressure on human rights-abusing governments and to generate
civic awakening through a process of political and social reconstruction
in such societies. This identifies more precisely the ways in which non-
governmental parties interact with illegitimate governments to influence
their policy and even provoke their collapse, if they do not abide by in-
ternational standards and integrate into the international community.
Margaret Keck and Kathryn Sikkink’s groundbreaking book Activists
beyond Borders34 offers an even more convincing argument about the
dependence of states on each other as the basic proposition or first con-
dition from which other principles governing international relations may
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be derived. These authors note the insufficiency inherent in a ‘‘two-way

street’’ concept ‘‘in which political entrepreneurs bring international in-
fluence to bear on domestic politics at the same time that domestic poli-
tics shapes their international position . . . implying a limited access to the
international system that no longer holds true in many issue areas.’’35
They argue that the relationship between domestic interests and global
structure is mediated by a different form of communication of norms
through a third sector expressing more purely democratic interests – civil
society and transnational advocacy. The emerging idea is to think of net-
works or coalitions advocating the same ideas, rather than a centralized
ideology pursuing single-mindedly a pre-established ideal. This ‘‘net-
work concept . . . stresses fluid and open relations among committed and
knowledgeable actors [who] plead the causes of others or defend a cause
or proposition.’’36
Keck and Sikkink’s work on transnational advocacy is important for
reasons other than the wealth of empirical evidence that they provide in
arguing for the impact of principled ideas of which transnational advo-
cates are the vehicle: they are problematizing a vision of international
politics that assumes pre-existing, bounded entities (state actors), where
each state actor relates to a whole made up of similar actors. Second, the
notion of ‘‘issue construction’’ provides a social constructivist perspective
to international political change in its relationship with social change and,
hence, local conditions. This is relevant for two reasons. First, in many
cases, and by principle, transnational activism helps promote transition –
if transition is understood as a more radical form of social and political
change catalysed by traumatic events and collapsing structural conditions
of power. Ultimately, transnational activism and its relationship with civil
society is about transition. It is not surprising that scholarship on trans-
national activism is explicitly based on research on social movements.37
The ‘‘third sector’’ of transnational advocacy, and the flow of ideas
among civil society actors, strengthens the domestic–global interdepen-
dence of norms, independently of power relations based on state interest.
Transnational coalitions, as Keck and Sikkink argue, ‘‘are organized to
promote causes, principled ideas, and norms, and they often involve in-
dividuals advocating policy changes that cannot be easily linked to a ra-
tionalist understanding of their ‘interests’.’’38
Second, Keck and Sikkink are drawing attention to a fundamental
category in interest formation and its relationship with global norms –
namely, identity. The notion of the impact of norms on policy change can
be explained through the notion of issue construction, which articulates
the basis for a new political and social identity. Transnational advocacy
networks facilitate the careful exposure of facts through their public con-
demnation. Keck and Sikkink’s extensive research into human rights-
abusing regimes in Latin America demonstrates how transnational advo-

cacy stimulates transition by exposing the illegitimacy of a dictatorial
regime’s behaviour. Identifying what claims and policies resonate in a
particular, transitional stage of transmission of human rights norms is a
first step in Keck and Sikkink’s understanding of this process. Political
identities are not only forever in the making but also closely interrelated
with social identities and people’s historically situated desires and inter-
ests in their own society. Transnational advocacy facilitates the emer-
gence of these relationships. Moreover, ‘‘[h]ow the activists’ messages
carried and resonated with domestic concerns, culture, and ideology at
the particular historical moment in which they campaigned was crucial.’’
Keck and Sikkink ‘‘draw upon sociological traditions that focus on com-
plex interactions among actors, on the intersubjective construction of
frames of meaning, and on the negotiation and malleability of identities
and interests,’’ and emphasize social and psychological meanings in the
mobilization of actors for the promotion of a political cause:39
Campaigns are processes of issue construction constrained by the action context

in which they are to be carried out: activists identify a problem, specify a cause,
and propose a solution, all with an eye toward producing procedural, substantive,
and normative change in their area of concern.40
Norm communication and socialization
The ‘‘social construction’’ of the international order is also relevant from

the perspective of those who do not actively generate global norms but
who ‘‘import’’ them and must modify their political and social institutions
and practices to reflect them better. The role of indigenous contexts of
reception is especially relevant to understanding the reception of global
human rights norms. How can one theorize about the appropriation of
abstract human rights norms by societies in which these norms have not
been formally developed? How is the role of global norms in so-called
‘‘good governance’’ perceived from the point of view of domestic struc-
tures that are renewing and reforming their institutional structures of
governance? Transitional societies are particularly vulnerable to pressure
to adhere to externally imposed norms and to integrate into the interna-
tional community on the basis of a common political model. More often
than not, they are emerging from destabilized political situations, strug-
gles between warring parties, and, sometimes, open conflict.
The communication of human rights norms may provoke, encourage,
or facilitate transition, but this path is always fraught with difficulties. The
complex political and social ideals underpinning human rights norms, as
well as the essence of their normative claims to the legitimate articulation
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of political and social power, complicate the process of their transmission.

The theory of the communication of norms by INGOs sheds light on the
phenomenon of political transition. The role of a ‘‘third sector’’ in the
communication of human rights norms is one aspect of the dynamics of
norm transmission that may explain the impact of norms on the transfor-
mation of local political identity. Keck and Sikkink, in their analysis of
transnational networks, discuss the existence of such a ‘‘third sector’’
in terms of the ‘‘generative aspects of transnational networks,’’ which
‘‘confirm the importance of attention to dynamic as well as static ele-
ments of domestic political opportunity structures.’’41 The precondition
of accountability for human rights-abusing governments is one of the first
steps towards generating political transition and achieving norm consoli-
dation. Exposure of human rights violations and shaming of govern-
ments, in collaboration with national and local NGOs, plays a vital role
and is examined in its communicative dimension. The processes whereby
international norms are communicated to various governments through
the monitoring work of INGOs is an important aspect of the construction
of a renewed social and political identity for these societies. INGOs gen-
erate, with increasing legitimacy, a public picture of the facts of human
rights abuse in various locales, and the operational impact of advocacy
networks lies in the potentially vast perimeter of their influence and in-
filtration. The socialization of norms into domestic practices can thus be
identified in terms of a pressuring system following a sequence of com-
municative acts.42 This is described in terms of moral consciousness-
raising through collective mobilization, processes of instrumental adap-
tation and strategic bargaining, and processes of institutionalization and
habitualization,43 which may occur in different succession depending on
local political and social contexts.
Local contexts are more likely to be receptive to the influence of in-
ternational ideas if local advocacy networks have already been active. An
example is Argentina, where NGOs first published information on hu-
man rights violations based on testimonies. This information was then
backed up by findings by the Inter-American Commission on Human
Rights.44 However, socialization most often occurs in a context of con-
flicting ideas and evolves through a difficult process of bargaining, per-
suasion, and pressure. Various steps can be conceptualized whereby ‘‘re-
pressive governments’’ gradually ‘‘cave in’’ as they face domestic and
international scrutiny by an increasingly mobilized and cohesive domestic
and transnational opposition.45 The work of Audie Klotz on the rela-
tionship between norms and the apartheid regime in South Africa in-
dicates to what extent the altering of state behaviour on the basis of new
norms can be conceptualized in a variety of different ways, from coercion
(through effective sanctions for instance), to incentives for government-
instigated reforms, to international legitimation. For Klotz, these ac-

counts stem from traditions in international relations theory, which re-
veal the predominance of the analytical categories of coercive power and
material interests.46 In her view, the case of the eventual South African
elections with universal suffrage is evidence of the importance of inter-
national incentives and legitimation processes, yet analyses of such pro-
cesses should also ‘‘include criteria that capture the role of norms.’’47
Audie Klotz uses the term ‘‘identity constraint’’ when she argues that
the role of identity in international politics and the impact of interna-
tional norms should be given more serious attention. In particular, her
work on South Africa shows that the affirmation of a non-racist identity
in this particular case of a society in transition revealed the origins of
identity and its relationship to interests. From the starting point of the
various aspects of South Africa’s international identity, such as ‘‘global/
Western, European/colonial, and African,’’ various norms about race
were negotiated between different local and international actors to lead
South Africa finally away from its international isolation.48 Similarly,
Thomas Risse uses the examples of Kenya and Indonesia to point out the
initial verbal resistance by these governments to international monitoring
of their human rights records by such agents as Human Rights Watch, yet
also the growing possibility of dialogue contained within this verbal re-
sistance. Increasing pressure by growing national opposition groups and
human rights organizations also has led these governments to begin a
comparison between their own records and that of other states. An even
more striking example given by Risse is that of Morocco, where King
Hassan II was forced into a dialogue with national and transnational
critics and eventually claimed that human rights were part of the Islamic
tradition. As Risse points out, he ‘‘reconstructed the Moroccan identity
as belonging to the (Western) community of civilized nations.’’49
Thomas Risse also attempts to move beyond both constructivism and
its assumptions about norm-regulated behaviour, and rational choice ar-
guments explaining strategic behaviour on the basis of material interests.
He shows that we can observe a gradual process whereby communica-
tions move from purely instrumental rationality via rhetorical behaviour
towards something resembling a dialogue. Risse proposes a series of
concepts that reflect more faithfully a complex reality of communication
involving both interest and identity redefinition. Risse’s theory draws at-
tention to Habermasian notions of ‘‘moral–practical learning’’ in social
and political development, or, in words borrowed from Jon Elster’s
reading of Habermas, to the ‘‘civilizing effects’’ of public deliberation.’’50
Risse notes how norm-violating governments move away from their role
as international pariahs, to become valid (albeit argumentative) inter-
locutors with various transnational actors, thus generating a genuine dia-
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logue. In particular, the role of argumentation over the validity of in-

ternational norms by such resistant states reveals a significant shift, in
Risse’s view, from the mere use of rhetoric. This provides scope for ac-
tors’ reconceptualization of their social and political identities, on the
basis of argument and deliberation about ideational norms and negotia-
tion of ‘‘shared definitions’’ of various situations, and towards a ‘‘com-
mon life world:’’51
In each of the countries investigated that reached the final stage of sustained rule-
consistent behavior, the improvement of the human rights record was accom-
panied by a profound change in state identity. States became eager to join the
community of human rights-abiding ‘‘civilized nations.’’52
I would argue that communicative theory, which emphasizes the con-

nection between moral learning and social development, is useful for
both social scientific explanation and policy-making but is, nevertheless,
problematic. In particular, the notion of a ‘‘common life world’’ presents
difficulties for the global dialogue on human rights norms, especially in
the areas of women’s rights, second-generation rights, and minority
rights, where differences abound in different cultures. Furthermore, re-
peated exposure by INGOs of the human rights abuses of past govern-
ments, humanitarian assistance in providing so-called ‘‘second-generation
rights’’ to health and education, as well as capacity-building in the legal
and political spheres, are crucial. But it is often argued that their accom-
panying discourse is lopsided, emphasizing typically ‘‘Western’’ rights
such as civil and political rights enshrining individual freedoms, and dis-
regarding other rights more classically associated with the building of so-
cial structures, such as social, economic, and cultural rights. As the at-
tention is focused on resistant governments, the resistance of Western
human rights discourses to shift their priorities may be overlooked.
On the other hand, the notion of socialization reflects the reality of a
multi-layered local response to ‘‘norm impact’’ and helps to conceptual-
ize the ‘‘gap’’ between the abstract level of global human rights norms
and local conditions of political and social change. It especially helps to
redraw the lines between what is perceived as belonging to the mere
realm of interpretation, such as norms or values, and what derives from
the material interests of states. Most importantly, conclusions drawn on
the socialization of norms into domestic practices reveal an incremental
process of identification. Rather than the unpredictable nature of causal
relationships between norm perception and strategically motivated adap-
tation, the idea of socialization stresses the important role of ‘‘identity
transformation,’’ where norms initially adopted for instrumental reasons
are later maintained for reasons of belief and identity in domestic struc-
tural transition. This approach reveals the necessarily incremental pro-

cess of local identification with an abstract discourse of global norms
communicated by a plethora of external agencies and allows for the pos-
sibility of indigenous appropriation of norms to be conceptualized and
taken more seriously.
The myth of a global village, organized through the Internet and other
forms of instant communication and reflected in international business,
migration fluxes, diasporas, and ethnic diversity, avoids restating the
need for physical and existential engagement with other cultures. It has
traditionally been the task of ethnologists and anthropologists to system-
atize such epistemological pursuits into an academic discipline. These
disciplines now encourage empirical cross-cultural research into the
values that may validate human rights standards in specific cultural con-
texts. Alison Renteln was one of the first to suggest that ‘‘we should look
not simply for rights cast in the Western mold but for the structural
equivalents for human rights in other societies.’’53 In combination, an-
thropological methodologies and critical theory have argued for the rel-
evance of considering how local and transitional cultures (which are
often highly politicized in contexts of ongoing political turmoil) appro-
priate concepts of human rights.54 Richard Wilson has argued that cul-
ture should be examined in its proper dynamic under the influence of
historical change and exterior cultural influences, rather than as a static
entity. Empirical research into local discursive processes of human rights
legitimation shows how discursive meanings of human rights are actually
appropriated by local agents in the context of globalization. An example
is what legal anthropologists call ‘‘legal pluralism’’ – that is, ‘‘overlapping
local, national, and transnational legal codes.’’ Wilson argues for the ne-
cessity of taking into account such sociological factors as local history and
power struggles to describe local representations of agency accurately.
The result is a balancing of theoretical accounts with the methodologies
of discourse analysis and ethnography for the study of local events and
meanings of justice.55
Context-sensitive approaches to the appropriation and reworking of
the discourse on human rights offer an alternative idea of consensus-
building through the notion of the cultural mediation of justificatory
moral discourses. This considers a multiplicity of moral positions without
excluding the possibility of at least minimal moral consensus. Local his-
tories and knowledge provide the substance to an otherwise contextually
meaningless international discourse on human rights, which must address
competing power struggles such as those of cultural minorities and local
political claims. This allows possibilities for thinking of both theoretically
and practically constructive outcomes for the furthering of local imple-
mentation and developments of human rights regimes within differing
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political and social cultures. However, problems with practical issues of

local cultural interpretation and resistances to liberal values also need to
be addressed: this includes the potential transformation of their political
and social values, whether locally or transnationally. One possibility is to
locate, as discussed above, local interpretations of human rights, such as
power struggles and local agendas, that inflict local processes of imple-
mentation of human rights norms, and to emphasize the grass-roots ap-
propriation of human rights discourses to connect with local populations’
vital interests.56
Most importantly, however, the distinction between outcome and dif-
ferent levels of justification suggests that the norms can stem from local
social and political cultures. The unforced consensus approach comes to
terms with a lack of agreement on the level of justification and substan-
tive appeal to values. This approach claims that flexibility relates not to
the question of the desirability of human rights norms but to the sub-
stantive justification of what constitutes vital human interests, including
the frameworks through which these human interests are accounted for
and legitimized.57 In Charles Taylor’s words, ‘‘[e]ach would have its own
way of justifying this from out of its profound background conception.
We would agree on the norms, while disagreeing on why they were the
right norms. And we would be content to live in this consensus, undis-
turbed by the differences of profound underlying belief.’’58 This does not
advocate a consideration of locally legitimized regressive practices as a
legitimate challenge to existing human rights norms. Rather, as Abdul-
lahi An-Na‘im proposes, it suggests the development of a ‘‘sensitivity to
cultural integrity . . . in arguing for the importance of universal cultural
legitimacy for international human rights.’’59 As Taylor evocatively
writes:
Later, a process of mutual learning can follow, moving toward a ‘‘fusion of hori-
zons’’ in Gadamer’s term, where the moral universe of the other becomes less
strange. And out of this will come further borrowings and the creation of new
hybrid forms.60
Conclusions
In this chapter, I have suggested that there are benefits to a more precise
theoretical consideration of the relationship between global norms and
local change, in terms of the openings afforded by the emerging rele-
vance of ethical communication in political identity formation. Theoreti-
cal developments emphasizing the role of constructivism in interest for-
mation draw attention to more sociologically inspired categories of
analysis in the adoption of norms, such as identity. Both notions of issue

construction and of socialization are related to domestic structures in ex-
isting literature. The conceptual relationship between interest (under-
stood in its classical sense) and identity (understood in the sociological or
even anthropological sense) emerges as a key element of an attempt to
formulate how transitional societies may relate to global human rights
norms. Indeed, as I have shown in this chapter, these categories are ap-
plicable to societies in various stages of political transition, as they deal
with a problematic past while constructing and projecting a new image of
their political interests in the global arena. The way that these societies
relate to global human rights norms, it has been shown, is one that is in-
creasingly based on states’ perception of their own identity and relation-
ship with other transnational actors in the global arena. Furthermore,
empirical and theoretical analysis of the impact of norm transmission,
notably through INGOs and other transnational coalitions, suggests that
the impact of human rights communication may be both in the promotion
of transition and in the opening for ethical deliberation in the constitu-
tion of political identity.
Ultimately, from a more encompassing perspective, transition may thus
be increasingly conceived of as a desirable state, precisely one in which
potential for new conceptualizations of legitimacy emerge. States –
whether in emergence from a complete lack of local authority and in-
stitutional structures (as is the case of Afghanistan since 9/11) or whether
adapting their domestic policies and institutions to reflect human rights
standards – can benefit from their dialogue with other state and non-state
actors on the source of their legitimacy in the global arena. Options are
revealed to begin altering their behaviour in a direction that reflects at
least their willingness to cooperate with other actors and to comply with
human rights standards. This may even allow these states to start to par-
ticipate in a global public dialogue on human rights. All these discursive
activities have an impact on states’ conception of the source of their
legitimacy, beyond the concept of sovereignty and towards a model of
international cooperation on ideals and standards of international be-
haviour.
The above discussion shows that ideas and norms have increasing rel-
evance to those states that wish to have a positive identity in the inter-
national arena. It also suggests the continued consolidation of a global
public sphere of deliberation. However, these findings also reveal the
different possible relationships between local conditions and abstract
norms.61 The notion of a ‘‘transitional society’’ is typically referred to as
a political and social state from which structures emerge to fully ‘‘erect’’ a
new type of society, based upon new legitimacy. It is important not to see
this process as one of a ‘‘vacancy’’ concerning institutional protection of
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human rights, which may then be ‘‘filled’’ with appropriate institutions:

a self-reflexive dimension on ‘‘both sides’’ remains a crucial component
in a globally conceived dialogue. The role of indigenous interpretation
and definition of norms is not sufficiently explored in current readings
of norm dynamics: these need to be enriched by alternative perspectives
present in more classical debates in the field of universal human rights
theory. Explanations of norm diffusion further help to conceptualize the
relationship of normative ideas with domestic transition and social and
political change. The process of empowerment of local civil society
should thus be made more explicit by IOs and INGOs intervening in so-
cial and political reconstruction. The goal of assistance in the develop-
ment of a coherent local political culture should also be emphasized. A
careful balance between the import of external structures and the analy-
sis of local needs should be encouraged. This should be included as one
of the goals of external transnational human rights promoters and should
feature prominently in their discourse as a type of human rights promo-
tion itself.
All these perspectives help to reinforce notions of local empowerment
in political transition and counteract claims of an irreversible imposition
of external norms on local communities. The example of the South Afri-
can Truth and Reconciliation Commission is now a classical one but best
illustrates this last point: the commission was a locally developed human
rights institution for the purpose of transitional justice, aiding in South
Africa’s transition to a non-racist and fully democratic state. More re-
cently, the cases of Afghanistan and Iraq illustrate the need to counteract
formally a perceived American political imperialism in the field of human
rights and democratization. Transitional societies are with us – and here
to stay. The benefits of recognizing a process of socialization in local
identification with global norms, and the reconciliation of indigenous
patterns with externally imported models of political and social action,
should not be underestimated in the ongoing process of coherent inte-
gration of local perspectives into a unified system of global values.
Notes
1. On the increasingly complex ethico-political issues surrounding IO and INGO assis-

tance work, see the article by Alex de Waal, ‘‘The Moral Solipsism of Global Ethics
Inc,’’ London Review of Books, 23 August 2001, pp. 15–18. De Waal sums up the
‘‘business of assistance’’ well: ‘‘The philosophy of the specialist ethics business is over-
whelmingly liberal: opposed to censorship, repression and corruption; in favor of toler-
ance, pluralism, respect for all. The relevant activities include training lawyers, mon-
itoring elections, supporting citizens’ organizations that . . . are seen as laying the
foundations for a strong civil society, sponsoring reconciliation between warring com-
munities and documenting violations of human rights. In some ways, this activity re-
sembles that of a marketplace; in others, it puts you in mind of an intellectual produc-
tion line for the liberal emporium – Global Ethics Inc.’’
2. See Joanne Bauer and Daniel A. Bell, The East Asian Challenge for Human Rights,
Cambridge, Mass.: Cambridge University Press, 1999; Amy Gutmann, ed., Human
Rights as Politics and Idolatry, Princeton: Princeton University Press, 2001; Lynda Bell,
Andrew J. Nathan, and Ilan Peleg, eds, Negotiating Culture and Human Rights, New
York: Columbia University Press, 2001.
3. Jack Donnelly’s work on human rights epitomizes the view that human rights are nec-
essarily accompanied by a liberal view of democracy. See Jack Donnelly, Universal
Human Rights in Theory and Practice, New York: Cornell University Press, 1989. An-
other representative philosopher linking human rights theory with liberal theory is Alan
Gewirth. See Alan Gewirth, ‘‘The Basis and Content of Human Rights,’’ in J. Roland
Pennock and John W. Chapman, eds, Nomos XXIII: Human Rights, New York: New
York University Press, 1981. For a more recent volume discussing these debates, see
Tim Dunne and Nicholas J. Wheeler, eds, Human Rights in Global Politics, Cambridge:
Cambridge University Press, 1999.
4. Jürgen Habermas, ‘‘Remarks on legitimation through human rights,’’ in Jürgen Haber-
mas, The Postnational Constellation. Political Essays, translated and edited by Max
Pensky, Cambridge: Polity Press, 2001, p. 117.
5. See Mervyn Frost, Toward a Normative Theory of International Relations, Cambridge:
Cambridge University Press, 1986; Chris Brown, International Relations Theory: New
Normative Approaches, Hemel Hempstead: Harvester-Wheatsheaf, 1992; Audie Klotz,
Norms in International Relations: The Struggle against Apartheid, Ithaca and London:
Cornell University Press, 1995; Simon Caney, David George, and Peter Jones, eds, Na-
tional Rights, International Obligations, Boulder, Col.: Westview Press, 1996.
6. See Falk’s definition of the distinction between government and governance: ‘‘. . . gov-
ernance calls attention to various forms of institutional and collective efforts to organize
human affairs on a global scale, encompassing the global institutions of the UN system,
various regional actors, and transnational and local grassroots initiatives’’ (italics in the
text). Richard Falk, Human Rights Horizons: The Pursuit of Justice in a Globalizing
World, London: Routledge, 2000, p. 20.
7. Ibid., pp. 21–22.
8. Ibid., p. 10.
9. See Ramesh Thakur, ‘‘Global Norms and International Humanitarian law: An Asian
Perspective,’’ International Review of the Red Cross, No. 841, 2001, p. 25.
10. Mireille Delmas-Marty, Trois défis pour un droit mondial, Paris: Seuil, 1998, p. 77.
Delmas-Marty compares this ‘‘fuzzy law’’ to the ‘‘soft law’’ currently regulating eco-
nomic activities, which features the deployment of complex and opaque regulations
under the ‘‘guise’’ of ‘‘deregulation.’’
11. Jürgen Habermas, La paix perpétuelle, le bicentenaire d’une idée kantienne, Paris: Cerf,
1996, p. 74 (personal translation), quoted in Mireille Delmas-Marty, Trois défis pour un
droit mondial, p. 8. See also Hedley Bull, An Anarchical Society, London: Macmillan,
1977.
12. Alexander Wendt, ‘‘The Agent–Structure Problem in International Relations Theory,’’
International Organization, Vol. 41, No. 3, Summer 1987, p. 41.
13. See Martha Finnemore and Kathryn Sikkink, ‘‘International Norm Dynamics and Po-
litical Change,’’ International Organization, Vol. 52, No. 4, Autumn 1998, p. 893.
14. Audie Klotz, Norms in International Relations, p. 17. See especially the chapter ‘‘Norms
in International Relations Theory,’’ pp. 13–35.
15. Delmas-Marty, Trois défis pour un droit mondial.
98 SOUILLAC
16. On the critique of the ‘‘immutability’’ thesis that ‘‘political communities cannot escape
the logic of power inherent in the condition of anarchy,’’ see Andrew Linklater, ‘‘The
Achievements of Critical Theory,’’ in Steve Smith, Ken Booth, and Marysia Zalewski,
eds, International Theory: Positivism and Beyond, Cambridge: Cambridge University
Press, 1996, p. 282.
17. Kathryn Sikkink, ‘‘The Power of Principled Ideas: Human Rights Policies in the United
States and Western Europe,’’ in J. Goldstein and R.O. Keohane, eds, Ideas and Foreign
Policy, Ithaca, NY: Cornell University Press, 1993, pp. 139–170.
18. See Martha Finnemore and Kathryn Sikkink, ‘‘International Norm Dynamics and Po-
litical Change,’’ pp. 894–895.
19. Ibid., p. 895.
20. Sikkink, ‘‘The Power of Principled Ideas,’’ p. 140.
21. Ibid., p. 157.
22. Ibid., p. 141.
23. See Finnemore and Sikkink, ‘‘International Norm Dynamics and Political Change,’’
p. 887.
24. Jack Donnelly, The Concept of Human Rights, London: Croom Helm, 1985.
25. Jack Donnelly, ‘‘Post-Cold War Reflections on the Study of International Human
Rights,’’ Ethics and International Affairs, Vol. 11, 1997, p. 97.
26. Jack Donnelly, ‘‘Human Rights and Human Dignity: An Analytic Critique of Non-
Western Conceptions of Human Rights,’’ American Political Science Review, Vol. 76,
1982, pp. 303–316.
27. Rhoda E. Howard and Jack Donnelly, ‘‘Human Dignity, Human Rights, and Political
Regimes,’’ American Political Science Review, Vol. 80, 1986, pp. 801–817.
28. Ibid., p. 801.
29. Ibid., p. 802.
30. See William Korey, ‘‘Human Rights NGOs: The Power of Persuasion,’’ Ethics and In-
ternational Affairs, Vol. 13, 1999, pp. 151–174.
31. Thomas Risse-Kappen, ‘‘Ideas Do Not Float Freely: Transnational Coalitions, Domestic
Structures, and the End of the Cold War,’’ International Organization, Vol. 48, No. 2.
Spring 1994, pp. 185–214.
32. Ibid.
33. See Finnemore and Sikkink, ‘‘International Norm Dynamics and Political Change,’’ pp.
896–897: ‘‘Norms do not appear out of thin air; they are actively built by agents having
strong notions about appropriate or desirable behavior in their community.’’
34. Margaret E. Keck and Kathryn Sikkink, Activists beyond Borders. Advocacy Networks
in International Politics, Ithaca: Cornell University Press, 1998.
35. Ibid., p. 4.
36. Ibid., p. 8.
37. Ibid., p. 9: ‘‘Relationships among networks, both within and between issue areas, are
similar to what scholars of social movements have found for domestic activism.’’
38. Ibid., pp. 8–9.
39. Ibid., p. 9. See reference to Myra Marx Feree and Frederick D. Miller, ‘‘Mobilization
and Meaning: Toward an Integration of Social Psychological and Resource Perspectives
on Social Movements,’’ Sociological Inquiry, Vol. 55, 1985.
40. Ibid., p. 8.
41. Ibid., p. 72.
42. See a description of the ‘‘spiral model’’ of norm internalization by norm-violating gov-
ernments, from repression, to denial, to tactical concessions, and finally to a response to
global norms as possessing ‘‘prescriptive status,’’ in Thomas Risse and Stephen C.
Ropp, ‘‘International Human Rights Norms and Domestic Change: Conclusions,’’ in
Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, eds, The Power of Human
Rights: International Norms and Domestic Change, Cambridge: Cambridge University
Press, 1999, pp. 237–238.
43. See Thomas Risse and Kathryn Sikkink, ‘‘The Socialization of International Human
Rights Norms into Domestic Practices: Introduction,’’ in Risse, Ropp, and Sikkink, eds,
The Power of Human Rights, p. 5.
44. See Keck and Sikkink, Activists beyond Borders, Preface, p. viii.
45. See Thomas Risse, ‘‘International Norms and Domestic Change: Arguing and Commu-
nicative Behavior in the Human Rights Area,’’ Politics and Society, Vol. 27, No. 4, Dec.
1999, pp. 526–556.
46. See Klotz, pp. 152–164.
47. Ibid., p. 162.
48. See Klotz, pp. 169–170.
49. Thomas Risse, ‘‘ ‘Let’s Argue!’ Communicative Action in World Politics,’’ International
Organization, Vol. 54, No. 1, Winter 2000, p. 31.
50. Risse, ‘‘International Norms and Domestic Change,’’ p. 551.
51. See Thomas Risse, ‘‘ ‘Let’s Argue!’ ’’, especially the section ‘‘International relations: a
common life world?’’, pp. 14–16.
52. See Risse, ‘‘International Norms and Domestic Change,’’ p. 550.
53. See Alison Dundes Renteln, International Human Rights: Universalism Versus Relativ-
ism, Newbury Park: Sage, 1990, p. 11.
54. Richard Wilson, ‘‘Human Rights, Culture and Context: An Introduction,’’ in Richard
Wilson, ed., Human Rights, Culture and Context: Anthropological Perspectives, London:
Pluto Press, 1997, p. 11.
55. See also Richard Wilson’s article on human rights reporting in Guatemala, ‘‘Repre-
senting Human Rights Violations: Social Contexts and Subjectivities,’’ in Richard
Wilson, ed., Human Rights, Culture and Context, pp. 134–160.
56. See for instance, Radhika Coomaraswamy, ‘‘To Bellow like a Cow: Women, Ethnicity,
and the Discourse of Rights,’’ in Rebecca J. Cook, ed., Human Rights of Women: Na-
tional and International Perspectives, Philadelphia: University of Pennsylvania Press,
1994, pp. 39–57. See also Smitu Khotari and Harsch Sethi, eds, Rethinking Human
Rights: Challenges for Theory and Action, Delhi: Lokayan, 1991.
57. Charles Taylor, ‘‘Conditions of an Unforced Consensus on Human Rights,’’ in Joanne
Bauer and Daniel A. Bell, eds, The East Asian Challenge for Human Rights, pp.
124–144; Taylor, ‘‘A World Consensus on Human Rights?’’, Dissent, Summer 1996,
pp. 15–21.
58. Taylor, ‘‘Conditions of an Unforced Consensus on Human Rights,’’ p. 124.
59. Abdullahi An-Na’im, ed., Human Rights in Cross-Cultural Perspectives: A Quest for
Consensus, Philadelphia: University of Pennsylvania Press, 1992, p. 7.
60. Taylor, ‘‘A World Consensus on Human Rights?’’, p. 20.
61. Risse and Sikkink call this the ‘‘intersubjective nature of norms.’’ See ‘‘The Socializa-
tion of Human Rights Norms,’’ p. 8.
Part Two
Monitoring, promoting, and
enforcing human rights
5
The United Nations and
human rights
W. Ofuatey-Kodjoe
The relationship between transitional societies and the discourse and ac-
tivities of human rights activities within these societies seems somewhat
paradoxical. On the one hand, the revolutions and ideologies on the basis
of which they gained their independence and statehood were framed in
terms of the human rights of their inhabitants – and often of the right of
the groups to self-determination. It is not altogether surprising, therefore,
that many of these states have joined the emerging global consensus on
respect for international human rights standards.1 Many of them have
expressed recognition of some legal obligation – or at least of some po-
litical pressure – to treat their citizens according to international stan-
dards of human rights. On the other hand, there are developments that
seem to point towards an increase in human rights violations around the
world. Although no region is exempt from these violations, some of the
most egregious violations of human rights have been occurring in transi-
tional societies.
In order to understand this apparent paradox, I attempt to present an
account of the evolution of the principle of human rights in the contem-
porary world. In this effort, I pay particular attention to the role of the
United Nations in the process of the internationalization and legitima-
tion of human rights. This is because the United Nations has been the
main arena within which the international politics of human rights have
been played out. It is through the United Nations that the international
103
104 OFUATEY-KODJOE
norms regarding the human rights of individuals and groups were estab-
lished, and it was through the United Nations that the institutions and
mechanisms that give concrete expression to these norms were created.2
Furthermore, as the United Nations moves into the new millennium, it is
appropriate to analyse and evaluate its performance in the promotion of
human rights, to review some of the new challenges which the world
faces regarding the protection of individual and group rights, and to ex-
plore some of the ways in which the United Nations can continue to
function more effectively in the face of these new challenges.
The UN Charter and human rights standards

The roots of the efforts of the United Nations in the promotion of indi-
vidual and group rights are to be found in the UN Charter. According to
the Charter, two of the purposes of the United Nations are ‘‘To develop
friendly relations among nations based on respect for the principle of
equal rights and self-determination of peoples’’ [Article 1(2)], and ‘‘To
achieve international cooperation . . . in promoting and encouraging re-
spect for human rights and for fundamental freedoms for all without dis-
tinction as to race, sex, language, or religion’’ [Article 1(3)].
In order to achieve these objectives, the Charter enjoins the organiza-
tion to ‘‘. . . promote universal respect for, and observance of, human
rights . . .’’ [Article 55]. Relating human rights specifically to the adminis-
tration of colonial and trust territories, the Charter states that in accor-
dance with the purposes outlined in Article 1, the basic objectives of the
trusteeship system were to develop self-government or independence in
these areas and to encourage respect for human rights.3 Articles 13, 62,
and 68 specifically authorize the General Assembly and the Economic
and Social Council (ECOSOC) to undertake activities such as initiating
studies, making recommendations, setting up commissions, and preparing
draft conventions for the promotion of human rights.
In addition, the signatories of the UN Charter ‘‘pledge themselves to
take joint and separate action in cooperation with the Organization for
the achievement of the purposes set out in Article 55’’ [Article 56]. Thus,
the Charter clearly established the legality of human rights and the right
of peoples to self-determination. However, it left many definitional ques-
tions unresolved. In particular, it left ambiguous the exact meaning of
human rights and self-determination, how they were to be applied, and
the specific obligations (if any) the member states undertook with respect
to the implementation of these rights.4 It became the task of subsequent
UN practice to refine and clarify these rights.
THE UNITED NATIONS AND HUMAN RIGHTS 105
The development of human rights standards through

UN practice
On the basis of the Charter provisions, the United Nations, especially in
the General Assembly and the ECOSOC, began a series of activities,
which, over the years, led to the clarification and elaboration of individ-
ual and group rights in international law. In 1946, the ECOSOC estab-
lished the UN Human Rights Commission and gave it the responsibility
for drafting an international bill of rights as its first priority. After con-
siderable activity, the Commission, through ECOSOC, was able to pres-
ent a draft to the General Assembly, which the latter adopted as the
Universal Declaration of Human Rights (UDHR).5 At the same time,
the General Assembly began a concentrated effort to establish itself as
the appropriate body with the authority and responsibility to determine
which groups the principle of self-determination should be applied to and
what the mode of application should be.
The process of clarification and refinement of individual and group
rights began in earnest in 1952, with the initiation of a two-pronged
action by the General Assembly. In one action, the General Assembly
instructed the Human Rights Commission to incorporate the right of self-
determination into the drafts of the Human Rights covenants which were
already under preparation;6 in a second action, it requested the Ad Hoc
Committee on Decolonization to report on a study of ‘‘factors to be
taken into consideration in establishing the obligations of administering
powers under Article 73 of the UN Charter.’’7 These two committees
engaged in complementary streams of activities, which have resulted in
the creation of a massive collection of instruments. The instruments have
clarified and refined Charter principles on individual and group human
rights and contributed significantly to their protection.8
International standards on human rights
In the clarification of the definition of human rights, the United Nations

relied on a combination of standard-setting instruments – international
conventions and UN declarations and resolutions – that derive their
foundations from the UDHR, and the two Human Rights covenants. The
covenants provided the first powerful treaty basis for individual human
rights as well as the right of self-determination of peoples. They also de-
fined the obligations of the signatory states regarding those rights and
they provided for some judicial determination of the violations of those
rights.
106 OFUATEY-KODJOE
However, the covenants also left some important definitional questions

unresolved. As a result, it became necessary for the United Nations to
sponsor a series of conventions and to produce many declarations and
resolutions, in order to define with some specificity the contents of the
rights outlined in the covenants and the obligations they give rise to.
The outcome of these efforts is that, in the past 45 years, the United
Nations has seen developments in the area of standard-setting of revolu-
tionary proportions, involving the specification of rights of individuals
and some groups. Thus, we are now at a point in the development of in-
ternational law where it can be stated authoritatively that every individ-
ual is guaranteed a range of human rights – including the right to life,
recognition as a legal person, due process, peaceful assembly, freedom of
association and security of person. In addition, every individual is guar-
anteed freedom of thought and expression; of conscience and religion;
the freedom of movement; and freedom from torture, summary execution,
cruel and inhuman punishment, slavery, servitude, forced labour, impris-
onment for non-fulfilment of contract, and subjection to retroactive laws.
International law also provides each individual with the right to work;
the right to form trade unions and to strike; the right to social security,
physical and mental health, and education. Some instruments also pro-
vide for the equality of all persons, regardless of the group to which they
belong: thus, women, children, and minorities are accorded the same
rights as other individuals, and there are prohibitions against discrimina-
tion based on sex, race, and religious beliefs, as well as injunctions
against torture, cruel punishment, and slavery. Furthermore, there are
specific rights which are relevant to groups of people – such as minorities,
detainees, indigenous peoples, migrant workers, women, dependent peo-
ples, children, stateless persons, aliens, and physically and mentally chal-
lenged persons.9
In general, the specification of group rights has not developed as
quickly as that of individual rights. The Covenant on Civil and Political
Rights dealt with the question of minority rights under Article 27, where
it upheld their cultural, religious, and linguistic rights. However, subse-
quent attempts to define these rights faced the same type of definitional
problems as had the right to self-determination of peoples. In August
1994, the Sub-Commission met in Geneva to consider a draft of an In-
ternational Convention on the Protection of National or Ethnic Groups
and Minorities. This preliminary draft contains sections on the right of
self-determination and other forms of autonomy along the lines already
developed by resolution 1514(XV), resolution 1541(V), human rights
covenants, and the Declaration on Friendly Relations.
All indications from the procès-verbaux of the drafting conference
show that the drafting committee rejected the notion that ‘‘peoples’’
could refer to scattered minorities, which were specifically covered by

Article 27 of the Covenant on Political and Civil Rights. Furthermore,
the notion that self-determination included the right of secession was
emphatically rejected. Since the adoption of the covenants, the states
have constantly maintained the position that self-determination is not the
same as secession.10
The rights of indigenous peoples are also getting some well-deserved
attention in the United Nations. On the basis of the recommendation of
the Vienna Declaration, the General Assembly has declared 1994–2004
as the International Decade for the World’s Indigenous People, and
called on the Working Group of Indigenous People to complete its draft
Declaration on the Rights of Indigenous People. Meanwhile, the Vienna
Declaration endorsed the view that ‘‘states should take positive steps to
ensure respect for the human rights and fundamental freedoms of indig-
enous people, on the basis of equality and non-discrimination . . . .’’11
The right to self-determination of peoples is the most highly developed
aspect of group rights in the practice of the United Nations. The right to
self-determination means that all people have a right freely to determine
their political status and pursue their economic, social, and cultural de-
velopment. In other words, self-determination means the attainment of
self-government. In exercising this right, the group may choose one of
three modes: the full integration into another state as equals, free and
uncoerced; association with another state on the basis of equality; or
achievement of independent statehood.12 In practical terms, the option
of independent statehood is not interpreted to imply a right secession,
except in cases where something close to a political consensus exists.
In order to invoke the right to self-determination, a claimant group
must be a territorially based, politically organized community and must
be under alien subjugation. The right to self-determination is thus a right
that all peoples possess; however, the exercise of the right can be claimed
only under conditions of deprivation of sovereignty due to alien overrule.
Furthermore, although the right is inherent in every group, it cannot be
exercised unless the group has the capacity to do so. In the absence of
this capacity, however, this right does not lapse: the exercise of the right
is merely deferred until the group can acquire the necessary capacity.
Under these circumstances, the group is given a period of time within
which it may prepare itself and develop the capacity for self-government,
before choosing the appropriate mode of self-government. Until such
time that the people can develop the capacity to make this choice, it has
the right to resist oppression13 and the right to be protected by the
United Nations.14
The right to self-determination imposes obligations on states. First,
every state has the duty to promote, through joint and separate action,
108 OFUATEY-KODJOE
respect for the right to self-determination and the obligation to refrain

from any forcible action that would deprive the people of their self-
determination by subjugating them or violating the integrity of their ter-
ritory.15 The right to self-determination also imposes obligations on the
United Nations: these include the obligation to determine the validity of
the claim to the right to self-determination by ascertaining the qualifica-
tion of the group (especially its territoriality and subject status), the
obligation to provide interim protection for the group, and to provide
assistance to that group in its quest for self-government.16 Again, the
validity of claims is inevitably determined in such a way as to protect the
territorial integrity of the overwhelming majority of states.
Implementation mechanisms
The effort of the United Nations to protect the rights of individuals and
groups may take the form of direct and indirect action. Direct action in-
volves direct activity on the part of the United Nations to protect human
rights; indirect action involves actions of the United Nations, designed to
influence states to promote and protect human rights. Most of the UN
efforts have been primarily indirect – that is, the United Nations has ba-
sically depended on the states to honour their obligations, incurred under
the various standard-setting instruments, to protect the human rights of
individuals and groups within their jurisdictions. In this process, the role
of the United Nations has primarily been to cajole and shame the states
into compliance.
Indirect protection
In the United Nations’ activity of indirect protection, the principal organs

on which the United Nations has depended have been the General As-
sembly and the ECOSOC, and a variety of mechanisms that they have
created over the years. Among these are the Committee of Twenty-Four,
the Commission on Human Rights and its Sub-Commissions, and the
treaty committees, which monitor compliance with the human rights con-
ventions.17 The Commission on Human Rights is the primary institution
for investigating the extent to which the human rights standards estab-
lished by the United Nations are being adhered to by member countries.
It performs these functions through working groups and special rappor-
teurs, which investigate country-specific human rights violations, and
‘‘thematic working groups’’ and rapporteurs, which study specific types of
human rights violations wherever they may be found.
The ‘‘theme mechanisms’’ were established as working groups or rap-

porteurs with the responsibility for taking action with regard to severe
human rights violations. These working groups and rapporteurs report
directly to the Commission. More frequently, however, they report to its
subsidiary, the Sub-Commission on the Prevention of Discrimination and
the Protection of Minorities. By the end of 1993, the Sub-Commissions
had ten working groups investigating a wide range of human rights issues,
from gross violations of human rights to discrimination against persons
infected with the HIV virus.18
In order to monitor compliance with the human rights conventions,
treaty-monitoring bodies have been established. Among the most suc-
cessful of these has been the Human Rights Committee, which was orig-
inally established as a subsidiary organ of the ECOSOC to monitor
compliance with the International Covenant on Economic, Social and
Cultural Rights (ICESCR). Since then, other bodies have been created to
monitor compliance with other human rights conventions. Although
technically independent of UN organs, they report to the General
Assembly, and they depend on the United Nations for administrative
support.
With regard to self-determination, the United Nations was also mainly
engaged in indirect protection. In the main, the United Nations super-
vised, rather than actively engaged in, the decolonization process through
which most of the colonies achieved independence. In the case of trust-
eeship, the United Nations had a more authoritative role, since it was
signatory to the trusteeship agreements which the administering powers
had signed and, therefore, had a more legally secure role as the pro-
tector of the peoples of those territories, as third-party beneficiaries
of the treaties.19 In this case, the Trusteeship Council was the major
instrument through which the General Assembly supervised the admin-
istration of those territories and their eventual preparation for indepen-
dence.20
In the case of the colonial territories, the General Assembly began
with a more limited role. At the outset, the General Assembly was willing
to accept the list of colonial territories prepared by the colonial powers
themselves.21 However, as time went on, the General Assembly began
to develop criteria for the determination of just what was a non-self-
governing territory on which the colonial powers were obliged to provide
information to the United Nations, and what the modalities of the exer-
cise of self-determination should be. In this process, the Committee of
Twenty-Four was the major mechanism created by the General Assem-
bly to monitor the activities of the colonial powers with regard to the
movement of the colonial territories towards self-government.22
110 OFUATEY-KODJOE
Direct protection
The United Nations has made some efforts to engage in the direct pro-
tection of human rights. However, in the main, these efforts have lagged
behind the indirect protection activities. In general, direct protection in-
volves taking action within states in order to protect the human rights of
individuals or groups through preventive or corrective action. In some
cases this intervention has been accomplished with the cooperation, and
at the invitation, of the government concerned. However, sometimes it
has taken the form of humanitarian intervention – the active (and some-
times forcible) intervention in the internal affairs of a state without the
consent – or even despite active opposition – of the government.23 Both
of these types of direct protection have become more prominent aspects
of the UN human rights activity, particularly since the end of the Cold
War.
Technical assistance
The United Nations’ direct protection of human rights with the consent
of the government concerned involves the provision of technical assis-
tance to help countries develop structures and procedures that can en-
hance support for human rights. Countries in need of technical assistance
to comply with UN standards of human rights are considered by the
Commission under the UN Advisory Services Programme. In the past
few years, the United Nations has engaged in a number of such activities,
involving the administration and monitoring of elections or the training
of police and criminal-justice personnel, in countries such as Angola,
Cambodia, El Salvador, Haiti, Namibia, Nicaragua, Mozambique, and
Somalia.24
Humanitarian intervention
Humanitarian intervention brings the United Nations face to face with
state sovereignty. Both the establishment of the legal basis for such in-
tervention and development of the organization’s capacity to undertake
humanitarian intervention have been slow processes. Theoretically, the
direct protection of human rights can be based on the right of the United
Nations to intervene in states in which the government is unwilling, or
unable, to safeguard the rights of individuals or groups at risk (as they
are required to do by the various treaties they signed), or when states use
force to deprive a group of its right to self-determination.25 However, the
United Nations has been very reluctant to use this justification. In one
exceptional case the United Nations used this argument as a basis of its
termination of the South African mandate over Namibia.26 However, the
United Nations was completely inactive in many situations of gross vio-
lations of human rights, as witnessed in the cases of Uganda, Cambodia,

Sudan, Ethiopia, and Guatemala.27
Initially, in the very few cases when the United Nations has intervened,
it has based the justification not directly on human rights violations but
on the mandate given to the Security Council in Chapter VII of the UN
Charter, to take whatever measures are necessary to maintain interna-
tional peace and security. For instance, in the Security Council’s imposi-
tion of economic sanctions on Rhodesia in 1966, there was no direct
linkage with human rights violations. Similarly, in the case of the imposi-
tion of an arms embargo on South Africa in 1977, no reference was made
to human rights violations.28 It was only in the Rhodesia economic sanc-
tions of 1968 that human rights violations were mentioned as a con-
tributing factor to the threat to peace.29
By the 1990s, however, UN intervention for the direct protection of
human rights was becoming a more important aspect of UN human rights
activity. For the first time, the Security Council stated explicitly that there
is a connection between human rights violation and threats to peace and
security. In its Resolution 688 of 5 April 1992, the Security Council
stated, inter alia, that ‘‘the repression of Iraqi civilian population in many
parts of Iraq, including most recently in the Kurdish populated areas, . . .
threaten international peace and security in the region.’’ This resolution
was followed by the establishment of an enclave for the protection of
Iraqi Kurds.30 The same reasoning was used to justify the need to pro-
vide security for the delivery of emergency assistance in Somalia, and to
create a ‘‘no-fly zone’’31 and safe areas in Bosnia.32
Causes and consequences of human rights practices

There are several trends in contemporary international relations that
have relevance for the causes and consequences of human rights prac-
tices. Some of these trends are especially related to conditions in transi-
tional societies. On the one hand, there is a significant drive toward
democratic government all over the world, including many transitional
societies. The effect of this trend is the continuing emergence of a global
consensus on respect for human rights. Most states now recognize some
legal obligation, or at least some political pressure, to treat their citizens
according to these international standards. Another effect of this process
is that more and more people around the world are becoming aware of
their rights, as human beings and as peoples, and they are becoming in-
creasingly assertive in demanding that these rights be respected.
On the other hand, there are signs of rising levels of human rights vio-
lations around the world. Among others, they are the consequence of the
112 OFUATEY-KODJOE
re-emergence of undemocratic, racist, and fascist ideologies that advo-

cate the victimization of certain groups.33 Partly as a reaction to such
ideologies, and partly owing to the breakdown of authority systems, there
continues to be a re-emergence of ethnic conflicts degenerating into
small-scale wars around the world.34 Furthermore, the conditions of ex-
treme economic crisis in third-world countries make it virtually impossi-
ble for their governments to meet the demands for economic, social, and
cultural rights to which they have officially committed themselves. Fi-
nally, in their attempts at economic recovery and development, some of
these states adopt unpopular economic policies. The result is that oppo-
sition to these policies, by the general population or counter-élites and
military elements that are trying to overthrow their governments, threat-
ens the very existence of these regimes. Confronted with these situations,
many of these governments feel that they have to put concerns about
human rights ‘‘on the back burner’’ and adopt drastic measures to safe-
guard the security of their regimes.
The effect of these contradictory trends is that, whereas there are in-
creasing demands by individuals, groups, and NGOs for more effective
enforcement of human rights, there is also an increased incidence of vio-
lations of human rights. This has all the ingredients of a collision that will
increase the chances of violent confrontations all over the world.
The United Nations and human rights: improving access

and capacity
The key to implementation of human rights in the long run can be found
in the increasing general acceptance of both human rights norms and the
legitimacy of the protective activities of the international community. In
order to achieve this, NGOs, states, and the United Nations must be en-
gaged in a creative ‘‘dance’’: NGOs must be relentless in their push for
the protection of human rights; states must increasingly recognize human
rights as issues of legitimate international concern, as opposed to issues
that are exclusively within the domestic jurisdiction of states; above all,
UN human rights bodies must establish their right in law – and their
ability in fact – to recognize individuals and sub-state groups (such as in-
digenous peoples, and minorities) and to provide them with legally rec-
ognized opportunities for presenting their cases to international bodies.35
The crux of the matter is that potential or actual victims of human rights
violations must have access to the United Nations (and other interna-
tional bodies) and the United Nations, in turn, must improve its insti-
tutional and political capacity to deal effectively with acts of violation.
Access and capacity are crucial for both indirect and direct protection
of both individual and group rights; they are also basic concerns in pro-
posals concerning ‘‘humanitarian intervention.’’
Unless potential or actual victims of human rights violations have ac-
cess to international political and judicial institutions, it will continue to
be extremely difficult to protect them against oppressive or abusive gov-
ernments.36 In order to address the issue of access, the development of
human rights law must be strengthened. Therefore, one of the tasks for
the international community is to continue to refine the definitions of
both individual and group rights. The development of individual rights
seems to have made substantial progress in spite of all the setbacks in
implementation. The area in which there has been some difficulty is in
the development of group rights: this is due, in particular, to the reluc-
tance of states to afford rights to sub-state groups, for fear that their in-
tegrity might be compromised by secessionist agitation.
However, it is precisely due to the problem of the assertion of sub-state
groups that peaceful solutions need to be found. In the past, issues of
ethnic or national self-assertion have been resolved by force. Typically,
groups have demanded their cultural rights, local autonomy, or even se-
cession; typically, the states have rejected these claims, and the issue has
been settled on the battlefield. The whole development of group rights
was due to the realization that these issues should be settled by right, not
by force.
We are undoubtedly going to continue to see the assertion by sub-state
groups of people of a whole range of demands for self-rule. If we are
going to arrest the disintegration of international life into a series of
mini-holocausts and ethnic cleansings, then we must continue the trend
of seeking peaceful solutions based on law rather than on force. How-
ever, the development of the law alone is not going to resolve the prob-
lem: the law has to be unequivocally enforced. This requires the en-
hancement of institutional and political capacity.
Conclusions
From the perspective of human rights advocates, the United Nations’

performance clearly needs to be improved. The need to improve the ca-
pacity of the United Nations in relation to human rights activities, par-
ticularly in crises, has also been recognized by the General Assembly
itself in the following statement: ‘‘The United Nations system needs to
be adapted and strengthened to meet present and future challenges in
an effective and coherent manner. It should be provided with resources
114 OFUATEY-KODJOE
commensurate with future requirements. The inadequacy of such re-

sources has been one of the major constraints in the effective response of
the United Nations to emergencies.’’37
The following points summarize a few recommended practices of
NGOs, states, and the United Nations:
0 NGOs should continue with the very significant role they have been
playing in the promotion of human rights, including advocacy, promo-
tion, and monitoring.
0 States must increase their commitment to international human rights
standards. Without abandoning their rights to sovereignty and terri-
torial integrity, they must continue to limit the scope of what may
be legitimately considered to be within the exclusive control of that
sovereignty.
0 The United Nations should continue to insist that human rights of in-
dividuals, minorities, and indigenous peoples are legitimate matters of
international concern, and make strenuous efforts to increase its ca-
pacity to deal effectively with these issues.
However, if we take a longer view of the developments in the field of
human rights since 1945, compared with the previous history of the
world, the United Nations’ achievements have been quite impressive.
This is particularly true of its standard-setting activities. Many observers
have noted the weaknesses of implementation and compliance. This
should not be surprising: the fact is, that the standards that have been set
by the United Nations with regard to human rights are futuristic. How-
ever, the reason for setting these standards is precisely because the cur-
rent level of human rights performance is considered intolerable.
The numerous instruments and resolutions that have been adopted by
the United Nations have created a formidable legal basis for the rights of
individuals and have strengthened acceptance of the international legal
principles regarding the inviolability of the rights of individuals, minor-
ities, and territorially based groups. At present, there is no doubt that
this process of the internationalization of human rights is irreversible:
more and more human rights issues are being accepted by states as legit-
imate subjects of international discussion and action; this trend will con-
tinue. To be sure, the states will continue to appeal to the principle of
state sovereignty but, eventually (as in the case of the decolonization
process), the states will be dragged along toward a fuller acceptance of
the need for (and legitimacy of) the international protection of human
rights. The result is that, whereas the commitment to human rights has
been expanding, the range of subjects that are considered by states to be
within their exclusive sovereign control has been contracting. In this sit-
uation, the most effective role for the United Nations to play might be to
encourage both aspects of this dialectical process – the expansion of the
commitment to human rights and the restriction of the scope of exclusive

national sovereignty.
Meanwhile, the most important task for the United Nations is to en-
hance its own institutional capacities so that it can act decisively when the
opportunities for action present themselves. There is little consolation in
shrinking the scope of the states’ exclusive jurisdiction of human rights
issues, if the United Nations lacks the capacity to deal effectively with the
issues that it is tasked to address. In this regard, it may be that the most
significant role of the United Nations should be twofold: (1) increasing
the ‘‘promotional aspects’’ of its human rights activities, in cooperation
with human rights NGOs; (2) developing its capacity to handle truly
‘‘gross violations’’ of human rights, such as those witnessed in Cambodia
and Rwanda.
Notes
1. David Forsythe, The Internationalization of Human Rights, Lexington, MA: Lexington

Books, 1991.
2. David Forsythe, ‘‘The United Nations and Human Rights, 1945–1985,’’ Political Science
Quarterly, Vol. 100, No. 2, Summer 1985; W. Ofuatey-Kodjoe, ‘‘Recent Development
and Evolving Trends in the Role of the United Nations in the Areas of Human Rights
and Humanitarian Intervention,’’ in Albert Legault, Craig Murphy, and W. Ofuatey-
Kodjoe, eds, The State of the United Nations, Providence, RI: Academic Council on the
United Nations System (ACUNS), 1992.
3. During the drafting of the Charter, it was explicitly stated that the principle of trustee-
ship enshrined in those two chapters was intended to be a specific application of the
principle of self-determination, as indicated in Article 1(2), to a particular group of
people. See W. Ofuatey-Kodjoe, The Principle of Self-Determination in International
Law, New York: Nellen, 1977, pp. 106–107; see also United Nations Conference on In-
ternational Organization (UNCIO) Documents, Vol. 10, p. 515.
4. For conflicting interpretations of UN Charter provisions on human rights and the right
of self-determination, see Ofuatey-Kodjoe, The Principle of Self-Determination in Inter-
national Law, pp. 39–66.
5. General Assembly Resolution 217(III) A, December 10, 1948. For a history of the
drafting of the document, see Peter Meyer, ‘‘The International Bill: A Short History,’’
in Paul Williams, ed., The International Bill of Human Rights, Encinitas, CA: Entwhistle
Books, 1981; Ellen Glen and Louis Henkin, The International Bill of Rights, New York:
Columbia University Press, 1981.
6. United Nations General Assembly Resolution 545(VI), 8 February 1952.
7. UNGA Res. 567(VI), 18 January 1952.
8. For a list of the most important of these instruments, see B. Lillich, International Hu-
man Rights: Problems of Law, Policy and Practice, 2nd edn, Boston: Little, Brown and
Company, 1991; Ian Brownlie, ed., Basic Documents on Human Rights, New York: Ox-
ford University Press, 1981; Roger S. Clark and Jay A. Sigler, Human Rights Source-
book, New York: Paragon House Publishers, 1987.
9. Lillich, International Human Rights, pp. 187–189.
10. In spite of this, some commentators persist in this erroneous definition, and use that as a
116 OFUATEY-KODJOE
basis for rejecting the legality of self-determination. See U.N. Doc. A/C.3/5R. 310 para.
33, 1955.
11. See Vienna Declaration and Programme of Action, UN Doc. A/CONF.157/23, 12 July
1993.
12. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, p. 122. For a
discussion of the early attempts by the United Nations to develop rules regarding the
rights of minorities, see Hurst Hannum, ‘‘Contemporary Developments in the Interna-
tional Protection of the Rights of Minorities,’’ Notre Dame Law Review, Vol. 66, No. 5,
1991.
13. GA Res. 3103(XXVII), December 12, 1973; Antonio Cassese, ‘‘The Self-Determination
of Peoples,’’ in Louis Henkin, ed., The International Bill of Rights, New York: Columbia
University Press, 1981, p. 427.
14. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, p. 177. The
process of clarifying the meaning of self-determination began with General Assembly
resolution 648(VII), December 10, 1952, which provisionally approved the idea that a
territory may attain self-government in one of three ways, namely ‘‘the attainment of
independence,’’ ‘‘the attainment of other separate systems of government,’’ and ‘‘free
association of a territory with other component parts of the metropolitan or other
country.’’ The United Nations maintained this in a number of resolutions including Res.
742(VIII), Res. 1541(XV), the Human Rights Covenants, UNGA Res. 2200(XXX),
1966 and UNGA Res. 2200, 1966, and the Declaration on Friendly Relations, UNGA
Res. 2625, 1971.
15. GA Res. 1314(XII), Res. 1541(V), Res. 2158(XXI); Res. 2625(XXVI); Res. 3201(S-VI);
and Res. 3281(XXXIX).
16. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, pp. 160–177;
J.J. Lador-Lederer, International Group Protection, Leyden: Sijthoff, 1968, p. 244; W.
Ofuatey-Kodjoe, ‘‘Internal Peacekeeping in African Imbroglios: Problems and Pros-
pects. The cases of Angola, Mozambique and Somalia,’’ Paper presented to the 35th
Annual Convention of the International Studies Association, Washington, D.C.: 28
March–1 April 1994; Aureliu Cristecu, The Right to Self-Determination: Historical and
Current Developments on the Basis of United Nations Instruments (U.N. DocE/CN.4/
Sub.2/404 Rev. 1, 1981). The right to protection by the United Nations is derived from
the notion of trusteeship which was the basis of the UN trusteeship system, as well as
the more general category of peoples described in Chapter XI of the Charter as ‘‘peo-
ples of non-self-governing territories.’’ Euphemistically characterized as ‘‘communities
not yet able to stand on their own feet,’’ they were considered politically unprepared,
and therefore lacking the capacity to exercise their right of self-determination. How-
ever, the right of self-determination of such communities did not lapse: they were
merely deferred until they could acquire that capacity. One of the duties which the ad-
ministering powers undertook in the Charter was to prepare the peoples of such terri-
tories for eventual self-government. The United Nations became an agent of protection
with the obligation to supervise the preparation of these peoples by the administering
powers, to assist them in their development, and to protect them until they acquire the
capacity to exercise their right of self-determination. The United Nations also had the
duty to supervise the process by which these peoples would choose their mode of ex-
ercising their right of self-determination. Lador-Lederer, International Group Protec-
tion, p. 181.
17. Egon Schwelb and Philip Alston, ‘‘The Principal Institutions and Other Bodies
Founded under the Charter,’’ in Karel Vasak, ed., The International Dimensions of Hu-
man Rights, Vol. 1, Westport, Conn., 1982; Tom. J. Farer and Felice Gaer, ‘‘The UN
and Human Rights: At the End of the Beginning,’’ in Adam Roberts and Benedict
Kingsbury, eds, United Nations, Divided World: The UN’s Role in International Rela-
tions, 2nd edn, Oxford: Clarendon Press, 1993.
18. Farer and Gaer, ‘‘The UN and Human Rights,’’ p. 265. The first of the theme mecha-
nisms to be created was the Working Group on Disappearances in 1980; it was followed
by the Working Group on Arbitrary Executions (1982), the Special Rapporteur on
Torture (1985), the Working Group on Religious Intolerance (1985), and the Working
Group on Mercenaries (1987). More recently, other Working Groups have been created
on Children (1990), Arbitrary Detention (1991), Internally Displaced Persons (1992),
Racism and Xenophobia (1993), and Freedom of Expression (1993).
19. Lador-Lederer, International Group Protection, 181; Ofuatey-Kodjoe, The Principle
of Self-Determination in International Law, p. 116. For a discussion of the trustee-
ship system of the United Nations, see Ernst Hass, ‘‘The Attempt to Terminate Colo-
nialism: Acceptance of the U.N. Trusteeship System,’’ International Organization, Vol.
7, 1965.
20. W. Ofuatey-Kodjoe, ‘‘The Role of the UN Secretary-General in the Decolonization of
Namibia,’’ in Benjamin Rivlin and Leon Gordenker, eds, The Challenging Role of the
UN Secretary-General, Westport, Conn.: Praeger, 1993, pp. 133–151.
21. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, pp. 114,
226–227.
22. Usha Roy Sud, ‘‘Committee on Information from Non-Self-Governing Territories: Its
Role in the Promotion of Self-Determination of Colonial Peoples,’’ International Studies
(Quarterly Journal of the Indian School of International Studies) Vol. vii, No. 2, Octo-
ber 1965; Ofuatey-Kodjoe, The Principle of Self-Determination in International Law,
pp. 113–128; Benjamin Rivlin, ‘‘Self-Determination and Colonial Areas,’’ International
Conciliation No. 501, January 1955; Mohammed A. Shukri, The Concept of Self-
Determination in the United Nations, Damascus: Al Jadidah Press, 1965.
23. Howard Adelman, ‘‘Humanitarian Intervention: The Case of the Kurds,’’ International
Journal of Refugee Law, Vol. 4, No. 1, 1992, pp. 4–38; Jack Donnelly, ‘‘Humanitarian
Intervention: Law, Morality and Politics,’’ Journal of International Affairs, Vol. 37,
Winter 1984, pp. 311–328.
24. Ofuatey-Kodjoe, ‘‘The Role of the UN Secretary-General in the Decolonization of
Namibia.’’
25. Howard Adelman and John Sorenson, eds, ‘‘Introduction,’’ in African Refugees, Boul-
der: Westview Press, 1993, ix–xix; Ofuatey-Kodjoe, The Principle of Self-Determination
in International Law; Surya P. Subedi, ‘‘The Concept of Safe Havens, Safe Areas, En-
claves and No-Fly Zones in International Law,’’ Paper presented at the Annual Con-
ference of the Academic Council on the United Nations, The Hague, Netherlands, June
1994; Donnelly, ‘‘Humanitarian Intervention.’’ The use of chapter VII of the UN Char-
ter to justify United Nations intervention in the internal affairs of a state to protect hu-
man rights has been the source of some controversy. See Lori Damrosch, ed., Enforcing
Restraint: Collective Intervention in Internal Conflicts, New York: Council on Foreign
Relations, 1993.
26. Ofuatey-Kodjoe, ‘‘Recent Development and Evolving Trends in the Role of the United
Nations.’’
27. Donnelly, ‘‘Humanitarian Intervention.’’
28. U.N.Doc. S/Res/418 (1977).
29. S/Res/253 (May 29, 1968).
30. Graham E. Fuller, ‘‘The Fate of the Kurds,’’ Foreign Affairs, Vol. 72, No. 2, Spring
1993, pp. 108–121; Jane E. Stromseth, ‘‘Iraq’s Repression of Its Civilian Population,’’ in
Damrosch, ed., Enforcing Restraint.
31. Res. 781 (1992).
118 OFUATEY-KODJOE
32. Res. 824 (1992); Subedi, ‘‘The Concept of Safe Havens, Safe Areas, Enclaves and No-
Fly Zones in International Law.’’
33. Magnus Linklater, Isabel Hilton, and Neal Ascherson, eds, The Nazi Legacy: Klaus
Barbie and the International Fascist Connection, New York: Holt, Rinehart, and Win-
ston, 1985; Jerry Bornstein, The Neo-Nazis: the Threat of the Hitler Cult, New York: J.
Messner, 1986; Dennis King, Lyndon Larouche and the New American Fascism, New
York: Doubleday, 1989.
34. Hannum, ‘‘Contemporary Developments in the International Protection of the Rights
of Minorities,’’ p. 1446.
35. Ofuatey-Kodjoe, The Principle of Self-Determination in International Law, pp. 160–176;
Ofuatey-Kodjoe, ‘‘Internal Peacekeeping in African Imbroglios’’; Cristecu, The Right to
Self-Determination: Historical and Current Developments on the Basis of United Nations
Instruments, 1981. For a discussion of the role of NGOs in the protection of human
rights, see David Weissbrodt, ‘‘The Contribution of International Non-Government
Organizations to the Protection of Human Rights,’’ in Theodor Meron, ed., Human
Rights in International Law: Legal and Policy Issues, New York: Oxford University
Press, 1984.
36. For a discussion of some recommendations for the enhancement of the effectiveness of
the United Nations, see Theodor Meron, Human Rights Law-Making in the United Na-
tions, New York: Oxford University Press, 1986.
37. A/Res/46/182, 19 December 1991.
6
The consequences of the war crimes
tribunals and an international
criminal court for human rights in
transition societies
Paul J. Magnarella
The twentieth century witnessed two world wars and a number of brutal
regional conflicts that resulted in massive killings. One response to some
of these tragedies has been the imposition of war crimes tribunals on
certain of the warring parties, by either the victors or the United Na-
tions Security Council. More recently, the world community, through the
United Nations, has embarked upon the venture of establishing a per-
manent international criminal court (ICC) with jurisdiction over human-
kind’s most serious crimes.
This chapter deals with the background, legal structure, and con-
sequences of war crimes tribunals and assesses the potential effects of an
ICC on human rights in societies in transition. These tribunals and the
ICC implement humanitarian law – that is, the customary human rights
law that applies to situations of armed conflict as well as to crimes against
humanity that may occur in the absence of armed conflict. Humanitarian
law supplements and complements general human rights law. Some hu-
man rights conventions permit states to derogate from several of their
human rights obligations during times of public emergency, such as war;1
humanitarian law, in contrast, becomes operative during wartime and al-
lows for no derogation. Consequently, humanitarian law offers people
human rights protection just when states may be derogating from some of
their conventional human rights obligations.
119
120 MAGNARELLA
The post-World War II tribunals
In October 1943, the Allies began a series of meetings to plan the cre-
ation of a post-World War II tribunal to try major war criminals of the
European Axis powers. Meeting in London in August 1945, American,
British, French, and Soviet representatives reached an agreement estab-
lishing the International Military Tribunal (IMT) at Nuremberg. The re-
sulting Nuremberg Charter established the principle that ‘‘crimes against
international law are committed by men, not abstract entities, and only
by punishing individuals who commit such crimes can the provisions of
international law be enforced.’’2
Article 6 of the IMT Charter listed the following acts as crimes falling
under the jurisdiction of the Tribunal and for which there would be indi-
vidual responsibility:
(a) Crimes against peace: namely, planning, preparation, initiation or waging of a

war of aggression, or a war in violation of international treaties, agreements,
or assurances;
(b) War crimes: namely, violations of the laws and customs of war . . . [including]
murder, ill-treatment or deportation to slave labor or for any other purpose
of civilian population of or in occupied territory, murder or ill treatment of
prisoners of war or persons on the seas, killing of hostages, plunder of public
or private property, wanton destruction of cities, towns, or villages, or dev-
astation not justified by military necessity;
(c) Crimes against humanity: namely, murder, extermination, enslavement, de-
portation, and other inhumane acts committed against any civilian popula-
tion, before or during the war, or persecutions on political, racial or religious
grounds in execution of or in connection with any crime within the jurisdic-
tion of the Tribunal, whether or not in violation of the domestic law of the
country where perpetrated.3
The first two criminal categories concern international relations – spe-

cifically, wars between states. The third category – crimes against hu-
manity – attacks the very heart of state sovereignty by defining gross
human rights violations by governing powers against their own citizens
as international crimes subject to universal jurisdiction: ‘‘crimes against
humanity’’ covers atrocities committed by Germans against German citi-
zens; this, of course, includes the Nazis’ treatment of Jews, Gypsies, ho-
mosexuals, and other ‘‘undesirables’’ in concentration camps or factories.
Prior to the IMT, a government’s treatment of its own citizens, with few
exceptions, was considered to be an internal affair not covered by inter-
national humanitarian law.
In the first and most famous of the IMT trials, 22 notorious Nazi figures
– including Herman Wilhelm Göring – were prosecuted. Hundreds of
WAR CRIMES TRIBUNALS, ICC, AND HUMAN RIGHTS 121
other Germans were prosecuted by the Allied occupying powers under

Control Council Law 10. American General Douglas MacArthur, the
Supreme Allied Commander in Japan following the war, created the In-
ternational Military Tribunal for the Far East (the ‘‘Tokyo Tribunal’’),
modelled after the IMT, to prosecute 28 high-ranking Japanese officials,
including former premiers, war leaders, and former diplomats. The pro-
ceedings lasted from May 1946 to November 1948.4
The interim years
During the 50 years after Nuremberg, an estimated 250 armed conflicts

occurred, causing approximately 170 million human casualties.5 Although
the UN General Assembly passed a resolution as early as 1947 calling for
the preparation of a draft code of offences against peace and the security
of humankind, and shortly thereafter directed the International Law
Commission to begin work on a draft statute for an international crimi-
nal court, little progress was made on either task until the 1990s. Owing
to the Cold War division, the Security Council failed to support efforts
to create additional war crimes tribunals. Consequently, until the 1990s,
political and military leaders responsible for war crimes, genocide, and
crimes against humanity generally enjoyed impunity. Eventually, with the
collapse of the Soviet Union and the spectre of atrocities on the doorstep
of Western Europe, the Security Council acted creatively and in unison.
The International Criminal Tribunal for the former

Yugoslavia
Most people were astonished by the brutality of the conflicts in the for-
mer Yugoslavia that erupted in June 1991 and intensified thereafter. As
part of the UN response to the conflicts, the Secretary-General submitted
a statute for an international criminal tribunal to the Security Council
and recommended that it be established under Chapter VII of the United
Nations Charter.6 Given the urgency expressed by the Security Council,
the Secretary-General did not involve the General Assembly in the draft-
ing or review of the statute. At its meeting on 25 May 1993, the Security
Council approved the Secretary-General’s report and accepted the Stat-
ute of the International Criminal Tribunal for the former Yugoslavia
(ICTY) without change.7 Subsequently, the UN General Assembly, in its
resolution 47/235 (14 September 1993), also expressed support for the
tribunal.
One of the most innovative and expeditious recommendations in the
122 MAGNARELLA
Secretary-General’s report was that of establishing the tribunal through

the exercise of the Security Council’s powers under Chapter VII of the
UN Charter. As the tribunal’s first president, Antonio Cassese, later ex-
plained, ‘‘the traditional approach of establishing such a body by treaty
was discarded as being too slow (possibly taking many years to reach full
ratification) and insufficiently effective as Member States could not be
forced to ratify such a treaty against their wishes.’’8 By utilizing Chapter
VII, the Security Council obliged all UN Member States to cooperate
with the tribunal and to honour any lawful requests for assistance under
its Statute.
Specifically, Articles 39 and 48 of Chapter VII of the UN Charter pro-
vide the legal basis for the Security Council’s establishment of the tri-
bunal. Article 39 states that the Security Council shall determine when
threats to peace exist and shall determine what measures shall be taken
to maintain or restore international peace and security. Article 48 obli-
gates UN Member States to cooperate with the Security Council in the
implementation of its chosen measures. Consequently, all UN Member
States are obligated by the UN Charter to cooperate with the ICTY.
The ICTY differs from the post-World War II Nuremberg and Tokyo
tribunals. First, unlike its predecessors, the ICTY does not have the au-
thority to adjudicate crimes against peace: its jurisdiction covers war
crimes, genocide, and crimes against humanity. Second, whereas its pre-
decessors dealt only with crimes associated with an international armed
conflict, the ICTY is empowered to adjudicate crimes committed in the
course of either inter- or intra-state conflicts. Third, the ICTY is the
organ not of a particular group of victor states but of the international
community. It is the creation of the United Nations and consists of judges
from many different states, regionally dispersed and representing differ-
ent legal traditions.
Article 8 of the ICTY Statute extends its territorial jurisdiction ‘‘to the
territory of the former Socialist Federal Republic of Yugoslavia, includ-
ing its land surface, airspace and territorial waters.’’ Its temporal juris-
diction extends from 1 January 1991 to a future date to be determined by
the Security Council. This temporal and territorial scope authorizes the
ICTY to consider any serious crimes, regardless of the ethnicity (e.g.
Serb, Croat, or Bosniak) of their perpetrators or victims.
Because the Security Council is not a legislative body, it has no com-
petency to enact substantive law for this tribunal. Instead, it authorizes
the ICTY to apply ‘‘rules of international humanitarian law which are
beyond any doubt part of customary law so that the problem of adher-
ence of some but not all States to specific conventions does not arise.’’9
Those portions of conventional international humanitarian law that were
asserted to have unquestionably become part of international customary
law are the laws applicable in situations of armed conflict as embodied in

the following: (1) the four Geneva Conventions of 12 August 1949; (2)
the Hague Convention (IV) Respecting the Laws and Customs of War on
Land and the Regulations annexed thereto of 18 October 1907; (3) the
Convention on the Prevention and Punishment of the Crime of Genocide
of 9 December 1948; and (4) the Charter of the International Military
Tribunal of 8 August 1945.10
Articles 2–5 of the ICTY Statute empower the tribunal to prosecute
natural persons accused of ordering or committing grave breaches of the
four Geneva Conventions, violating the laws or customs of war, commit-
ting genocide, or being responsible for crimes against humanity. Grave
breaches include the following: wilful killing; torture or inhuman treat-
ment, including biological experiments; wilfully causing great suffering or
serious injury to body or health; extensive destruction and appropriation
of property not justified by military necessity and carried out unlawfully
and wantonly; compelling a prisoner of war or a civilian to serve in the
forces of a hostile power; wilfully depriving a prisoner of war or a civilian
of the rights of fair and regular trial; unlawful deportation or transfer or
unlawful confinement of a civilian; and taking civilians as hostages.
Common Articles 49, 50, 129, and 146 of the First, Second, Third, and
Fourth Geneva Conventions, respectively, obligate the High Contracting
Parties to enact the legislation necessary to provide for penal sanctions
for persons ordering or committing any of the grave breaches. They fur-
ther obligate each High Contracting Party to search for alleged violators,
regardless of nationality, and bring them before their own courts or hand
them over for trial to another High Contracting Party. As of 1 January
1994, 185 States, including Yugoslavia, Slovenia, Croatia, and Bosnia–
Herzegovina, had ratified the four Geneva Conventions.11
Statute Article 3, ‘‘Violations of the Laws and Customs of War,’’ is
based on the Annex to the 1907 Hague Convention, which was sub-
sequently reaffirmed by Article 6(b) of the Nuremberg Charter. Its list of
violations includes the employment of poisonous or other weapons cal-
culated to cause unnecessary suffering; wanton destruction or devastation
of cities, towns, and villages not justified by military necessity; attack on,
or bombardment of, undefended towns, villages, dwellings, or buildings;
seizure, destruction, or wilful damage of religious, charitable, scientific,
art, or educational institutions or of historic monuments; and plunder of
public or private property.
Article 4 of the ICTY Statute replicates Articles 2 and 3 of the Con-
vention on the Prevention and Punishment of the Crime of Genocide
(1948) and defines genocide as any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnic, racial, or reli-
gious group: killing group members; causing serious bodily or mental
124 MAGNARELLA
harm to group members; deliberately inflicting on the group conditions

calculated to bring about its complete or partial physical destruction;
imposing measures intended to prevent birth within the group; and forc-
ibly transferring children to another group. Persons who commit geno-
cide or who attempt, conspire, or incite others to commit genocide are
punishable. Similar to the Geneva Conventions, the Genocide Conven-
tion obligates States Parties to enact the legislation necessary to provide
effective penalties for persons guilty of genocide. Obligations under the
Genocide Convention are not confined merely to the 107 or so states
(including Yugoslavia, Croatia, Slovenia, and Bosnia–Herzegovina) that
had ratified it. Because it has become part of international customary
law, the International Court of Justice has noted that, ‘‘the principles
underlying the Convention are principles which are recognized by civi-
lized nations as binding on States, even without any conventional ratifi-
cation.’’12
Statute Article 5, ‘‘Crimes against Humanity,’’ follows the Nuremberg
Charter. It empowers the tribunal to prosecute persons responsible for
the following crimes against any civilian population committed during an
international or internal armed conflict: murder; extermination; enslave-
ment; deportation; imprisonment; torture; rape; persecutions on political,
racial, and religious grounds; and other inhumane acts. The crimes con-
stituting ‘‘ethnic cleansing,’’ a term closely associated with the conflicts
in the former Yugoslavia, are covered by Articles 2–5 but can also fall
under genocide (Article 4).
Concurrent jurisdiction and tribunal primacy
Practically all European states, as parties to the Genocide and Geneva

conventions, share convention-based competencies and obligations to ar-
rest and prosecute those responsible for the kinds of crimes described in
Articles 2 and 4 of the ICTY Statute. Furthermore, all states may exer-
cise universal jurisdiction to prosecute persons responsible for the crimes
listed in Articles 2–5. Given the magnitude of the crimes committed in
the former Yugoslavia, the successful prosecution of those responsible
would greatly exceed the resource capacity of the tribunal; therefore, the
Secretary-General stated that national courts should be encouraged to
exercise their jurisdiction with respect to such crimes.13 Consequently,
Statute Article 9(1) states that ‘‘[t]he International Tribunal and national
courts shall have concurrent jurisdiction to prosecute persons for serious
violations of international humanitarian law committed in the territory of
the former Yugoslavia since 1 January 1991.’’ However, the Statute goes
on to state that the tribunal shall have primacy in this area, such that it
may formally request national courts to defer to its competence at any
stage of the procedure.
Rules of procedure
When constructing the rules of procedure, tribunal judges had little pre-
cedent to guide them. The procedural rules for the Nuremberg and To-
kyo tribunals were rather rudimentary, numbering only 11 and 9 rules,
respectively. After extensive debate and revision, with constructive in-
puts by NGOs, the Office of Legal Affairs of the UN Secretariat, and
states, the judges adopted 125 procedural rules (hereinafter referred to as
‘‘Rules’’) at the end of their second session in February 1994.14
The Rules incorporate all the fundamental due process guarantees for
a fair and speedy trial found in Article 14 of the International Covenant
on Civil and Political Rights (ICCPR). With respect to suspects, articles
42–45 of the Rules even exceed the Covenant’s requirements. According
to these articles, a suspect has the right to counsel of his/her choice, free
legal assistance if he/she is indigent, and free assistance of an inter-
preter and translator, if necessary. The Tribunal is not authorized to im-
pose the death penalty, in deference to the Second Optional Protocol to
the ICCPR of 1989.
The due process rights of the accused include the following: the right to
the presumption of innocence; the right against self-incrimination; the
right to counsel of choice or to free legal assistance if indigent; the right
to inspect the prosecution’s incriminating and exculpatory evidence; the
right to privileged communication with counsel; the right to public pro-
ceedings; the right to challenge the prosecution’s evidence and to present
evidence in one’s defence; and the right of appeal. There are no provi-
sions for trials in absentia.
Outline of proceedings
Only the prosecutor or his/her duly delegated deputy may commence

proceedings by submitting an indictment supported by evidence to a
designated tribunal judge for confirmation. Neither victims, states, nor
NGOs may initiate proceedings before the tribunal. The president of the
tribunal assigns one judge each month to review indictments.
Once a judge confirms an indictment, he or she may issue arrest and
search warrants. The tribunal’s registrar transmits the arrest warrant to
the national authorities of the state having jurisdiction over the accused,
‘‘together with instructions that at the time of the arrest the indictment
and statement of the rights of the accused be read to him in a language
he understands . . .’’ (Rule 55). The arresting state authorities shall notify
the registrar and arrange to transfer the accused to the seat of the tribu-
nal, where the president will arrange for his detention. The detention
unit is located within an existing Dutch prison, but it is under the control
and supervision of the United Nations.
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If the notified state has been unable to arrest the accused, and if the
registrar has, at the prosecutor’s request, published notices of the arrest
warrant in widely circulated newspapers, a trial chamber may, after find-
ing the prosecutor’s evidence sufficient, issue an international arrest war-
rant that shall be transmitted to all states (Rule 61). The president of the
tribunal has the authority to notify the Security Council of any state that
refuses to honour the tribunal’s arrest warrant or that impedes the exe-
cution of such a warrant. In practice, the Security Council has success-
fully placed pressure on Croatia and Serbia to hand over at least some of
the indicted suspects that resided in their territories.
Judges who serve on the tribunal are elected by members of the United
Nations from a list of candidates nominated by Member States and non-
Member States maintaining permanent observer missions at UN Head-
quarters. According to article 13 of the ICTY statute, ‘‘the judges shall be
persons of high moral character, impartiality and integrity who possess
the qualifications required in their respective countries for appointment
to the highest judicial offices.’’ The standard of proof for a criminal con-
viction is guilt beyond a reasonable doubt.
The International Criminal Tribunal for Rwanda

In 1994, Rwanda erupted into one of the most appalling cases of geno-
cide that the world had witnessed since World War II, as radical Hutu
attempted to eliminate moderate Hutu and Rwanda’s entire Tutsi
population.15 The UN Security Council, having just created an interna-
tional criminal tribunal for humanitarian law violators in the European
states of the former Yugoslavia, decided it could do no less for African
Rwanda.
On 8 November 1994, the UN Secretary-General submitted to the
Security Council a statute for the International Criminal Tribunal for
Rwanda (hereafter referred to as ICTR), stating that he was ‘‘convinced’’
that ‘‘the prosecution of persons responsible for serious violations of in-
ternational humanitarian law [in Rwanda] . . . would contribute to the
process of national reconciliation and to the restoration and maintenance
of peace.’’16 He recommended that this tribunal, like the ICTY, be es-
tablished under Chapter VII of the United Nations Charter.
The Security Council adopted the Secretary-General’s report and the
resolution sponsored by the United States and New Zealand by a vote of
13 to 1, with China abstaining. Ironically, Rwanda, which was now led by
a government dominated by Tutsi, was the only Security Council member
to vote no.17 Rwanda expressed three objections: it wanted the statute
to contain a provision for capital punishment; it also preferred that the
temporal jurisdiction of the tribunal extend back to 1990 to cover earlier

crimes; and it wanted the ICTR to be based in Rwanda itself. The statute
as accepted by the Security Council does not allow for capital punish-
ment and limits its temporal jurisdiction only to the year 1994. Sub-
sequently, the Security Council decided to locate the ICTR in Arusha,
Tanzania. To avoid the charge that the ICTR would be a victors’ court,
the Security Council rejected Kigali’s proposal that Rwandan judges sit
on the tribunal. The UN General Assembly passed its own resolution
welcoming the ICTR’s establishment.18
The ICTR’s jurisdiction
Article 1 of the tribunal’s statute states that the ICTR ‘‘shall have the
power to prosecute persons responsible for serious violations of inter-
national humanitarian law committed in the territory of Rwanda and
Rwandan citizens responsible for such violations committed in the terri-
tory of neighboring states.’’ Consequently, the statute gives the tribunal
both personal and territorial jurisdiction in Rwanda as well as limited
personal and territorial jurisdiction in surrounding states. By contrast, the
statute of the ICTY grants tribunal jurisdiction ‘‘in the territory of the
former Yugoslavia’’ only (Art. 1).
By granting the ICTR the competence to prosecute Rwandans who al-
legedly committed certain crimes abroad, the Security Council has added
a new dimension to the humanitarian law of non-international armed
conflict. Rwanda’s neighbours must surrender some of their jurisdiction
to the ICTR without choice. All states have the authority or competence
to prosecute Rwandans for crimes committed on their territories. How-
ever, because the ICTR by its statute has primacy over the national
courts of all states [Art. 8(2)], it may formally request that any neigh-
bouring state’s court defer certain cases to its competence. This request
carries with it the threat of a penalty for non-compliance. Should any
state notified of a deferral request not respond satisfactorily within 60
days, the ICTR’s president may report the matter to the Security Coun-
cil, which would presumably consider sanctions.
In 1995, for example, Kenyan president Daniel Arap Moi stated that
not only would he not cooperate with the ICTR but also that he would
prevent it from seeking out suspects in his country.19 Immediately after
Moi’s remarks, ICTR Chief Prosecutor Richard Goldstone sent him a
letter asking for clarification and warning that Kenya’s refusal to co-
operate with the tribunal would be regarded as a breach of Kenya’s
obligations under international law – a matter for the Security Council
to consider.20 President Moi soon retracted his statement and began to
cooperate satisfactorily with the ICTR.
128 MAGNARELLA
Subject-matter jurisdiction
The Security Council authorized the ICTR to apply existing interna-

tional humanitarian law applicable to non-international armed conflict.
The humanitarian law included in the tribunal’s statute consists of crimes
against humanity (as defined by the Nuremberg Charter), genocide, Ar-
ticle 3 Common to the Geneva Conventions, and Additional Protocol II
(also ratified by Rwanda).
ICTR Statute Article 3, ‘‘Crimes against Humanity,’’ is based on Arti-
cle 6(c) of the Nuremberg Charter, but it eliminates the requirement that
such crimes must have been committed ‘‘before or during the war.’’
Consequently, crimes against humanity do not need a war nexus.
Article 4 of the statute empowers the ICTR to prosecute persons
committing, or ordering to commit, serious violations of Article 3 com-
mon to the four Geneva Conventions of 1949 and of the Additional Pro-
tocol II thereto of 1977. These violations include the following: (a) vio-
lence to life, health, and physical or mental well-being of persons – in
particular, murder, torture, or mutilation; (b) collective punishments; (c)
taking of hostages; (d) acts of terrorism; (e) outrages upon personal dig-
nity – in particular, humiliating and degrading treatment, rape, enforced
prostitution, and any form of indecent assault; (f) pillage; (g) sentences
or executions rendered extrajudicially or without due process; and (h)
threats to commit any of the foregoing acts.
Neither Article 3 Common nor Protocol II applies to conflicts of an
international nature. Rwanda’s neighbours – Burundi, Tanzania, Uganda,
and Zaire (but not Kenya) – had ratified both the Geneva Conventions
and Protocol II. However, unlike the ‘‘grave breaches’’ sections of the
Geneva Conventions, Article 3 Common and Protocol II do not require
ratifying parties to criminalize the above acts or to prosecute or extra-
dite alleged violators either to the state on whose territory their acts oc-
curred or to a competent international tribunal. However, as each UN
member state is obligated under Chapter VII of the UN Charter to co-
operate with Security Council measures taken to maintain international
peace, each must extradite suspects requested by the ICTR.
Concurrent jurisdiction and tribunal primacy
Given the magnitude of the crimes committed in Rwanda, the successful

prosecution of all those responsible would greatly exceed the resource
capacity of the ICTR. One scholar estimated that the number of Rwan-
dans directly involved in the acts of killing amounted to between 75,000
and 150,000.21 Statute Article 8(1) states that ‘‘[t]he International Tribu-
nal for Rwanda and national courts shall have concurrent jurisdiction to
prosecute persons for serious violations of international humanitarian

law committed in the territory of Rwanda and Rwandan citizens for such
violations committed in the territory of neighboring States . . .’’ However,
like the ICTY, the ICTR enjoys primacy over national courts of all states,
such that it may formally request national courts to defer to its compe-
tence [Article 8(2)].
Rules of procedure
The ICTR’s Rules of Procedure are based on those of the ICTY. They
incorporate the fundamental due process guarantees to a fair trial found
in Article 14 of the International Covenant on Civil and Political Rights
(ICCPR). Judges for this tribunal are selected in the same manner as
they are for the ICTY (see above), and the standard of proof for a crim-
inal conviction is guilt beyond a reasonable doubt.
The International Criminal Court
On 16 July 1998, after 50 years of effort, the international community

endorsed the creation of a permanent International Criminal Court (ICC)
by a vote of 120 to 7 with 21 abstentions. This historic step took place in
Rome at the end of a five-week UN diplomatic conference. Only Libya,
Iraq, Qatar, Israel, Yemen, China, and the United States voted against
the proposal (although in January 2001, both the United States and Israel
signed the ICC Statute). On 6 May 2002, however, President George W.
Bush formally withdrew the US’s signature from the treaty, claiming that
the ICC could be used for politically motivated prosecutions against
American military personnel serving abroad. US allies and American
human rights organizations expressed deep disappointment over Bush’s
decision: both claim that the ICC statute contains sufficient safeguards
(see below) to prevent unfounded prosecutions.
The Court is designed to bring to justice those who commit the most
serious crimes of concern to the international community, including geno-
cide, war crimes, crimes against humanity, and aggression (to be defined
later by a special law commission). In order for the ICC to come into
existence, its statute, officially entitled the ‘‘Rome Statute of the Interna-
tional Criminal Court,’’22 required ratification by 60 states. The ICC re-
ceived the requisite number of ratifications on 11 April 2002, when ten
states presented their instruments of ratification at UN Headquarters,
bringing the total number of ratifying countries to 66. The Court’s statute
entered into force on 1 July 2002.
The jurisdiction of the ICC will extend to war crimes committed in
130 MAGNARELLA
both international and internal armed conflicts. It offers the protections

of the Geneva Conventions to combatants and prisoners of war, but also
addresses the security needs of civilians of all ages, genders, and cultures.
The Rome Statute criminalizes attacks on civilians, rape, and the re-
cruitment of children under 16 years of age into militias; it also prohibits
war crimes, genocide, and crimes against humanity.
The Statute permits a ratifying state to declare that it will not accept
the jurisdiction of the Court for a period of seven years with respect to
war crimes committed by its nationals or on its territory. Otherwise, the
Statute permits no reservations. Ratifying states must accept it in its to-
tality. Seven years after the ICC Statute comes into force, ratifying states
can amend it and (it is hoped) improve the Court’s ability to deal with
changing times and crises.
Although the Court will not be fully independent of the Security
Council, it will have a degree of autonomous jurisdiction. The Rome
Statute offers a two-track system for triggering investigations and pros-
ecutions. Under Track One, the UN Security Council, acting under
Chapter VII of the UN Charter, can refer situations to the Court to be
investigated. This track would involve situations that threaten or disrupt
international peace. As the Court would be acting pursuant to Security
Council Chapter VII authority, there would be binding obligations on all
states to comply with court orders for evidence or the surrender of in-
dicted persons. Court orders could be enforced by the Security Council in
the form of imposed embargoes, the freezing of assets of leaders and
their supporters, and the use of force. This track would most likely be
utilized in the event of a future conflict similar to those in former Yugo-
slavia and Rwanda.
The second track constitutes situations referred to the Court by indi-
vidual countries or the ICC Prosecutor. This track, which relies on the
good-faith cooperation of the Parties to the Court’s statute, has a number
of restrictions attached to it, as outlined below.
First, the Court’s jurisdiction under the second track would be based
on a concept known as ‘‘complementarity,’’ meaning the Court could
act only when domestic authorities of the countries involved are unable
or unwilling to prosecute. Second, the Rome Statute specifies that, as a
precondition to the ICC’s jurisdiction over a crime, either the state on
whose territory the crime was committed or the state whose national
allegedly committed the crime must be a party to the treaty or have
granted its voluntary consent to the court’s jurisdiction. Thus, the ICC
can exercise jurisdiction over the nationals of non-state parties in cases
where they have allegedly committed crimes in a country other than their
own, if that country decides to turn the suspects over to the Court. Third,
Article 16 of the Statute allows the Security Council to vote to postpone
an investigation or case for up to twelve months, on a renewable basis.

Thus, the Security Council can limit Court action, as long as no perma-
nent member vetoes the resolution calling for postponement.
The ICC Statute evinces great care in the selection of highly qualified
and impartial judges and prosecutors. Article 36 of the Statute spells out
the rules for judicial nominations and elections. Any state party to the
ICC Statute may nominate one candidate for judge to the Court. All
nominated candidates must have demonstrated competence in criminal
law or international law and extensive experience in a professional legal
capacity. From the list of candidates, the State parties to the statute elect
18 full-time judges, who serve a term of nine years and are not eligible
for re-election. No two judges may be from the same state. In their se-
lection of judges, the state parties should take into account the need for
fair representation of females and males, geographical diversity, and the
principal legal systems of the world. ICC Statute Article 40 requires all
judges to be independent in the performance of their functions: ‘‘A judge
shall not participate in any case in which his or her impartiality might
reasonably be doubted on any ground’’ (Art. 41). The standard of proof
for a criminal conviction is guilt beyond a reasonable doubt.
ICC Statute Article 42 states that the prosecutor and deputy prosecu-
tor shall be elected by the Assembly of States Parties for a nine-year
term. Candidates must be of high moral character and legal competence.
Prosecutors must be independent and shall not engage in any activity that
is likely to interfere with their prosecutorial functions or affect confidence
in their independence. A person being investigated or prosecuted may
at any time request the disqualification of a prosecutor on reasonable
grounds, such as partiality. The safeguards outlined in the above para-
graphs should effectively prevent any unfounded, politically motivated
prosecutions.
Tribunal contributions to the promotion of human rights
International war crimes and criminal tribunals can contribute to the pro-
motion of human rights in a number of ways. These include the following:
1. Contributing to the cessation of humanitarian law violations by show-
ing parties to any ongoing conflict that the international community is
determined to arrest and punish those who violate the human rights
protected by humanitarian law.
2. Achieving justice and retribution by actually prosecuting and punish-
ing those responsible for humanitarian law violations.
3. Contributing to the reconciliation of the parties or opposed popula-
tions by creating an authoritative record of those responsible for
132 MAGNARELLA
humanitarian law violations and, when possible through confessions,

getting the responsible persons to acknowledge their crimes so that
guilt may be removed from the innocent and the afflicted societies may
heal and rebuild.
4. Deterring future humanitarian law violations by demonstrating that
those responsible for such acts will be prosecuted and punished.
5. Securing indemnity/compensation for victims.
6. Promoting human rights through their own example by guaranteeing
fair trials and respecting the due process rights of the accused, as con-
tained in the ICCPR and other UN human rights conventions.23
An evaluation of IMT, ICTY, and ICTR with reference to these six
functions follows next. The ICC is dealt with separately thereafter.
Contributing to the cessation of ongoing hostilities
Both the IMT and the ICTR came into existence after one side to the
conflict had been defeated and a cease-fire had been declared. The ICTY,
by contrast, began operations in 1994 at the height of the conflict in Bos-
nia and Herzegovina. The warring parties exhibited little fear of the tri-
bunal: some rejected and mocked it.24 In February 1994, Bosnian Serbs
launched a mortar strike in a Sarajevo marketplace, killing 68 civilians
and wounding 200. Bosnian Serbs also began shelling UN safe areas.
In April, they took over the Gorazde safe area. In May, Bosnian Serbs
attacked other UN safe areas and took UN peacekeepers hostage. In July
1995, under the direction of General Mladic, Bosnian Serbs captured
Srebrenica and Zepa and massacred about 7,000 Muslim men and boys.
Given events of this sort, it appears that the ICTY did little to contribute
to the cessation of hostilities: it required NATO’s intervention to end the
war, not ICTY indictments and trials.
Achieving justice
Arguably, the IMT and the other post-World War II war crimes tribunals
achieved significant (albeit one-sided) justice and retribution for victims
of Germany and Japan by actually prosecuting and punishing many of
those responsible for humanitarian law violations. The ICTY is on the
road to achieving justice. On 29 June 2001, it took former Yugoslav
President Slobodan Milošević into custody to try him for various hu-
manitarian law violations allegedly committed in 1999 in Kosovo. In Au-
gust 2001, the ICTY convicted Bosnian Serb General Radislav Krstic of
genocide and crimes against humanity and took three indicted former
Bosnian Muslim commanders (two generals and a colonel) into custody.
As of 30 May 2003, the ICTY had issued over 90 indictments: it had 50
accused persons in custody and had tried 37; of those tried, 32 had been
found guilty and 5 not guilty; 22 indictees were still at large.25
However, a number of persons alleged to be primarily responsible for
genocide and crimes against humanity were among those at large. They
included Radovan Karadžić, the former political leader of the Bosnian
Serbs, and Ratko Mladic, the former commander of the Bosnian Serb
forces. NATO commanders in Bosnia initially refused to arrest them,
claiming such arrests were not part of NATO’s mandate. NATO forces
subsequently began arresting indictees and turning them over to the
ICTY. Should the opportunity arise, it is expected that NATO forces will
arrest Karadžić and Mladic as well.
The ICTR has also made significant progress. As of 26 May 2003, the
ICTR had issued 75 indictments: of those indicted, 65 had been arrested
and 10 were at large. The ICTR had completed 15 cases, in which all
of the suspects either confessed or were found guilty; 18 trials were in
progress and 31 indictees were in detention awaiting trial. Those arrested
included cabinet ministers, high-ranking military leaders, key media fig-
ures, senior government administrators, and leaders of the murderous
Interahamwe.26 Interim Prime Minister Jean Kambanda’s extensive con-
fession concerning his government’s intentional policy of genocide con-
stitutes the fundamental fact upon which future ICTR prosecutions will
rest. His confession clearly identifies the guilty and destroys the credibil-
ity (if it ever existed) of revisionist historians, who claim an intentional
massacre or genocide never took place.27
Contributing to the reconciliation of the parties
Arguably, the IMT contributed to the reconciliation of the West Euro-

pean peoples by demonizing Nazism and creating an authoritative record
of those responsible for World War II humanitarian law violations. Sub-
sequently, Western Europe integrated itself into the Council of Europe
and the European Community (EC) and Union (EU). More recently,
countries from Central and Eastern Europe have joined both the Council
and the EU. Undoubtedly, this peaceful integration was facilitated by the
Marshall Plan and subsequent European economic success. Although
neo-Nazism has recently reared its ugly head, especially among the un-
employed in the newly united Germany, it is a minority movement that
democratic Germans will hold in check.
By contrast, the ICTY has apparently contributed little to the recon-
ciliation of the parties in states of the former Yugoslavia. The 1995 Gen-
eral Framework Agreement for Peace in Bosnia and Herzegovina (the
Dayton Accords) created the independent state of Bosnia and Herzego-
vina (hereafter referred to as BH) consisting of two entities: these are the
134 MAGNARELLA
Federation of BH (the Federation), made up of Croats and Muslims

(Bosniaks), and the Republika Srpska (RS), made up of Serbs. However,
despite the Dayton Accords and the presence of the Stabilization Force
(SFOR), led by NATO, and the International Police Task Force, estab-
lished by the United Nations, BH remains bitterly divided along ethnic
lines. Serious ethnic and political rivalries continue to divide Croats and
Bosniaks within the Federation, and all ethnic groups have intimidated
minorities who try to re-establish homes in their sectors.28 The situation
is exacerbated by the country’s poor economic conditions.
Officials of the RS distrust the ICTY and refuse to arrest indicted Serbs
who reside there. Both Serbs and Croats have attacked SFOR and UN
personnel operating in their areas. In short, BH continues to be a tinder-
box of distrust and hatred that could easily ignite into another round of
inter-ethnic violence, should SFOR withdraw.29
Inter-ethnic reconciliation has yet to occur in Rwanda. Former refu-
gee Tutsi from Uganda dominate the Rwandan government, military,
and police. For the past several years the police have been holding over
100,000 Hutu of all ages prisoner while they are investigated for possible
participation in the 1994 mass killings. Human rights NGOs have accused
both Hutu militants and the Rwandan army of serious human rights vio-
lations after 1994 in Rwanda and in the neighbouring Democratic Re-
public of the Congo.30
The situation in Rwanda is exacerbated by demographic and economic
factors: Rwanda is the most densely populated country in Africa; it is
cursed by extreme poverty, with a per capita income of only US$240;
over 90 per cent of the population relies on agriculture for survival, yet
there is insufficient land for many. Intense competition for land contrib-
uted to the 1994 genocide and continues to plague this poor country.31
Deterring future humanitarian law violations
The post-World War II tribunals had the limited purpose of prosecut-

ing Axis war criminals; however, the IMT Charter’s conceptualization of
crimes against humanity eventually became part of customary interna-
tional law and subject to universal jurisdiction. Consequently, it alerted
political and military leaders everywhere to the fact that gross human
rights violations against their own citizens were illegal and potentially
punishable under international law. Western Europe has been free from
such crimes since World War II. The absence of UN Security Council
responses to humanitarian law violations around the world prior to 1990
can be blamed on the inability of Council members to act in unison,
rather than on the legacy of the IMT.
As noted above, neither the ICTY nor the ICTR deterred humanitar-
ian law violations in the territories over which they held jurisdiction. The
important difference in the temporal jurisdictions of these two ad hoc

tribunals needs to be reiterated. The ICTR has jurisdiction for certain
crimes committed in the year 1994 only; hence, it has not been a threat to
either Hutu or Tutsi who committed those crimes subsequently. By con-
trast, the ICTY’s temporal jurisdiction continues until the UN Security
Council pronounces a termination date; consequently, in 1999 it was able
to indict former Serbian President Slobodan Milošević and others for
alleged crimes against humanity in the province of Kosovo. Despite its
continuing temporal jurisdiction, however, the ICTY failed to deter those
responsible for post-1993 crimes in Bosnia–Herzegovina and Kosovo; it
took NATO forces to accomplish this end.
Securing compensation for victims
Article 28 of the Nuremberg Charter gave the Tribunal ‘‘the right to de-
prive the convicted person of any stolen property and order its delivery
to the Control Council for Germany.’’ However, the Charter contained
no provisions for securing indemnity for victims; this was dealt with by
other means, including a West German reparations agreement with
Israel.32
The ICTY and ICTR go beyond the IMT. Article 24(3) of the ICTY
Statute and Article 23(3) of the ICTR Statute are identical. Both con-
stitute a property return provision: ‘‘In addition to imprisonment, the
Trial Chambers may order the return of any property and proceeds
acquired by criminal conduct, including by means of duress, to their
rightful owners.’’ Neither statute, however, contains provisions to com-
pensate victims for injuries, medical expenses, pain and suffering, de-
stroyed property, or rehabilitation.
Promoting human rights by example
The most frequent criticisms levelled at the IMT concern its weak guar-
antees of fair trial and due process rights. According to its Charter, the
IMT was not established to try all those mainly responsible for humani-
tarian law violations: it was established for ‘‘the just and prompt trial and
punishment of the major war criminals of the European Axis’’ only (Art.
1); consequently, it ignored the war crimes committed by Allied forces.
The IMT is often called a ‘‘victors’ tribunal’’ because its creators,
judges, and prosecutors were from the four victorious Allied countries.
Article 3 of the IMT Charter stipulated that, ‘‘neither the Tribunal, its
members nor their alternates can be challenged by the prosecution, or by
the defendants or their Counsel.’’ According to Article 26, the judge-
ments of the tribunal as to the guilt or innocence of any defendants were
final and not subject to review.
136 MAGNARELLA
Charter Article 12 allowed the IMT to conduct trials in absentia, and

Article 19 freed the Tribunal from the necessity of observing the techni-
cal rules of evidence. This meant, among other things, that the defen-
dants on occasion did not enjoy the right to confront witnesses against
them: for example, the judges allowed the prosecution to introduce ex
parte affidavits into evidence, without making the persons who made
them available testify and be challenged by the defence.33
The IMT Charter did recognize some of the basic due process rights
of defendants. Article 16 specified that a copy of the full indictment and
all of its associated documents should be furnished to the defendant in
a language he understood at a reasonable time before the trial. During
any preliminary examination or trial, the defendant had the right to give
any explanation relevant to the charges made against him. Article 16 also
required the preliminary examination and trial to be conducted in, or
translated into, a language that the defendant understood. It gave the
defendant the right to conduct his own defence before the tribunal or to
have the assistance of counsel, to present evidence at the trial in support
of his defence, and to cross-examine any prosecution witness. Article 23
permitted a defendant to be represented by any counsel professionally
qualified to conduct cases before the courts of his own country, or by any
other person who might be specially authorized by the tribunal.
As a defence against IMT criticisms, one may argue that it preceded
the UDHR and the ICCPR – two of the standards that the two recent
UN tribunals have looked to for guidance. Also, trying suspected war
criminals, even in less than ideal proceedings, was better than simply ex-
ecuting them by firing squad, as Winston Churchill and Josef Stalin had
advocated. Despite its shortcomings, the IMT did find two of the defen-
dants in the famous Nuremberg trial not guilty of the charges against
them. In sum, however, the IMT is not a contemporary model of due
process rights for the accused.
By contrast, UN authorities and ICTY/ICTR judges have shown great
deference to the various UN human rights covenants and conventions
when designing tribunal statutes and rules of procedure. In addition to
respecting the UN ICCPR, they examined major US and European hu-
man rights due process cases. When drafting the rules of detention, ICTR
judges looked to the 1977 United Nations Standard Minimum Rules for
the Treatment of Prisoners, the 1988 Body of Principles for the Protec-
tion of All Persons under Any Form of Detention or Imprisonment, and
the 1990 Basic Principles for the Treatment of Prisoners. They also took
into account the higher standards recommended by the European Prison
Rules, issued by the Council of Europe in 1987.
Consequently, both tribunals promote human rights, especially the due
process rights of the accused, by their own example. Just recently, for
example, the Supreme Court of Canada cited the statutes of the ICTY,
ICTR, and ICC as evidence of a significant international movement to-
wards the abolition of the death penalty.34
However, both the ICTY and the ICTR have been criticized for de-
laying or prolonging trials. Such problems, however, can be largely at-
tributed to difficulties encountered in securing witnesses from unstable
areas and other related obstacles.
The potential of the International Criminal Court
The ICC will have jurisdiction over the citizens of many more states than
any of its predecessors. Consequently, its potential for contributing to the
cessation of humanitarian law violations, achieving justice, contributing
to the reconciliation of the parties, and deterring future humanitarian
law violations is most probably greater. Despite the restrictions imposed
on its ability to initiate prosecutions, the proposed ICC is a solid begin-
ning to the deterrence of atrocities and to bringing offenders to justice.
By March 2001, the nine African countries of Botswana, Gabon, Ghana,
Lesotho, Mali, Senegal, Sierra Leone, South Africa, and Swaziland had
already amended their constitutions to include the ICC Statute articles
pertaining to crimes against humanity;35 other African countries are ex-
pected to follow suit.
The Rome Statute is also designed to do more in the way of securing
indemnity/compensation for victims. Article 79 directs the Assembly of
States Parties to the Statute to create a trust fund for victims and their
families; it also authorizes the ICC to order money and property col-
lected through fines and forfeitures to be transferred to this fund. Article
75 directs the ICC to establish principles for determining the amount of
restitution, compensation, and rehabilitation it may award victims and
their families. The ICC may impose the cost of the above on convicted
persons or it may authorize awards from the Trust Fund.
Like its predecessors (the ICTY and ICTR), the ICC is designed to
guarantee the due process and other rights of victims and defendants
as recommended in the most recent human rights conventions. Hence, it
should be a model for national courts for the protection of human rights
of victims and defendants.
Conclusions
Crimes against humanity and genocide generally occur in undemocratic

countries that are afflicted with severe economic problems and intense
138 MAGNARELLA
competition for resources. In such countries, unscrupulous political or

military leaders convince at least some of their followers that the solution
to their plight is the persecution or elimination of some other religious,
ethnic, racial, or political group(s). This was the case recently in the for-
mer Yugoslavia and Rwanda. Tribunals cannot create democracies or
eliminate economic troubles, but they can contribute positively to the
creation of more humane civic cultures by warning national leaders that
crimes against humanity and genocide must not be part of their political
strategies.
For such a warning to be effective, the world needs a permanent inter-
national court. The Security Council, after creating ad hoc tribunals for
the former Yugoslavia and Rwanda, has reportedly reached the point of
‘‘tribunal fatigue’’ and cannot be relied on to establish additional courts
to deal with future war crimes, genocides, and crimes against humanity.
An effective permanent criminal tribunal, such as the ICC, would repre-
sent a warning and promise to all that widespread atrocities will not go
unpunished. By posing an effective threat of prosecution, the ICC will
encourage leaders to seek more humane solutions to their countries’
economic and political problems. In this way, a permanent ICC will help
to protect human rights around the world.
Notes
1. See, for example Article 4 of the International Covenant on Civil and Political Rights,
which states in part that, ‘‘In times of public emergency . . . States Parties to the present
Covenant may take measures derogating from their obligations to the present Covenant
. . .’’
2. The Charter of the International Military Tribunal, 8 August 1945, 59 Stat. 1544, 82
U.N.T.S. 279.
3. Ibid., article 6.
4. Richard May and Marieke Wierda, ‘‘Trends in International Criminal Evidence: Nur-
emberg, Tokyo, The Hague, and Arusha,’’ Columbia Journal of Transnational Law,
Vol. 37, 1999, pp. 725–765.
5. Dinah Shelton, ‘‘Introduction,’’ in Dinah Shelton, ed., The Role of the International
Criminal Court, Ardsley, NY: Transactional Publishers, 2000, p. ix.
6. UN Doc. S/25704, 1993.
7. ICTY Statute, UN Doc. S/RES/827, 1993.
8. Para. 7 of UN Doc. S/1994/1007, 29 August 1994. For a discussion of the establishment
of the International Tribunal for the Former Yugoslavia, see M. Cherif Bassiouni,
‘‘Former Yugoslavia: Investigating Violations of International Humanitarian Law and
Establishing an International Criminal Tribunal,’’ Fordham International Law Review,
Vol. 18, 1995, pp. 1191–1211. For a description and analysis of that Tribunal’s legal
structure, see Theodor Meron, ‘‘War Crimes in Yugoslavia and Development of Inter-
national Law,’’ American Journal of International Law, Vol. 88, 1994, pp. 78–87; Ruth
Wedgwood, ‘‘War Crimes in the Former Yugoslavia: Comments on the International
War Crimes Tribunal,’’ Virginia Journal of International Law, Vol. 34, 1994, pp. 267–
275; John R. Jones, The Practice of the International Criminal Tribunals for the Former
Yugoslavia and Rwanda, New York: Transnational Publishers, 1998; and Michael P.
Scharf, Balkan Justice: The Story Behind the First International War Crimes Tribunal
Since Nuremberg, Durham, NC: Carolina Academic Press, 1997.
9. Para. 34 UN Doc. S/25704, 1993.
10. Para. 35 of UN Doc. S/25704, 1993.
11. Jean-Bernard Marie, ‘‘International Instruments Relating to Human Rights,’’ Human
Rights Journal, Vol. 14, 1994, pp. 51–67.
12. ‘‘Advisory Opinion on Reservations to the Convention on the Prevention and Punish-
ment of the Crime of Genocide,’’ International Court of Justice, Vol. 15, 1951.
13. Para. 64 of UN Doc. S/25704, 1993.
14. Rules of Procedure and Evidence, IT/32/ Adopted on 11 Feb. 1994, subsequently
amended.
15. Studies of the genocide include: Gerard Prunier, The Rwanda Crisis: History of a
Genocide, London: Hurst, 1997; Philip Gourevitch, We Wish to Inform You that To-
morrow We will Be Killed with Our Families, New York: Farrar Straus and Giroux,
1998; Alison Des Forges, Leave None to Tell the Story: Genocide in Rwanda, London:
Human Rights Watch, 1999; and Paul J. Magnarella, Justice in Africa: Rwanda’s Geno-
cide, Its National Courts and the UN Criminal Tribunal, Aldershot, England: Ashgate,
2000.
16. ICTR Statute, UN Doc. S/Res/955, 1994. For a description and analysis of the ICTR’s
legal structure and early functioning, see V.A. Morris and M.P. Scharf, The Interna-
tional Criminal Tribunal for Rwanda, Vols. 1 and 2, New York: Transnational Publish-
ers, 1998; Magnarella, Justice in Africa.
17. Julia Preston, ‘‘Tribunal Set on Rwanda War Crimes; Kigali Votes No on UN Resolu-
tion,’’ Washington Post, 9 November 1994, p. A44.
18. UN Doc. A/Res/49/206, 1994.
19. Donatella Lorch, ‘‘Kenya Refuses to Hand Over Suspects in Rwanda Slayings,’’ New
York Times, 6 October 1995, p. A3.
20. Richard Goldstone, ‘‘Statement by Justice Richard Goldstone,’’ ICTR, 5 October 1995,
The Hague.
21. Villia Jefremovas, ‘‘Acts of Human Kindness: Tutsi, Hutu and the Genocide,’’ Issue,
Vol. 23, 1995, pp. 28–30.
22. UN Doc. A/CONF.183/9, 17 July 1998.
23. Some of these functions have been delineated previously by other legal scholars, e.g.
Antonio Cassese, ‘‘Reflections on International Criminal Justice,’’ Modern Law Review,
Vol. 61, 1998, pp. 3–6; Alinikisa Mafwenga, ‘‘The Contribution of the International
Criminal Tribunal for Rwanda to Reconciliation in Rwanda,’’ in Dinah Shelton, ed.,
International Crimes, Peace, and Human Rights: The Role of the International Criminal
Court, Ardsley, NY: Transactional Publishers, 2000, pp. 11–17; Sandra Coliver, ‘‘The
Contribution of the International Criminal Tribunal for the Former Yugoslavia to Rec-
onciliation in Bosnia and Herzegovina,’’ in Shelton, ed., International Crimes, Peace,
and Human Rights, pp. 19–31.
24. See, for example Agence France Presse, ‘‘Serb Militant Rejects Legitimacy of the War
Crimes Tribunal,’’ Lexis-Nexis News File, 24 October 1994.
25. This and updated information are available at hwww.un.org/ictyi.
26. Information available at hwww.ictr.orgi.
27. Kambanda’s confession is contained in Magnarella, Justice in Africa, pp. 85–93.
28. For the social, political, and human rights conditions in BH, see the annual U.S. De-
partment of State reports on Bosnia and Herzegovina Human Rights Practices, 1995–
2002, available at hhttp://www.state.gov/g/drl/hr/i.
140 MAGNARELLA
29. See ‘‘Serbian Analysts: Serbs a Long Way from Reconciliation with Their Past,’’ Balkan
Report, 22 February 2002, Vol. 6, No. 10. Available at: hhttp://www.rferl.org/balkan-
report/2002/02/10-220202.htmli.
30. Des Forges, Leave None to Tell the Story.
31. Magnarella, Justice in Africa, pp. 1–27. See also U.S. Department of State Reports,
Rwanda: Human Rights Practices, 1994–2002, available at hhttp://www.state.gov/g/drl/
hr/i.
32. For a discussion of reparations, see Benjamin Ferencz, ‘‘The Experience of Nurem-
berg,’’ in Shelton, ed., International Crimes, Peace, and Human Rights, pp. 3–9.
33. For a first-hand description and critique of the IMT, see Telford Taylor, The Anatomy
of the Nuremberg Trials, NY: Knopf, 1992.
34. United States v Burns, 2001 Supreme Court of Canada 7, File No. 26129, 15 February
2001.
35. ‘‘Africa News,’’ 29 March 2001, Lexis-Nexis News File.
7
International efforts to protect
human rights in transition societies:
Right, duty, or politics?
Albrecht Schnabel
Faced with numerous human rights challenges, governments of transi-

tion societies are often neither able, nor willing, to end human rights vi-
olations or to address their economic, political, or cultural root causes.1
Peaceful and, if necessary, violent actions then become necessary tools
in redressing injustice, bringing about state compliance with international
humanitarian human rights norms and laws and laying the foundations
for lasting peace. Such actions may take various forms, ranging from eco-
nomic assistance and non-violent diplomacy to massive military inter-
vention; these actions may be supported and conducted by individuals,
NGOs, or states, or by regional and global organizations on behalf of
broader communities of concerned societies and states. Involvement may
follow the consensual agreement of affected governments or it may be
forced upon a government. Intervention in the internal affairs of a sov-
ereign state to alleviate human rights violations, although potentially
noble, is also risky and often self-serving.
Although all individuals should undoubtedly enjoy the same rights
under international law, the defence of these rights is highly contextual.
Political, economic, and (above all) geo-strategic contingencies determine
the likelihood and extent of external intervention in defence of human
rights standards. Intervention, whatever form it may take, is costly. Such
costs are acceptable only if they yield a desirable return – whether ideo-
logical or practical. Thus, humanitarian intervention emerges as a highly
contested activity grounded both in contemporary international law and
morality and in power politics driven by national interest.
141
142 SCHNABEL
Much has been written about the general subject of humanitarian in-
tervention, particularly since the end of the Cold War and the resurgence
of international military intervention in internal conflicts. Many of these
interventions were launched at least partly under the pretext of humani-
tarian protection. Often-cited and -studied cases range from America’s
intervention in Haiti in 1994 to the United Nations’ intervention in Bos-
nia in 1992, to NATO’s intervention in Kosovo in 1999. Past tragic fail-
ures of the international community to intervene effectively, along with
the more recent debates on pre-emptive military strikes against rogue
states (apparently) possessing weapons of mass destruction (WMD) have
heightened interest in the broader concept of humanitarian intervention.
There is little agreement on the legitimacy or duty of such humanitarian
intervention: a review of the literature turns up arguments for operations
that are more expanded or more limited, more proactive or more reac-
tive, UN-authorized or not, and conducted with or without a host state’s
consent. It is not hard to make plausible arguments that a particular in-
tervention was or was not (or would or would not be) legally, morally,
politically, or economically sound.
Such uncertainty could be a blessing in disguise: flexibility in concep-
tualizing and applying human rights support and enforcement allows
those who are willing and able to respond to do so. Yet this same flexi-
bility leaves much room for abuse and it prevents or postpones the cre-
ation of permanent structures for principled responses to human rights
violations. Thus, while some peoples’ human security will be the interna-
tional community’s business, other peoples’ lives and destinies will not.
The purpose of this chapter is to review and assess this ongoing and
evolving debate and to suggest some ways to refine debates on the inter-
national community’s rights and responsibilities to defend human rights
in transition societies. The chapter argues that, despite all the short-
comings of the embryonic structures and principles of international soli-
darity, community, and citizenship, we have, in fact, come a long way
towards breaking down the wall between the individual and the global
community. This is leading to an erosion of institutionalized, structural
injustice and the limits previously put on efforts to support and enforce
universal principles of human decency. Although still in its infancy, and
fraught with shortcomings and unintended consequences, the increased
legitimacy of local, regional, and international human rights enforcement
efforts may, in the long run, lead to a more just and secure global society.
The chapter is divided into five main parts. Following this introduction,
I focus on the need to intervene in transition societies to protect human
rights and thwart their violation. I then ask if there is, in fact, a right or
a duty to intervene in the sovereign affairs of a state for humanitarian
purposes. The chapter then calls for a greater focus on preventive in-
INTERNATIONAL EFFORTS TO PROTECT HUMAN RIGHTS 143
volvement. Although preventing human rights violations may be a diffi-

cult undertaking, it can alleviate much suffering in transition societies and
thus avert the need for more problematic military interventions later on.
The chapter concludes with some suggestions for conceptually sound and
practically feasible approaches to prevent and redress human rights vi-
olations in transition societies.
On the need for (and prospect of) external efforts to

protect human rights in transition societies
As noted in the introduction to this volume, human rights violations
frequently occur in societies undergoing political, social, and economic
transformations. Structural violence, inequality, and inequity are the by-
products of most political processes towards democratization, the intro-
duction of a free market economy, or the reorganization of fragile
relations between subnational, often ethnically defined, communities.
Such transitions produce rearrangements of previous (often, deeply en-
trenched) political, economic, and social power relations. They forge new
legal and authority structures, creating large and enduring grey areas of
little or no authority and order.
Government incapacity and neglect
Governments in transition societies often do not provide for the most

elementary security needs of their citizens. This may be due to lack of
capacity: they may lack the necessary resources to provide basic needs, to
ensure the physical security of individuals and groups, to distribute and
redistribute national resources, to contain lawlessness and internal viol-
ence, to enforce basic human rights standards, and to monitor and pun-
ish their violations. In that case, rising levels of human rights violations
are a direct result of weak state capacity and legitimacy. International
assistance can improve such capacity while indigenous states are built
and their political, social, and economic systems are consolidated. A re-
sponsible but weak government will ask for international assistance to
ease the transition process and may thus avoid undesirable consequences
for its human rights situation. If the support of both the government and
large parts of society is guaranteed, the risks of involvement are low, and
the chance of success is high, external actors will be more likely to help.
On the other hand, governments not only may be unable to protect
citizens’ human rights but also may be completely uninterested in doing
so. This applies particularly to authoritarian, unaccountable governments
that have risen to power without the legitimacy of open and fair elec-
144 SCHNABEL
tions. In such cases, international aid is either squandered or used to

line the pockets of political officials and their cronies. Impoverishment,
criminalization, and selective distribution of resources and opportunities
are used to polarize society, to instrumentalize and politicize religious
and ethnic identities, and to buy the allegiance of populations and local
power holders. International involvement is not desired, as this would
ultimately threaten the authority, position, and livelihood of the political
leadership and its beneficiaries. In such cases, any external assistance has
to be closely monitored to ensure that it is used for its intended purpose,
and strong diplomatic pressure (rather than economic sanctions, which
tend to hurt the people rather than its leaders2) must be applied in order
to stop escalating human rights violations and their destabilizing long-
term consequences.
If human rights violations are taken as indications of entrenched flaws
in governance, economy, and social relations, these flaws must be ad-
dressed to alleviate existing violations of human rights and to prevent
future violations. Transition societies are exposed to a wide variety of
threats to human rights and, thus, to further degeneration of state legiti-
macy, inter-communal relations, order, justice, and stability. Similar to
economic performance, levels of social service, education and employ-
ment levels, and other standard indicators of a society’s development
status, human rights conditions indicate how inadequate government per-
formance and provision of state services contribute to inequalities, the
state–society disconnect, and accompanying structural violence. Much
can be done from outside to support the state in improving human rights
conditions. Such improvements would then indicate enhanced state per-
formance, economic development, and eased intra-societal relations. All
these are necessary to put a transition society on the right track towards
sustainable stability and development. Early recognition of human rights
violations, and relevant diplomatic and economic responses by the inter-
national community, would be likely to ease transition pains and prevent
subsequent armed conflict. For instance, if the international community
would have reacted more firmly to anti-Albanian discriminatory practices
following the annulment of Kosovo’s autonomy status in 1989, much suf-
fering, internal violence, the eventual military intervention from NATO,
and the current reconstruction of Kosovo by the international community
might have been avoided.3
International responses
At early stages of societal disintegration, particularly in cases where hu-

man rights violations are by-products of state inefficiency rather than of
overt government-sponsored oppression and violence, there is a great
deal of political and diplomatic room for external assistance and sup-
port. Governments will be more willing to accept external support.
Provision of health expertise and supplies can ease pressure on the gov-
ernment to provide for basic medical care; energy and food supplies
can alleviate pressure on strained state budgets; and political, legal,
and technical advice can strengthen state capacity and legitimacy vis-à-vis
its citizens. Such benevolent and non-violent involvement in a country’s
transition process defuses inevitable causes of human rights violations
and tensions during times of political, economic, and social uncertainty.
Much heavier-handed support may be necessary in societies that are
emerging from war, ravaged by near-total political, economic, and social
breakdown: political and judicial institutions are weak and divided; in-
frastructure and economy are in shambles; communities are divided by
a culture of violence and distrust; and the wartime security apparatus
is ill-suited to meet the challenges of a fragile and dangerous post-war
security environment. In such an environment, little progress towards
durable peace can be expected unless the government, economy, and
security sector are transformed and the population is able to meet its
basic human needs – including food, shelter, and physical security. These
tasks include all or some of the following: the provision of legislative,
executive, and judicial authority; basic civilian and social administrative
functions; coordination of elections and implementation of their results;
coordination of humanitarian aid, disaster relief, and development assis-
tance; reconstruction of key infrastructure; maintenance of civil law and
order; protection of returning refugees and displaced persons; transfor-
mation of the security sector (including the disarmament, demobilization,
and reintegration of former combatants).4 Such comprehensive assis-
tance in political, economic, and social reconstruction efforts is rare. The
ongoing international involvement in Afghanistan, for instance, is qual-
itatively much weaker than international efforts to rebuild Bosnia, Ko-
sovo, or East Timor. The depth of involvement generally depends not on
need but on the magnitude of resources and political will available to
launch effective post-conflict peacebuilding operations.
If a war had drawn international attention and was concluded with the
assistance of an international military peace operation (by the United
Nations or a regional alliance), wide-ranging and broad international
support might be available to aid the society in its transition from war to
reconciliation, peace, and economic development. Given the enormous
task involved in rebuilding a society torn by war, significant international
involvement is likely only as a continuation of ongoing international
military involvement. In cases where little external interest could be
mustered to stop a war, similar lack of interest will be likely to prevent
substantial post-conflict involvement.
146 SCHNABEL
Particularly in post-conflict situations, it is difficult to differentiate be-

tween support and enforcement of human rights compliance. This de-
pends largely on the level of consent secured during the original peace
operation, launched during (or at the close of) a violent conflict. Much
of the recent debate on humanitarian intervention has focused on the
international community’s right and duty to launch military operations
to stop mass carnage. In this context, references are made in particular
to the 1994 Rwanda massacres – massacres that were predicted but not
prevented, monitored but not stopped. Is there a right, duty, or respon-
sibility to intervene in such cases of grave human suffering?
Towards a principled approach?
At the UN Millennium Assembly in September 2000, the International

Commission on Intervention and State Sovereignty (ICISS) was launched
with the expectation of achieving three main goals: first, to promote a
comprehensive debate on the issue of humanitarian intervention; second,
to foster a new global political consensus on how to move forward; and
third, to find new ways of reconciling the principles of intervention and
sovereignty.5 The Commission’s final report, entitled ‘‘The Responsibil-
ity to Protect,’’ was released in December 2001.6 It argues that, where
populations are suffering serious harm from man-made and natural dis-
asters and the state cannot (or does not want to) halt or avert such harm,
‘‘the principle of non-intervention yields to the international responsibil-
ity to protect.’’7
The report argues that such a ‘‘responsibility to protect’’ is already in-
herent in the obligations that are part and parcel of the concept of state
sovereignty: these include the responsibility of the UN Security Council
to maintain international peace and security; existing legal obligations
and human rights declarations, covenants, treaties, and international and
domestic humanitarian law; and developing practice of states, regional
organizations, and the United Nations.8 The report specifies three main
elements of the ‘‘responsibility to protect’’: these are, first, the responsi-
bility to prevent violence, by addressing both direct and root causes of
conflict; second, the responsibility to react to situations of grave human
suffering; and third, the responsibility to rebuild after military interven-
tion and to address and alleviate the causes that have led to violence in
the very first place.9
The report stresses that preventive action should always be given pri-
ority and that less-intrusive and -coercive measures have to be exhausted
before more coercive ones are applied. Military intervention should be
considered as an exceptional and extraordinary measure – one that can
be applied only in extreme cases of massive loss of life, such as genocide
or large-scale ethnic cleansing.10 The report sets the threshold for coer-
cive intervention very high; short of such extreme cases, non-coercive

measures should be applied.
The report insists that the UN Security Council should be the only ac-
ceptable authority to authorize military intervention for human protec-
tion purposes. It should do so quickly, and the permanent Five should
refrain from using their veto power to prevent or stall quick and decisive
action by the Security Council. Otherwise, alternative solutions should be
considered, such as the General Assembly’s ‘‘Uniting for Peace’’ proce-
dure, or initiatives by regional and sub-regional organizations or by con-
cerned and willing states (with or without Security Council approval).11
The report resembles a ‘‘wish list’’ – with very few truly new concepts
or ideas. The report’s focus on ‘‘responsibilities,’’ not ‘‘rights’’ (or en-
titlements), and on a range of responsibilities – from prevention to inter-
vention to reconstruction – is a convincing approach; although it has been
around for a long time, it may now receive greater recognition in official
circles. If this is the case, then the report will have played an important
role as a bridge between academic debates and suggestions of the past
decades, and their well-deserved recognition among official policy-making
communities at state, non-state, and interstate levels.
However, given the depth and inherent dilemmas of the debate, it is
neither surprising nor discouraging that none of the report’s suggestions
is particularly revolutionary. It would have been suspicious if the Com-
mission had claimed to have come up with a politically feasible and le-
gitimate recipe to overcome the moral dilemma between humanitarian
protection, non-intervention, and the use of force. In general, the report’s
recommendations reflect reasonable demands that, however, still allow a
high degree of flexibility and interpretation . . . and, unfortunately, also
plenty of room for inaction. As Jennifer Welsh asks, ‘‘[i]f September 11
had not occurred and the Taliban had survived, would its actions against
its own citizens have crossed the threshold to ‘shock the conscience of
mankind’?’’12 The answer is probably a resounding ‘‘no.’’
This should not discourage those interested in more assertive human
rights protection. As Linklater argues, ‘‘one of the fundamental respon-
sibilities of the good international citizen is to strive to resolve the ten-
sion between legalism and progressivism in a new legal order that alters
the relationship between order and justice, citizenship and humanity, and
sovereignty and human rights.’’13 This is a challenging task that should
benefit from the thinking reflected in the ICISS Report.
We might, thus, find ourselves at the beginning of an emerging inter-
national consensus on the need to protect basic human rights and security
from violations on a massive scale. Of course, it would be utterly un-
acceptable if another Rwanda was in the making, visible to the entire
world, well known to the United Nations, and no action was taken. In-
ternational consensus on strong and immediate reaction to such massive
148 SCHNABEL
violence should be considered no more than the minimum responsibility

of an international community committed to basic human decency. How-
ever noble it is to put structures in place to avert genocides, such inter-
national action takes place when much irreversible social, political, and
economic destruction has already occurred. Such threshold criteria create
response mechanisms for very exceptional cases – and for cases where
the international community has failed to respond to a long and highly
visible deterioration of a country’s internal situation, accompanied by
widespread violation of human rights.
Short of genocidal violence, military interventions may still be launched
(for purely, primarily, or only partly humanitarian reasons) against small
states where internal human rights violations threaten to destabilize re-
gional security (through outpouring refugees, for example). To be sure, a
truly principled response system would require responses wherever and
whenever human rights violations occur that cannot be corrected through
local efforts. All countries, irrespective of economic and political power
status, would be subjected to such international scrutiny and response.
However, such a principled approach does not correspond to pre-
vailing international realities. Short of a highly refined and established
supranational world government, with the power, legitimacy, and re-
sources to design and enforce globally accepted norms, rules, and princi-
ples (which would arguably be neither possible nor desirable), such a
principled approach will not be possible. Regional and subregional or-
ganizations are in a better position to support and enforce such shared
norms as human rights standards. The European Union (EU) – as well as
the OSCE and NATO – can do this in Europe; the African Union (AU,
formerly the Organization of African Unity; OAU) in Africa; the Orga-
nization of American States (OAS) in the Americas; and the Association
of South-East Asian Nations (ASEAN) in East Asia. The United Na-
tions’ role is limited to promoting and monitoring human rights (and
their defence) on a global scale and to serving as an agency of last re-
sort when states and regional or subregional organizations are unable
(or unwilling) to respond to truly outrageous violations. In these cases,
the chances are higher that the Security Council will respond and that the
necessary resources will be secured. Before we delve further into the
limits and opportunities of international efforts to fight human rights vi-
olations in transition societies, however, we need to consider the legit-
imacy of such actions.
Is there a duty and right to intervene?
Is it legitimate to intervene in the affairs of a sovereign state to protect

the human rights of its citizens? And is there a duty to do so? Before
we return to these questions, we have to distinguish between different

forms of, and justifications for, intervention. If we intervene in a state’s
sovereign affairs to redress violations of human rights and international
humanitarian law, this can involve non-military and military actions, non-
violent and violent actions, non-consensual enforcement or consensual
assistance and support, and a great variety of state and non-state actors.
International involvement can take numerous forms, characterized by a
number of key factors conditioning intervention. It may be characterized
(1) according to different types of intervention – political, economic, and
military; (2) according to the method of intervention – through relief and
assistance, diplomacy, or the use of force; (3) according to the timing of
intervention – from ongoing activities (including day-to-day diplomacy
and operations of UN agencies and programmes, regional organizations
and NGOs) to responses at pre-crisis, crisis/conflict/emergency, and post-
conflict stages; (4) according to its objectives, including the protection of
the population; defence of international norms, order, and security; or
the prevention of armed violence and its spill-over; (5) according to the
source and level of legitimacy accorded to an intervention – sponsored
or authorized by the United Nations, by a (sub)regional organization,
or by one or more states; (6) by the nature of actors conducting the
intervention – including the United Nations, (sub)regional organizations,
individual or ad hoc groups of states, NGOs, and individuals; and (7) ac-
cording to the visibility of an intervention – ranging from silent to sensa-
tional, depending on the level of media coverage and on the combination
of all of the above characteristics.
Assistance and support activities
Is there a duty to offer support and assistance to transition countries

to prevent human rights violations? Most countries, as signatories to the
UN Charter and numerous international treaties and conventions, are
committed to protecting human rights, justice, and security. The UN
Charter and the UDHR are probably the most explicit articulations of
the international community’s concern with human rights. Article 1 of
the Charter calls upon all nations to ‘‘achieve international co-operation
in solving international problems of an economic, social, cultural, or hu-
manitarian character, and in promoting and encouraging respect for hu-
man rights and for fundamental freedoms for all without distinction as
to race, sex, language, or religion.’’ Article 55 calls for ‘‘universal respect
for, and observance of, human rights and fundamental freedoms for all
without distinction as to race, sex, language, or religion.’’ According to
Article 56, ‘‘[a]ll Members pledge themselves to take joint and separate
action in co-operation with the Organization for the achievement of the
purposes set forth in Article 55.’’
150 SCHNABEL
Lofty ambitions
So far, the international community has failed to live up to the principles
enshrined in these international agreements. Many of these commitments
appear to be no more than lofty ambitions: their realization depends on a
wide range of highly contextual political and other factors; after all, the
United Nations and its members are committed only to the ‘‘promotion’’
(Art. 55) of these goals, not to their enforcement. Principles of interna-
tional solidarity and responsibility appear to be no more than rhetorical
expressions, purposely devoid of enforcement provisions and dependent
on ever-changing political, strategic, and moral contexts.
Nevertheless, the fact remains that most states have, at least on paper,
committed themselves to the defence of many norms and practices that
would, if enforced on a global basis, result in a vastly more just and secure
world.14 There are thus plenty of expressions of an ideal global order,
although without reference to enforcement, as broad international agree-
ment on these principles can be reached only in the abstract, not in real-
ity. Yet, those abstract statements are first steps towards their realization,
even if they express far-fetched hopes that clash with current realities.
The duty to assist

Having said that, commitments to international norms on human rights
and justice do suggest a responsibility, if not a duty, to do the utmost
possible to realize these norms. This commits states to promoting inter-
national peace, security, and justice, including the protection of human
rights. States that cannot comply with these international standards must
be – depending on the reasons for non-compliance – assisted, encour-
aged, or forced to fulfil their domestic responsibilities. In theory, the in-
ternational community (preferably through the United Nations) has the
legal (not only moral) duty to monitor and enforce state compliance with
international standards. As mentioned above, very few transition soci-
eties are able to meet the challenges of transition and, at the same time,
to provide for the most fundamental human needs of their citizens. Poor
human rights conditions are the consequence and must be addressed
through outside assistance.
Although the responsibility to maintain acceptable human rights stan-
dards exists, international law also prohibits intervention in the affairs of
sovereign states without an explicit invitation to do so (Art. 2.7), unless
international peace and security are threatened (chap. VII). The rules of
international society are thus based on a cruel contradiction: the inter-
national citizen cannot fulfil the responsibility to protect basic security
and justice for all without violating another key principle of this very
society – the inviolability of state sovereignty.15
This dilemma may not necessarily be perceived as such. In fact, few

political leaders would want to see this convenient contradiction and
dilemma resolved. Fulfilling all of the noble goals expressed in interna-
tional agreements would require the international community to over-
come all political and economic inequalities, inequities, and injustices
that currently ensure that a minority of the world’s population is able
to pursue a life of reasonable security and happiness, but at the expense
of the majority. Establishing justice around the world would mean sub-
stantial sacrifices on the part of the rich and powerful. Such a transfer
(and redistribution) of political and economic power is difficult enough to
achieve within even the most advanced, wealthy, and participatory de-
mocracies; on a global scale, this would be a monumental task. Thus, the
principle of non-intervention offers a welcome excuse to ignore a vast
majority of international norms and principles. International solidarity,
the international citizen, and the concept of a responsible international
society are rhetorical expressions of a normative global condition that
would be morally desirable.16 Enlightened international citizens or lead-
ers find it necessary to express a commitment to this ideal global condi-
tion, if only to counter the occasional guilt caused by the realization that
much of their wealth and happiness – directly and indirectly – aggravates
the continuation, if not permanence, of international injustice. Such com-
mitment is, therefore, intentionally detached from its principled enforce-
ment.
Current activities
Much of the assistance that would need to be granted to transition soci-
eties, or other fragile societies, is currently discussed in the context of
development, human security, prevention, and peace-building debates.17
Although sometimes presented as new and emerging debates, all of
the key concepts and responsibilities discussed can easily be found in
decades-old expressions of international legal commitments, starting with
the Charter of the United Nations. It is laudable and important that these
debates have resurfaced and are seriously examined in both academic
and policy circles. Although the promotion and, sometimes, enforcement
of international norms have long been treated as luxuries driven more
by altruism than responsibility, the latter appears to be returning to aca-
demic and official debates. We may be very far removed from an inter-
national order in which global norms are advanced on a principled basis,
because we have neither the resources nor the institutional structures to
do so. However, the intention to do so – at least in part, sometimes,
where politically and economically feasible and convenient – is a prom-
ising beginning.
There are many international and local actors that do their utmost
152 SCHNABEL
to provide services and protection neglected by state authorities. For in-

stance, much of the United Nations’ work consists of continual efforts
on the ground and at official levels to improve economic development,
health, human rights, and basic security requirements where such basic
needs are denied or neglected by government authorities. Such constant
assistance is provided by the UN Development Programme (UNDP), the
United Nations’ Office of the Higher Commissioner for Human Rights
(UNHCHR), the Office for the Coordination of Humanitarian Affairs
(OCHA), the World Health Organization (WHO), the World Food Pro-
gramme (WFP), and many other specialized agencies and programmes.
Unfortunately, however, much of this work is mostly cosmetic, politically
convenient, largely reactive (with responses in cases where violations and
suffering have reached levels where international visibility and condem-
nation have generated the funds and goodwill to take meaningful action),
and poorly coordinated with the activities of other international and non-
state actors. Later in this chapter we revisit the current debates surround-
ing proactive activities to alleviate the root causes (among them human
rights violations) of social destabilization and violence.
Of course, even symbolic expression of international citizenship and
responsibility is better than their outright rejection. The current practice
of military peace enforcement and humanitarian intervention is an ex-
pression of such symbolism – symbolism that may, in cases where excep-
tional threshold criteria are met, lead to principled action to enforce some
selected basic human rights.
Enforcement operations
What can be said about the legitimacy of international efforts to enforce

human rights? This debate receives widespread attention whenever hu-
manitarian disasters shock the conscience of the informed international
public, such as in response to the famine of war-stricken Somalia; the eth-
nic killings of Rwanda, Bosnia, or East Timor; or the Srebrenica massa-
cre.18 Political as well as academic and legal comments suggest that,
whereas the legality of intervention for human rights protection and hu-
manitarian purposes is questionable, international commitments to the
promotion and protection of human rights seem to suggest a moral duty
to enforce those rights.
History and legality
As Adam Roberts argues, ‘‘[m]ilitary action as a response to violations of
human rights and humanitarian norms has a long history, well pre-dating
the modern codifications of international law on the subject.’’ He cites
French and British naval support of Greece’s independence from the
Ottoman Empire in 1827–1830, in response to reported Turkish atroc-

ities, and the history of European colonialism as early interventions in
which the defence of basic humanitarian norms has been cited to justify
military action.19 Further cases include Russia’s intervention in Turkey
(1877–1878); the Greek, Bulgarian, and Serb interventions in Macedonia
in 1903;20 France’s intervention in Syria in 1860–1861; and the American
Monroe Doctrine of 1823.21 Certainly until the end of World War I and
the Kellogg–Briand Pact of August 1928, renouncing war as an accept-
able instrument of national policy, ‘‘[t]here was no general prohibition
on the use of force, and indeed international law conceived of war as the
ultimate and legitimate exercise of the attributes of state sovereignty.’’ In
the absence of formal international institutional frameworks, ‘‘[t]o pro-
tect themselves against aggression, states wove a complex web of treaties,
pacts, and ententes, many of them secret, some accompanied by full-
blown military alliances and duties to intervene if allies were attacked by
a third party.’’22
Article 2 (4) of the Charter of the United Nations reaffirms the princi-
ples of the Kellogg–Briand Pact and prohibits the threat or use of force
against states, while Article 2 (7) prohibits interventions into matters that
are within the domestic jurisdiction of sovereign states. However, Chap-
ter VII allows such intervention when international peace and security
are threatened. During the Cold War, political expediency warranted the
deployment of UN peacekeeping troops as a neutral third-party security
presence to facilitate the resolution of international conflicts. However,
those operations were launched under Chapter VI of the Charter, upon
the invitation of conflicting parties, and without the use of force. Al-
though, in theory, more forceful action by the United Nations would
have been possible under Chapter VII, it was not feasible in the context
of an ideologically divided Security Council (with the exception of the
Korean War23).
The end of the Cold War, followed by the Gulf War of 1991, thawed
suspicions and reduced divisions within the Security Council. Since then,
the UN Security Council frequently referred to humanitarian issues,
among other issues, when calling for or authorizing military interventions
in response to threats to international peace and security.24 This has
been the case in Bosnia and Herzegovina (1992–1995),25 Somalia (1992–
1993),26 Rwanda (1994),27 Haiti (1994),28 Albania (1997),29 East Timor
(1999),30 and Sierra Leone (1999–2000).31 The Security Council Resolu-
tion authorizing the UN Mission in Sierra Leone (UNAMSIL), for in-
stance, called on all parties ‘‘to ensure safe and unhindered access of
humanitarian assistance to those in need in Sierra Leone, to guarantee
the safety and security of humanitarian personnel and to respect strictly
the relevant provisions of international humanitarian and human rights
154 SCHNABEL
law.’’32 In two other prominent cases – Northern Iraq (1991) and Kosovo
(1998–1999) – the Security Council cited concerns over violations of hu-
man rights and humanitarian norms but fell short of an explicit au-
thorization of the use of force.33 Nevertheless, in both cases the United
States and its coalition partners (in the case of Kosovo, under the um-
brella of NATO) decided to launch military actions encouraged by Se-
curity Council language but without its endorsement. They argued that
the various Security Council Resolutions that condemned human rights
violations and called for responses to humanitarian crises in fact con-
stituted implied authorizations for interested and willing members of the
international community to use force on behalf of threatened individuals
and groups.
The dilemma of law and morality

Academic analyses and public discussions of these cases suggest ‘‘that the
main problem of humanitarian intervention consists in the divergence of
law and morality: while considerations of justice and human rights de-
mand the recognition of a right to intervention, international law pre-
vents this by anachronistically relying on order and state sovereignty.’’34
Whereas law does not allow intervention, morality (as well as strategic,
economic, or political considerations) calls for exceptions to the existing
rule of non-intervention. As Kosovo has shown, regional alliances have
decided when such exceptions apply.35
We are (as we have been for a very long time) struggling with some
fundamental questions. What is the primary goal and purpose of inter-
national law – to protect states or to protect threatened individuals?
Should sovereignty focus on the rights of states (and their governments)
or the rights of their peoples? Recent debates focus on the fact that many
states are abusing and neglecting their authority and responsibility and
thus should be deprived of their own privileges, including that of full
sovereignty.36 Through the loss of empirical sovereignty37 (i.e. the ability
of the state to provide for its population), a failed state may, in fact, jeop-
ardize its right to full sovereignty and thus to protection from interna-
tional intervention. As Hugo Grotius already argued in the seventeenth
century, ‘‘where [tyrants] provoke their own people to despair and re-
sistance by unheard of cruelties, having themselves abandoned all the
laws of nature, they lose the rights of independent sovereigns, and can
no longer claim the privilege of the law of nations.’’38 The current UN
Secretary-General has been very outspoken on this subject. In 1999 he
argued as follows:
State sovereignty, in its most basic sense, is being redefined – not least by the
forces of globalization and international co-operation. States are now widely un-
derstood to be instruments at the service of their peoples, and not vice versa. At
the same time individual sovereignty – by which I mean the fundamental freedom
of each individual, enshrined in the Charter of the UN and subsequent interna-
tional treaties – has been enhanced by a renewed and spreading consciousness of
individual rights. When we read the Charter today, we are more than ever con-
scious that its aim is to protect individual human beings, not to protect those who
abuse them.39
The absence of the nuclear threat after the Cold War has allowed human
rights violations to move closer to the forefront of international attention.
Slowly, the principle of non-intervention, a core principle of a state’s na-
tional sovereignty (and security), seems to have become conditional on
a state’s ability to create an environment that protects minimum human
rights standards promoted by international law. This is certainly a posi-
tive development.
The need for proactive reasoning and action
In the context of this volume, particularly given its focus on human rights
protection in transition societies, a number of issues are striking. What is
sometimes called ‘‘humanitarian intervention’’ takes place once the con-
sequences of human rights violations, among others, begin to hurt com-
munities beyond the borders of oppressed populations. Once political,
cultural, and economic orders begin to crumble and social conflicts are
the consequence, outside actors take notice. If trade is disrupted, or ref-
ugees or armed conflict threaten to spill over borders, they take even
greater notice. In the latter case, sometimes this is considered a ‘‘threat
to or breach of international peace and security.’’ Chapter VII can be
invoked, if the UN Security Council agrees on action. Of course, that
presupposes that none of the permanent five members of the Security
Council objects to such measures. Intervention in Chechnya is, therefore,
impossible; UN intervention in Kosovo would not have been possible,
either. If the threat is large enough to raise concern and trigger responses,
action might be taken. If the threat is not large enough – in other words,
if no significant outsider is significantly threatened – no action will be
taken. If action is taken, it might be defined in humanitarian terms – the
international community comes to the rescue of threatened populations.
Of course, the story is often quite different: the international community
in fact comes to the rescue of itself – namely, of those who may indirectly
or directly suffer from civil or interstate strife in other parts of the world.
Reality shows that the international community is deeply rooted in a
culture of reaction, not proaction, and that it reacts only if the interests
156 SCHNABEL
of some major powers are significantly threatened. Is there a solution to

these seemingly hopeless obstacles, one that would allow the interna-
tional community to address meaningfully the violence so prevalent in
failed and failing states? Given the difficulties inherent in humanitarian
military interventions discussed so far in this chapter, proaction against
structural violence and accompanying human rights violations is the most
effective tool in preventing further destabilization of a society. Much
scholarship would argue along the same lines. We need to promote and
facilitate early humanitarian action, in the context of early warning and
measures to prevent sustained structural violence and eventual break-
down of social, economic, and political order.40
Effective action by the international community to prevent or manage
a conflict requires international legitimacy (ideally provided by the United
Nations), regional resources (ideally by regional organizations), and local
expertise (ideally by NGOs). However, in practice, non-state, state, and
interstate actors pursue their own policies, activities, and development
and security projects with little or no joint coordination. Each actor has
its own goals and interests, driven by its own mandates and motivations.
Competition and turf fights are very common.
Why is it so difficult for IGOs to prevent conflicts successfully? There
are a number of reasons. First, their primary ‘‘clients’’ are their member
states. The United Nations and regional organizations can do only as
much as their member states want them to do. Second, only in rare cases
and with great difficulty will international organizations be able to en-
force their decisions beyond the use of moral power, economic sanctions,
or political pressure. Third, most international organizations have been
created to protect and defend, not to challenge and undermine, state
sovereignty. Many states fear that preventive actions will be abused as
an excuse for politically or ideologically motivated intervention by the
strong into the affairs of the weak. The recent attempts by the US and
UK governments to justify preventive strikes against Iraq are seen by
many as strong confirmation of this fear.41
Finally, preventive action requires long-term commitment, a commod-
ity that is difficult enough to secure when a conflict with all its visible and
sensationally horrific consequences is in full swing. With no blood spilled
and apparent peace and stability on the ground (as was the case, for in-
stance, in post-1989 Kosovo), long-term commitment is even more diffi-
cult to achieve.42
Despite these difficulties, what steps can be taken to reduce the risk
that human rights violations will destabilize society and eventually esca-
late into armed violence? Structural, long-term prevention of violent con-
flict can be achieved only if the following tasks are pursued in earnest by
local, national, and international stakeholders:
0 Poverty, unemployment, economic inequalities, and environmental

degradation must be countered. This can be achieved through direct
measures (such as technical and financial assistance) or indirect action
(such as by opening up markets and discontinuing subsidies and other
trade barriers).
0 Coordinated, concerted, and sustained efforts must be taken to control
and discourage the vast illegal trade in small arms, and malign inter-
ventions by other states in internal conflicts.
0 It is crucial to invest in long-term preventive action and early warning
and early response capacities, even in countries that appear momen-
tarily stable, as well as in (sub)regional organizations.
0 Conflict-management skills have to be taught and trained at all levels
of society, inside and outside schools and universities.
0 Activities by constructive civil-society actors and subregional and re-
gional organizations need to be encouraged and supported.
0 In post-conflict societies, territorial and political crises must be settled
and resolved, and an entire range of remedial action must be geared
toward the prevention of a recurrence of violence. This includes the
education and reintegration of child soldiers and combatants, and
targeted support of the weak in post-conflict situations, particularly
women and children. It also requires, among many other challenges,
the cultivation and sustained support of moderate local leaders as key
figures in reshaping society’s political life.43
Conclusions: Where do we go from here?
Addressing human rights violations in transition societies can avert major

humanitarian disasters and the need for subsequent military interven-
tion. If basic economic, social, and civil–political rights are assured (e.g.
through conditionality in economic assistance schemes), much deteriora-
tion can potentially be averted.
Support and consensual assistance must come first; political and diplo-
matic pressure second; economic pressure third; and, finally, military
pressure and intervention. At the first stage, interstate, state, and non-
state actors have an important role to play. At the second and third
stages, interstate and state actors are particularly important. The fourth
stage, although rarely evoked, should (if at all possible) be conducted
under the auspices of interstate organizations (and implemented by states
or groups of willing states). Ideally, transition societies should be closely
monitored by relevant regional organizations and the United Nations for
human rights conditions and performance. Violations should be addressed
by the international community on a principled basis: if done so system-
158 SCHNABEL
atically, the likelihood of massive human rights violations can be averted

in many cases, along with corresponding negative effects on social cohe-
sion, economic development, political stability, and violence.
While the reasons to address human rights violations may fall within
the moral and ethical realms of international responsibility, the associated
social, political, and economic repercussions of poor human rights per-
formance have direct relevance for the stability of the country, its pro-
neness to violent conflict, and subsequent negative and destabilizing
consequences for neighbouring countries and the wider region. Thus,
they relate directly to the regional and international community’s interest
in peace and security. Human rights conditions serve as useful indicators
for the level of current and future peace and stability in a society. They
also serve as a key entry point (possibly the most effective one) through
which future instability, degeneration, and violent conflict can be averted.
If human rights violations are detected early, and the causes of such vio-
lations are isolated and addressed, stability (even if fragile) can be pre-
served and further degeneration can be avoided.
The speed and diligence with which international actors move through
the above-mentioned stages of response is highly contextual. It depends
on the target country and its international status, its size and threat pro-
jection, its allies in the international system, its political system, its eco-
nomic wealth, and its socio-cultural make-up.
Small, economically weak, and militarily powerless countries with little
clout in international organizations and alliances may be the ‘‘easiest’’
targets for international efforts to enforce human rights protection. Little
resistance may be expected from them, nor would significant negative
political or economic repercussions for intervening parties be likely. If
military interventions do become necessary and are undertaken, post-
conflict reconstruction (increasingly viewed as an automatic responsi-
bility of the intervener) is not an undoable task. Rebuilding Bosnia,
Kosovo, or East Timor – already daunting tasks – are much more
achievable goals than rebuilding Afghanistan, Angola, or other, much
larger, countries.
Large and powerful countries may not be susceptible to diplomatic
efforts of shaming the government into compliance with international
human rights standards, or to economic sanctions or threats of military
intervention. Nevertheless, they may fear the political isolation produced
by their outright rejection of international norms, or they may be con-
scious of the dangers of societal ‘‘implosion’’ – the disintegrating effects
of unattended human rights violations on the fabric and stability of their
society. Moreover, they may depend on cooperative attitudes of other
major powers in the pursuit of their own international interests. Such
dependence also creates a greater willingness to cooperate and comply in
other issue areas – as long as those issue areas are perceived to be high
priorities for other major powers. It is, thus, important that economic and
political partners do not shy away from discussing and criticizing human
rights violations, even with their closest allies and trading partners.
Although it may be more difficult to find consensus to intervene in a
country that enjoys the support of many regional allies, the latter also
offer opportunities to assert indirect pressure on the government in
question. Whereas rich countries may be less inclined to allow external
influence in their internal affairs, their wealth tends to depend largely
on their ability to do business with the wider regional and international
community. Here, again, dependence on one issue (economy) may lead
to compliance on other issues (human rights record). Finally, an ethnic-
ally diverse and charged society may be prone to inter-communal fric-
tion and accompanying human rights violations, especially when not all
groups are equally represented in places of political and economic power.
Nevertheless, the most powerful group’s interests are not served well
by international hesitance to invest in, and do business with, a fragile so-
ciety with high potential for social upheaval and conflict. It thus remains
the task of the international community to identify the most durable and
promising entry points for early and effective support for a political, eco-
nomic, and social environment that is conducive to the provision of basic
human rights.
The challenges ahead
The real challenge in protecting human rights in transition societies does

not lie in enforcement. By the time that public pressure and official cir-
cles discover and act upon their responsibility to intervene for the pur-
pose of human protection (to use the language of the ICISS) – that is,
when human suffering is easily visible and already represents a threat
to the outside world and a shock to the conscience of mankind – we are
much beyond transition pains. At that point we are faced with state fail-
ure and collapse, which – before and after armed violence – requires
external and coercive intervention. The most effective – and, in the long
run, beneficial – route to take is a preventive one. Assistance and support
for transitional societies and their governments to increase their capacity
to counter structural violence and, if necessary, diplomatic pressure
(plus – if it does not further strain the human rights situation within the
country – economic sanctions) should be the methods of choice. While
an international consensus on coercive humanitarian intervention may
be evolving, the much greater challenge will be to entice states to accept
(and offer) international assistance to prevent human rights violations
from becoming embedded in the transition process; this will, in turn,
160 SCHNABEL
prevent human rights and humanitarian issues from slowing down (or
completely derailing) the transition process. It is a core interest of the
international community to see transition societies succeed in developing
stable political, economic, and social systems. This not only will guaran-
tee acceptable levels of human dignity and security for their populations
but also will allow them to contribute more fully to the wider global
community as productive partners, without posing a threat to wider re-
gional and international stability.
Returning to the title of this chapter, international efforts to protect
human rights in transition societies are thus characterized by the right of
individuals to have their basic rights protected by the state or, if the state
will not comply, by the international community at large. In turn, the
latter has the duty (or, at least, responsibility) to live up to its commit-
ments to human rights protection – under normal circumstances through
non-violent means in the form of assistance and support; under ex-
ceptional circumstances of large-scale violence, through military inter-
vention and reconstruction. Unfortunately, to a very large extent, both
rights and corresponding responsibilities are subject to political scrutiny.
Where does an individual go to charge the international community with
gross negligence in the execution of its own laws, norms, and principles?
Although, at the end of the day, politics and interests will usually pre-
vail over the principled and automatic application of norms, politics and
interests themselves are deeply grounded in normative perceptions of
‘‘oneself’’ and ‘‘the other.’’ The debate on rights and on the responsibil-
ity to defend those very same rights if others are deprived of them, is
bound to expand a sense of regional and international solidarity among
peoples and states. This will be a slow process, one that will possibly span
many lifetimes. Nevertheless, progress in that direction has the potential
that, one day, the global community will manage to live according to the
standards, norms, and principles that it has created for itself.
Notes
1. For further discussions of the particularities of human rights violations in transition
societies, see the next section of this chapter, as well as chapter 1 and all chapters in part
three of this volume.
2. See Tim Niblock, ‘‘Economic Sanctions and Human Rights,’’ Journal of Social Affairs,
Vol. 18, No. 71, Fall 2001, pp. 11–33.
3. For a comprehensive examination of the intervention in Kosovo, see Albrecht Schnabel
and Ramesh Thakur, eds, Kosovo and the Challenge of Humanitarian Intervention:
Selective Indignation, Collective Action, and International Citizenship, Tokyo: United
Nations University Press, 2000.
4. See, for instance, Security Council Resolution 1244 of 10 June 1999 (establishing the
UN Interim Administration Mission in Kosovo) and Security Council Resolution 1272
of 25 October 1999 (establishing the UN Transitional Administration in East Timor;

UNTAET).
5. The Commission was established by the Canadian government, co-chaired by Gareth
Evans and Mohamed Sahnoun, and modelled on the World Commission on Environ-
ment and Development (also known as the Brundtland Commission). For more infor-
mation about the origins of the Commission, its members and activities, see hhttp://
www.dfait-maeci.gc.ca/iciss-ciise/menu-en.aspi.
6. International Commission on Intervention and State Sovereignty (ICISS), The Respon-
sibility to Protect: Report of the International Commission on Intervention and State
Sovereignty, Ottawa: International Development Research Centre, December 2001. The
Report was released in two parts: (1) the Report itself; (2) an impressive background
document, with numerous papers written to inform the Commission; a massive biblio-
graphy capturing much of the international academic and public debate on prevention,
intervention, peacebuilding, and related topics; and reports of various consultative
meetings held by the Commission in different parts of the world. See ICISS, The Re-
sponsibility to Protect: Research, Bibliography, Background, Supplementary Volume
to the Report of the International Commission on Intervention and State Sovereignty,
Ottawa: International Development Research Centre, December 2001. For a review of
the report in the context of the evolving debate on humanitarian intervention, see Jen-
nifer M. Welsh, ‘‘From Right to Responsibility: Humanitarian Intervention and Inter-
national Society,’’ Global Governance, Vol. 8, No. 4, 2002, pp. 503–521.
7. Ibid.
8. Ibid.
9. Ibid.
10. Ibid., pp. XI–XII.
11. Ibid. The Report specifically calls upon the General Assembly to draft a declaratory
resolution that confirms the basic tenets of ‘‘the responsibility to act,’’ including the af-
firmation of the centrality of sovereignty; a commitment to prevention, reaction, and
rebuilding; a definition of the threshold for military intervention; and an articulation of
the precautionary principles that should guide military intervention (p. 74, para. 8.28).
It calls upon the Security Council to agree on a set of guidelines for military action and
it asks the Permanent Five to agree not to use their veto power to obstruct such inter-
vention (para. 8.29). Finally, it calls upon the Secretary-General to promote the dis-
cussion and implementation of the Report in the General Assembly and the Security
Council (para. 8.30).
12. Welsh, ‘‘From Right to Responsibility,’’ p. 518.
13. Andrew Linklater, ‘‘The Good International Citizen and the Crisis in Kosovo,’’ in
Schnabel and Thakur, eds, Kosovo and the Challenge of Humanitarian Intervention,
p. 493.
14. On these challenges, see Jean-Marc Coicaud, ‘‘Solidarity versus Geostrategy: Kosovo
and the Dilemmas of International Democratic Culture,’’ in Schnabel and Thakur, eds,
Kosovo and the Challenge of Humanitarian Intervention, pp. 463–481.
15. However, if one distinguishes between juridical sovereignty (international law is the
only authority to which states are subject) and empirical sovereignty (states have the
right and capacity to control the people, territory, resources, and institutions within
their borders), state sovereignty is dependent on state capacity – without such capacity
there can be no sovereignty. This ties into the notion of ‘‘failed states.’’ See Michael
Barnett, ‘‘The New United Nations Politics of Peace: From Juridical Sovereignty to
Empirical Sovereignty,’’ Global Governance, Vol. 1, No. 1, 1995, pp. 79–97.
16. For an exploration of the role of the international citizen in the Kosovo crisis, see
Andrew Linklater, ‘‘The Good International Citizen and the Crisis in Kosovo,’’ in
162 SCHNABEL
pp. 482–495.
17. For extensive bibliographies on these and related subjects, see ICISS, The Responsibil-
ity to Protect: Research, Bibliography, Background, pp. 223–336.
18. See Report of the Secretary-General pursuant to General Assembly Resolution 53/35: The
Fall of Srebrenica, UN Doc. A/54/549, 15 November 1999. For an internal analysis of the
failure of the United Nations and the international community in Rwanda, see Report of
the Independent Inquiry into the Actions of the United Nations during the 1994 Genocide
in Rwanda, UN Doc. S/1999/1257, 16 December 1999.
19. See Adam Roberts, ‘‘Humanitarian Issues and Agencies as Triggers for International
Military Action,’’ International Review of the Red Cross, No. 839, 2000, pp. 673–698.
20. John J. Merriam, ‘‘Kosovo and the Law of Humanitarian Intervention,’’ Case Western
Reserve Journal of International Law, Vol. 33, No. 1, Winter 2001, p. 119.
21. See William A. Schabas, ‘‘International Law and Response to Conflict,’’ in Chester A.
Crocker, Fen Osler Hampson, and Pamela Aall, eds, Turbulent Peace: The Challenges of
Managing International Conflict, Washington, D.C.: USIP Press, 2001, p. 605.
22. Ibid., p. 604.
23. As Schabas notes, a deadlocked Security Council was bypassed in favour of the General
Assembly, which utilized a Uniting for Peace Resolution to endorse a military inter-
vention. However, ‘‘[f]orty years later . . . the major powers had lost any enthusiasm for
such a role being exercised by a General Assembly whose overwhelming majority now
lay in the southern half of the planet.’’ Ibid., p. 606.
24. The following information is based on Roberts, ‘‘Humanitarian Issues and Agencies as
Triggers for International Military Action.’’ For further details, see Roberts’ discussion.
25. On measures to take military action in support of humanitarian assistance, see Res. 770
(13 August 1992). On the establishment of safe areas, see Res. 824 (6 May 1993) and
Res. 836 (4 June 1993).
26. On the authorization of the Unified Task Force (UNITAF), an invasion led by the
United States, see Res. 794 (3 December 1992). On the establishment of UNOSOM II, a
UN-peacekeeping operation, see Res. 814 (26 March 1993).
27. On the pre-massacre attempt to expand the small UN Assistance Mission for Rwanda
(UNAMIR) in early 1994, see Res. 918 (17 May 1994), part of which was adopted under
Chapter VII. On the post-massacre authorization of France to address the humanitarian
consequences of the massacre (which had already been referred to in Res. 925 of 8 June
1994), see Res. 929 (22 June 1994).
28. On the Security Council’s call to remove the military leadership and the launch of the
US-led Multinational Force in Haiti (MNF), see Res. 940 (31 July 1994). On the estab-
lishment of the UN Mission in Haiti (UNMIH), see Res. 975 (30 January 1995).
29. On the establishment of the Italian-led Multinational Protection Force (MPF), see Res.
1101 (28 March 1997).
30. On the establishment of the Australian-led UN Mission in East Timor (UNAMET), see
Res. 1264 (15 September 1999). On the establishment of the UN Transitional Adminis-
tration in East Timor (UNTAET), see Res. 1272 (25 October 1999).
31. On the establishment and subsequent strengthening of the UN Mission in Sierra Leone
(UNAMSIL), see Res. 1270 (22 October 1999) and Res. 1289 (7 February 2000).
32. Security Council Res. 1270 (22 October 1999).
33. For Northern Iraq, see Res. 688 (5 April 1991); for Kosovo see Res. 1199 (23 September
1998) and Res. 1203 (24 October 1998).
34. Nico Kritsch, ‘‘Legality, Morality, and the Dilemma of Humanitarian Intervention after
Kosovo,’’ European Journal of International Law. Vol. 13, No. 1, 2002, pp. 323–337.
Also see the following recent contributions to this debate, reviewed in detail in Kritsch’s
essay: Simon Chesterman, Just War or Just Peace? Humanitarian Intervention and In-
ternational Law, Oxford: Oxford University Press, 2001; Christine Gray, International
Law and the Use of Force, Oxford: Oxford University Press, 2000; Nikolaos K. Tsa-
gourias, Jurisprudence of International Law: The Humanitarian Dimension, Manchester:
Manchester University Press, 2000; Nicolas J. Wheeler, Saving Strangers: Humanitarian
Intervention in International Society, Oxford: Oxford University 2000; Reinhard Merkel,
ed., Der Kosovo-Krieg und das Völkerrecht, Frankfurt: Suhrkamp, 2000. See also Oliver
Ramsbotham and Tom Woodhouse, Humanitarian Intervention in Contemporary Con-
flict, Cambridge: Polity Press, 1996; Independent International Commission on Kosovo,
The Kosovo Report: Conflict, International Response, Lessons Learned, Oxford: Oxford
University Press, 2001; Schnabel and Thakur, eds, Kosovo and the Challenge of Hu-
manitarian Intervention; and Albrecht Schnabel, Ethnic Conflict, Sovereignty, and Hu-
manitarian Intervention: Internationalization of Domestic Conflict and Systems Change
in International Relations, PhD Dissertation, Ann Arbor, Michigan: UMI Dissertation
Services, 1995.
35. See Nicola Butler, ‘‘NATO: From Collective Defense to Peace Enforcement,’’ in
pp. 273–290.
36. Some believe that the evolving – in fact, redefined – concept of sovereignty, while im-
portant, ‘‘pales in significance when compared to the basic moral imperative to protect
human rights’’ and thus ‘‘allows for the international protection of human rights and
thus avoids conflict between sovereignty and humanitarian intervention.’’ See Merriam,
‘‘Kosovo and the Law of Humanitarian Intervention,’’ p. 116.
37. See Michael Barnett, ‘‘The New United Nations Politics of Peace.’’
38. Quoted in Merriam, ‘‘Kosovo and the Law of Humanitarian Intervention,’’ p. 118.
39. Kofi Annan, ‘‘Two Concepts of Sovereignty,’’ The Economist, 18 September 1999. See
also Annan’s speech at the opening meeting of the General Assembly, UN Press Re-
lease SG/SM/7136, GA/9596, 20 September 1999.
40. For an extensive discussion of the conflict prevention debate, see David Carment and
Albrecht Schnabel, eds, Conflict Prevention: Grand Illusion or Path to Peace? Tokyo:
United Nations University Press, 2003; and, by the same editors, the forthcoming vol-
umes Conflict Prevention from Rhetoric to Reality: Organizations and Institutions; and
Conflict Prevention from Rhetoric to Reality: Opportunities and Innovations, Lanham:
Lexington Books, 2004.
41. See, for example, the various contributions to World Editorial and International Law,
Vol. 1, No. 1, 15 September 2002.
42. See Agon Demjaha, ‘‘The Kosovo Conflict: A Perspective from Inside,’’ pp. 32–43, and
Duska Anastasijevic, ‘‘The Closing of the Kosovo Cycle: Victimization versus Respon-
sibility,’’ pp. 44–63, both in Schnabel and Thakur, eds, Kosovo and the Challenge of
Humanitarian Intervention.
43. For a more detailed analysis of post-conflict preventive challenges, see Albrecht Schna-
bel, ‘‘Post-Conflict Peacebuilding and Second-Generation Preventive Action,’’ Interna-
tional Peacekeeping, Vol. 9, No. 2, Summer 2002, pp. 7–30; and, by the same author,
‘‘International Organizations and the Prevention of Intergroup Conflict: From Rhetoric
to Policy to (Pro)Action,’’ Journal of Social Affairs, Vol. 18, No. 72, Winter 2001, pp.
43–77.
8
Democratic transitions and
foreign policy: The United States
Barbara Ann J. Rieffer and David P. Forsythe1
‘‘The defense of freedom and the promotion of democracy around the world
aren’t merely a reflection of our deepest values. They are vital to our national
interests.’’
Bill Clinton, Georgetown University, Washington, D.C., 12 December 1991
In the last 25 years, and especially after the Cold War, the international
community has witnessed remarkable changes. More and more countries
are turning away from their authoritarian past and moving towards lib-
eral democracy. Since 1975, when there were approximately 30 liberal-
democratic societies, there has been a vast increase in the number of such
democracies in the world: now more than 120 countries arguably offer
their citizens at least a liberal-democratic constitution.2 These transitions
toward liberal democracy have varied from country to country. Some
countries such as the Czech Republic have been largely successful in
achieving free and fair elections and in protecting a broad range of hu-
man rights (although, like all societies, the Czech Republic still violates
some human rights). Other countries have made progress, but have a
long way to go (e.g. South Africa), while some have not fared as well
(e.g. Haiti). As countries have attempted to implement liberal democ-
racy, many Western governments, including the United States, have
developed democracy-assistance programmes as part of their larger for-
eign policy to promote liberal democracy.3 These programmes encourage
transition societies to promote democracy and to protect human rights.
164
DEMOCRATIC TRANSITIONS AND US FOREIGN POLICY 165
Whereas some scholars offer a clearly optimistic account of the US role

in these developments,4 in this chapter we present a more guarded as-
sessment of US democracy promotion and its affects on undertaking
transitions. This is especially so after 11 September 2001, because the re-
sulting US ‘‘war’’ against global terrorism caused Washington to reduce
its interest in transitions to democracy as a realistic and primary goal in
many countries.5 Our focus is on the United States, the most powerful
state in the world, although much of what we discuss is applicable to
other Western states.
Types of rights
For many of the countries moving towards liberal democracy, the chal-
lenges they face revolve around three sets of human rights. First, there
are democratization rights per se: participation rights combined with
those civil rights necessary for meaningful participation in public policy
issues.6 This category refers to the right to vote in free and fair elections,
combined with such civil rights as freedom of thought and opinion, and
freedom of speech, organization, and assembly. The ability to organize
and speak freely is deeply connected to the critical role played by civil
society in a healthy democracy. Civil society is a vital aspect of democ-
racy. NGOs often encourage tolerance and represent diverse and tradi-
tionally marginalized groups. Through this pluralistic activity, NGOs can
keep the power of the state in check.7 For these reasons, scholars have
argued that a robust civil society is an essential characteristic of a healthy
democracy.8
Second, there are liberalization rights that transform illiberal democ-
racy into liberal democracy: these are the rights that restrain the majority
from becoming tyrannical.9 Illiberal democracies are popularly elected
governments that violate the rights of minorities. To prevent illiberal
democracy one finds various minority rights, including freedom from
arbitrary arrest and detention, habeas corpus, and freedom of religion.
Third, there are preservation rights; these are the socio-economic rights
that establish a minimum threshold below which personal welfare should
not be allowed to fall. Here, one finds the rights to adequate minimal
standards of food, clothing, shelter, health care, and basic education.
Preservation rights are required to consolidate liberal democracy. His-
tory has shown that, without social and economic security, political free-
dom is not entirely meaningful. Various governments emphasize different
combinations of these rights, both at home and abroad; hence, it is useful
to keep these sets of rights theoretically distinct.
Having said the above, we must hasten to add that, as with all catego-
166 RIEFFER AND FORSYTHE
rizations, some ambiguity remains regarding our breakdown of human

rights. The right to private property is seen by some as an economic/
preservation right; others see it as a civil right; still others say that pri-
vate property is crucial to a genuine democratic process (if the state
owns all property, it is said, there can be no room for real personal free-
dom). Likewise, the right to bargain collectively may be seen as a civil/
liberalization right, or an economic/preservation right essential to secur-
ing adequate material welfare. Despite these reasoned debates, we seek
to highlight two points. First, there is an important difference between
liberal and illiberal democracy, which hinges on the role of liberalization
rights in informing democratization rights. Second, there is reason to be-
lieve that democracy per se is insufficient to protect human dignity; eco-
nomic rights are also required.10 Therefore, we attempt to show that the
neglect of preservation rights can undermine democracy promotion. We
show that it is significant that the United States often does not emphasize
economic rights in its foreign policy.
Finally, we note that our approach is consistent with the content of the
International Bill of Rights and with those many UN resolutions stating
that all internationally recognized human rights are interdependent and
of equal value.
Promoting human rights
Building liberal democracies that protect human rights, including preser-

vation rights, is a complicated process. It is worth noting that all the
stable, wealthy, liberal democracies of the Organization for Economic
Co-operation and Development (OECD) not only promote individual
responsibility and political competition but also provide varying welfare
programmes to accommodate those who do not rise to the top in the
competition. So the OECD states seek to advance both rugged individu-
alism and social responsibility for the less fortunate. This is, however, not
a simple process. Stable liberal democracy seems to require complicated
and not entirely consistent factors: it requires a multitude of ideas, pro-
grammes, expenditures, leadership, and guidance. This involves not only
money but also other forms of support, which sometimes involve only
words but at other times involve various forms of coercion – as was
clearly the case in Haiti when the United States deployed military per-
sonnel to force out military rulers and return the elected President Aris-
tide to power.
Although our focus is on the United States – the one remaining super-
power in the world – we note in passing that most of the OECD states,
as well as other states, address democracy promotion in their foreign
policies.11 For example, the Netherlands gives great attention to liberal
democracy in foreign policy and wrestles with questions such as whether

foreign assistance should continue to be given to developing countries
that are characterized by significant violations of civil and political rights.
Thus, the Dutch have continued to debate and evaluate their foreign-
policy practices towards Indonesia. That the latter is a former colony
makes these decisions all the more difficult. Other states, such as Japan,
although paying growing semantic attention to democracy in foreign
policy, have yet to see that rhetorical concern greatly affecting foreign
investment and foreign assistance. An example is Japan’s decision to re-
institute relations with China after the massacre in Tiananmen Square.
Some democratic states, such as India, have opted to de-emphasize hu-
man rights in their foreign policy. Because India is less eager to incorp-
orate human rights considerations into foreign policy, it has continued
to deal with repressive regimes, such as the State Law and Order Res-
toration Council (SLORC) in Burma, in a ‘‘business as usual’’ fashion.
Space does not allow an extended discussion on democracy promotion,
or the lack thereof, in other states beyond the United States of America.
We do note, however, that all the OECD states give at least some atten-
tion to democracy promotion some of the time. This fact, combined with
less-certain democracy promotion by other states, such as Russia, dem-
onstrates that US democracy promotion does not exist in an intergovern-
mental vacuum. In fact, the great extent of democracy promotion efforts
by the OECD states,12 and their role in various intergovernmental or-
ganizations such as the United Nations, the Council of Europe, and the
OSCE, makes the precise analysis of the US role in this regard exceed-
ingly difficult. Thus, when viewing South Africa’s progress towards liberal
democracy since apartheid, one sees many actors offering assistance. In
one year alone, South Africa received over $300 million (to assist Parlia-
ment, develop public administration, educate voters, and train political
parties) from eight countries – excluding the United States – and the
European Union. Hence, when one notes that South Africa has been
largely successful in developing a liberal-democratic constitution and gov-
ernment, it remains difficult to pinpoint which, if any, of the donors were
offering significant and meaningful assistance.13
The United States

To a great extent, a state’s foreign policy with regard to human rights and
democracy promotion is bound up with nationalism. How a society views
itself affects its foreign-policy decisions. A nation’s collective self-image
sets the parameters for the policies that a country pursues with regard
to human rights. Thus, to understand how the United States, as well as
other liberal democracies, will assist countries undergoing transitions, we
must understand how the citizens of the respective countries view them-
selves and their place in the world.
Americans generally believe that they are an exceptional people owing
to the remarkable political system they have constructed. Americans of
all classes and races endorse the democratic system and the civil and po-
litical rights enshrined in the Constitution and the Bill of Rights. The one
tenet of American nationalism that is widely shared is a belief in Ameri-
can greatness, defined in terms of support for personal freedom, and the
belief that American freedom should serve as a moral and political lesson
to the rest of the world.14 US foreign policy has echoed these sentiments
over the twentieth century, and more actively since the end of the Cold
War.15
Understanding US foreign policy
There are three standard theories for attempting an overview of US for-

eign policy and democracy promotion – liberalism, realism, and neo-
Marxism. Liberalism would explain the place of democracy promotion in
US foreign policy as the result of a moral and legal concern for the indi-
vidual, regardless of citizenship. A liberal explanation emphasizes the
pursuit of human welfare, regardless of nationality, and notes that this
orientation seems precisely the content of modern international law, with
its numerous and widely endorsed treaties requiring attention to human
rights on an international basis. Liberals argue that history has de-
monstrated that democracies do not go to war with each other. The
democratic peace theory, in its various forms, suggests that, if the global
democratic community were enlarged, there would be a greater likeli-
hood of peaceful interaction in international relations.16
A realist approach to our subject matter emphasizes democracy pro-
motion as part of a US grand strategy for world order. In this view, US
attention to democracy abroad reflects responsible leadership in pursuit
of national interest, defined in terms of controlling power and encourag-
ing free markets. It is said that, since liberal democracies are less likely to
go to war with each other or to engage in destabilizing forced displace-
ment, promoting democracy is beneficial to American interests at home
and abroad. In addition, liberal democracies engage in capitalist free
trade, which has a moderating affect on international relations. Thus,
enlarging the global liberal-democratic community is more an example of
hard-headed self-interest than of altruistic concern for others.
A neo-Marxist approach argues that all the lip service to personal
rights and human welfare via democracy promotion is a discursive
façade. The reality is that democracy is a fig-leaf for continued economic
control and exploitation by the Western governments, which represent
the dominant economic classes in Western nations. A neo-Marxist argues
that, when the United States emphasizes the global enlargement of the
number of market democracies, it is really interested in the markets, not
the democracies. Weak markets allow penetration and control by global
monopoly capitalism, as V.I. Lenin argued.
When examining the theoretical options for US foreign policy, one
notices the tendency among administrations to adopt and justify policy
decisions as indicated by the realist model. Even US Secretary of State
Madeleine Albright, in the second Clinton Administration, took the
realist approach to human rights in general, while mentioning ‘‘justice’’
in passing:
Promoting human rights is – and must remain – an integral part of US foreign

policy. When governments respect human rights, they contribute to a more sta-
ble, just and peaceful world. When they do not, they often engender strife, for
regimes that run roughshod over the rights of their own citizens may well show
similar disregard for the rights of others. Such governments are also more likely
to spark unrest by persecuting minorities, sheltering terrorists, running drugs or
secretly building weapons of mass destruction. As a global power with global
interests, our nation will be more secure, our armed forces less at risk, and our
citizens safer and more prosperous in a world where international standards of
human rights are increasingly observed.17
This statement is indicative of the Clinton administration’s approach.

Almost every major foreign-policy speech contended that the spread of
democracy abroad advances US security and economic interests at home.18
It seems safe to argue that President Bush is not pursuing a foreign-
policy approach that is considerably more liberal in orientation than that
of his predecessor. In fact, given the trauma of 11 September 2001 and
the resulting focus on global terrorism, the Bush administration focused
on a realist exercise of hard power in places such as Iraq, despite the lack
of approval by the UN Security Council. The administration’s official na-
tional security strategy document did not hesitate to stress the notions
of power and balance of power.19 Without question, in countries such as
Pakistan and Uzbekistan (among others), Washington’s primary interest
was in hunting down those alleged to be members of terrorist organi-
zations, not in discussing free and fair elections and those human rights
necessary for them. Despite the fact that most members of al-Qaeda and
other alleged terrorist organizations came from non-democratic countries
such as Algeria, Egypt, Pakistan, and Saudi Arabia, Washington largely
suspended its interest in democratic transitions in such countries; the new
emphasis was on support for US security policies defined in ways that
excluded democracy promotion.
Although it is arguable that US foreign policy is motivated by a mix-
ture of realism and liberalism, one clear pattern has been the develop-
ment of democracy-promotion programmes. Various agencies spend over

$700 million per annum in over 50 countries to promote the values of
freedom and democracy. The United States has generally offered small
amounts of funding to transition countries without much meaningful or
long-term strategy.20 This is the product of both the lack of agreement on
the requisites of liberal democracy and the decentralized or fragmented
nature of policy-making in Washington.
Scholars have long sought the necessary and sufficient conditions for
the creation and consolidation of liberal democracy. After a lifetime of
study, the noted political scientist Samuel Huntington has concluded that
no one theory explains why liberal democracy arises and/or is eventually
stabilized. In his view, shared by others, the causes of the successes and
failures of liberal democracy are many and varied, and combine in dif-
ferent ways in different places.21 This means, of course (if correct), that
there is no single, successful model of liberal democracy for export.22
Some suggest that democracy requires social capital such as an achieve-
ment orientation, social networks, shared liberal values (at least among
the political élite), and/or feelings of trust.23 Another school of thought
stresses economic factors such as capitalism per se, or sometimes modern
forms of capitalism, or a certain level of economic growth and/or devel-
opment. Still other scholars stress other factors, such as a history of
experience with pluralistic politics at some level in the nation, close
association with other liberal democracies, and a well-developed civil
society, along with high per capita income.24
Our purpose is not to catalogue the theories of democratic develop-
ment but to indicate briefly that policy makers cannot rely on social
science to provide a sure road map for how to assist countries attempt-
ing democratic transitions. Although there is no one statement or policy
on how best to assist countries undergoing transitions, the United States
generally engages in a few types of activities, including the following:
electoral assistance to guarantee free and fair elections; support for
state-institution building, including the military, judiciary, and legislative
branches; and support for civil society and the tolerant private groups
therein.25
Bilateral policy
Programmatic diplomacy
There is no clear, simple, long-term US programme to support liberal
democracy abroad. General programmatic statements exist, but they fail
to provide sure and specific guidance for US policy in concrete situa-
tions.26 Despite the decentralized nature of US foreign policy, there
are various agencies involved that can assist transition countries. The
Departments of Defense, Justice, and State; the Agency for International

Development; the US Information Agency; and the National Security
Council all participate in the US democracy-assistance programme. More-
over, Congress funds the National Endowment for Democracy (NED),
the Asia Foundation, and the US Institute for Peace, all of which (par-
ticularly the NED with an annual budget near $30 million27) engage in
activities related to democracy abroad. For the fiscal year 1999, the State
Department reported that, together with the United States Agency for
International Development (USAID) and the United States Informa-
tion Agency (USIA), it was spending $622.9 million on democracy assis-
tance.28 This is a very small amount compared with US spending on all
international affairs (about $22 billion), not including defence spending
(about $350 billion). This suggests that building and assisting countries
pursuing democracy is not, in reality, a high priority. During 1999, AID
democracy and governance activities received only $137 million. Since
USAID ran democracy and governance programmes in about 50 coun-
tries, its resources were obviously spread thin. For example, the United
States apparently hoped to produce liberal democracy in rump Yugosla-
via by spending $18 million in the fiscal year 1998,29 a paltry sum in the
context of public allocations. The above figures do not include Defense
Department spending in support of a multifaceted (and at least antici-
pated) movement toward liberal democracy in such places as Bosnia,
Haiti, and Kosovo: it has been reported that the Pentagon spent about
$20 million per annum in Haiti between 1994 and 1999.30
Ad hoc (reactive) diplomacy

Democracy promotion is not just a matter of programmes and money
but is also a matter of diplomacy, or the lack thereof. This diplomacy may
at times be linked to coercion, as it was in both Haiti and Yugoslavia.
One cannot be certain, but a reasonable argument can be made that,
more than ever before, the United States had been paying only short-
term attention to advancing liberal democracy – however, only until 11
September 2001. This argument is supported by the 2003 annual report of
Amnesty International, which shows that, by that tragic date, the United
States had greatly reduced its efforts on behalf of human rights and dem-
ocratic transitions abroad.
Beyond efforts to reconstruct failed states (a separate subject alto-
gether), it should come as no surprise that a sample of US ad hoc dip-
lomacy indicates different short-term responses to events abroad. In
Bosnia, for example, the United States was the principal mediator during
1995 in attempts to construct a liberal-democratic constitution and polity
in that war-torn country. In Algeria, at approximately the same time, the
United States deferred to the decision by Algerian military officials to
suspend planned elections, lest a conservative Islamic party win them and
possibly develop an illiberal democracy or an Islamist authoritarian re-

gime. In Burma, failure of the SLORC junta to honour free and fair
elections led to US economic and diplomatic sanctions. Although the Tia-
nanmen massacre of 1989 did produce temporary sanctions for China,
failure of the Communist party to allow open political dissent and or-
ganized opposition political parties, not to mention other violations of
civil and political rights, led to a policy not of sanctions but of construc-
tive engagement – and, ultimately, support for China’s entrance into the
WTO. When Russian troops committed offences in Chechnya in 1994,
the United States muted its criticism of President Boris Yeltsin and other
Russian leaders, fearing that the elected, moderate government in Mos-
cow would be undermined. Washington continues to ignore serious hu-
man rights violations, including thousands of civilian deaths and the
forced migration of over 120,000 people to neighbouring Ingushetia,31 in
order to keep relations on track with Moscow and to win support for the
Bush administration’s national defence system.32
Inconsistencies in US support for democratic transitions had become
particularly dramatic by 2003. The US use of military force in Iraq was
undertaken with the promise of transforming Iraq into a liberal democ-
racy that would serve as a model for democratic transition in the rest of
the Arab-Islamic world. However, in order to pursue its objectives in
Iraq, Washington clearly turned a blind eye to the lack of democracy and
numerous human rights violations in such countries as Egypt, Pakistan,
and Uzbekistan. Under attack for its unilateralist tendencies, the Bush
administration needed as broad a coalition as possible for its controver-
sial Iraq policy: it therefore failed to press for democratic transitions in
these countries at the highest level. In fact, in such countries as Egypt, it
could be boldly stated that the United States did not have a democratic
promotion policy at all.
Multilateral policy
IGO standards
As the most powerful state in international relations, the United States
casts a great shadow over the decisions and activities of intergovern-
mental organizations. In some of these, such as the United Nations, US
policy has been part of the growing attention accorded to the subject of
democracy; in others, such as the World Bank, the attention to democ-
racy has been very sporadic; in still others, such as the International
Monetary Fund (IMF), there has been very little attention to democracy.
The United States bears considerable responsibility for this record.
In contemporary US foreign policy, Washington has clearly endorsed
democratic standards in the United Nations, OAS, OSCE, and other gen-
eral or ‘‘political’’ IGOs. Since the Cold War, the United States has offi-
cially endorsed the view that the ‘‘only type of legitimate government is
liberal democracy.’’33 In this sense, the United States endorses the ‘‘end
of history’’ thesis that argues liberal democracy is the ultimate way to
legitimize the exercise of governing power.34
US leadership for democratic theory has been particularly pronounced
in the OAS, especially in its support for the ‘‘Santiago Declaration,’’ in
which the presence or absence of democracy in hemispheric affairs was
declared to be an international matter and not one of domestic jurisdic-
tion.35 This declaration was reaffirmed – and even expanded – at the
Summit of the Americas in Quebec, in April 2001.36
US support for liberal democracy is much less certain in the interna-
tional financial institutions. Only in the European Bank for Reconstruc-
tion and Development has the United States, like other donor members,
endorsed the integration of democratic factors in that Bank’s lending
policies. In the World Bank, by contrast, there is evident confusion about
the meaning of ‘‘good governance.’’37 In some cases (e.g. Kenya, Malawi,
Bosnia, Yugoslavia) the Bank has attached political conditions to its loans
in order to press for liberal-democratic reform; however, in other cases
(such as Indonesia, Nigeria, and China) it has not, and has made sizeable
loans to clearly authoritarian governments. This record in the World
Bank is largely the product of such important donor states as the United
States and Germany, who have pressed political conditions on the Bank
staff in a highly inconsistent way. Given recent trends, especially per-
taining to Indonesia and Burma, the Bank appears to be strengthening its
concern with repression that proves inimical to economic growth.
The IMF has, historically, been impervious to arguments that it should
take democratic and human rights standards seriously, being much more
adamant than the World Bank that most governance issues lie outside
its proper domain. Yet even the IMF, following the US lead, suspended
drawing rights after the Chinese regime massacred peaceful demon-
strators in Tiananmen Square in 1989. During 1999, the IMF warned
both Pakistan (under military rule) and Russia (when engaged in brutal
policies in Chechnya) that they might forfeit IMF support. States such
as Pakistan and Russia, however, are too important to the Western-state
members of the IMF for democracy considerations to be the only factor
controlling loans. Likewise, the evolution of democracy in these states is
affected by many factors besides IMF loans.
IGO field operations

The United States has been supportive of IGOs undertaking programmes
within countries to establish and consolidate liberal democracy. One of
the striking developments, especially in the United Nations and OAS, but
also in the OSCE, is the expansion of multilateral electoral assistance. In
such places as El Salvador, Haiti, Nicaragua, Cambodia, and elsewhere,
the United States supported important IGO roles in the conduct of free
and fair elections. This multilateral diplomacy was in addition to bilateral
US involvement and support for private activity (by NGOs).
In general, the United States has been supportive of complex peace-
keeping by the UN and OAS. The deployment of a non-combat military
force (with the consent of the parties), along with civilian personnel, is
designed to secure not only narrow military objectives but also political
ones, such as democratic and rights-protective national governance.38
This can overlap with IGO electoral assistance. In places such as El
Salvador, Namibia, Cambodia, Mozambique (and elsewhere), complex
peacekeeping is directed at the construction of democratic order and
a liberal-democratic state. El Salvador and Mozambique are clear, if rel-
ative and imperfect, success stories. Despite congressional reservations,
the United States continues to pay for about one-third of UN peace-
keeping, in addition to unilaterally covering the costs of US military
forces deployed in the UN-approved Haitian field mission and the US
share of NATO costs in Bosnia and Kosovo. All these field missions
(whether officially under the aegis of the United Nations, or the OAS,
or NATO) are linked to liberal democracy and would not have occurred
had the United States objected.
The United States has supported UN, OAS, and OSCE programmes
of technical assistance for such tasks as the reform of the judiciary, re-
construction of police forces, development of parliamentary procedures,
protection of minority rights, and civilian superiority over the military.
This technical assistance can be authorized through discrete projects or
as part of complex peacekeeping. These and similar IGO programmes try
to contribute to the construction and consolidation of liberal democracy.
Congressional pressures to reduce IGO budgets, however, impair the
ability of the organizations to respond to growing requests for democratic
assistance. The UN Human Rights Centre still receives less than $20
million per annum for all of its human rights work, of which democracy-
related efforts are only one part. By comparison, USAID alone was
spending more than $35 million on its Rule of Law programmes abroad
in 1999.39
Enforcing democracy
The United States has utilized IGOs to enforce democracy only in Haiti
in 1994 and in Kosovo in 1999. Although there was no significant military
combat in Haiti, it was clear that US military forces, given the green light
by the UN Security Council, were prepared to use military force to re-
store Bertrand Aristide to power in keeping with the previous, interna-

tionally supervised election.
US policy toward Haiti, rather than being a principled commitment
to liberal democracy, reflected mostly a response to unwanted Haitian
migration to the south-eastern United States and a response to the power
of the Congressional Black Caucus, whose support President Clinton
needed for his domestic policy agenda. Nevertheless, unlike his prede-
cessors, Clinton was finally prepared to deal with the root causes of Hai-
tian migration, which lay in the authoritarian and exploitative nature of
decades of Haitian rule. True, after the forced change of government in
Port au Prince by the United States, Haiti remained far short of a stable,
liberal democracy: its national history, poverty, and illiteracy were hardly
conducive to an easy transition to successful democratic rule. Some
observers found fault with US policy,40 but it was difficult to see how
human dignity – i.e. social justice – could improve in Haiti, or how im-
proved relations with the United States would ensue, until the Duvalier
dynasty and its military descendants had been ousted from the scene.
Where the United States might be fairly criticized was in the lack
of long-term attention to Haitian economic growth and social security.
Democracy-building is not very glamorous work; it does not lend itself
to patriotic flag-waving by political leaders in Washington; and it takes
much longer than the typical American attention span lasts.41 Thus after
five years the United States had removed most of its personnel from
Haiti.
The United States has demonstrated that it finds funding for democra-
tization and liberalization rights more acceptable than that for preser-
vation rights (since the latter run counter to the country’s emphasis on
rugged individualism, self-reliance, and free markets). The subject, how-
ever, is complex. When the United States had just experienced the eco-
nomic depression of the late 1920s and 1930s, President Franklin D.
Roosevelt stressed that ‘‘freedom from want’’ was a legitimate freedom.
He argued, with great resonance in an impoverished American society,
that a person trapped in poverty and poor health was not a free person.42
Thus, creative leadership such as FDR’s could link the American con-
cern with personal freedom to the need for preservation rights.43 Despite
the American antipathy to socialism and statism, the United States, like
other OECD states, established social safety nets, even if Washington
saw them not as entitlements underwritten by international law but rather
as optional policies chosen by the federal and state governments.
Moreover, especially in the 1990s, US foreign policy joined the global
semantic consensus in support of ‘‘sustainable human development,’’
which stressed that the purpose of transnational economic growth was
not simply national welfare but human welfare.44 In agreeing to a reori-
entation by the World Bank (and other international financial institu-

tions), Washington agreed that some forms of transnational capitalism
could be injurious to certain sectors of society. Some US development
assistance went to poor countries and the poorer sectors within those
countries, and to countries wracked by various forms of upheaval, espe-
cially after the Cold War.45 The US might not view human rights as
entailing subsistence economic rights, and it might not like large bureau-
cracies to manage socio-economic policies, but at times it might (or might
not) contribute to preservation rights through its foreign policy. For ex-
ample, the Bush administration announced a new foreign-aid programme
for poor countries, called the millennium account, as a companion move
to its agreement that rich countries had an obligation to help poor coun-
tries if the latter would engage in significant economic and political re-
form. Moreover, the Bush administration also announced special funding
to help fight HIV/AIDS in developing countries. These US policies were
presented as voluntary acts of assistance, unrelated to welfare rights.
Factors affecting democracy promotion
Despite efforts by Washington to promote liberal democracies that re-

spect a broad range of human rights, there are a variety of factors that
impede this development worldwide. In some countries the political cul-
ture or strategic location may hinder US attempts to assist in the devel-
opment of liberal democracy. In this section we discuss some of these
‘‘trumps’’ and barriers that prevent democracy-assistance programmes
from implementation or, if implemented, from achieving success.
Political culture
Every society has its own dynamic political culture that defines its iden-
tity. The beliefs and history shared by a national people are an influential
aspect of the goals and possible achievements of any given state. This
is true of those countries promoting democracy, as well as of those
countries attempting to develop liberal-democratic political systems. As
already indicated in different terms, the political culture of the United
States revolves around various democratic ideals. Individualism, liberty,
political equality, and diversity within an assimilationist doctrine are all
fundamental aspects of American political culture. This identity shapes
the way the United States exercises its influence in the world.46 One con-
sequence of this identity is the tendency to neglect preservation rights
(but see above). American belief in rugged individualism promotes the
belief that individuals, and not the government, should provide for one’s
basic needs. Thus, the State Department will readily argue that the
United States is committed to ‘‘international norms of respect for human
dignity and freedom for all people,’’ as long as this does not include
preservation rights.
Political culture in the transition state is also critical to the promotion
of liberal democracy. Countries with little or no experience of elections
or of basic freedoms, and with an environment of intolerance are unlikely
to move quickly towards consolidation of liberal democracy. Initial im-
provements may also be accompanied by backsliding. South Africa shows
the ongoing difficulties with a transition to liberal democracy.
Until the 1990s, South Africa operated under apartheid and the gov-
ernment consistently violated the rights of non-Whites.47 Growing eco-
nomic difficulties and international pressure48 eventually cajoled the
South African government into holding multiracial elections, and in 1994
Nelson Mandela was elected President.49 Under Mandela, major institu-
tional changes were implemented, including the creation of a new con-
stitution.50 However, despite these democratic improvements, South
Africa still faces many problems: political violence, although decreasing
in level, still occurs; deaths in police custody remain a serious problem;51
furthermore, the vast majority of Africans tend to vote for an African
party (the African National Congress; ANC), whereas most Whites vote
for a White party.52 This suggests that the races and political parties re-
main politically segregated and have not yet obtained a working demo-
cratic system. Thus, despite the progress made – South Africa moved
from a partly free country on the Freedom House survey from 1977 to
1994 to a free country from 1995 on – South Africa has not fully con-
solidated a liberal-democratic system.53
In addition, programmes that do not respect the local culture or that
implement ideas and institutions contrary to the local culture are often in-
effective and disregarded by the recipient country.54 Furthermore, coun-
tries with ‘‘traditional cultures’’ that accept a paternalistic relationship
between the individual and the state and incorporate some dominant re-
ligious tradition are often difficult to convert to a liberal-democratic po-
litical system. Russia demonstrates how a traditional political culture can
be an obstacle to liberal democracy: the deeply entrenched beliefs in the
need for a strong leader to deal with national problems, and the patriar-
chal values of the Russian Orthodox Church, promote public passivity,55
which decreases the likelihood of popular democracy. These results are
evident from public-opinion polls, which suggest that over 85 per cent of
Russians believe that ‘‘the most important thing today is to elect a presi-
dent who is capable of solving the nation’s problems;’’ 75 per cent said
they favoured a system of government other than democracy.56
Further evidence of the importance of a society’s political culture is
evident from a comparative glance at the Czech Republic and Haiti. In

the 1990s, the Czechs could refer back to the post-World War II period
to acquaint themselves with their quasi-liberal past.57 Haiti had no similar
history and therefore its citizens had no frame of reference or social-
ization to return to. The results show one reason why, when free elec-
tions were conducted in Haiti, many problems ensued. It was within this
essentially illiberal political culture of Haiti that Father Aristide and his
supporters continued to engage in policies that caused the international
community to question the legitimacy of the elections held in November
2000.58 In response, the George W. Bush administration elected not to
send a representative to Aristide’s inauguration. In addition, the United
States, in tandem with other nations, chose to freeze over $500 million in
aid.59
In the Czech Republic a rather different series of events have taken
place. Recent authoritarian tendencies and the lack of full press freedoms
at the end of 2000 were met by street demonstrations and strikes. In
Haiti, worse authoritarian tendencies by the highest authorities and po-
litical violence in the streets were met by considerable apathy, if not out-
right support.
Economic realities
Economic factors are also relevant when understanding US foreign-

policy objectives and the promotion of liberal democracy. US foreign
policy almost always elevated economic concerns over human rights and
democracy issues. Funding for market restructuring in favour of private
enterprise was almost always much more substantial than funding for
democracy assistance. Washington liked to talk of supporting democratic
state capitalism. One observer regarded Clinton’s enlargement doctrine as
‘‘econocentric’’ and based on the principle of ‘‘geo-economics’’; if one
promoted capitalistic economic growth, liberal democracy would follow.60
One example of this is US foreign policy toward the former Soviet
Union. The Clinton administration achieved a 1999 Federal Budget that
provided $925 million, a 20 per cent increase, to the newly independent
states of the former Soviet Union through the ‘‘Freedom Support’’ ini-
tiative. This was designed ‘‘to jump start the political and economic
transition to market democracies.’’61 The real emphasis was market re-
structuring. The ratio of US dollars allocated for economic development
versus democracy promotion was once as high as 8:1.62 The 1999 budget
includes clauses that prohibit the appropriation of funds if ‘‘the govern-
ment is not making progress in implementing economic reforms based
on market principles and private ownership.’’ No similar clauses impede
appropriation if authoritarian or illiberal policies develop.63 The Clinton
administration’s decision, in 1994, to uncouple human rights from trade

initiatives for China is another example of the elevation of economic in-
terests over democracy and human rights issues.
There have been other periods of US history when the talk was not of
democracy but the substance of US foreign policy focused on strategic
and economic interests, especially in the Western hemisphere.64 A lead-
ing observer of US democracy assistance concluded that the policy to-
ward Eastern Europe and the former Soviet republics has emphasized
economics and traditional security concerns, ‘‘while promoting democ-
racy is an ancillary goal.’’65
Economic factors in the transition state are important for liberal de-
mocracy but defy simple analysis. A few lesser-developed countries have
sustained democracy, and probably a weak form of liberal democracy,
despite very low per capita income. India and Botswana come to mind,
but also Sri Lanka – at least, from independence to the onset of its long-
running civil war. In general, however, countries with higher per capita
incomes, larger middle classes, and good rates of economic growth are
more likely to create and consolidate liberal democracies than otherwise.
This is why, despite South Africa’s progress since apartheid, it still en-
counters difficulties in the consolidation of liberal democracy. Many of
South Africa’s problems arise from the fact that over 50 per cent of the
population live in third-world conditions (22 million), while 13 per cent
live in first-world conditions (5.4 million). This income inequality, the
second highest in the world, remains a barrier to democratic progress
despite the development of a new constitution.66 Some believe the na-
ture of modern, transnational capitalism, with its needs of open, un-
constrained, and flexible decision-making, leads to a spill-over effect in
politics;67 whether this is true remains to be seen.
Political factors
Despite all the rhetoric concerning human rights and democracy as a pil-
lar of US foreign policy, there was little change in some aspects of that
overall policy. Through the Clinton administration the United States did
not alter the percentage of aid given to Israel and Egypt – together they
continued to receive over 50 per cent of US foreign assistance; thus,
strategic interests trumped the promotion of liberal democracy in the
Middle East. We have already noted how this tendency was accentuated
by the Bush administration after 11 September 2001. On the other hand,
after the Cold War the United States, in its development assistance to
African states south of the Sahara, did provide more funds for democ-
racy, human rights, and humanitarian concerns. In South Africa, the
United States has given over $670 million since 1990; however, assistance
given to South Africa is usually justified in government documents as es-

sential to US national interests. South Africa is portrayed as a country
with the potential for a large percentage of US exports. Another impor-
tant aspect of South Africa is its potential to be the leading country on
the continent, especially when dealing with humanitarian assistance to
sub-Saharan Africa.68
In general, the more relaxed the international environment, the more
one could logically expect the United States to accentuate human rights
and other ‘‘liberal’’ concerns. The more international relations resembled
a state of war – whether a war against terrorism or otherwise – the more
one would expect ‘‘realist’’ concerns with security affairs and strategic
concerns to predominate.
An additional obstacle to the development of liberal democracy is
sometimes the perception of a disliked American hegemony. Some ele-
ments around the world (for example, in the former Soviet Union and
in the Middle East) fear that more freedom will bring, for example,
more pornography and outside religions. There is thus cultural opposi-
tion to personal freedom, as well as political opposition to extensive US
influence.69
As for other political factors affecting the transition states, the ‘‘neigh-
bourhood effect’’ clearly plays an important role in Europe, with the
Council of Europe and the European Union proving to be magnets of
democratic capitalism to transition states in Eastern Europe (as pre-
viously in southern Europe – e.g. Portugal, Spain, and Greece). In East
Asia, some believe that economic growth in Taiwan and South Korea
was accompanied by association with liberal-democratic states such as
the United States, and by experience with political and socio-economic
equality in local affairs prior to national developments. Corruption is
often cited as a non-economic factor that can impede the health of the
national economy, as in Indonesia and Russia in the waning years of the
twentieth century. Corruption siphons off productive spending and in-
vestment, slowing the economic growth so necessary for people to believe
that democracy works for them. Ultimately various political, economic,
and cultural factors affect the impact of US democracy assistance on
transition societies. Those societies with no history of democracy, little
economic development, and few connections to democratic states present
huge challenges for US democracy assistance.
Conclusions
Clearly, the United States could not have played a significant and direct
role in all the events that have affected movements toward liberal de-
mocracy in the world over the past quarter of a century. Some countries,
such as Slovenia, have proceeded much on their own, with perhaps some
international factors of importance, but none necessarily stemming from
Washington.70 US funding is too meagre and too thinly spread to have a
concentrated impact in most situations. US ad hoc diplomacy gives too
much attention to strategic and self-interested economic pursuits to have
a consistent impact per se on liberal democracy abroad. Furthermore, US
democracy assistance has encountered major social barriers in such
places as Bosnia and Kosovo, Rwanda and Burundi. Those countries
with little democratic history, a dominant authoritarian culture, and con-
temporary ethnic hatreds are unlikely to make dramatic progress in the
short run towards liberal democracy. In Russia, a long-term prognosis
might be more optimistic.
Some countries have received much aid from the international com-
munity, making it difficult to isolate the impact of US policy alone. In
a few countries such as El Salvador, Namibia, and Mozambique, the
United States – along with other outsiders – has had considerable re-
sponsibility for the steps toward liberal democracy, however difficult it is
to label precisely the overall situation at a given moment. However, even
in these cases, other players beyond the United States were also impor-
tant. In El Salvador, for example, the office of the UN Secretary-General,
the states making up the Friends of the Secretary-General, and other
states have all played important direct or indirect roles.
There is also no doubt that the United States could have done more to
advance liberal democracy abroad, whether through ad hoc and pro-
grammatic bilateral policy, or through multilateral policy. A particular
defect, in addition to the relatively low level of funding for this purpose,
is the disinclination of Washington to put the question in a proper eco-
nomic context. Not being a social democracy, the United States tends to
see a simple correlation between capitalism and democracy. Along with
authors such as Francis Fukuyama,71 it tends to gloss over the fact that
people want not only to have their freedom respected but also their
social security protected. Thus, the United States was greatly surprised
when (slightly) reformed communists improved their popularity in free
and fair elections in several places in Eastern Europe – for example,
Bulgaria. The reformed communists were opposed to markets with only
meagre social safety nets.
There is considerable evidence that social security in the broad sense
is necessary for the consolidation of liberal democracy. This can be
achieved in several ways: through the US model, with very limited and
optional safety nets; through the Scandinavian and other European
models, with more extensive and better entrenched safety nets; through
the Japanese model (currently being adjusted); or through others. Large
numbers of people in Chile (in the 1970s) and Peru (in the 1980s) sup-
ported governmental moves toward less freedom if promised more phys-
ical and social security. The United States should not have to be a social
democracy to understand that personal freedom without social security is
not a sure path to a stable liberal polity.72 For this reason, one expert in
this field argues strongly for increased democracy assistance and greater
attention by the United States to issues of prosperity and social security,
for the sake of stabilizing the democratic gains that have been made.73
George Soros, the successful investor and philanthropist, argues that the
greatest threat to liberal democracy in areas of former European com-
munism is unregulated capitalism: it is too harsh and threatens people’s
sense of social security.74
One helpful step by the United States would be to move the World
Bank and other international financial institutions (IFIs) further along
the path of the European Bank, in that factors of liberal democracy and
welfare policies (if not social democracy) would be integrated with more
traditional economic factors. This would help to correct one of the prob-
lems evident in El Salvador, for example. At a time when the Salvadoran
government needed more money for land reform and the integration of
the former opposition forces into the economy and society, the World
Bank and the IMF were demanding structural readjustment programmes
that entailed a smaller, more austere role for the government in the
economy. The traditional IFI recipe for economic growth countermanded
the immediate requisites for the consolidation of moves toward liberal
democracy. Similarly, US foreign-policy rhetoric about democratic state
capitalism should be disaggregated to ensure that the democratic aspects
are not overwhelmed by the capitalist emphasis.
An additional recommended shift in democracy promotion concerning
economic factors centres on civil society. Democracy assistance with re-
gard to civil society attempts to promote greater participation among the
population and tends to focus on human rights, NGOs, women’s rights,
and environmental groups.
This is not surprising, given the US emphasis on civil and political
rights. However, the US orientation means that those NGOs with a socio-
economic focus – such as health clinics and other welfare organizations
– do not receive any democracy-assistance funds. Enhancing aid to a
variety of NGOs, including those supporting preservation rights, would
improve the prospects for consolidating democracy.
Ultimately, US support for democracy abroad may exist mostly to
allow Americans to maintain their self-image as an exceptionally good
people who stand for personal freedom. Still, it is on balance better
to have such an orientation than not, as long as this results in support
for liberal democracies and not the type of illiberal democracies that
have existed in such places as Khomeini’s Iran, Milošević’s Yugoslavia,
and Tudjman’s Croatia. Washington could enhance its democratic pro-
grammes abroad if it communicated its goals to the American public.
Explaining why and where American tax dollars are being allocated
could gather public support for democracy-assistance programmes. Over
time, US contributions to liberal democracy abroad, in conjunction with
others, might make some difference at the margins and at least in some
situations.
Conservatives who value order over moves toward liberal democracy
do not make their case that US policy has been generally detrimental
to the world. Even in Haiti, disappointing as results have been since
1994, the preferred policy is not a return to support for authoritarians
but a longer-term commitment to liberal democracy with social secu-
rity. Nor do radical leftists provide clear evidence that US democ-
racy assistance comprises cultural imperialism. Washington does not
insist on replication of the American political model, although it does
favour as little statism as possible, which can be a problem – as already
discussed.
US support for democracy abroad requires reduced expectations in the
short term because of daunting social obstacles. Furthermore, funding
with a more concentrated focus over time, less strategic and economic
self-interest, and more integration between political and economic fac-
tors, would all seem to be required. Furthermore, since liberal democracy
takes time, money, and nurturing, the United States must be patient, es-
pecially with regard to those countries that have no previous acquain-
tance with liberal democracy. None of these, however, are on the imme-
diate horizon in Washington.
In fact, after 11 September 2001, owing to US foreign policy, the pros-
pects for successful democratic transitions were significantly reduced
in a number of countries, such as Pakistan. When the world’s only hy-
perpower chooses to emphasize its traditional national security through
an emphasis on fighting terrorism, such states as Pakistan will be free
from US democracy promotion and pressures as long as they prove
helpful to Washington in short-term security matters. It may be true
that many Islamic ‘‘terrorists’’ arose out of repressive Islamic states; in
the immediate aftermath of September 11, however, Washington did
not respond with increased emphasis on democratic transitions in places
such as Saudi Arabia or Algeria. Whether this pattern might change
over time is a matter of great significance, certainly for the question of
democracy but also, perhaps, for the question of national security in
broader terms.
Notes
1. We would like to thank Patrice McMahon for her helpful comments on an earlier ver-
sion of this chapter. Doug Bend also provided research assistance.
2. Press Briefing on the Release of Country Reports on Human Rights Practices, 1999, 25
February 2000.
3. Yuri Fedorov, ‘‘Democratization and Globalization: The Case of Russia,’’ Working
Papers, No. 13, Washington: Carnegie Endowment for International Peace, May 2000,
p. 1.
4. Joshua Muravchik, Exporting Democracy: Fulfilling America’s Destiny, Washington, D.C.:
American Enterprise Institute Press, 1991. See also Gregory A Fossedal, The Demo-
cratic Imperative: Exporting the American Revolution, New York: Basic Books, 1989.
5. See further Michael Ignatieff, ‘‘Is the Human Rights Era Ending,’’ New York Times, 5
February 2002, A25. Ignatieff correctly treats democracy as a subset of the larger con-
cept of human rights.
6. For a classic approach to the subject see Robert Dahl, Who Governs? Democracy and
Power in an American City, New Haven: Yale University Press, 1961.
7. Patrice McMahon, ‘‘What Have We Done? Evaluating International Involvement in
Bosnia,’’ paper presented at the annual conference of the International Studies Associ-
ation, Chicago, 20–24 February 2001.
8. Robert Putnam, Making Democracy Work, Princeton: Princeton University Press, 1995.
9. Fareed Zakaria, ‘‘The Rise of Illiberal Democracy,’’ Foreign Affairs, No. 76, Nov/Dec.
1997, pp. 22–43.
10. Scholars have convincingly argued for the need to emphasize more than simply civil and
political rights. See Henry Shue, Basic Rights, Princeton: Princeton University Press,
1980; Rhoda Howard, Human Rights and the Search for Community, Boulder: Westview
Press, 1995.
11. David P. Forsythe, ed., Human Rights and Comparative Foreign Policy, Tokyo: United
Nations University Press, 2000.
12. It is worth noting that, for the first time, the Group of Eight countries committed
themselves to coordinating their democratic assistance to countries in transition. See
John Shattuck, ‘‘Diplomacy with a Cause: Human Rights in US Foreign Policy,’’ in
Samantha Power and Graham Allison, eds, Realizing Human Rights, New York: St
Martin’s Press, 2000, p. 282.
13. South Africa, for example, received $139 million in 1996 from the European Union, $16
million from Germany, and over $140 million from the United Kingdom. In addition,
Canada, Australia, Sweden, Norway, Denmark, and the Netherlands all offered support
for South Africa’s transition to liberal democracy. See hwww.usaid.gov/democracy/afr/
soafrica.htmli.
14. Michael H. Hunt, Ideology and US Foreign Policy, New Haven: Yale University Press,
1987. The link between American national identity and democracy is also echoed in
various documents from government agencies such as USAID. See hwww.usaid.gov/
democracy/i.
15. Tony Smith has argued that democracy promotion has been the defining feature of
American foreign policy for the greater part of the last hundred years. See Tony Smith,
‘‘US Democracy Promotion: Critical Questions,’’ in Michael Cox, G. John Ikenberry,
and Takashi Inoguchi, eds, American Democracy Promotion, Oxford: Oxford University
Press, 2000, p. 63–84. See also Tony Smith, America’s Mission: The United States and the
Worldwide Struggle for Democracy in the Twentieth Century, Princeton: Princeton Uni-
versity Press, 1994.
16. The literature on the democratic peace thesis is abundant. For a good introduction see
Michael Doyle, The Ways of War and Peace, New York: Norton, 1997. One of the more
recent discussions comes from Bruce M. Russett and John R. Oneal, Triangulating
Peace: Democracy, Interdependence, and International Organizations, New York: Nor-
ton, 2001.
17. Speech given on 25 February 2000. See hwww.state.gov/speechesi.
18. Thomas Carothers, ‘‘The Clinton Record on Democracy Promotion,’’ Working Papers,
No. 16, Washington: Carnegie Endowment for International Peace, September 2000.
19. New York Times, 20 September, 2002, hwww.nytimes.com/20002/09/20politics/
20STEXT_FULL.htmli.
20. See especially Thomas Carothers, ‘‘Aiding – and Defining – Democracy,’’ World Policy
Journal, Vol. 13, No. 1, Spring 1996, pp. 97–109.
21. Samuel Huntington, The Third Wave: Democratization in the Late Twentieth Century,
Norman: University of Oklahoma Press, 1991. See also Greg Sorensen, Democracy and
Democratization, Boulder: Westview, 1993; and Terry Lynn Karl and Philippe C.
Schmitter, ‘‘Democratization around the Globe: Opportunities and Risks,’’ in Michael
T. Klare and Daniel C. Thomas, eds, World Security: Challenges for a New Century,
New York: St Martin’s Press, 1994.
22. See further Aung San Suu Kyi, ‘‘Freedom, Development, and Human Worth,’’ Journal
of Democracy, Vol. 6, No. 2, April 1995; and Jacques Barzun, ‘‘Is Democratic Theory
for Export?,’’ in Joel Rosenthal, ed., Ethics and International Affairs, Washington:
Georgetown University Press, 1999, p. 57.
23. See, for example, Putnam, Making Democracy Work; Francis Fukuyama, ‘‘Social Capi-
tal and the Global Economy,’’ Foreign Affairs, Vol. 74, No. 5, September/October, 1995,
pp. 89–104; and Edgar Owens, The Future of Freedom in the Developing World: Eco-
nomic Development as Political Reform, New York: Pergamon Press, 1987.
24. Thomas Carothers, Aiding Democracy Abroad: The Learning Curve, Washington D.C.:
Carnegie Endowment for Peace, 1999.
25. See Carothers, ‘‘The Clinton Record on Democracy Promotion.’’
26. For an AID general statement, see ‘‘USAID’s Strategies for Sustainable Development:
Building Democracy,’’ available at hhttp://www.info.usaid.gov/democracy/strategy.htmi.
See also Carothers, ‘‘Aiding – and Defining – Democracy.’’
27. Carothers, ‘‘Aiding – and Defining – Democracy.’’
28. Interhemispheric Resource Center and the Institute for Policy Studies, ‘‘In Focus: US
Democratization Assistance,’’ Foreign Policy in Focus, Vol. 4, No. 20, July 1999, avail-
able at hwww.foreignpolicy-infocusi.
29. ‘‘The Milosevic Regime Versus Serbian Democracy and Balkan Stability,’’ Hearing
Commission on Security and Cooperation in Europe, 105th Congress, 2nd session, 10
December 1998, Washington: GPO, 1999, p. 41.
30. Washington Post, 31 August 1999, p. 8.
31. See hwww.freedomhouse.orgi.
32. International Herald Tribune, 12 June 2001, p. 9.
33. Thomas M. Frank, ‘‘The Emerging Right to Democratic Governance,’’ American Jour-
nal of International Law, Vol. 86, No. 1, January 1992, pp. 46–91. However, for the ar-
gument that there are many sources of governmental legitimacy in fact, and for a review
of the obvious fact that the United States has normal relations with numerous authori-
tarian governments, see David P. Forsythe, Human Rights and Peace: International and
National Dimensions, Lincoln: University of Nebraska Press, 1993, chapter 3.
34. Francis Fukuyama, The End of History and the Last Man, New York: The Free Press,
1992.
35. See further Richard J. Bloomfield, ‘‘Making the Western Hemisphere Safe for Democ-
racy? The OAS Defense of Democracy Regime,’’ The Washington Quarterly, Vol. 17,
No. 2, Spring 1994, pp. 157–169.
36. To participate in hemispheric economic plans, a state had to be a democracy. See
hwww.americascanada.org/eventsummit/declarations/declara-e.aspi.
37. See further David P. Forsythe, ‘‘The United Nations, Human Rights, and Develop-
ment,’’ Human Rights Quarterly, Vol. 19, No. 2, May 1997, pp. 334–349; David Gillies,
‘‘Human Rights, Governance, and Democracy: The World Bank’s Problem Frontiers,’’
Netherlands Quarterly of Human Rights, Vol. 1, No. 1, March, 1993, pp. 3–24.
38. David P. Forsythe, ‘‘Human Rights and International Security: United Nations Field
Operations Redux,’’ in Monique Castermans-Holleman et al., eds, The Role of the
Nation-State in the 21st Century, The Hague: Kluwer, 1998, pp. 251–264.
39. USAID has created a new office – The Office of Transition Initiatives of the US
Agency of International Development – which developed a Rule of Law programme
that trains judges, court administrators, prosecutors, defence lawyers, etc. Available at
hwww.state.gov/www/global/humanrights/hrsreportsmainhp.htmli. See also Shattuck,
‘‘Diplomacy with a Cause: Human Rights in US Foreign Policy,’’ p. 282.
40. Howard J. Wiarda, Cracks in the Consensus: Debating the Democracy Agenda in
US Foreign Policy, Westport: Praeger, for the Center for Strategic and International
Studies, Washington Papers #172, 1997.
41. Many agencies concerned with the public-opinion backlash of long-term, expensive
programmes have imposed time limits on such programmes. For example, USAID plans
to phase out an education programme by 2005 for this reason.
42. Frank Newman and David Weissbrodt, International Human Rights: Law, Policy and
Process, Cincinnati: Anderson, 1990.
43. See further on this topic Amartya Sen, Development as Freedom, New York: Oxford
University Press, 1999.
44. Jean-Philippe Therien, ‘‘Foreign Aid and Global Justice,’’ Paper presented at ISA
Conference, Chicago, 20–24 February 2001.
45. Nikolas Emmanuel, ‘‘The Determinants of US Foreign Assistance in the Post Cold War
Era,’’ Paper presented at ISA Conference, Chicago, 20–24 February 2001.
46. Cox, Ikenberry, and Inoguchi, eds, American Democracy Promotion.
47. Hermann Giliomee, ‘‘Democratization in South Africa,’’ Political Science Quarterly,
No. 110, Spring 1995, pp. 83–104.
48. One example of international pressure was the 1986 Comprehensive Anti-Apartheid
Act adopted by the US Congress. Ibid., p. 88.
49. The US contributed $10 million to assist the 1994 election.
50. Under the Constitution various rights are articulated, including the right to freedom and
security of person, which includes the right not to be deprived of freedom arbitrarily or
without just cause; not to be detained without trial; to be free from all forms of violence
from either public or private sources; not to be tortured in any way; and not to be
treated or punished in a cruel, inhuman, or degrading way. In addition, everyone has
the right to privacy, freedom of conscience, religion, thought, belief and opinion, free-
dom of expression, and freedom of association. Most of the rights established under the
new constitution relate to those civil and political rights found in the ICCPR. Although
South Africa’s Constitution mentions some economic rights found in the ICESC Eco-
nomic, Social and Cultural Rights, it does so in a passive manner: for example, Article
26 states that everyone has the right to have access to adequate housing; similarly, Ar-
ticle 27 states that everyone has the right to have access to health-care services, and
sufficient food and water. However this amounts to a non-discrimination clause rather
than a legitimate right to housing, food, water, and health care.
51. See hwww.amnesty.orgi.
52. This is not surprising, as heavy ethnic party voting by ethnic groups is quite common in
consolidated democracies.
53. See David Welsh, ‘‘The State of the Polity,’’ in J.E. Spence, ed., After Mandela:
The 1999 South African Elections, London: Chatham House, 1999; and also hwww.
freedomhouse.org/ratings/index.htmi.
54. Sarah Mendelson and John Glenn, ‘‘Democracy Assistance and NGO Strategies in Post
Communist Societies,’’ Working Papers, No. 8, Washington: Carnegie Endowment for
International Peace, February 2000.
55. Fedorov, ‘‘Democratization and Globalization.’’
56. Ibid, p. 2.
57. Bruce Garver, ‘‘Human Rights in Czech and Slovak History,’’ in David P. Forsythe, ed.,
Human Rights in the New Europe, Lincoln: University of Nebraska Press, 1994, Chapter
4.
58. Ballot irregularities and disputed counting methods have led the opposition and the in-
ternational community to question the election in 2000. See New York Times, 8 Febru-
ary 2001, A6. Recently, Aristide has offered to hold elections in 2002 because of the
international pressure that he has received. His motive is partly financial: in return for
holding elections next year, Aristide has requested that the OAS resume foreign aid to
Haiti. International Herald Tribune, 5 June 2001.
59. New York Times, 5 March 2001, A23.
60. David Brinkley, ‘‘Democratic Enlargement: The Clinton Doctrine,’’ Foreign Policy,
Vol. 106, Spring 1997, pp. 111–127.
61. Budget of the US Government, Fiscal Year 1999, 105th Cong., 2nd session, H. Doc 105–
177, Vol. 1, Washington: GPO, 1999.
62. Shattuck, ‘‘Diplomacy with a Cause.’’ See also Mendelson and Glenn, who demonstrate
that only 2.8 per cent of US assistance to Russia went to democratic activities from 1990
to 1999. Conversely, the European Union, while giving less assistance overall, gave a
greater percentage of its aid – 19 per cent – for democracy assistance.
63. The Freedom Support initiative was in addition to the Support for Eastern European
Democracies initiative. Both elevated economics over democracy in both theory and
practice.
64. This is why many USAID statements argue that, through the promotion of democracy
in Latin America, the United States was pursuing the national interest because doing so
would reduce the region’s poor from seeking refuge and better economic opportunities
in the US. See further Smith, ‘‘US Democracy Promotion’’; and Abraham F. Lowenthal,
Exporting Democracy: The United States and Latin America, Baltimore: John Hopkins
65. Carothers, ‘‘Aiding – and Defining – Democracy.’’
66. hwww.usaid.gov/democracy/afr/soafrica.htmli.
67. Max Singer and Aaron Wildavsky, The Real World Order, New York: Seven Bridges
Press, 2001.
68. Secretary of State Albright stated that South Africa was ‘‘obviously the leading country
on the continent.’’ For Albright’s speech, given in Pretoria on 9 December 2000, see
hhttp://secretary.state.gov/www/statements/2000i. For similar justifications of assistance
to South Africa see hwww.usaid.gov/democracy/afr/soafrica.htmli.
69. Fedorov, ‘‘Democratization and Globalization.’’
70. Slovenia desired to be accepted into the Council of Europe and eventually into the
EU; the Council of Europe has become the ante-chamber for the EU, which makes both
together a major pull factor for liberal democracy. See further David P. Forsythe, Hu-
man Rights in International Relations, Cambridge: Cambridge University Press, 2000,
Chapter 5.
71. Fukuyama, The End of History and the Last Man and ‘‘Social Capital and the Global
Economy.’’
72. Even realists such as Robert Gilpin accept the fact that the rough edge of capitalist de-
mocracy must be buffered by welfare/preservation rights. See The Challenge of Global
Capitalism, Princeton: Princeton University Press, 2000, p. 4.
73. Larry Diamond, Promoting Democracy in the 1990s, New York: Carnegie Corporation,
1995.
74. George Soros, ‘‘The Capitalist Threat,’’ Atlantic Monthly, Vol. 279, No. 2, February
1997, pp. 45–58.
Part Three
Sources of human rights violations
and their impact on peace,
democratization, and economic
development
9
Sources and consequences of
human rights violations in Iraq
Jenab Tutunji
The fall of the Ba’thist regime that had ruled Iraq since 1968 unleashed
unpredictable social forces. Saddam Hussein, who rose from strongman
to undisputed leader in 1979, and who ushered in an era of unprece-
dented human rights abuses in Iraq, was swept from power in April 2003
by the invading armies of the United States and the United Kingdom.
Security Council resolution 1483 bestowed international legal standing
on the occupation authority that was to govern Iraq and manage its oil
resources until the formation of a new Iraqi government, which, at the
time of writing, was not expected to happen for approximately another
two years. One of the stated objectives of Washington and London was
to transform the politics of Iraq and to institute a democratic regime that
would be a model for the region as a whole. The future is uncertain, yet
the best approach to predicting the future of human rights in Iraq is to
revisit the past and identify the causes of the violation of those very
rights.
In this chapter I attempt to identify structural and situational factors
that have contributed to human rights violations in Iraq during the
Ba’thist regime, which governed Iraq from 1968 to 2003. I focus on the
role of institutions, while permitting recourse to cultural and other ex-
planations to supplement the causal analysis. This enables light to be
shed on important causal factors that are intangible but which, neverthe-
less, contributed to human rights violations.
The state of Iraq came into being after World War I, at which time it
191
192 TUTUNJI
came under British rule. A 1922 treaty with Britain transformed Iraq into
a Mandate in all but name. The British established a constitutional mon-
archy and, in July 1924, an Organic Law (constitution) was adopted,
which gave the country a limited parliamentary democracy. However, the
British were not reluctant to subvert the authority of parliament – a les-
son not lost on the Iraqis. Political groups and parties were established
under the monarchy but not under conditions that would foster the con-
duct of healthy democratic life; nevertheless, a limited civil society ex-
isted at the time. In 1932, Iraq gained nominal independence. In 1936,
General Bakr Sidqi mounted the Arab world’s first coup, helping to un-
dermine the prospects for democracy.
Iraq became a distinctly authoritarian state after the bloody revolu-
tion of 1958, in which the entire royal family was massacred and which
brought a dictator, General Abdel Karim Qassem, to power. Qassem
designated the cabinet as the supreme executive and legislative authority
in the country. The Qassem regime was toppled in a second bloody coup
by an alliance of the military and the Ba’th in February 1963. In Novem-
ber 1963, the first Ba’th regime was overthrown by Nasserist army offi-
cers, who remained in power until July 1968, when the second Ba’th
regime was established. On 21 September 1968, a new provisional con-
stitution vested full executive and legislative power in the Revolutionary
Command Council (RCC) until the election of a national assembly. The
actions of the president and the RCC were not subject to judicial chal-
lenge. This absence of the accountability of branches of government to
each other, and of the government to the people, by virtue of the struc-
ture of the state allowed repression and chronic human rights violations
to continue unchecked.
It will be argued that, between the Ba’th’s return to power in 1968 and
the early 1980s (a few years into the war with Iran), Iraq underwent a
transition from an authoritarian to an ideocratic rentier state. A novel
aspect of the regime that came to power in 1968 was single-party rule.
The term ‘‘ideocratic’’ denotes the exclusive and ubiquitous hegemony of
a doctrine, in this case Ba’thist ideology, in all aspects of life. The Ba’th
Party gradually acquired a monopoly on political life and over the orga-
nizations of civil society found even in an authoritarian state, replacing
them with Ba’th Party institutions. In the process, the state virtually
swallowed up civil society. Being an ideocratic state also provided ample
justification for repression, as differences with the government were per-
ceived as heresy or treason.
In the second place, Iraq became a rentier state because of its depen-
dence on economic rents from the sale of oil, which is the main source of
government revenues. This granted the executive branch autonomy from
the legislature, since the elected assembly no longer controlled the power
of the purse and became a powerless body. Economic rents allowed the
IRAQ 193
state to launch social and economic programmes for the benefit of the
people, which established the dependence of society on the state. Being a
rentier state diminishes accountability by the government and is inimical
to participation by the people in government and contestation of state
actions.
I have combined the terms ‘‘ideocratic’’ and ‘‘rentier’’ to highlight a
particular type of government of which Iran and Saudi Arabia, as well as
Iraq, are examples. The aspect of rentierism compounded the threat to
political and civil liberties posed by the ideocratic nature of the state.
The third point has to do with Saddam Hussein and the changes he
brought about. On 16 July 1979, Saddam Hussein (who had been the real
power behind the scenes almost from the beginning) became President of
Iraq. He also occupied the office of Prime Minister. Barely two weeks
after he assumed power, there was a major purge of ‘‘all suspected ele-
ments’’ from the Ba’th party and its various organs, ‘‘including the army,
the Popular Army, trade unions, student unions, professional and other
associations, and departments . . . . For several weeks, a reign of unprece-
dented terror enveloped Iraq.’’1 Twenty-two Ba’th leaders, including
one-third of the Revolutionary Command Council, were executed, and
about 500 senior party officials were arrested. Saddam had eliminated all
internal opposition to his rule and gained uncontested control of the
party.
In the mid-1980s, a few years into the war with Iran and primarily as a
consequence of difficulties arising from the war, Saddam Hussein pushed
through a transition that involved the partial de-institutionalization of
state apparatuses, the relative marginalization of the Ba’th Party, and
the ascendancy of the personal rule of Saddam Hussein, his family, and
the clientelist networks loyal to them. He was willing to sacrifice tens of
thousands of Iraqis in war in order to realize his ambitions for Iraq, and
to execute an equal number of his countrymen to support his regime.
Nevertheless, there is an entangled recursive relationship between Sad-
dam’s personality and the structural factors mentioned here.
The fourth point I establish in this chapter is that warfare has severely
exacerbated human rights violations in Iraq, making an already bad situ-
ation even worse. It has led to rebellions that invited violent repression
by the government and simultaneously provided the state with a justifi-
cation for its actions. The most egregious example of human rights vio-
lations occurred in 1988 when the regime mounted the ‘‘Anfal’’ campaign
to subdue Kurds in rural northern Iraq, who had rebelled against the
state during the war with Iran. The combination of being an ideocratic
rentier state and the fatality of warfare was poisonous for democracy and
human rights.
The fifth point concerns Iraq’s ethnic and sectarian make-up. The de-
sire of the Kurds for a state of their own, for independence or at least
194 TUTUNJI
meaningful autonomy, led to a series of rebellions on their part. These

rebellions were met by brutal state repression dating back to the monar-
chy under British rule. In September 1961 the Kurds rose against the
government, and the army launched the first major campaign against
them. The Kurdish rebellion subsequently settled into chronic guerrilla
warfare. This legacy has not been conducive to respect for human rights.
The suppression of ethnic minorities was certainly not a successful policy
when applied to the Kurds, breeding further rebellion and repression.
The conflict between religious Shi’ites, some of whom were influenced
by the example of Iran, and the secular Ba’thist regime dominated by the
Sunni minority, led to the suppression of manifestations of Shi’ite aspi-
rations and even the banning of some Shi’ite religious rituals. Kurdish
rebellions during the Iran–Iraq war, and Kurdish and Shi’ite uprising
after Iraq’s retreat from Kuwait, led to human rights violations on a mas-
sive scale, the victims of which are being uncovered today in mass graves.
Here too, the combination of two powerful forces – the juxtaposition of
ethnic conflict and warfare – proved to be another deadly combination,
multiplying the effect of each other.
The sixth point is that the economic sanctions imposed by the UN
Security Council, in addition to the destruction of Iraq’s economic infra-
structure during the 1991 war, have been responsible for egregious vio-
lations of human rights in Iraq on a massive scale. This includes the death
of half a million children five years old or younger (not to mention older
children and women) due to disease and malnutrition, according to a
UNICEF study published in 1999.2 Some traditionalists question whether
the violation of such ‘‘third-generation’’ rights as the right to food or
health should qualify as human rights violations; others maintain that the
sanctions were responsible for crimes against humanity: surely, children
have a right to life. Ironically, the victims of the economic sanctions out-
number the victims of repression by the Baghdad regime; this is particu-
larly lamentable as the child victims covered in the UNICEF study had
not been born at the time Iraq invaded Kuwait, an act for which the
sanctions were imposed.
Lamentably, one has to conclude that human rights violations in Iraq
are ‘‘overdetermined’’ in the sense that one can find more causes than
one needs to explain them. When combined, these factors produced
abuses that may not have resulted from any one of them alone.
Iraq as an ideocratic rentier state
The Arab-nationalist and socialist Ba’th regime in Iraq was guided by the
mantra of unity, freedom, and socialism. These central objectives were
IRAQ 195
rigorously pursued from the date of the assumption of power by the

Ba’th regime until the early 1980s. A principal tenet of Ba’thist ideology
was completing the liberation of the Arab world from colonialism and
imperialism. Freedom referred not to individual liberties but to liberation
from foreign domination and economic independence. The strategy for
achieving the latter was based on the nationalization of the oil industry
and a drive for import-substitution industrialization in an economically
self-reliant framework. This was to be achieved by building a fully inte-
grated, diversified, industrial base and through socialist transformation of
the economy. Land redistribution, which began in 1958 but had stalled,
was pushed forward by one of the first acts of the regime, partly to
weaken the bourgeoisie and the political class of the ‘‘ancient regime’’
(whose interests were seen as tied to those of the former colonial rulers)
but also because the measure was extremely popular. Land was given
away to peasants; cooperatives were established and agricultural collec-
tivization introduced.
However, in order to protect the achievements of the regime and to
guard against an overthrow by its enemies, the regime had to consolidate
its power and establish its ideological and functional legitimacy. Quite
significantly, it is clear that an important rationale for turning Iraq into a
one-party state, and the heavy reliance of the regime on intelligence
services, was to defend against an army coup, such as the one that put
an end to the first Ba’thist regime. This policy was quite successful in
achieving its objective and goes a long way to explaining why Saddam
Hussein managed to remain in power for so long. The transformation of
Iraq into an ideocratic state was accompanied by the transfer of power
from military officials to party bureaucrats and the transition to a one-
party state. This process was evident in the changing membership of the
RCC and the Regional (Iraqi) Command of the Ba’th Party. Baram notes
that ‘‘[i]n 1968, the RCC consisted entirely of career officers, and their
representation at the RL (Regional Leadership [or Command]) and in
the government was fairly high, too. By 1986, career officers had all
but disappeared and their place was taken, in all three bodies, chiefly by
civilian party functionaries.’’3 By early 1987 army officers represented
only 11 per cent of the RCC and 13 per cent of the Regional Command.4
In what sense was the Ba’thist regime ideocratic? Ernest Gellner came
to believe, in his later writings, that totalitarian regimes, notably com-
munist ones, sought the fusion of truth, power, and society as the fulfil-
ment of the human condition and the historic plan; that the government
was the caretaker of absolute righteousness: political authority aimed at
total virtue, and opposition to it constituted a vicious disturbance of the
moral order.5 Although the Ba’th is opposed to Marxism, it had its own
version of a one-party quasi-totalitarian state, the doctrine of which em-
196 TUTUNJI
bodied incontestable truth, and it did attempt such a fusion of truth and
power. The mass media served as a mouthpiece for the regime and contri-
buted in a significant way to the indoctrination of the public. Traditional
means of socialization, including schools and the family, were recruited in
the dissemination of the dominant ideology. Parents taught their children
to love ‘‘Papa Saddam,’’ lest those children should blurt out something
in school that indicated that their parents were anti-regime.
To ensure loyalty to party ideology and the regime, Iraq became a po-
lice state. Kanan Makiya (writing under the pen name of Samir al-Khalil)
elaborates on this theme in his book Republic of Fear. As he sees it, the
state had instituted a culture in which true or real citizens were those who
were loyal to the ideals of the Ba’th; those who were not loyal fell be-
yond the pale: they were dehumanized and excluded.6 He argues that
violence was pervasive and institutionalized, and fear and suspicion en-
demic. In addition, the Ba’th Party cadres were expected to report on
their fellow citizens, and the party’s mass organizations also functioned as
surveillance organizations. The government’s security apparatus included
militias attached to the President, the Ba’th Party, and the Interior Min-
istry. Al-Khafaji speaks of ‘‘a network of intelligence apparatuses that
pervaded all aspects of Iraqi society.’’7 Some observers have even de-
scribed the regime in Baghdad as Stalinist (Saddam Hussein was deeply
impressed by Stalin, and studied him intensively).
In addition to its ideological hegemony, the regime sought to dominate
the economy. The pursuit of the regime’s economic articles of faith led
it to nationalize the Iraq Petroleum Company in 1972. This had impor-
tant consequences for the regime: by 1980, oil provided half of Iraq’s
national income and the lion’s share of governmental revenues. This
created a government that was autonomous of civil society, and a civil
and economic society that was dependent on the government. However,
the Ba’th regime believed that people had economic rights, even as it
denied them political and civil rights. By 1978, the public sector had be-
come dominant in the economy and a socialist agricultural sector was
well established with about 80 collective farms, over 700 cooperatives,
and eight giant state farms. The quasi-feudal landowning class of tribal
leaders had been divested of most of its holdings.8 During this period, the
middle class doubled from one-third to two-thirds of the population. One
may even argue that, at least for the first 10–15 years after 1968, Ba’th
Party leaders thought they were carrying out the ‘‘general will’’ of the
people and the nation. Egalitarian economic development was pursued,
and many programmes were directed at the poor. Significant progress
was achieved in the economic development effort. By 1982, the public
sector accounted for 80 per cent of GNP.9 This coincided with the apogee
of the power of the Ba’th Party.
IRAQ 197
Owing to the overpowering significance of oil revenues, Iraq had be-

come a rentier state (like Algeria and Iran), independent of tax collection
for the lion’s share of state revenues, and therefore less accountable to
the public. In fact, it came to view itself as the benefactor of the public. It
gained functional legitimacy as the provider of economic progress and
development.
The term ‘‘rentier state’’ is used here to refer to developing economies
in which the state is largely or primarily dependent on economic rents
deriving from the exploitation of mineral resources, such as oil produc-
tion and export.10 Oil revenues in such countries tend to flow directly
into the hands of a state élite. In the absence of the state’s dependence
on taxation, this undermines a principal traditional rationale for the de-
mand for representative government. The consequence is that primarily
those state institutions that perform a distributive function are fully de-
veloped; this is done at the expense of regulatory institutions; political
and civil rights remain underdeveloped. In terms of societal norms, au-
thoritative rather than market-oriented modes of allocation of resources
become dominant. The state comes to provide certain functions on which
segments of society become dependent: a welfare state is established. In
times of hardship, as state revenues decline, the state is sorely tempted
to resort to patron–client relationships in the allocation of limited re-
sources, and to use those resources selectively to enhance its power base.
This is what happened in Iraq, and there is some similarity in this regard
between it and Algeria.11
The transition to sultanism
During the 1970s and early to mid-1980s, the regime’s power was con-
solidated. For the first three years of the war with Iran, Iraq’s gov-
ernment continued its welfare programmes by drawing down its foreign
reserves and accumulating foreign debt, particularly to Kuwait and Saudi
Arabia. However, the process of consolidation was halted and partially
reversed as the war with Iran depleted state revenues. For a while the
war went badly for Iraq, and the loyalty of the army to the regime could
not be ensured. In 1984, the Republican Guard, consisting of troops loyal
to the President, was hugely expanded, and the amn khas (intelligence
service to protect the President) was formed, so that there were now four
security services. Most damaging, perhaps, was the tendency to shift state
power from the party to the family and clan of the President, laying
the basis for sultanistic rule.12 This was marked by despotic powers of the
head of state, extreme glorification of the ruler, the undermining of the
credibility of Ba’thist ideology and institutions, and the adulteration or
198 TUTUNJI
replacement of the instruments of party control of social life with patron–

client relationships and an increase in police coercion.
Two important transformations accompanied this. One was in the na-
ture of the rentier state itself. As oil revenues fell as a result of world
market conditions in the mid-1980s, as oil installations were damaged in
the course of the war with Iran, and as military expenditures mounted,
reliance on economic rents diminished. Nevertheless, strategic rents in
the form of grants and loans from Kuwait and Saudi Arabia replenished
the state’s coffers, as Iraq convinced its Arab neighbours that it was
fighting the war with Iran partly to protect them from the dominance and
depredations of a powerful Iranian state for which they themselves were
no match. The accumulation of debts to Kuwait would soon lead to an-
other war. In addition, functional legitimacy (i.e. the sort of legitimacy
arising from the practical social services provided by the state) had de-
clined with the fall in the government’s oil revenues due to the war and
the international market. Ideological legitimacy was eroded by the pri-
vatization measures that undid land reform and restored the prerogatives
and property of tribal chiefs. These chiefs became essential elements in a
new clientelist network, which included clans from Saddam’s hometown,
Tikrit.
Personal loyalty to Saddam came largely to replace party loyalty.
Zuhair al-Jazairi points out that the Iraqi variant of Ba’thism has gone
beyond the original ideology of Arab nationalism and socialism to
emphasize the role of the ‘‘historic leader’’ as hero and as a symbol, who
emerges to carry the nation forward towards its destiny. That hero, of
course, was Saddam Hussein.13 Saddam became the ‘‘leader-symbol’’ of
the nation. The demoralization of the regime led to a slide into corrup-
tion by Saddam Hussein and his family (Saddam had initially been a
crusader against corruption in government),14 and increased reliance on
violence to intimidate the population as a whole. Defaming or insulting
the President became an offence that was punishable by death. Later, the
cruel punishment of amputation of the tongue was introduced for such
offences.
Civil society
Democracy requires a vibrant civil society, freely formed civic associa-
tions, and solidarities.15 The Ba’th regime and the sultanistic regime into
which it evolved swallowed up civil society, a crucial force for democra-
tization. Civil society refers to organizations that mediate between citi-
zens and the state, such as political parties and interest groups, labour
unions and employers’ associations, women’s organizations or NGOs,
autonomous of the state.
IRAQ 199
Under the 1968 constitution, only Ba’thists could be members of the

RCC and the party retained exclusive control over the army. In an early
experiment, a National Front was formed with the Communist Party and
the Kurdish Democratic Party (KDP). The agreement with the KDP
broke down in the summer of 1973. The agreement with the communists
broke down when they tried to infiltrate the army. There was a crack-
down on the communists in the spring of 1978, and the Ba’th went on to
establish one-party rule.
The Provisional Constitution of 1968 stipulated that the Arab Ba’th
Socialist Party governed Iraq through the RCC, which exercised both
executive and legislative authority. The President could override the Pro-
visional Constitution whenever he wished to do so. In addition, he was
Secretary-General of the Regional (Iraqi) Command of the Ba’th Party.
The Party constituted a sort of parallel government and was a power in
its own right under the Leading Party Act No. 142 of 1974.
The Ba’th party spread its tentacles throughout state institutions. The
Iraqi state usurped civil society. For example, there was one legal trade
federation – the General Federation of Trade Unions, established in 1987
– which was associated with the Ba’th party and dominated by the gov-
ernment. Unions did not have the right to strike or to engage in collective
bargaining. Moreover, it has been alleged that the General Federation
of Iraqi Women was, in effect, part of the state security system.16 The
Federation enjoyed a monopoly: membership in any other women’s
organization was an offence punishable by a 15-year prison term. Student
unions, peasants’ associations, and unions of civil servants – even sports
clubs – were taken over by the Ba’th party.
Al-Khafaji remarks:
. . . the mid-1980s witnessed the eclipse not only of the Revolution’s Command
Council and the Regional Command of the Ba’th Party, but also the organiza-
tions that the Ba’th had designed to mobilize supporters, such as the National
Union of Students and Youth and the Federation of Peasants’ Associations. The
Federation of Labor Unions was abolished altogether, and workers in the state
sector, comprising a majority of wage earners, were henceforth banned from
joining unions.17
Ba’thist institutions did not disappear, of course, but they were often
sidelined and their ideological foundations were undermined. Alter-
natively, they were used as an extension of the clientelist networks loyal
to Saddam.
At the end of the Iran–Iraq war, political liberalization measures were
contemplated and elections for the National Assembly were announced
for April 1989. The regime spoke of allowing the formation and licensing
of political parties other than the Ba’th. One cannot tell what these plans
200 TUTUNJI
for political liberalization would have amounted to; at any rate, they were
cut short by the second Gulf War.
In theory, according to a 1991 law, non-Ba’thist parties could exist.
However, the regime did not recognize the political associations formed
by Kurds, Assyrians, Turkomans, and Shi’ites. Although elections for the
National Assembly were held in March 2000, the candidates either be-
longed to the Ba’th Party (which won 165 seats), or ran as unaffiliated but
pro-government candidates (these won 55 seats), or were appointed by
the President (30 seats). No candidates ran as representatives of parties
other than the Ba’th. Dissent within the party, the bureaucracy, or the
army was not tolerated – this was, in fact, almost invariably lethal to the
dissenters. Opposition was severely repressed – not only were opposition
parties illegal but also membership of some of them was punishable by
death.
Real opposition was to be found only outside Iraq, or in areas of the
north beyond the control of Baghdad since the early nineties. Indepen-
dent trade unions did not exist. In the Kurdish area outside the gov-
ernment’s control, a regional parliament was elected in 1992; however,
because of infighting between the Kurdish Democratic Party (KDP) and
the Patriotic Union of Kurds (PUK), it has not met since 1995.
However, it became apparent after the fall of the Ba’th regime that
one element of civil society had not been crushed. The mosque is a centre
where people continued to meet and socialize and Islamic groups and
solidarities in Iraq tended to survive, despite the repression and the
attempt by the state to intimidate, co-opt, and patronize the religious
establishment. Prominent clerics have networks of disciples and lay emu-
lators, and a share of religious taxes. Despite the former regime’s best
efforts to suppress and co-opt Shi’ism, we have witnessed the sudden
proliferation of Shi’ite groups.
Political, civil, and human rights violations by the regime

It is possible to categorize the Iraqi regime’s main human rights viola-
tions under two main headings: (1) war crimes; (2) the violation of indi-
vidual civil and political rights, as well as the right to life and security of
citizens from torture.
On 24 February 2000, the UN General Assembly passed resolution A/
RES/54/178, which stated that the Assembly strongly condemns:
(a) The systematic, widespread and extremely grave violations of human rights
and of international humanitarian law by the Government of Iraq, resulting
in an all-pervasive repression and oppression sustained by broad-based dis-
crimination and widespread terror;
IRAQ 201
(b) The suppression of freedom of thought, expression, information, association,

assembly and movement through fear of arrest, imprisonment, executions
and other sanctions;
(c) The widespread use of the death penalty in disregard of the provisions of the
International Covenant on Civil and Political Rights and the United Nations
safeguards;
(d) Summary and arbitrary executions, including political killings and the con-
tinued, so-called clean-out of prisons, as well as enforced or involuntary
disappearances, routinely practiced arbitrary arrests and detention, and con-
sistent and routine failure to respect due process and the rule of law, for
example, in the execution of delinquents for minor property offenses and
customs violations;
(e) Widespread, systematic torture and the enactment and implementation of
decrees prescribing cruel and inhuman punishment as a penalty for of-
fenses.18
Amnesty International (AI) has been reporting for years on such viola-
tions.19 In its 2001 annual report, AI reported that in the year 2000,
‘‘[t]orture and ill-treatment were widespread, and new punishments, in-
cluding beheading and the amputation of the tongue, were reportedly
introduced. Non-Arabs, mostly Kurds, continued to be forcibly expelled
from their homes in the Kirkuk area to Kurdistan.’’20 Also in 2001, AI
issued several appeals, among them one entitled, ‘‘Iraq: Relentless ex-
ecutions must end.’’ AI called for an immediate moratorium on execu-
tions, commenting that ‘‘[t]he high rate of executions in Iraq shows a
continuing disregard for human life.’’21 On 15 August, it issued a report
saying that, ‘‘[t]orture is used systematically against political detainees in
Iraqi prisons and detention centers. The scale and severity of torture in
Iraq can only result from the acceptance of its use at the highest level,’’
noting that this is in violation of the ICCPR, which Iraq ratified in 1971.22
According to Max van der Stoel, who served as Special Rapporteur of
the Commission on Human Rights on the situation of human rights in
Iraq from 1992 to 1999, there were an estimated 16,496 outstanding cases
of missing persons in Iraq during that period, the vast majority of them
Kurds who disappeared during the Anfal Campaign23 (discussed at
length below). This rendered Iraq the country with the highest number of
disappearances reported to the Working Group established by the Com-
mission on Human Rights.
Some human rights groups have placed the number of missing persons
over the past 35 years as high as 300,000, most of them presumed dead.
After the fall of the regime, Iraqis started digging up suspected mass-
grave sites, looking for missing family members. According to Sandra
L. Hodgkinson, a State Department official who had been documenting
some of the sites for the American occupation forces in Iraq,
202 TUTUNJI
[t]he truly frightening part is that the number of suspected mass graves is so un-
fathomable (. . .) They are everywhere. Literally every neighborhood and town is
reporting possible grave sites, and from all different periods of time. I think we’re
going to find them everywhere.24
The Ba’thist regime has also forcibly displaced hundreds of thousands of

ethnic minorities opposed to the government; however, there is no reli-
able figure on internal displacement in Iraq. Several waves of internal
displacement have occurred to and within northern Iraq. The number of
internally displaced persons in Iraq tends to fluctuate widely with time.
The impact of war and ethnic conflict on human rights

violations
War is a social and political process that has had a profound impact on
the organization of state–society relations in Iraq. Al-Khafaji speaks of
‘‘the normalization of war as a social condition and system of gover-
nance, the construction of a war-driven political economy.’’25 The devel-
opment of hyper-nationalism in various forms and Iraq’s self-appointed
role as defender of the Arab nation may well have shaped Iraqi political
identity and been used to valorize its military prowess, as al-Khafaji sug-
gests. There is little reason to doubt that the Iraqi regime sought to carve
out a niche for itself as a regional power and to derive strategic rents
from its role as the defender of other Arab states, notably small ones in
the Gulf. The regime cultivated militaristic attitudes and values and re-
sorted to war all too readily; it adapted itself to chronic conflict and was
inventive in using warfare to buttress its position.
The economic causes and consequences of warfare
War has had a devastating effect on the economy of Iraq, on civil and
human rights, and on political rights as well. The Iran–Iraq war (or the
first Gulf War) lasted from 1980 to 1988 and had the most severe con-
sequences for both participants. The second Gulf War, precipitated by
the invasion of Kuwait in 1990, completed the devastation, practically
knocking Iraq back into the pre-industrial age. The subsequent economic
sanctions, which are still in place at the time of writing, have perpetuated
malnutrition, disease, death, and suffering. The invasion of Kuwait, which
brought down the regime of Saddam Hussein, has so far left the county in
chaos.
Economic difficulties arising from the war with Iran were a major
causal factor in the invasion of Kuwait. The government responded to
IRAQ 203
the public sector’s difficulties amid war’s crushing economic burden with
a strategy of privatization. Privatization policies began in July 1982 and
further intensified in February 1987. They gave birth to an opportunistic
and state-dependent private sector, leading to higher inflation and eco-
nomic stagnation in Iraq, as well as increased social injustice and eco-
nomic inequality. The state became not only the main investor in the
economy but also the principal customer of private capital, nurturing a
private sector that is dependent on the state (not unlike Syria, another
Ba’thist state).26 Yet this was done at the expense of egalitarianism, par-
ticularly in the agricultural sector. Tighter governmental controls on the
public became necessary.
As economic stagnation intensified, the Iraqi regime became desper-
ate. The Kuwaiti government refused to cancel the debts the Iraqi gov-
ernment had incurred in the course of the war with Iran (perceived at the
time as a war that was fought partly in defence of Kuwait). When Kuwait
went on to exceed its production quota in the Organization of Petroleum-
Exporting Countries (OPEC) and entered into a dispute with Iraq over
drilling rights, the regime announced that Kuwait had declared economic
war on Iraq, and attempted to annex Kuwait.27 This only multiplied
Baghdad’s difficulties.
Kamran Mofid calculates the cost of the Iran–Iraq war for Baghdad to
be $452.6 billion. This amounts to 435 per cent of Iraq’s oil revenues
during the eight-year conflict or 112 per cent of its Gross National Prod-
uct (GNP) for each year of that war.28 Al-Nasrawi gives the figure of
$519 billion for the economic cost of the second Gulf War.29 This is equal
to 53 times Iraq’s Gross Domestic Product (GDP) in 1993. The cost of
the two wars verged on one trillion dollars.
Another illuminating perspective is offered by tracing the change in
Iraq’s per capita GDP in 1980 prices: it rose from $1,745 in 1970 to $4,083
at the beginning of the Iran war in 1980, but then fell to $1,756 in 1988 at
the end of the war with Iran and to $627 at the end of the second Gulf
War in 1991.30 Iraq’s per capita GDP in 1991 in real terms was actually
less than in 1950, when per capita GDP (in 1980 prices) stood at $654 and
the population was only 5.2 million. By 1993, per capita GDP had fallen
from the 1991 figure of $627 to $485, although the population had in-
creased by only one million. The above figures of the costs of the two
wars tell their own story. It is hard to imagine that the regime’s functional
legitimacy could have survived – although, after the economic sanctions
started to bite, its ability to distribute desperately needed food rations
must have restored some of that loss. The regime had no way to substi-
tute for the loss of functional legitimacy, except to resort to repression;
with the carrot gone, one has to rely on the stick more heavily.
According to Workman, ‘‘[w]arfare . . . often tips the balance of social
204 TUTUNJI
forces in favor of dominant social groups. Warfare more often than not
reinforces existing asymmetries of social power; that is, it tends to the
maintenance of socially oppressive relations.’’31 In a nutshell, the cost of
the wars in which Iraq has been involved since 1980 has been borne by
the general population, ethnic minorities, labour, and women, while the
regime succeeded in enhancing its position – except in the 2003 war, nat-
urally.
The Shi’ites
Shi’ite unrest broke out in February 1977. By the end of the decade, as
many as 200,000 Shi’ites may have been stripped of their nationality and
forcibly deported to Iran.32 Selective repression of Shi’ites resumed in
the aftermath of the Iranian revolution and the advent of Khomeini to
power. Khomeini’s overt enmity to the Ba’thist regime and his exhorta-
tions to the Shi’ites of Iraq to religious rebellion were followed by assas-
sinations of scores of government officials by the Islamic Da’wa Party
(which had been founded in the late 1950s to combat atheism and com-
munism). Later, in April 1980, an attempt was made to assassinate Dep-
uty Prime Minister Tareq Aziz. Subsequently, there was an attack on the
funeral of those killed in the assassination attempt. Membership in the
Da’wa Party was made a capital offence and hundreds were executed.
Imam Muhammad Baqer al-Sadr, the guiding light of the party, and his
widely venerated sister, Bint al-Huda, were arrested, tortured, and killed.
Riots broke out in the south and many were killed; however, the vast
majority of Iraq’s Shi’ites remained loyal to their country throughout the
Iran–Iraq war.
It is clear that the government’s fear of Iran’s ability to foment dis-
content among the Shi’ite population, segments of which could be mobi-
lized by Iraqi clerics, was a precipitant of the Iran–Iraq war.33
In the aftermath of the invasion of Kuwait, some retreating soldiers
mounted a rebellion and took refuge among Shi’ite opponents of the re-
gime. The rebels, who numbered as many as 50,000, carried out bloody
massacres, and their repression by the regime was particularly brutal.
The insurgency spread to the cities of Najaf and Karbala’, holy to the
Shi’ites. The rebels mounted a fierce resistance to government forces and
took refuge in a number of holy shrines, which were shelled by the Re-
publican Guards in putting down the rebellion. A large number of people
(including civilians), estimated at the time at anywhere between 600
and 6,000, were killed; another 3,000–6,000 were taken prisoner.34 Ever
since the fall of the Ba’th regime, mass graves, each containing scores of
bodies, have been discovered in many places in the south. On 14 May
2003 the New York Times reported the discovery of a mass grave in Ma-
IRAQ 205
hawil, 50 miles south of Baghdad, where an estimated 3,000 bodies were

unearthed from the salt marshes.35 A preliminary estimate, albeit un-
reliable, extrapolated that the general area, which used to be a military
camp, may contain as many as 11,000 bodies. They are all presumed to be
Shi’ites executed in different stages as a result of the rebellion of 1991.
Many of the rebels fled to the predominantly Kurdish north and to the
Mesopotamian marshlands of the Tigris–Euphrates Delta in the south.
Government forces then burnt and shelled villages in the south, and
the regime ordered the construction of dams to divert water from the
marshes. This enabled government forces to penetrate into formerly in-
accessible areas, where their Shi’ite opponents had found refuge.36
According to AI, there were many clashes in March 1999 between
Iraqi security forces and armed Islamist opposition groups in southern
Iraq, especially in Basra. These were sparked off by the killing of Aya-
tollah Muhammad Sadeq al-Sadr, a prominent Shi’ite religious leader,
the previous February. This reportedly led to dozens of deaths on both
sides and was followed by arbitrary mass arrests and summary execu-
tions.37 There were reports later in 1999 of deliberate artillery attacks by
government forces against Shi’ite civilians and large-scale burning oper-
ations in the southern marshes. In 2001, government forces were re-
ported to have attacked villages in the marshes.38
In the first two years after the second Gulf War, the US and Britain
imposed ‘‘no-fly zones’’ over northern and southern Iraq to deter aerial
attacks against the marsh Arabs and the Kurds of northern Iraq.
The Kurds
Iraqi Kurdistan covers about 17 per cent of the area of Iraq, constituting
the northern part of the country, including the oil-producing region of
Mosul and Kirkuk. After World War I, Britain attached the former Ot-
toman vilayet of Mosul to the former vilayets of Baghdad and Basra to
form the state of Iraq, over Kurdish objections. The Kurds have sought
independence and, in the pursuit of that objective, have been used, at
times wittingly or unwittingly, as pawns by the enemies of Iraq. There
were Kurdish rebellions in 1922 and 1930 stretching through 1931 and
1932. The first Barzani tribe rebellion in Iraq began in 1931. Mullah
Mustafa Barzani formed the KDP. During 1961–1963 the Iraqi army and
air force waged a campaign against Mullah Barzani’s forces – the pesh
merga (those who face death) – who numbered as many as 20,000 at the
time (and were to reach 50,000 in 1975).
In March 1970, the second Ba’thist regime struck an agreement
with the Kurds that granted them linguistic, educational, cultural, eco-
nomic, and political rights, including the appointment of a Kurdish vice-
206 TUTUNJI
president and a demographically proportionate share of seats in the

legislature.39 If anything, the Ba’th regime made a more viable attempt
than its predecessors to recognize Kurdish rights. Iraq thus became the
only one among the four countries sharing parts of the area of Kurdistan
to recognize the cultural rights of the Kurds. In 1974, the Baghdad re-
gime amended the March agreement by introducing the Autonomy Law
(which, in fact, curtailed the earlier agreement). During the 1974–1975
clashes with Iran, the Kurds received support from Iran, Israel, and the
United States; however, the fighting ended in March 1975 and Mustafa
Barzani was forced into exile.
In 1976 the KDP split into two, under the leadership of Idris and
Masud Barzani, respectively, and the PUK began to take shape, being
formed by 1978 under the leadership of Jalal Talabani. After the out-
break of the Iran–Iraq war, the KDP negotiated a cease-fire with the
Ba’th regime, but this fell apart slowly.
Halabja
The attack on civilians in the Kurdish town of Halabja is one of the most
notorious examples of the atrocities attributed to the reign of Saddam
Hussein, an incident which was behind President George Bush’s repeated
references to the Iraqi regime gassing its own people. On 16 March 1988,
the town of Halabja was bombed with poison gas (killing about 5,000
Kurds). This reportedly occurred during a counter-attack by the Iraqis,
who had been driven out of the town by the PUK fighting alongside
the Iranians.40 Immediately after the battle the United States Defense
Intelligence Agency investigated, and produced a classified report that
maintained that the Kurds had died from Iranian, not Iraqi, chemical
weapons. As the report was classified, it is hard to explain its conclusions
as part of an effort to support Iraq.
Stephen Pelletiere was the senior political analyst on Iraq for the Cen-
tral Intelligence Agency (CIA) during the war with Iran and led an US
Army investigation in 1991, which went into great detail about Halabja.
He wrote in an op-ed piece in the New York Times:
This much about the gassing at Halabja we undoubtedly know: it came about in
the course of a battle between Iraqis and Iranians. Iraq used chemical weapons to
try to kill Iranians who had seized the town, which is in northern Iraq not far
from the Iranian border. The Kurdish civilians who died had the misfortune to be
caught up in that exchange. But they were not Iraq’s main target (. . .) The agency
did find that each side used gas against the other in the battle around Halabja.
The condition of the dead Kurds’ bodies, however, indicated they had been killed
with a blood agent – that is, a cyanide-based gas – which Iran was known to use.
The Iraqis, who are thought to have used mustard gas in the battle, are not
known to have possessed blood agents at the time.41
IRAQ 207
The Anfal campaign
The Ba’th regime made a systematic attempt to eliminate the Kurdish

rebels, whom it viewed as collaborators with Iran during the 1980–1988
war. This took the form of the Anfal campaign during 1988 – the most
egregious case of human rights violations in Iraq. Over a period of
months, almost 4,500 Kurdish villages along the Turkish and Iranian
frontiers were destroyed. One estimate is that the Anfal campaign re-
sulted in the killing of between 50,000 and 200,000 Kurds and the depor-
tation of about 500,000 others to new ‘‘collective settlements’’ and to
detention camps.42
The Anfal campaign was an attempt by the Iraqi government to wipe
out the rebels (or pesh mergas) once and for all. The regime felt that they
constituted a ‘‘fifth column’’ that had been exploited by Iran during
Iraq’s hour of need, when it was on the defensive in the war, and that
they could be so exploited again. The PUK had consummated an alliance
with Iran in October 1986. In the eyes of the Baghdad regime the Kurd-
ish rebels were guilty of aiding and abetting the enemy, and they are re-
ferred to in government documents as ‘‘mukharribeen’’ or ‘‘saboteurs.’’
Members of the PUK are referred to in government documents as
‘‘agents of Iran,’’ while KDP members are referred to as ‘‘the offspring of
treason.’’43
The campaign began once Iraq could free sufficient divisions from the
Iranian front near the end of the war. It was meant as a final solution to
the problem of Kurdish rebellion and was not merely a punitive cam-
paign. The target was the rural Kurdish population in northern Iraq
between the southernmost Kurdish zones and the Turkish border. The
intention was first to identify and then to eliminate all Kurdish men who
had fought against the state, and to arrest men of fighting age to deter-
mine whether they posed a threat. The plan was also to prevent Kurds
from returning to a large number of villages. For this purpose, the Iraqi
army started by bombarding Kurdish villages in the southern zones with
conventional (and, in some cases, perhaps, chemical) munitions in order
to start an exodus towards the Turkish border. The villagers fled and
were then caught in a giant ‘‘pincer’’ movement as the Iraqi army simul-
taneously drove north and south from the Turkish border. The Kurds
had no option but to surrender. Middle East Watch, a branch of Human
Rights Watch, argues44 that there is strong reason to believe that a pat-
tern of government action could be discerned. Those who were carrying
guns were lined up and shot on the orders of the Northern Bureau of the
Ba’th Party under the command of Ali Hassan al-Majid, a cousin of Sad-
dam Hussein. Many of those arrested were never released, and some
were executed. Boys below the age of puberty, women, and old men
were displaced and held in camps for a long time without adequate food
208 TUTUNJI
supplies or medical care. Villages were razed and surviving villagers were
prohibited from rebuilding, or returning to, their villages.
The Kurdish population of the cities was not targeted in the Anfal
campaign. Prior to Anfal, Kurds who voluntarily moved from rebel areas
(‘‘prohibited areas’’ in the government’s jargon) to areas under govern-
ment control were resettled in housing complexes or ‘‘modern villages’’
or ‘‘new cities,’’ and were referred to in government documents as ‘‘re-
turnees to the national ranks.’’ Those remaining in the prohibited areas
were subject to execution.
The 1991 and 1996 rebellions
Three years later, the Shi’ite rebellion in the wake of the expulsion of
Iraqi forces from Kuwait ignited a wide Kurdish rebellion, in which the
insurgents gained control of most of northern Iraq. On 6 March 1991,
Kurds in the town of Rania mounted a rebellion against the Baghdad re-
gime. All major Kurdish towns, including Kirkuk, rose up against Bagh-
dad. Government forces attacked, precipitating an exodus of between 1
million and 1.5 million Kurds. The uprising was crushed within three
weeks, but the United States, Britain, and France intervened and set up a
safe haven for the Kurds in the Dohuk governorate. Iraq withdrew its
troops from the Kurdish areas (except for Kirkuk) by October 1991, and
a Kurdish regional government was established following elections in
May 1992.
In August 1996, following internecine fighting between the KDP and
the PUK, Baghdad intervened in the Kurdish area at the request of the
KDP. Baghdad withdrew its forces following a US bombardment.
Impact on women
Between the period that the Ba’th came to power for a second time and
the first few years of the Iran–Iraq war, women benefited considerably
from the educational and professional opportunities created by the Iraqi
government and came to occupy high professional positions. They en-
joyed the same rights of citizenship as men, and were expected to con-
tribute their share to the development of Iraq. In 1980, 27 of the 250
members of the National Assembly were women. The General Federa-
tion of Iraqi Women was a nationwide institution that represented the
interests of women. The government subverted clan control over women
through its policies and legislation, such as the 1978 personal status laws,
which undermined patriarchal domination over women. That was to
change: during the war, as conditions deteriorated and the regime started
IRAQ 209
courting the tribes, women’s liberation suffered a set-back to please the

conservative elements in society.
The charge has also been made that the government has used the new
laws against prostitution to eliminate some of its female critics. Accord-
ing to AI:
In October [2000] dozens of women accused of prostitution were beheaded

without any judicial process in Baghdad and other cities. Men suspected of pro-
curement were also beheaded. The killings were reportedly carried out in the
presence of representatives of the Ba’ath Party and the Iraqi Women’s General
Union. Members of Feda’iyye Saddam, a militia created in 1994 by ‘Uday Sad-
dam Hussein, used swords to execute the victims in front of their homes. Some
victims were reportedly killed for political reasons.45
Unfortunately, the economic sanctions against Iraq since the invasion of

Kuwait have particularly victimized children and Iraqi mothers: Iraqi
women have borne the brunt of the traumas of warfare. Furthermore,
as the regime sought to consolidate its position (which had been under-
mined by economic losses and political menaces), it turned to the tradi-
tional support networks, consisting of Bedouin tribes and clans – notably,
Arab Sunni tribes. Both modernization and women’s emancipation were
sacrificed in the process.
UN sanctions
During the six-week Gulf War, which began on 16 January 1991, more
bombs rained down on Iraq than had been dropped in all of World
War II. The relentless air campaign destroyed food processing and phar-
maceutical plants, power plants, sewage pumping stations, roads, and
bridges.
Security Council Resolution 661, of 16 August 1990, had already es-
tablished a blanket embargo on all of Iraq’s imports and exports, with the
exception of ‘‘supplies intended strictly for medical purposes, and, in hu-
manitarian circumstances, foodstuffs,’’ according to paragraph 6c of the
resolution. Yet the exception was meaningless, as Iraq could not sell oil
to buy food or medicines. Death from starvation and disease, particularly
the dramatic rise in infant mortality, as a result of the targeting of the
country’s industrial infrastructure during the war and the economic sanc-
tions imposed since, should be viewed as a violation of human rights and,
in fact, qualifies as a crime against humanity.
It has been said many times that sanctions are blunt instruments. The
political target of the economic sanctions was the Iraqi regime but the
210 TUTUNJI
most profound effect of the sanctions has been on the most vulnerable
elements of the population – children, the aged, and the poor in general.
The mechanism by which sanctions may cause civilian hardship is rel-
atively well understood: all non-essential supplies are prohibited, result-
ing in shortages of many civilian-related items. Meanwhile, restricted
access to foreign markets contributes to economic depression – including
soaring unemployment, rising inflation, and a higher cost of living. These
problems may translate, at the level of the family, into stress, extreme
poverty, malnutrition, and poor health, which can be particularly devas-
tating to children.46
Sanctions affect food and agriculture, medicines and medical services.
Vaccination programmes for children in Iraq were impaired. Infectious
diseases spread because of the deterioration of the water supply and
sanitation facilities. There has been a steep increase in unemployment,
inflation, and family debt. By September 1991, less than a year after the
war, 48 per cent of households in Iraq had incurred heavy sanctions-
related debt.47
The impairment of Iraq’s water and sewerage systems as a result of the
sanctions has had profound public health consequences for the popula-
tion. Prior to the sanctions, potable water networks distributed over four
million cubic metres (MCM) of treated water to 93 per cent of the urban
and 70 per cent of the rural population. Before the 2003 war, water-
treatment plants were operating at about 50 per cent capacity and most
sewage-treatment plants had stopped chemical treatment altogether. Pipe
networks had many breaks, resulting in sewage overflows and dangerous
cross-connections between water and sewage lines. Untreated sewage
was pumped directly into the Tigris and Euphrates rivers, along which
two-thirds of Iraq’s population lives.48
The Food and Agriculture Organization of the United Nations (FAO)
reported in 1995 over a million deaths in Iraq, of which 570,000 were
among children. It described 4 million people as starving. UNICEF’s
1999 Iraq Child and Maternal Mortality survey measured the difference
between mortality rates for children in Iraq for the 25 years from March
1974 to March 1999; a sufficiently long period was chosen before and
after the war to permit the emergence of trends. UNICEF collected its
own data, using interviews and questionnaires, and did not rely on Iraqi
government data. Separate surveys were conducted for the Kurdish re-
gion in the north under UN control and the 15 southern governorates
controlled by the Baghdad government. The survey of the southern re-
gions found that the under-five mortality rate had increased from 56
deaths per 1,000 live births in 1984–1989, to 92 deaths per 1,000 live
births in 1989–1994, to 131 deaths per 1,000 live births in 1994–1999.49
Projecting trends that preceded the war and comparing that with the ex-
IRAQ 211
isting situation permitted the deduction that half a million more children
under the age of five years had died since the end of the war than would
have been the case if the war had not occurred and the sanctions had not
been imposed.50 The survey also found that, although the maternal mor-
tality rate was not high, maternal deaths were, nevertheless, a leading
cause of deaths among women, accounting for 31 per cent of adult female
deaths.51
A study commissioned by the United Nations Children’s Fund (UNI-
CEF) recommends that a Child Impact Assessment be prepared prior to
the imposition of sanctions, and that the application of sanctions should
be subject to close monitoring to assess its impact on human rights.52
Denis Halliday, the former United Nations Humanitarian Coordinator
in Iraq (and Assistant Secretary-General for Human Resources Manage-
ment), who resigned his post in autumn 1998 in protest against what he
witnessed in Iraq, points out that the oil-for-food programme ‘‘was de-
signed to prevent further deterioration, not more than that.’’53 Halliday
has written that the economic sanctions constitute a crime against hu-
manity. He has also pointed out that the economic sanctions are under-
mining family life and the previously strong family values in Iraq, which
is certainly not a situation that is conducive to the emergence of democ-
racy or the cessation of human rights violations. The US State Depart-
ment places the blame for the situation squarely on Saddam Hussein
for not taking up the oil-for-food programme immediately when it was
offered, and also blames him for delays in food distribution; Halliday
dismisses this attitude as simplistic and dishonest. The oil-for-food pro-
gramme may have prevented massive starvation, but it did not allow for
the rebuilding of Iraq’s infrastructure devastated by war, and economic
recovery is essential if the country’s public health system is to be rebuilt.
The primary rationale for clinging on to the economic sanctions after
all those years was that they were to be kept in place until Iraq got rid of
its weapons of mass destruction. However, the sanctions themselves have
probably been responsible for the deaths of more people in Iraq than all
those killed by all weapons of mass destruction throughout history.54
Sadly, even if one accepts the high figure of 300,000 for the victims of
state repression, and if one adds another 200,000 to represent the victims
of the Anfal campaign (although there is certainly strong overlap be-
tween the two categories, so that the numbers cannot simply be added as,
in fact, the second group may simply be a subset of the first), the awful
truth is that the UN sanctions claimed more victims than did govern-
mental repression.
The sanctions regime was eased. Iraq was eventually allowed to sell as
much oil as it could, bearing in mind that the infrastructure of its oil in-
dustry had not been fully repaired. Nevertheless, the economic situation
212 TUTUNJI
and the plight of ordinary Iraqis improved. According to the CIA World
Factbook, Iraq’s GDP grew at the rate of 15 per cent in 2000, and per
capita income had risen to $2,500 a year.55 In mid-May 2002, the Security
Council adopted Resolution 1409, effectively allowing Iraq to buy what-
ever it wants (except for a 332-page checklist for so-called ‘‘dual use’’
items).
Conclusions
What would a solution to Iraq’s problems look like? Wars change history
in unforeseen ways. Any recommendations made here are subject to the
proviso that the occupation authority will, in fact, do what is necessary to
install a democratic regime in Iraq. Democracy is a normative and ‘‘con-
structed’’ aspiration, not the normal condition of human societies or a
form of society and polity that somehow emerges by default. The 2003
war has deposed the Ba’thist regime but has left behind a chaotic situa-
tion: law and order have to be established; an efficient bureaucracy has to
be rebuilt. We are reminded by Abbas Alnasrawi that, despite Iraq’s oil
wealth, we have been witnesses to ‘‘the destruction of development.’’56
Economic reconstruction is needed.
This chapter has identified seven main sources of human rights viola-
tions in Iraq. The war has eliminated a number of these; others remain to
be dealt with.
First, it was argued that Iraq was an ideocratic rentier state as a source
of human rights violations. Not only has the Ba’thist regime gone, but so
have its repressive institutions; what remains to be seen is whether a lib-
eral democracy will take its place. A new constitution is needed: Iraq
must become a country of laws. A parliamentary (rather than a presi-
dential) system of government, with an independent judiciary, would be
the best place to start. State institutions must be rebuilt.
A prominent threat to democratic government in Iraq would be the
emergence of an Islamic state, along the lines of the Islamic Republic of
Iran, where the country is led by a religious authority under the principle
of velayat-e faqih (rule of the jurisprudent), particularly if the principle of
popular sovereignty is trumped by the veto of a council of guardians
whenever the council feels that legislation passed by parliament is incon-
sistent with divine law or the Shari’ah. In particular, one should ask if
the dominant Shi’ite factions in Iraq support the idea of velayat-e faqih.
Iraq’s Shi’ites do not have a united position and it is not clear, at the time
of writing, which group will be dominant. The Supreme Council of the
Islamic Revolution in Iraq, or SCIRI, has favoured the idea of velayat-e
faqih, but this position is weakening. Al-Da’wa al-Islamiyah, another
IRAQ 213
major group, was founded in the 1950s by Muhsin al-Hakim, who out-
lined a system of Islamic government in which an elected assembly could
substitute for the imam; this goes against the idea of velayat-e faqih. An-
other major group is led by Muqtada al-Sadr, a young firebrand with a
large number of followers, who has adopted an anti-US position. Muq-
tada al-Sadr is a religious follower of Kathem al-Ha’iri, who resides in
Qom in Iran and believes in velayat-e faqih – whereas Muqtada himself
does not and seems to be rather secular in many ways. Finally, there is
the traditional Shi’ite establishment, which survived the rule of Saddam,
led by Ayatollah Ali Sistani. He is opposed to the politicization of reli-
gion but is challenged by the more radical Shi’ites. In principle, it should
be possible for an Islamic Democratic Party to arise.
It can be concluded from the above that there will be a struggle for
supremacy among these factions. However, one ought to remember that
the Shi’ites in Iraq have been part of a secular tradition for eight decades.
The upsurge in Shi’ite self-affirmation may largely be the result of a
sudden-found liberty after a quarter-century of oppression by Saddam
and the Ba’th.
Second, Iraq should cease to be a rentier state. However, denationaliz-
ing Iraq’s oil industry after 12 years of economic sanctions runs the risk
of foreign ownership or control of the country’s natural resources. To
eliminate the risk to democracy posed by oil revenues accruing to the
state, it is not necessary to denationalize Iraq’s oil: it will be sufficient
to place oil revenues under the control of parliament rather than of the
executive. The fiscal autonomy of the state from society should end, the
state should be made dependent on tax revenues, and parliament should
wield the power of the purse. An efficient and honest tax-collection sys-
tem is required. If parliament controls the power of the purse, it will have
real and effective power. Aside from the oil sector, economic privatiza-
tion plans should be pursued.
Third, while the US and British military intervention in Iraq has put an
end to the sultanistic state, war cannot, unfortunately, erase the legacy of
that state. One result of this legacy is that civil society has been emptied
of content. Civil society – a set of organizations (such as political parties,
labour unions, employers’ associations, NGOs, civil rights organizations,
and parent–teacher associations) that act as intermediaries between the
people and the state – will have to be created. At the moment, Iraq does
not represent fertile ground for the emergence of a effective civil society.
It will take many months – probably years – to inculcate the norms, atti-
tudes, and political culture needed, to create the necessary organizations
and institutions, and to institute checks and balances.
There were political parties in Iraq under the monarchy from 1921 to
1948, which functioned within a parliamentary system. Opposition parties
214 TUTUNJI
were tolerated, and debate and contestation of state policies was per-
mitted. Parliament did exercise influence over state policy, although the
executive enjoyed a great deal of power. There were over 23 indepen-
dent newspapers published in Iraq. Can Iraq simply return to that kind
of society overnight? Regrettably, this is unlikely: it takes time to form
political parties, as they need time to develop platforms and to mature;
unions and associations do not spring up overnight, particularly given the
lack of trust and social cohesion.
Fourth, the Ba’th regime sought to maintain a stranglehold on power,
in part because of its fear of a military coup. This fear is legitimate and
could re-emerge in the future, constituting a threat to democracy and
human rights. One way to get the army to stay in its barracks is through
socialization and the creation of a political culture that acknowledges that
politicians, not the military, should rule. Institutional measures can also
be taken – such as creating a balance between the army and the national
guard. The army could be kept relatively small and sizeable national
guard units could be made truly professional and battle ready, to be
called up only and exclusively at times of war.
Fifth, to end the problem of warfare, Iraq should be demilitarized for
25 years (emulating post-World War II arrangements with Germany and
Japan), which should allow the state to focus on development. The mili-
tary embargo has not been lifted; perhaps it should be kept in place for a
generation, as long as Iraq’s security is guaranteed by the United States
or the United Nations.
Sixth, the ethnic conflict problem has not been eradicated. The solu-
tion to this difficulty may lie in the choice of a consociational model of
democracy – as in the Netherlands, Belgium, Switzerland, Lebanon, or
Malaysia – where different communities share power and there are guar-
antees against the dominance of any one community over the others.
This may be done first through constitutional guarantees that Kurds,
Sunni Arabs, and Shi’ites will be able to practise their religion, customs,
and traditions. In addition, these three communities must share power:
seats in parliament and positions in government can be allocated in a
manner proportional to the demographic ratio of each community in the
population; the three communities would also be represented in a fair
way in the bureaucracy and the army.
On 4 October 1992 the Kurdish legislative assembly, established in the
Kurdish no-fly zone in northern Iraq, unanimously adopted a law es-
pousing federalism as a solution for the Kurdish problem in Iraq. This
action was supported by the KDP, the PUK, and other Kurdish groups.
Although the law is not specific on the nature of federalism, in 2002 the
KDP submitted its own proposal concerning the nature of federalism in
Iraq: it recommends renaming the country as the Federal Republic of
IRAQ 215
Iraq, and that Iraq should be a federation consisting of an Arab region

and a Kurdish region, with a democratic government and pluralist civil
society, guaranteeing the legitimate rights of all minorities. In addition,
demographically the federation would consist of two nationalities, Arab
and Kurd; Arabic will be the official language of the Arab region, and
Kurdish that of the Kurdish region.57
Seventh, UN Security Council Resolution 1483 ended the ill-
considered regime of economic sanctions that had been imposed by the
Security Council following Iraq’s invasion of Kuwait in 1990, and which
itself contributed to human rights violations in Iraq. It is to be hoped that
that source of human rights violations has gone for good.
Notes
1. Said Aburish, Saddam Hussein: The Politics of Revenge, New York: Bloomsbury, 2000,
p. 172.
2. UNICEF, Eric Hoskins, Consultant, Office of Emergency Programs, ‘‘The Impact of
Sanctions: A Study of UNICEF’s Perspective,’’ 1999, available at hhttp://www.unicef.
org/emerg/Sanctions.htmi.
3. Amazia Baram, ‘‘The Ruling Political Elite in Ba’thi Iraq, 1968–1986: The Changing
Features of a Collective Profile,’’ International Journal of Middle East Studies, Vol. 21,
No. 4, 1989, p. 447.
4. Ibid., p. 467.
5. Ernest Gellner, Conditions of Liberty, New York: Penguin Press, 1994, p. 137.
6. Samir Al-Khalil (Kanan Makiya), Republic of Fear: The Inside Story of Saddam’s Iraq,
New York: Pantheon Books, 1998, p. 128.
7. According to Makiya (Republic of Fear, p. 20), these include five agencies with over-
lapping duties: Jihaz a-Himaya al-Khas (the President’s Special Protection Apparatus);
Jihaz al-Mukhabarat al-’Ammah (General Intelligence Apparatus); Al-Istikhbarat al-
’Askariyah (Military Intelligence); Mudiriyat al-Amn al-’Ammah (General Security Di-
rectorate); and Maktab al-Amn al-Qawmi (Bureau of National Security).
8. Tareq Y. Ismael and Jacqueline S. Ismael, ‘‘Iraq’s Interrupted Revolution,’’ Current
History, Vol. 84, No. 498, January 1985, p. 30.
9. Phebe Marr, The Modern History of Iraq, Boulder: Westview, 1985, p. 242.
10. Economic rent may be defined as the difference between the market price of a good
or factor of production and its opportunity cost. Such states enjoy a strategic position
that allows them to set oil prices well above the opportunity cost for the oil they are
providing.
11. Dirk Vandewalle, ‘‘Islam in Algeria: Religion, Culture, and Opposition in a Rentier
State,’’ in John L. Esposito, ed., Political Islam: Revolution, Radicalism or Reform?
Boulder: Lynne Rienner, 1997.
12. Juan Linz and Alfred Stepan, Problems of Democratic Transitions and Consolidation,
Baltimore: Johns Hopkins University Press, 1996, pp. 51–54.
13. Zuhair al-Jaza’iri, ‘‘Ba’thist Ideology and Practice,’’ in Fran Hazelton, ed., Iraq since the
Gulf War, London: Zed, 1994, pp. 30–51.
14. Said K. Aburish, Saddam Hussein: The Politics of Revenge, London: Bloomsbury, 2000.
15. See Juan Linz and Alfred Stepan, particularly chapter 1.
216 TUTUNJI
16. Ibid., p. 61.

17. Isam Al-Khafaji, ‘‘War as a Vehicle for the Rise and Demise of a State-Controlled
Society: The Case of Ba’thist Iraq,’’ in Steven Heydemann, ed., War, Institutions, and
Social Change in the Middle East, Berkeley: University of California Press, 2000, p. 281.
18. UN General Assembly Resolution A/RES/54/178 of 24 February 2000.
19. Amnesty International, Country Report. Iraq: Victims of Systematic Repression, AI-
index: MDE 14/010/99.
20. Amnesty International, Report 2001, New York: Amnesty International, 2001, p. 131.
21. Amnesty International, ‘‘Iraq: Relentless Executions Must End,’’ AI-index: MDE 14/
004/2001, 05/04/2001.
22. ‘‘Iraq: Systematic Torture of Political Prisoners,’’ AI-index: MDE 14/008/2001, 15/08/
2001.
23. UN General Assembly, A/54/466, 14 October 1999, ‘‘Situation of Human Rights in
Iraq,’’ relating to the interim report by the Special Rapporteur of the Commission on
Human Rights on the situation of human rights in Iraq.
24. Susan Sachs, ‘‘A Grim Graveyard Window on Hussein’s Iraq,’’ New York Times, Inter-
net edition, 1 June 2003.
25. Al-Khafaji, ‘‘War as a Vehicle for the Rise and Demise of a State-Controlled Society:
The Case of Ba’thist Iraq,’’ in Steven Heydemann, ed., War, Institutions and Social
Change in the Middle East, Berkeley: University of California Press, 2000, p. 259.
26. Marion Farouk Sluglett and Peter Sluglett, Iraq since 1958, New York: I.B. Tauris, 1990.
27. Ibid., pp. 74–76.
28. See Abbas Alnasrawi, ‘‘Economic Devastation, Underdevelopment and Outlook,’’ in
Fran Hazelton, ed., Iraq Since the Gulf War, London: Zed, 1994, pp. 73–74.
29. Abbas Alnasrawi, The Economy of Iraq: Oil, Wars, Destruction of Development and
Prospects 1950–2010, Westport: Greenwood Press, 1994, pp. 152–153.
30. Alnasrawi, The Economy of Iraq, p. 152.
31. W. Thom Workman, The Social Origins of the Iran–Iraq War, Boulder: Lynne Rienner,
1994, p. 16.
32. Al-Khalil (Makiya), p. xxx.
33. Majid Khadduri, The Gulf War: The Origins and Implications of the Iraq–Iran Conflict,
New York: Oxford University Press, 1988.
34. Majid Khadduri and Edmund Ghareeb, War in the Gulf 1990–1991: The Iraq–Kuwait
Conflict and Its Implications, Oxford University Press, 1997, p. 194.
35. Patrick Tyler, ‘‘An Open Secret is Laid Bare at Mass Grave in Iraqi Marsh,’’ New York
Times, Internet edition, 14 May 2003.
36. US Committee for Refugees (USCR), 2001, Country Report: Iraq [Internet] and US
Department of State (US DOS), 25 February 2000, 1999 Country Report on Human
Rights Practices: Iraq [Internet].
37. Amnesty International (AI), ‘‘Introduction,’’ 24 November 1999.
38. Ibid, and Iraqi National Congress, 20 May 2001.
39. See Edmund Ghareeb, The Kurdish Question in Iraq, Syracuse: Syracuse University
Press, 1981.
40. Khadduri and Ghareeb, pp. 200–201.
41. Stephen C. Pelletiere, ‘‘A War Crime or an Act of War?’’, New York Times, Internet
edition, 31 January 1991.
42. US Committee for Refugees (USCR), World Refugee Survey 2000, ‘‘Country Report:
Iraq,’’ Washington, DC, 2000, p. 187; and Chris Dammers, ‘‘Iraq,’’ in Janie Hampton, ed.,
Internally Displaced People: A Global Survey, London: Earthscan, 1998, pp. 180–185.
43. See Bureaucracy of Repression: The Iraqi Government in Its Own Words, New York:
Middle East Watch, 1994, pp. 17–19.
IRAQ 217
44. See The Anfal Campaign in Iraqi Kurdistan: The Destruction of Koreme, New York:
Middle East Watch and Physicians for Human Rights, 1993.
45. Amnesty International, Report 2001, p. 132.
46. UNICEF, ‘‘The Impact of Sanctions.’’
47. Ibid., 7.
48. Roger Normand, ‘‘Iraqi Sanctions, Human Rights and Humanitarian Law,’’ Middle East
Report (Merip), Summer 1997, p. 2, also available online at hhttp://www.merip.org/mer/
mer200/normand.htmi.
49. UNICEF, South Center Mortality Survey – Full Report; Chapter 8: ‘‘Infant and Child
Mortality,’’ 11/08/01, p. 5, also available online at hhttp://www.unicef.org/iraq/library/
sou-ful/chapt8.pdfi.
50. UNICEF, Iraq: Under-five Mortality, 05/29/01, also available online at hhttp://www.
unicef.org/receval/iraqr.htmli.
51. UNICEF, Results of the 1999 Iraq Child and Maternal Mortality Surveys, ‘‘Survey of the
15 Southern Governorates,’’ pp. 15–16, also available online at hhttp://www.unicef.org/
reseval/irqr.htmli.
52. UNICEF, ‘‘The Impact of Sanctions,’’ p. 4.
53. Denis Halliday, ‘‘Economic Sanctions on the People of Iraq: First Degree Murder or
Manslaughter?’’ AAUG Monitor, Vol. 15, No. 1, Spring 2000.
54. John Mueller and Karl Mueller, ‘‘The Methodology of Mass Destruction: Assessing
Threats in the New World Order,’’ Journal of Strategic Studies, Vol. 23, No. 1, March
2000, pp. 163–187.
55. As cited in Howard Schneider, ‘‘Little by Little, Iraq Shows Signs of Economic Life,’’
Washington Post, 17 May 2002, p. A01.
56. Abbas Alnasrawi, The Economy of Iraq: Oil, Wars, Destruction of Development and
Prospects, 1950–2010, Westport: Greenwood Press, 1994.
57. See Edmund Gharib, ‘‘The Kurdish Issue,’’ in Shams Inati, ed., Iraq: Its History, People,
and Politics, New York: Humanity Books, 2003.
10
Exploring the dynamics of human
rights and reform: Iran, Pakistan,
and Turkey
Mahmood Monshipouri1
The establishment of institutional infrastructure and some semblance of

the rule of law are necessary prerequisites to creating a market economy
and to initiating economic reform more generally. On the other hand,
the protection and promotion of human rights, as well as the building of
a civil society, are highly relevant to generating political and social capi-
tal. Finding the right balance, however, poses a special challenge to
transitional societies and their leaders. These premises raise several fun-
damental questions. How do these economic and political dynamics in-
teract? Under what circumstances does one set of priorities override the
other? Who benefits or suffers from reforms? And what strategy and
pace of reform is most effective in each setting? To frame and address
these questions properly, we have to contextualize the prospects of re-
form and human rights in each country or region by examining political
institutions, economic structures and interests, cultural identities, and
civil and regional conflicts.
As in all transitional countries, economic and political reforms – or
their absence – have created a variety of modern tensions and dilemmas
for the Middle Eastern region. Iran, Pakistan, and Turkey, which repre-
sent the region’s non-Arab Muslim countries, have marked similarities
but also notable differences. The selection of these cases is justified by
minimizing the ethnic factor (Arabism) while focusing on the parameters
that closely relate to the state of human rights and the dynamics of re-
form. Iran is a rentier state; Pakistan is a poor country, with heavy de-
218
IRAN, PAKISTAN, AND TURKEY 219
pendence on raw materials such as crude oil; and Turkey is a fully

fledged newly industrialized country.
The progress toward full democratization in these countries has been
hampered by historical and contemporary forces, with many concerns
regarding state–society relations hanging in the balance. All three coun-
tries have struggled to maintain an equilibrium between Islamic and
modernizing pressures. The contest between secularists and Islamists (as
in Pakistan and Turkey) and the divisions among Islamists themselves (as
in Iran) over the inclusion of Western principles of law and political
practice in Islamic society have complicated political processes in these
countries.2 While searching for an Islamic identity, these Muslim soci-
eties have been undergoing transformation. Furthermore, the difficulties
of economic reform are widespread in all three countries. The rise of
political Islam owes much to the painful process of economic restructur-
ing, as well as to the lack of a social safety net for the poor, who have
been adversely affected by neoliberal economic reforms. Socio-economic
and ethnic disparities have further complicated the effective operation
of political reform. In all three cases, non-governmental organizations
(NGOs) have had limited success in addressing human rights concerns.
Caught between Islamic and secular forces, NGOs have been unable to
take the initiatives necessary to improve human rights conditions.
In this chapter, I first describe dominant political institutions in Iran,
Pakistan, and Turkey, in an attempt to explain how such institutions
influence human rights practices. Iran is a modern theocracy with an
elected president; Pakistan is ruled by a military government; and Turkey
is a secular parliamentary democracy. The key political actors in all three
countries either have close connections with the military or themselves
control instruments of violent coercion. In Iran, the supreme leader – not
the president – is the most important political player. In Pakistan, the
chief executive (who currently represents the military) and the president
are the main players on the political scene. In Turkey’s political struc-
ture, the prime minister, the president, and the military are the key po-
litical actors.
I then examine the impact of economic structure and interest groups
on the dynamics of reform or the lack thereof. Economic reform has
come to be synonymous with an increased emphasis on private invest-
ment and an opening to international markets. Policy makers in Iran,
Pakistan, and Turkey have found economic reform a daunting task – one
that involves serious political challenges, especially when the public sec-
tor continues to carry a heavy weight in the economy.3 All three coun-
tries face the challenge of implementing economic liberalization in the
face of political fragmentation and cultural politics, ethnic politics, inter-
est group resistance, and endemic corruption.
220 MONSHIPOURI
Examination of cultural identity and its impact on the practice of hu-

man rights reveals complexities of different kinds involved in the dy-
namics of reform. Middle Eastern people, like people anywhere, have
become increasingly preoccupied with the issue of identity and encounter
many diverse problems in their relations with their states.4 In their
struggle against authoritarian forces, these societies have reached a new
level of participation and emphasis on using their own specific cultural
and identity issues.5 In all three countries, cultural identity has assumed
the prominence of a new Zeitgeist.
Finally, I investigate the impact of local and regional conflicts on the
notion of justice and order in these societies. The internal and external
conflicts in these countries have left lasting imprints on these societies
and their transition toward democracy. In some (such as Iran and Tur-
key), ethnic strife around the Kurdish issue and the subsequent conflicts
have had a devastating impact on minority rights. The Iran–Iraq War
(1980–1988) fuelled revolutionary fervour in many fundamental ways
and was a key reason why the realization of an open society, economy,
and polity was delayed for as long as it was. Pakistan’s internal strife,
combined with the regional insecurity and dispute with India over Kash-
mir, has over the years complicated the prospects of democratization
there, while paving the way for the perpetuation of the interests of feudal
and tribal élite groups, for the slow growth of civil society, and for bur-
geoning military–bureaucratic rule.
The chapter concludes that human rights abuses in these countries are,
in great measure, the result of the absence of institutionalized means and
processes of democratization, a lack of accountable political order, inter-
élite and cultural cleavages, unbalanced state–society relations, and poor
liberalization strategies. The role of religion remains unclear: Islam is
not as institutionalized in the politics of Pakistan and Turkey as it is in
Iranian politics; it is not clear whether Islam hinders or advances the
prospects for democratization. The Kurdish issue has provoked state re-
pression in both Iran and Turkey. Cooperation on the Kashmir question
eludes not only Pakistani and Indian leaders but also Kashmir’s own
people, despite the fact that the conflict holds potentially dangerous
implications for the region. The link between economic and political re-
form remains somewhat unpredictable in all three countries. Personalistic
politics continue to override constitutional politics at some level. The
absence of an independent judiciary and the continuing military inter-
vention in politics present major obstacles to democratization in these
countries.
In all three countries, human rights violations can be explained largely
by leaders’ employment of the instruments of violent coercion. The avail-
ability to political élites of coercive powers and institutions – the military,
paramilitary, and police – and the absence of accountability to any higher

institution correlate strongly with existing repressive policies. Subcultural
cleavages, economic conditions and policies, identity politics, and local
and regional conflicts, although listed among principal constraints on the
respect for human rights, can be dealt with effectively if proper political
institutions are in place. This is not to discredit the significance of such
factors as ethnic diversity or local and regional conflicts in these coun-
tries; it is only to argue that democratization and observance of human
rights are, to a large degree, the function of calculated acts of political
élites. I end the chapter by analysing the consequences of variation in
human rights practices and advancing policy recommendations.
Human rights practices
A comparative examination of human rights conditions in Iran, Pakistan,

and Turkey reveals both similarities and differences. All three countries
hold regular elections and display other signs of democracy. In Iran, de-
spite fair and free elections in recent years, the unelected supreme leader
controls the levers of power, including the military, the intelligence ser-
vices, and the judiciary. The supreme leader can override parliamentary
majorities in the name of the country’s national interests, as conceived by
the conservative clerical establishment. This, in effect, can neutralize any
institutionalized gains for the legal protection of human rights.6 The re-
cent waves of assault on the free press, followed by jailings of reformist
journalists (sometimes called ‘‘apostate’’) and closures of reformist news-
papers and magazines (referred to as ‘‘traitors’’) on charges of defaming
the security forces and threatening national security, have shown the in-
herent flaws in Iran’s theocratic state.
Although the constitution of the Islamic Republic guarantees women
equality both legally and politically, patriarchal social relations account
for de facto inequalities throughout the society. Extrajudicial executions
of dissidents and the mistreatment of human rights lawyers are rampant.
The Kurds, the largest ethnic minority, suffer discrimination and the
Baha’is, the most victimized religious minority, remain subject to harass-
ment and unfair prosecution.
The prospects for improvement of human rights are even bleaker in
Pakistan, a poor country with shallow roots as a nation-state, great ethnic
diversity, and strong feudal traditions. The armed forces have con-
sistently shaped the nation’s political landscape through direct or behind-
the-scenes intervention in domestic and foreign affairs. A combination
of religious intolerance, poverty, and many local and regional alliances
forged by feudals, generals, and bureaucrats has blocked any improve-
222 MONSHIPOURI
ments in the country’s human rights conditions. De facto inequality and

low literacy rates have also stymied political and legal progress of
women’s human rights. Government officials continue to demonstrate a
bias against women by failing to investigate egregious human rights vio-
lations, including ‘‘honour killings’’ of several hundred girls and women
and the trafficking of women.7
Respect for civil and political rights has deteriorated in the years fol-
lowing the military coup on 12 October 1999, which deposed Prime Min-
ister Nawaz Sharif and brought General Pervez Musharraf to power.
Musharraf’s administration moved to neutralize political parties through
the application of laws governing terrorism, sedition, and public order,
and through the establishment of a powerful extraconstitutional ‘‘ac-
countability’’ bureau.8 The US campaign against terrorism in the post-
September 11 era has reinforced Prime Minister Musharraf’s tenure of
office. The disputed region of Jammu and Kashmir, the only Muslim-
majority state in India, has turned into an element of struggle for power
between state and central government élites.9
Turkey’s human rights situation is no better than those of Iran and
Pakistan. The military – the most dominating force in the country’s poli-
tics – continues to be a factor in forestalling reform, especially as it re-
lates to freedom of expression. The army has reasserted its power in the
selection of presidential candidates, justifying its intrusion on the grounds
that it is a guardian of the republic against separatism and religious ex-
tremism.10 The army’s opposition to religious extremism has led to the
campaign to restrict the wearing of headscarves for religious reasons in
educational settings. This campaign, waged in the name of secularism,
has deprived many Muslim women of having access to education, both
temporarily and permanently. Others have been suspended or discharged
from employment in teaching or health care.11
Evaluating the human rights conditions of women in Turkey is difficult.
Women have had the right to vote and the right to run for elective office
since the 1920s. Their literacy and professional employment rates are
higher than those of most Middle Eastern countries. In rural areas, how-
ever, a different situation prevails: female literacy rates are low and fer-
tility rates are high. The practice of contractual religious marriage is
widespread.12
The most flagrant human rights violations in Turkey also relate to ex-
trajudicial killings, disappearance, indefinite detention, death in custody,
and torture – particularly under emergency laws or the Anti-Terrorism
Law. The Kurds, the largest ethnic minority in Turkey, have endured the
most severe socio-economic privation and official discrimination. The
European Court of Human Rights has repeatedly found Turkey respon-
sible for such violations. Moreover, the European Union (EU) has pre-
dicated its economic aid to Turkey on progress on Kurdish cultural rights

and the economy in the south-east, where many Kurds reside.13 Human
rights groups in the United States have protested against the pending sale
of 145 attack helicopters to Turkey, on the grounds that this class of
equipment has been widely used to commit human rights violations such
as ‘‘disappearance’’ and arbitrary killings.14 In what follows, I examine
the impacts on the practice of human rights of political institutions, eco-
nomic structures and interests, cultural identity, and local and regional
conflicts in Iran, Pakistan, and Turkey.
Iran
As a modern theocracy, Iran’s key political institutions have been built

around the supreme leader Ayatollah Sayed Ali Khamenei, a selected
head of the nation, and President Mohammad Khatemi, an elected head
of the government. The dual system of governing has enlarged the chasm
dividing the country’s political factions. Under the Iranian constitution,
the ultimate authority rests with the supreme leader, who effectively
controls the country’s police and security forces – the military, the na-
tional police, the Ministry of Intelligence, the Basij Paramilitary, the
Ministry of Information, and the Revolutionary Guards. Additionally,
the supreme leader controls the judiciary and national broadcasting, in-
cluding state radio and television, and selects the key members of the
Council of Guardians, a watchdog body capable of blocking legislation it
deems unfit for the Islamic Republic. This division of authority has be-
come known as the mixed system of Islamism and republicanism – that is,
a mixture of theocracy and electoral democracy. The Islamic Republic’s
contradictions have stemmed largely from the lack of clarity as to who
actually directs the state and who controls the levers of power.
The first decade of revolution witnessed a reign of terror backed by
Islamic tribunals that executed thousands of people – including the ex-
Shah’s army officers, and intellectuals and political leaders, civilian as
well as military. The outbreak of war with Iraq, however, overshadowed
the existence of wide-ranging internal conflicts between different political
factions. The Iran–Iraq War (1980–1988) proved to be, in the words of
one expert, one of the most intense and costly wars of the twentieth cen-
tury in terms of casualties, destruction, expense, and duration.15 By the
mid-1980s, the war had degenerated into a campaign of massive Iranian
human-wave attacks on Iraqi targets. With US military support and in-
telligence assistance, Iraq managed to resist Iranian attacks – hence, the
prolongation of the war. Predictably, the continuation of the conflict
without any definitive winner made Iran war-weary.16 The war under-
scored the Islamic Republic’s desperate need to put its economic and in-
224 MONSHIPOURI
stitutional house in order. Rafsanjani’s presidency (1989–1997) marked a

new era, one in which the policy priority was given to the reconstruction
of the economy after eight years of war. This direction required the
adoption of several liberalizing measures and constitutional reforms.
Rafsanjani’s cabinet was dominated by technocrats who sought to revive
the private sector and attract foreign direct investment.17 The failure of
economic reforms paved the way for the 1997 landslide electoral victory
of Mohammad Khatami and his agenda for political reform.
Internally, Iranian political life has been dominated by hyperpoliti-
cization and deep ambiguity. The seemingly muddled nature of Iranian
politics, Jon B. Alterman argues, is accentuated by the absence of formal
party politics and structures. Instead, Alterman continues, ‘‘fronts,’’ ‘‘as-
sociations,’’ and ‘‘societies’’ seem to conduct political campaigns for can-
didates and mobilize popular support.18 The hyperpolitical nature of
Iranian society notwithstanding, political machines are poorly organized.
No strong and direct connection exists between voters and elected offi-
cials. Furthermore, conservatives and reformists seem to have achieved
an uneasy modus vivendi to share power, compete, and cooperate where
common ground can be found. This tacit agreement, although unsat-
isfactory, remains superior to any apparent alternative.19 Under these
circumstances, the combination of intense competition and pragmatic
cooperation prevents a political system from falling into rancour and
division.20
Elections, parliamentary and presidential, have been regular features
of post-revolutionary Iran. Although subject to political and religious
manipulations, elections have still taken place, and a restricted democ-
racy (or, more accurately, an electoral illiberal democracy) has pre-
vailed.21 Put differently, pluralism and dissidence are noticeably lacking.
The concept of Islamic government under the rule of the supreme leader
(velayat-e faqih, guardianship of the jurisconsult), along with the power
of the Council of Guardians to veto any politicians, has more often than
not led to clerical repression.22
Many clerics and laymen have questioned the way religion has been
turned into a political ideology.23 Ayatollah Hossein Ali Montazeri, a
high-ranking political and religious cleric, has argued that, according to
the constitution of the Islamic Republic, ‘‘the basis of government at all
levels is the votes of the people, and the ruling authorities, even the vali-e
faqih, are elected by the people.’’24 Likewise, Montazeri draws attention
to Article 6 of the constitution: ‘‘In the Islamic Republic of Iran, the af-
fairs of the country must be conducted with reliance on the votes of the
public and through elections . . . .’’25
Intra-élite cleavages over whether clerics should govern the political
system and, if so, to what extent, are becoming pronounced. Contrary to
the widely held perception that the Iranian clerics constitute a unified
and homogeneous social stratum and that they are universally inimical to
the separation of Church and State, they are deeply divided. In fact, a
small faction of the clerics now dominates the state apparatus, indicating
obvious divisions within the clerical hierarchy.26
The clerics have been extremely careful to initiate economic liberal-
ization without political reforms. Even so, the theocracy’s collective
leadership has created a regime more tolerant in some ways than that of
the late Shah. For instance, Iran’s parliament today is ‘‘a far cry from the
rubber stamp that existed during the rule of the Shah.’’27 Although Iran’s
political institutions provide a setting for managing factional rivalries
peacefully, the fact remains that the institutions have themselves been
manipulated and in some instances subverted by the ruling élites.28
In the first decade since revolution, the ratios of real government ex-
penditures to the real GDP decreased to a low of 9 per cent in 1988 and
then rose to a high of 24 per cent in 1993. Ratios of government revenues
to real GDP followed the same trend during the period. This decline was
caused largely by the decrease in oil revenues, which in turn resulted
from the ravages of the eight years of the Iran–Iraq War (1980–1988)
and the national policy of economic independence and self-sufficiency.29
The government’s system of subsidy, including subsidies for basic com-
modities and hidden subsidies for gasoline (petrol), proved insufficient.
The recent proposal to start direct subsidies to low-income families has
been comparatively effective. This system, however, runs into ineffici-
encies and corruption in government circles.30
Income inequalities and poverty intensified during Iran’s Second De-
velopment Plan (1995–2000). Published records, according to one expert,
indicate that 20 per cent of the people own 80 per cent of the country’s
wealth; the share of the bottom 10 per cent is 1.5 per cent. Approx-
imately 20 per cent of the Iranian people go hungry; 15 per cent of
five-year-old children are shorter than normal, and 11 per cent are under-
weight as a result of malnutrition.31 Throughout the Second Plan, the
public sector expanded well beyond the previous period. The recipients
of government subsidies and rent-seeking beneficiaries of state largess
have resisted the public sector’s downsizing. Several dozen parastatal
bonyads (Islamic charitable foundations), which pay virtually no taxes
but have access to public perks and often are not subject to government
regulation, continue to exert control over the economy through their
connections with the country’s clerical nomenklatura.32
Meanwhile, the economy’s dependence on oil and gas has intensified.
Because of continued public investment in oil and gas exploration and in
refining, petrochemicals, steel, and aluminium, the state reinforced its
assets rather than selling them via a consistent privatization programme.
226 MONSHIPOURI
Similarly, the total national budget increased at an average annual rate of

37.2 per cent. The public sector absorbed more than half of the banking-
sector credits. The unemployment rate worsened from the official 9.4 per
cent rate prevailing in 1995 to 16.5 per cent in 2000, the highest since
1949.33
Despite assigning a high priority to political liberalization, the Khatami
administration lacked a coherent and effective economic blueprint in its
first term (1997–2001). During this time, both the process of liberaliza-
tion and its implementation lacked transparency and consistency. Fiscal,
trade, and exchange policies were fluid, and annual resource allocation
was regularly influenced by rent-seeking elements.34 Furthermore, two
interest groups have opposed economic reforms – namely, radical mul-
lahs, who are in charge of both the Basiji (mobilization) corps and the
Islamic anjomans (associations), who have infiltrated the high ranks of
the bureaucracy, and the ‘‘conservatives’’ with strong financial and blood
ties to the bazzar, who have traditionally represented the interests of
landlords and the urban bourgeoisie.35
In Iran, the difficulty associated with the issue of national identity is
endemic in a modern theocratic state that lacks a viable way of dealing
with emerging demands for a new social contract with its citizens. A
generation of those born and raised under the Islamic revolutionary re-
gime now contests the theocratic establishment by supporting the reform-
minded politicians, journalists, parliamentary deputies, academics, and
intellectuals. According to some experts, because of a combination of a
revolution against tyranny, the eight-year war with Iraq, and the subse-
quent massive politicization, Iranian political culture has become secu-
larized. The youth’s demands for political freedoms and the women’s
push for the relaxation of social restrictions are supported by both
reform-oriented clerics and laymen who point to a more enlightened and
modern application of Islamic laws. That is to say, an unstoppable pro-
cess of secularization of religion has occurred, pushing social debates, in-
dividuals, and their rights to the forefront.
Not surprisingly, the burgeoning respect for the rule of law has com-
pelled the conservatives, who control the instruments of violent coercion,
to resort to the judicial process to punish their reformist opponents.36
The economic and cultural liberalization of the post-Khomeini era (1989
–present) has led to both an increasing gap between rich and poor and
the emergence of a youth subculture and way of thinking that have
‘‘flouted the ascetic norms of the regime.’’37
Perhaps nothing has illustrated such disenchantment better than the
framing of grievances and demands via student unrest. The 1999 student
unrest took the clerical establishment by surprise. The language of the
students was the language of rights, citizenship, the rule of law, and in-
ternational human rights.38 Instead of adopting tactics to adjust to the

modernizing demands of students, the theocratic state chose to repress
the movement, rendering it impossible to mobilize mass support for its
objectives in the future. Ever since, a climate of fear and repression,
reminiscent of the pre-Khatami era, has cast its shadow over the whole
country.
Despite these political and legal set-backs, as well as a poor economy,
the landslide re-election of Khatami for a second term (2001–2005), on 8
June 2001, proved to be a referendum on the nature of the Islamic Re-
public. The re-election of Khatami, who won 77 per cent of votes, dem-
onstrated that the public has not grown apathetic since the previous
election and has, in fact, embraced the principles of Khatami’s reform.39
Khatami’s popularity has decreased dramatically as the reform process
has stalled. During November 2002, student groups in Hamedan and
Tehran protested against the blasphemy sentences on reformist professor
Hashem Aghajari (who, in a speech in August 2002, had challenged the
rule of hard-line clerics). Using this occasion, the students expressed their
deep frustration with the slow pace of reform pledged by President Kha-
tami, whose broad mandate has been consistently ignored by the conser-
vative establishment.
Pakistan
Since the partition of the British raj into India and Pakistan and the cre-
ation of the latter as a Muslim country in 1947, Pakistan has undergone a
turbulent process of nation building, seeking to create consensus and in-
stitutions sufficient for stability. The struggle to establish parliamentary
democracy in a federal setting has been hampered by inter-ethnic strife,
fragmented élites, praetorian rule, and regional and global influences.
Four times since 1947 (in 1958, 1969, 1977, and 1999), military officers
have administered governments through either martial law or caretaker
mechanisms, seeking to gain legitimacy en route to nation building. In
the latest military take-over, the parliamentary government of Nawaz
Sharif was suspended on 12 October 1999; two days later, General Pervez
Musharraf declared a state of emergency and issued the Provisional
Constitutional Order (PCO).
Instead of promoting the tradition of civilian supremacy bequeathed
by Great Britain, civilian rulers have often relied on the military to pre-
serve power. The military, which is dominated by Punjabis and repre-
sents landed and industrial interests, regards its dominance of Pakistan
politics as vital to any attempt to safeguard the country’s territorial in-
tegrity in the face of perplexing ethnic, linguistic, and regional diversity.
Military and non-military governments have appealed to Islam to main-
228 MONSHIPOURI
tain their legitimacy and uphold different political, economic, and class
interests.40
The economic situation in Pakistan was overwhelmed by the country’s
debt crisis. Pakistan has a foreign debt of $38 billion, and its domestic
economy is in deep recession.41 Investors have closely followed the con-
troversy created by Religious Minister Mahmood Ghazi in January 2001,
when he said that the government would fix interest (riba) by 1 July 2001,
in accordance with a Supreme Court ruling on Islamicizing the economy.
Thus far, General Pervez Musharraf has placated militant Islamic funda-
mentalist parties, who are keen on the creation of an Islamic system.42
Other studies have shown that Pakistan spends 67 per cent of its bud-
get to service interest repayment on its massive external debt.43 Many
aspects of the economy at the end of 1999 showed no sign of economic
progress. Aside from exports, Pakistan’s two other sources of foreign ex-
change – foreign investment and remittances from overseas Pakistani
workers – have also shown a drastic decline. The poor performance
of Sharif’s government led to the 12 October 1999 military coup. The
country’s ruling élites owed $4 billion in non-performing and defaulted
loans to state-owned banks at the time of the coup.44 The military’s own
huge budget raises serious questions about the prospects of reviving the
economy. Preoccupied with a fully fledged nuclear weapons programme,
the military cannot afford to cut its budget unless there is peace with
India – a prospect that remains unrealistic for the foreseeable future.
Meanwhile, these dire economic straits have fuelled Islamic militancy.45
To these difficulties could be added other formidable economic prob-
lems. During 2000, the country remained vulnerable to regular price
hikes with all the features of an uneven economy. International monetary
institutions contributed, however indirectly, to this unevenness by their
insistence on the withdrawal of price subsidies. Corruption was also per-
vasive; and the problems of governance, a growing population, and low
literacy rate stunted the country’s economic growth. Before the end of
the year, the IMF and other IFIs allowed new loans to Pakistan, which
prevented a complete economic breakdown while encouraging the mili-
tary regime to contemplate an ambitious privatization programme.46
In Pakistan, the identity problem has reached crisis proportions. Be-
cause Pakistan came into being as a separate political identity to provide
an independent homeland for Muslims on the Indian subcontinent, the
religious identity of the community and the political legitimacy of the
state have become inextricably intertwined. Ever since its creation, Islam
has been a common thread holding diverse groups together. It continues
to bind the country: in the face of economic adversities, Islam has been
dominant in bridging ethnic differences and neutralizing subnationalistic
proclivities. The future of Pakistan seems inseparably linked to a re-

assertion of its Islamic government and society.47
The emphasis on the Islamic state serves both ideological and nation-
alistic purposes; therefore, it empowers the government to stabilize socio-
economic conditions, distribute scarce resources equitably, and generate
a nationalistic passion for the country – even if that passion is filtered
through a spiritual devotion that surpasses the nation-state.48 Yet Paki-
stani leaders have never systematically laid down the legal basis for an
Islamic state, and Pakistanis have always struggled with the meaning of
their Islamic identity. The chasm between what the Pakistani people de-
sire and what their leaders have in mind has been unbridgeable: whereas
religious conservatives advocate an Islamic state based on Islamic law
(Shari’a), Pakistani leaders generally have adopted the British parlia-
mentary model of political development. Such an ambiguity illustrates
the nature of the ideological quandary that has been present throughout
Pakistan’s history.49 Islam and democracy have often existed more in
form than in substance, more influenced by than influencing the country’s
socio-political realities.
The Indo-Pakistan conflict over the sovereignty of Kashmir for more
than half a century has resulted in serious human rights abuses. The ac-
cession of the princely states to India or Pakistan at the time of parti-
tion was not resolved entirely in 1947. Although Muslims in the princely
state of Jammu and Kashmir (generally referred to as Kashmir) have
constituted a majority of the state’s population, Kashmir has been ad-
ministered by Hindu rulers. The subsequent Indo-Pakistan war of 1947–
1948 over Kashmir ended with a cease-fire brokered by the United Na-
tions. Kashmir was divided by a UN line (also known as ‘‘the Line of
Control’’), and a 1949 UN Security Council resolution provided for a
plebiscite to be held under UN auspices to decide the issue of accession.
However, India has rejected the idea of plebiscite and tensions have re-
sumed. In 1965, India and Pakistan fought another war over Kashmir,
without finding any political solution to the problem. The third Indo-
Pakistan war (1971), although fought mainly over East Pakistan (Ban-
gladesh ever since), was also concentrated along the Kashmir cease-fire
line.
Following the end of this war, under the Simla Agreement of 1972 both
parties agreed not to use force in Kashmir;50 however, this agreement
disguised a much more complex and variegated picture. At times, the
dispute appeared to have faded away; nevertheless, after an anti-Indian
uprising in 1989 and the nuclear tests of 1998, the dispute became more
volatile and potentially explosive.51 Today, extreme atrocities, collusion
with terrorists, and drug smuggling constitute routine police action in
230 MONSHIPOURI
Kashmir. The police themselves have become heavily involved in collud-

ing with criminals; committing human rights abuses such as beating, tor-
ture, and rape in police stations; and attacking and looting villages.52
Increasingly, Pakistanis themselves have become disenchanted with the
military. Members of the mohajir community of Sindh Province – who
have repeatedly been the subject of army attack, terror, and persecution
– have questioned the integrity of the Pakistani military. Contrasting
their plight with that of the Kashmiri Muslims, they have voiced a major
concern.53 For both Pakistan and India, the issue of Kashmir is inexora-
bly connected to their sense of strengths, sovereignty, and security.54
Because of the threat of war over Kashmir, both Indian and Pakistani
leaders have relied on nuclear deterrence. Moreover, Musharraf’s close
cooperation with the Bush administration, in an attempt to hunt down al-
Qaeda terrorists and to dismantle the Taliban regime, weakened civilian
institutions and resulted in growing military interference in national pol-
itics. As a result, substantial institutional resources have been placed in
the hands of the executive branch.
Turkey
The present government of Turkey is described as a republican parlia-

mentary democracy. The executive branch’s responsibilities are divided
between the chief of state, President Ahmed Necdet Sezer (since 16 May
2000), and the head of government, Prime Minister Abdullah Gul (since
3 November 2002). Prime Minister Gul, the leader of the Justice and
Development Party (AKP), won a landslide victory. The AKP received
an outright majority, with 363 of 550 seats in parliament. Gul has pledged
changes in laws to expand freedom of religion and expression, to pro-
mote a more transparent government, and to expedite liberalization pro-
grammes.
Turkey remains a divided country on religious matters, a problem
largely attributable to Ataturk’s secular legacy (1923–1938). After the
creation of the modern Turkish Republic, Ataturk abolished the caliph-
ate and gave women the right to vote in parliamentary elections and to
become members of parliament.55 His westernizing reforms split Turkey
between those who advocated secular values and those who desired a
return to Islamic principles and institutions. Beneath the surface and
apparent stability, Turkey remains a troubled country.56 As a major
beneficiary of multi-party politics since 1946, Islamic parties are regular
participants in Turkey’s political process. The Islamic-oriented National
Salvation party, which later formed the Welfare Party (the Refah) and
forged a coalition government to rule Turkey for the period 1996–1998,
was declared illegal and banned on 16 January 1998. Its deputies joined
the newly formed Virtue Party (the Fazilet). Before being banned, Refah
took part in three coalition governments between 1973 and 1980. From
1991 to 1995, however, a coalition of the centre-right True Path Party and
the leftist Social Democratic Populist Party ruled Turkey. During that
period, tensions caused by the economy and the Kurdish crisis in the
south-east increased Islam’s political voice and revitalized Islamic move-
ments.57
In the late 1995 parliamentary elections, the Refah Party won with 21.3
per cent of the vote; by June 1996 it had become the senior partner of the
governing bloc in parliament. After the formation of the coalition gov-
ernment, media pundits routinely speculated on the military’s role in the
country’s stability and order. Under heavy pressure from the military
(which exerted considerable influence over the political transformation),
Prime Minister Necmettin Erbakan resigned on 18 June 1997, after
eleven turbulent months in office. Then-President Demirel granted
Motherland Party leader Mesut Yilmaz approval to form a new govern-
ment on 30 June 1997. Yilmaz was the prime minister until his govern-
ment was subjected to a vote of no confidence on 25 November 1998. In
June of 1999, a coalition government led by Prime Minister Bulent Ecevit
of the Democratic Left (DSP), which included the far-right National
Action Party (MHP), won a vote of confidence. As mentioned above, in
the national election of 3 November 2003, Abdullah Gul became the
country’s new prime minister.
The deep roots of military intervention in politics (1960, 1971, and
1980) and the military’s regular behind-the-scenes powers continue to
render precarious the realization of human rights in Turkey. During the
military rule of the early 1980s, all civil and political rights were sus-
pended. Restrictions were gradually lifted in 1983, when multi-party par-
liamentary elections were held. Since 1987, Turkey has become a party to
various international human rights conventions, including the European
Convention of Human Rights, the European Convention Against Tor-
ture, and the UN Convention Against Torture.
Turkey has also recognized the compulsory jurisdiction of the Euro-
pean Court of Human Rights; has signed the UN Convention on the
Rights of the Child, the revised European Social Code, and the Paris
Charter; and has accepted the Ninth Additional Protocol to the Euro-
pean Convention on Human Rights. Nevertheless, many cases of torture
and ill-treatment (which are reported in annual reports of Human Rights
Watch) illustrate the widespread nature of human rights abuses in Turkey.
The military, still an overriding force in the country’s politics, continues
to be a factor in restricting civil rights, such as freedom of expression.
Many abuses are reported by detainees accused of theft and other com-
mon criminal offences, as well as by those interrogated under the Anti-
232 MONSHIPOURI
Terror Law.58 During the year 2000, the European Court of Human
Rights found Turkey responsible for ‘‘disappearance, extra-judicial exe-
cution, death in custody, torture, and suppression of freedom of expres-
sion in numerous new decisions.’’59
On balance, as Middle East observers argue, the military has been
more instrumental in building state apparatuses than in creating strong
economies. By strengthening the state apparatus and the public sector,
military rulers have structured the political arena along corporatist
models: ‘‘Order has taken precedence over mobilization, organic unity
over pluralism, discipline over spontaneity.’’60 The combination of war
and military rule has been the major barrier to the genesis of more liberal
political practices, if not to democracy itself. Further, the region’s linger-
ing and unresolved conflicts keep the military in the thick of the political
fray and enable it to exert claims to substantial resources.61
Turkey’s economic liberalization policies were accompanied by little or
no political democratization. Income distribution became less equitable
as a result of years of liberalization. Despite a preference throughout the
1980s for restructuring of the metropolitan municipalities, the Turkish
political system remained largely centralist.62 The greater emphasis on
the private sector notwithstanding, by the mid-1990s the public enter-
prises produced about one-third of the total output in the manufacturing
industry.63 During the 1980s and early 1990s, foreign and domestic debt
rose sharply, the public deficit increased, high rates of inflation became
chronic, and privatization proved problematic. These difficulties became
even more pronounced under the True Path Party–Socialist Democratic
Populist Party coalition government that ensued, forcing Turkey once
again to adopt strict stabilization programmes in the spring of 1994.64
The economic crises of late 2000 and early 2001 demonstrated that the
austerity programmes, rising unemployment, and an increase in the num-
ber of companies going bankrupt have led to loss of faith in the liberal-
izing measures.65
More recently, Turkey has announced a package of austerity measures
aimed at winning between $10 billion and $12 billion in new foreign loans
and restoring confidence in the country’s battered economy.66 To this
end, the government will cut spending by 9 per cent and freeze hiring by
the state’s bloated bureaucracy. This means that the lira, the country’s
currency, will continue to float and the government will not protect the
currency. Many people in Turkey have protested against such an ap-
proach, fearing that it will lead to the doubling of prices and hundreds of
thousands of lay-offs.67
Since the late 1990s, Turkey has intensified its lucrative commercial
and financial ties with Europe and is now regarded as one of the world’s
ten most promising emerging markets by the US government. Turkey,
however, has yet to display full compliance with the Copenhagen rules
(which are guidelines established in 1993 requiring EU applicants to
build Western-style democratic institutions in an effort to guarantee the
rule of law, individual rights, and protection of minorities).68
The military’s economic power base figures prominently in the coun-
try’s economic configuration. The powerful, activist, officer corps holds a
firm grip on certain aspects of the economy. Eric Rouleau describes this
situation as ‘‘mercantile militarism.’’ Rouleau writes: ‘‘[I]t is the chief
of staff, not the prime minister, the cabinet, or the parliament, who over-
sees arms production and procurement (which do not figure in the state
budget). It is also the general staff that draws up the annual budget of
the armed forces (even though it absorbs more than a third of state
revenues).’’69 Additionally, the military controls several industries, in-
cluding the most lucrative one, OYAK, which is a vast conglomerate
comprising some 30 enterprises in sectors as diverse as automobile man-
ufacturing, cement works, food processing, pesticides, petroleum, tour-
ism, insurance, banking, real estate, supermarkets, and high technology.
Despite its leaders’ claims that secularism and democracy are the two
fundamental concepts that bind the people together, the contradictions of
the Turkish political system are obvious. The military is so powerful and
ethnic diversity so little respected that some experts have called our at-
tention to Turkey as ‘‘the great laboratory of Westernization in the world
of Islam, and the epic battleground of resistance to it.’’70 Others have
argued that Turkey – at first glance, and better than any other country –
dramatizes the paradox of Westernization. Yet a closer examination re-
veals that the real cultural clash is not between modernity and tradition
but between contrasting visions of modernity. It is in such a context that
the emergence in Turkey of multiple identities – such as Kurdish identity,
Islamism, Kemalism, or pan-Turkism – must be seen.71 Turkey appears
to be the solution to preserving the right to cultural and ethnic diversity.
Some observers, however, have warned that such diversity cannot come
at the expense of Turkey’s territorial integrity.72
Without a democratic framework in place, these multiple identities and
cultural traits are becoming more explicit and harder to reconcile.73 The
Turkish state shows few signs of admitting the presence of alternative
national identities.74 Arguably, major economic progress and increased
democratization in south-east Turkey are likely to alleviate some symp-
toms of the crisis. Ultimately, however, there is a consensus among ex-
perts that only a solution that underscores the ethnic character of the
problem will be a lasting solution: ‘‘at a minimum that means a clear
recognition of the existence of the Kurds as a culturally distinct identity,
and recognition of the rights of Kurds to express their culture fully under
a system of cultural autonomy.’’75 Thus far, the state’s repressive meth-
234 MONSHIPOURI
ods of coping with the quest for recognition by the Kurds (by far the
country’s largest non-Turkish-speaking group) have complicated and
prolonged the Kurdish security problem, with no solution in sight in the
immediate future.76
In south-eastern Turkey, many human rights violations have been di-
rectly linked to the Kurdish question. Since 1984, the war between the
Turkish government and the Kurdish Workers’ Party (Partiya Karkeren
Kurdistan; PKK) has claimed over 30,000 lives.77 The Kurdish question
has become one of the most formidable challenges facing the Turkish
Republic since its establishment (1923) and is certainly the key obstacle
to its aspiration to full integration with the EU.78 The Kurds have be-
come increasingly disenchanted with the PKK: only a minority of the
Kurds see the PKK as their main representative organ, and the majority
do not desire a separate Kurdish state. A significant number of Kurdish
people have integrated into Turkish society.79 With the PKK militarily
vanquished and its leader, Abdullah Ocalan, arrested, Turkey is expected
to accelerate the process of democratization as well as the process of
granting cultural rights to the Kurds. ‘‘In its relations with the European
Union and international human rights bodies,’’ experts concur, ‘‘Turkey’s
very defeat of the PKK rebellion makes it increasingly difficult to justify
restrictions on cultural rights.’’80
The Turkish government has, to date, refused to sign either the (Eu-
ropean) Framework Convention on Minorities or the European Charter
for Regional or Minority Language. Recently, it signed the International
Covenant on Civil and Political Rights, which addresses the issue of na-
tional minorities, but it is unclear whether the government will make a
reservation to the document.81 Europeanized secular élite groups, and
religious elements who defend an ‘‘Eastern’’ way of life, constitute the
opposite poles of a renewed cultural struggle to determine the country’s
future course. Opening up to the EU in order to gain recognition as a
partner has failed to bring about reconciliation between the two sides.
Consequences of variation in human rights practices
The practice of human rights is far more difficult in poverty-stricken Pa-

kistan than in Iran and Turkey. The efforts of the Pakistani government
to promote the economic rights of its citizens are substantially hampered
by the poverty level there. Yet, the prevailing climate of violence – as
evidenced by widespread reports of terror, torture, and ill-treatment82
in all three countries – proves that the protection of the rights of the in-
tegrity of the person is not necessarily related to the level of economic
development. On the other hand, because of rampant poverty and cor-
ruption in their country, Pakistanis appear to have developed more tol-

erant attitudes toward the military coup.
There is less enthusiasm in Turkey and Iran for such an eventuality,
despite the fact that both governments are subject to the overriding in-
fluence of the security forces. Regardless, policy makers in all three
countries widely share the view of the problematic nature of democrati-
zation, questioning the value of democracy in resolving intrastate and
communal conflicts.83 Middle East experts have maintained that, as long
as challenges to the state and the regime are defined within a security–
military framework (as is the case in Turkey), they are certain to rein-
force the dominant role of the military as an institution in the political
process.84 This so-called ‘‘securitization’’ of politics accounts for why the
military plays such an autonomous role in policy-making and why demo-
cratic consolidation too often is undermined in Turkey.85
Iran is also in the midst of a legitimacy crisis, for the conservative
clerics have tried to undermine the democratization efforts of the re-
formers by calling the voices of change ‘‘threats’’ to the nation’s security
and to the ideals of the Islamic Republic. The unwillingness to pursue
democratic solutions has boded ill for the rights of all, including ethnic
minorities such as the Kurds and religious minorities such as the Baha’is.
Neoliberal economic reforms have presented dilemmas for policy
makers, as attempts to balance economic growth, social order, and polit-
ical stability have had constraining impacts on the longevity of the dem-
ocratic process. The complex interplay between economic and political
reform has rendered it impossible to predict with certainty which process
will be consistently more important. In Iran, President Khatami took a
different tack during his first term: political development first; economic
development later. The conservative clerics have strongly opposed such
an approach, fearing the gradual erosion of their power bases and re-
sources. As a result, not much has been achieved in the way of reform
under President Khatami’s first term (1997–2001). Now in his second
term, Khatami has pledged to achieve three main goals: to reform the
administrative structure, to reform the economy, and to establish a civil
society.86
Similarly, the current leadership in Turkey is bent on stressing both
economic and political liberalization. The fear of the Kurdish secessionist
movement in post-war Iraq looms large in the minds of the country’s
military leaders, who have until now been preoccupied with the ‘‘Islamic
threat.’’ Although the resolution of the Kurdish crisis could have a stabi-
lizing impact on the region, its unresolved status has serious conse-
quences for Turkey. This is so because the current Kurdish problem in
Turkey may well jeopardize the country’s relations with the EU, if not
with America, and may limit its role as a stabilizing force in the region.
236 MONSHIPOURI
Likewise, stability and peace in Afghanistan and Iraq, as well as the

refugee situation resulting from two recent wars in these countries, re-
quire closer cooperation between Turkey, Iran, and Pakistan. While
Pakistan and Iran have played an active role in the reconstruction of
Afghanistan, Turkey and Iran have turned their attention to the post-
conflict difficulties facing Iraq. The resolution of ethnic and regional
conflicts there will surely have considerable ramifications for these coun-
tries. The complex political dynamics and a lack of political will on the
part of the ruling élites, rather than Islamic ideologies or cultural tra-
ditions, best illustrate the difficulties of improving the human rights
performance of these countries. A much greater long-term capacity for
élite-led innovation or reform-from-above in both Iran and Turkey than
in Pakistan demonstrates stronger expectations for national develop-
ment. These expectations are arguably rooted in memories of national
historical greatness in two of the region’s oldest nation-states.
Conclusions
Iran, Pakistan, and Turkey are places of stern opposition to authoritari-

anism and of continuing human rights violations. It is possible to discern
certain similarities amid the differences among these countries: human
rights violations in these countries are due largely to the absence of sus-
tainable democratic processes, the lack of accountable political order,
inter-élite fragmentation, imbalanced state–society relations, ethnic ten-
sions, and badly flawed liberalization strategies.87
The long-standing role played by the military in this region has had
constraining impacts on any consistent and enduring transition toward
democracy. As the guardian of nationalistic ideals and sentiments, the
force behind nation building, and the most powerful economic enclave,
the armed forces have a history of intrusion into politics in the Middle
East, as they do elsewhere in the developing world. This, we should
also note, has complicated the process of democratization in the Middle
Eastern region, making the civilianization of their political systems very
slow.88 In all three countries, egregious violations of human rights have
had less to do with economic conditions and national wealth than with
the lack of democratic institutions in place.
The realization of ethnic and religious minority rights – as well as
women’s rights, labour rights, and curbing the trafficking of refugees –
will stabilize the political climate of each country. Political stability in
each country demands legitimate outside attention and cooperation in
the form of foreign direct investment and technological assistance. IFIs,
such as the IMF and the World Bank, can play a major role in nudging
along these countries’ economic liberalization by expanding economic

contacts with them. The IFIs’ macroeconomic medicine and austerity
measures have thus far been especially painful for the poorest seg-
ments of these countries and have failed to address their pressing socio-
economic needs. IFIs can, and should, play a constructive role in
reducing trade barriers by helping these countries gain better access to
Northern markets.
National governments are, indeed, the key players in the human rights
drama: without their political commitment, human rights conditions are
unlikely to improve. Factors responsible for human rights abuses in this
region are primarily internal: these include, among others, poor leader-
ship, personalistic politics, constitutional predicaments and flaws, gender-
based violence, the slow pace of development of civil society, the absence
of judicial independence, and the lingering military–bureaucratic rule. It
is in these governments’ interest to prevent domestic crises and promote
regional cooperation.
More specifically, the empowerment of the president vis-à-vis the su-
preme leader will shore up Iran’s civic institutions and society, provide
political openings, and strengthen the move toward integration with the
international community. Increasingly, experts argue that the United
States’ unilateral sanctions on Iran are likely to ignore the Iranian peo-
ple’s clear call for reform, as evidenced by the second landslide victory of
Khatami.89 President George W. Bush’s 2002 State of the Union address
– which lumped together Iran, Iraq, and North Korea in an ‘‘axis of evil’’
– could undermine the progress made in enhancing the democratic move-
ment in Iran. It is unfortunate that Iran, going through fragile ideological
conflicts and the fledgling liberalization struggles it currently faces, is
getting no consideration or rhetorical support from the Bush administra-
tion. Iran’s constructive role in the war on the Taliban and the war in
Iraq, as well as its willingness to participate actively in Afghanistan’s
post-war reconstruction, as well as in establishing permanent peace there,
point to the positive role it has thus far played in stabilizing the region.
The Kurdish problem cries out for a political solution. Military solu-
tions pursued in south-eastern Turkey have thus far undermined the ef-
fort to seek a sustainable political solution. Some observers have argued
that the best hope for ethnic peace is to divorce ethnic identity from
political access and to stress transethnic identities such as Islam.90 The
resolution of the Kashmir dispute lies at the heart of Pakistan’s bitter
conflict with India. An end to this dispute would significantly curtail hu-
man rights abuses against the Kashmiris and (by weakening the militari-
zation of politics), indirectly, the Pakistanis as a whole.
In such a country as Pakistan, cooperation with the UN special repre-
sentative, the UN Commission on Human Rights, the IMF’s Poverty Re-
238 MONSHIPOURI
lief and Growth Facility (PRGF), and regional organizations such as the
EU and the Commonwealth of Nations, is critical to political viability and
international legitimacy.91 The regional organizations must balance their
commercial and strategic interests, such as trade and investment con-
tracts, with human rights concerns. The EU’s two-track approach toward
Iran – that is, condemning human rights violations in Iran while support-
ing the reformist policies of President Khatami – is a proper strategy.92
These countries’ dilemmas in dealing with liberalization programmes
represent a microcosm of the problems facing the developing world,
where adjustment programmes have come at uncertain costs. Political
will and right planning will properly address the questions of equity and
transparency. If bloodshed, uprisings, or any other form of instability are
to be avoided in these countries, their leaders must opt for a viable re-
form strategy that combines economic liberalization and the expansion of
civil society. Equally crucial will be the pressure of the international
community in demanding close adherence to international human rights
laws and conventions.
Notes
1. Some of the discussions here have been further elaborated in the author’s Islamism,
Secularism, and Human Rights in the Middle East, Boulder, CO: Lynne Rienner Pub-
lishers, 1998.
2. William Spencer, ‘‘The Middle East: Cradle of Islam,’’ in William Spencer, ed., Global
Studies: The Middle East, 8th edition, Guilford: Dushkin/McGraw Hill, 2000, p. 12.
3. Alan Richards and John Waterbury, A Political Economy of the Middle East, 2nd edi-
tion, Boulder: Westview, 1996, p. 222.
4. Roundtable, ‘‘Civil Society in Iran and the Middle East,’’ Discourse: An Iranian Quar-
terly, Vol. 2, No. 2, Winter 2001, p. 5.
5. Ibid., pp. 6–7.
6. Human Rights Watch World Report 2001, New York: Human Rights Watch, 2000, p. 378.
7. For more on this, see Amnesty International at hwww.amnesty.orgi.
8. Human Rights Watch World Report 2001, New York: Human Rights Watch, 2000, p. 213.
9. Sten Widmalm, ‘‘The Rise and Fall of Democracy in Jammu and Kashmir,’’ Asian Sur-
vey, Vol. 37, No. 11, November 1997, pp. 1005–1030.
10. Human Rights Watch World Report 2001, p. 325.
11. Ibid., p. 327.
12. Mahmood Monshipouri, Islamism, Secularism, and Human Rights in the Middle East,
p. 224.
13. Human Rights Watch World Report 2001, p. 329.
14. Ibid., p. 329.
15. James A. Bill and Robert Springborg, Politics in the Middle East, 5th edition, New
York: Longman, 2000, p. 171.
16. Ervand Abrahamian, ‘‘Iran,’’ in Mark Kesselman, Joel Krieger, and William A. Joseph,
eds, Introduction to Comparative Politics: Political Challenges and Changing Agendas,
Boston: Houghton Mifflin, 2000, pp. 607–654.
17. Daniel Brumberg, Reinventing Khomeini: The Struggle for Reform in Iran, Chicago:
University of Chicago Press, 2001, pp. 127, 151.
18. Jon B. Alterman, ‘‘Iran: Came the Revolution,’’ Current History, Vol. 100, No. 642,
January 2001, p. 29.
19. Ibid., p. 29.
20. Ibid., p. 32.
21. Mahmood Monshipouri, ‘‘Civil Society, Democracy, and Velayat-e Faqih,’’ Journal of
Iranian Research and Analysis, Vol. 15, No. 2, November 1999, pp. 106–107.
22. John L. Esposito and John O. Voll, Islam and Democracy, Oxford: Oxford University
Press, 1996, p. 70.
23. See, for example, the writings and declarations of the Islamic philosopher Abdulkarim
Soroush, in which he rejects any official interpretation of Islam and warns against turn-
ing religion into an ideology. Hojatoleslam Mohsen Kadivar, a prominent cleric, has
also publicly espoused similar views. For a particularly informative analysis on this sub-
ject, see Dariush Zahedi, The Iranian Revolution, Then and Now: Indicators of Regime
Instability, Boulder: Westview, 2000, pp. 40–92.
24. See Geneive Abdo, ‘‘Re-Thinking the Islamic Republic: A Conversation with Ayatollah
Hossein Ali Montazeri,’’ The Middle East Journal, Vol. 25, No. 1, Winter 2001, p. 14.
25. Ibid.
26. See Zahedi, The Iranian Revolution, Then and Now, pp. 67–84.
27. Ahmad Ghoreishi and Dariush Zahedi, ‘‘Prospects for Regime Change in Iran,’’ Middle
East Policy, Vol. 5, No. 1, January 1997, p. 98.
28. H.E. Chehabi, ‘‘Eighteen Years Later: Assessing the Islamic Republic of Iran,’’ in Wil-
liam Spencer, ed., Global Studies: The Middle East, 7th edition, Guilford: Dushkin/
McGraw-Hill, 1998, pp. 199–202.
29. Hamid Zangeneh, ‘‘The Post-Revolutionary Iranian Economy: A Policy Appraisal,’’
Middle East Policy, Vol. VI, No. 2, October 1998, pp. 118–119.
30. Kamran M. Dadkhah and Hamid Zangeneh, ‘‘The Straw that Could Break the Camel’s
Back: An Economic Analysis of Subsidies in the Iranian Economy,’’ Journal of Iranian
Research and Analysis, Vol. 16, No. 1, April 2000, pp. 123–134.
31. Jahangir Amuzegar, ‘‘Iran’s Post-Revolutionary Planning: The Second Try,’’ Middle
East Policy, Vol. VIII, No. 1, March 2001, p. 36.
32. Ibid.
33. Ibid., p. 37.
34. Ibid., p. 40.
35. Alan Richards and John Waterbury, A Political Economy of the Middle East, p. 244.
36. A. Reza Sheikholeslami, ‘‘The Transformation of Iran’s Political Culture,’’ Critique:
Journal for Critical Studies of the Middle East, No. 17, Fall 2000, p. 133.
37. H.E. Chehabi, ‘‘Eighteen Years Later,’’ p. 201.
38. Val Moghadam, ‘‘The Student Protests and the Social Movement for Reform in Iran:
Sociological Reflections,’’ Journal of Iranian Research and Analysis, Vol. 15, No. 2,
November 1999, p. 103.
39. International Iran Times, June 15, 2001, p. 1.
40. Esposito and Voll, Islam and Democracy, pp. 102–123.
41. Ahmed Rashid, ‘‘Pakistan: Balancing Act,’’ Far Eastern Economic Review, 1 February
2001, pp. 60–61.
42. Ibid.
43. Ahmed Rashid, ‘‘Pakistan’s Coup: Planting the Seeds of Democracy,’’ Current History,
Vol. 98, No. 632, December 1999, p. 414.
44. Ibid.
45. Ibid.
240 MONSHIPOURI
46. Iftikhar H. Malik, ‘‘Pakistan in 2000: Starting Anew or Stalemate?,’’ Asian Survey, Vol.
XLI, No. 1, January/February 2001, pp. 110–111.
47. Mahmood Monshipouri, ‘‘Backlash to the Destruction at Ayodhya,’’ Asian Survey, Vol.
33, No. 7, July 1993, p. 715.
48. Lawrence Ziring, Pakistan: The Enigma of Political Development, Boulder: Westview,
1980, pp. 41–57.
49. John L. Esposito, ‘‘Islam: Ideology and Politics in Pakistan,’’ in Ali Banuazizi and
Myron Weiner, eds, The State, Religion, and Ethnic Politics: Afghanistan, Iran, and Pa-
kistan, Syracuse: Syracuse University Press, 1986, see p. 333.
50. Mary Louise Becker, ‘‘India: Government and Politics,’’ in Peter R. Blood, ed., Paki-
stan: A Country Study, Lanham: Berman, 1995, pp. 244–245.
51. Stephen P. Cohen, ‘‘Old Issues and New Opportunities,’’ The Brookings Review, Vol.
18, No. 4, Fall 2000, p. 33.
52. Paul R. Brass, ‘‘India: Democratic Progress and Problems,’’ in Selig S. Harrison, Paul H.
Kreisberg, and Dennis Kux, eds, India and Pakistan: The First Fifty Years, Cambridge:
Cambridge University Press, 1999, pp. 33–34.
53. Lawrence Ziring, Pakistan in the Twentieth Century: A Political History, Oxford: Oxford
54. Paula R. Newberg, Double Betrayal: Repression and Insurgency in Kashmir, Carnegie
Endowment for International Peace, Washington, D.C., 1995, pp. 73–74.
55. James A. Bill and Robert Springborg, Politics in the Middle East, pp. 134–138.
56. Arthur Goldschmidt, Jr, A Concise History of the Middle East, 6th edition, Boulder:
Westview, 1999, p. 200.
57. Jenny B. White, ‘‘Islam and Democracy: The Turkish Experience,’’ Current History,
Vol. 94, No. 558, January 1995, p. 8.
58. Human Rights Watch World Report 2001: Events of 2000, New York: Human Rights
Watch, 2000, p. 327.
59. Ibid., p. 329.
61. Ibid.
62. Ersin Kalaycioglu, ‘‘Decentralization of Government,’’ in Metin Heper and Ahmet
Evin, eds, Politics in the Third Turkish Republic, Boulder: Westview, 1994, pp. 87–
100.
63. Ergun Ozbudun, ‘‘Turkey: Crises, Interruptions, and Reequilibrations,’’ in Larry Dia-
mond, Juan J. Linz, and Seymour Martin Lipset, eds, 2nd edition, Politics in the Devel-
oping Countries: Comparing Experiences with Democracy, Boulder: Lynne Rienner,
1995, p. 250.
64. Ibid., p. 258.
65. Middle East International, No. 644, February 23, 2001, pp. 17–18.
66. Douglas Frantz, ‘‘Needing Cash, Turkey Plans More Sacrifice,’’ New York Times, Sun-
day, 15 April 2001, p. 14.
67. Ibid.
68. Eric Rouleau, ‘‘Turkey’s Dream of Democracy,’’ Foreign Affairs, Vol. 79, No. 6,
November/December 2000, p. 101; see also Aslan Gunduz, ‘‘Human Rights and Tur-
key’s Future in Europe,’’ Orbis, Vol. 45, No. 1, Winter 2001, p. 17.
69. Rouleau, ‘‘Turkey’s Dream of Democracy,’’ p. 109.
70. Ian McGillis, ‘‘A View of Turkey Beyond Stereotypes,’’ The Gazette (Montreal), 22
January 2000, available at hwww.lexis-nexusi.
71. Dov Waxman, Turkey’s Identity Crises: Domestic Discord and Foreign Policy, Conflict
Studies #311, Research Institute for the Study of Conflict and Terrorism, Leamington
Spa, Warwickshire, 1998, p. 6.
72. Kemal Kirisci and Gareth M. Winrow, The Turkish Question and Turkey: An Example
of a Trans-State Ethnic Conflict, London: Frank Cass, 1997, pp. 212–213. See also Nader
Entessar, Kurdish Ethnonationalism, Boulder: Lynne Rienner, 1992, pp. 9–10.
73. Paul Kubicek, ‘‘Turkish–European Relations: At a New Crossroads?’’ Middle East
Policy, Vol. VI, No. 4, June 1999, p. 161.
74. Henri J. Barkey and Graham E. Fuller, Turkey’s Kurdish Question, Lanham: Rowman
and Littlefield, 1998, p. 133.
75. Ibid., p. 180.
76. Heinz Kramer, ‘‘Turkey: Toward 2000: In Search of National Consensus and a New
Political Center,’’ in William Spencer, ed., Global Studies: The Middle East, pp. 232–
233.
77. Svante E. Cornell, ‘‘The Kurdish Question in Turkish Politics,’’ Orbis, Vol. 45, No. 1,
Winter 2001, p. 31.
78. Ibid.
79. Ibid., p. 43.
80. Ibid., p. 44.
81. Aslan Gunduz, ‘‘Human Rights and Turkey’s Future in Europe,’’ Orbis, Vol. 45, No. 1,
Winter 2001, p. 26.
82. Amnesty International Report 1999, New York: Amnesty International USA, 1998, pp.
198, 265, 336.
83. See Mahmood Monshipouri, ‘‘The Fate of Human Rights in the Middle East and North
Africa,’’ in Manochehr Dorraj, ed., Middle East at the Crossroads: The Changing Politi-
cal Dynamics and the Foreign Policy Challenges, Lanham: University Press of America,
1999, pp. 75–76.
84. Philippos K. Savvides, ‘‘Legitimation Crisis and Securitization in Modern Turkey,’’ Cri-
tique: Journal for Critical Studies of the Middle East, No. 16, Spring 2000, p. 62.
85. Ibid., pp. 69–71.
86. New York Times, 10 June 2001, p. 4K.
87. This should not obscure the fact there are many difficulties inherent to economic liber-
alization programmes, regardless of the ways in which such reforms are implemented.
Good governance alone cannot provide the answer for the human and political costs of
economic reforms, including ending price controls, cutting government spending and
subsidies, and adopting other painful market-related measures.
89. See Lee H. Hamilton and James Schlesinger, ‘‘Turning a Friendlier Face to Iran,’’ New
York Times, 16 June 2001, p. A15.
90. M. Hakan Yavuz and Michael M. Gunter, ‘‘The Kurdish Nation,’’ Current History, Vol.
100, No. 642, January 2001, p. 36.
91. Human Rights Watch 2001, pp. 216–217.
92. Ibid., p. 383.
11
Causes and consequences of
variation in post-communist
human rights practices
Shale Horowitz
The post-communist world offers a fascinating setting in which to exam-

ine the development of human rights practices. With the liberalization
and then collapse of the Soviet, Yugoslav, and Albanian communist re-
gimes, 28 new or transformed political entities emerged across Eastern
Europe and Soviet Eurasia. Despite broadly similar conditions of politi-
cal rule under the old regimes, the new regimes have adopted widely
varying human rights practices. What are the most important causes of
this variation? What are the consequences of variation in human rights
practices for economic development, democratization, and conflict reso-
lution?
Consider first causes. Political institutions appear to be the primary
proximate cause of human rights practices. But are there more funda-
mental causes, which affect both political institutions and human rights
practices? Promising candidates include culture and national identity,
economic development, and ethnic conflict. Are cultures and national
identities inherently favourable or unfavourable to formation of strong
human rights practices, or do they have more complex and changing
‘‘implications’’? Do different levels and patterns of economic develop-
ment lead to more intense political conflict over economic policy, as a
result threatening human rights protection? Does large-scale military
conflict – in the post-communist context, typically ethnic in character –
precipitate more frequent and intense human rights violation and erode
existing human rights protection?
242
POST-COMMUNIST HUMAN RIGHTS PRACTICES 243
Interestingly, reform in the post-communist world tended to be corre-

lated across a number of important areas. Significantly improved human
rights practices tended to develop along with more complete democrati-
zation and more rapid and thorough market reform. Similarly, continued
human rights violations were associated with continued authoritarianism
and heavy state intervention in the economy. Such synchronization has
not always been the most obvious pattern in other parts of the world. For
example, in Latin America in the 1970s and early 1980s, better human
rights practices and democracy were often associated with greater state
intervention in the economy. Similarly, in East Asia, more market-
oriented economic policies have often been associated with authoritarian
regimes – in some cases, quite repressive authoritarian regimes.
It will be argued here that the specific properties of the communist
systems, combined with the historical timing of their rise and fall, explain
the synchronized patterns of reform or non-reform to be observed in the
post-communist states. Both stronger human rights practices and greater
democratization are hypothesized to have three fundamental causes: (1)
national identities that contributed to a desire to break decisively with
the communist past; (2) more advanced economic structures that facili-
tated transition to a market economy; and (3) peace.
It is argued that national identities did not have their greatest impact
through being intrinsically more compatible with modern conceptions of
human rights. Rather, they were most influential in discrediting more re-
pressive human rights practices and authoritarian political rule, which were
perceived as having set back national development during the communist
period. In other words, it was sometimes widely felt that communist-type
methods did not work, relative to what the pre-communist period had led
people to expect. In such cases, and in the historical setting of the late
twentieth century, stronger human rights protections and democracy ap-
peared as components of the most promising alternative developmental
model. This logic implies that these ‘‘frustrated’’ national ideals might
have had different implications under different historical circumstances –
as appears to have been the case, for example, in Eastern Europe be-
tween the two world wars.
Consider now the consequences of variation in human rights practices.
Stronger human rights protections are likely to advance democratization
and economic development, but not necessarily conflict resolution. Hu-
man rights protections are likely to make both ideological and institu-
tional contributions to the democratization and economic development
processes. However, the size of the effects is difficult to estimate because
of the wide variety of other conditions that are relevant and even neces-
sary. The relation of human rights practices to conflict resolution is likely
244 HOROWITZ
to be even weaker, because greater freedoms can intensify as well as

pacify various sources of internal and international conflicts.
The following sections begin by building hypotheses about the causes
of variation in post-communist human rights practices. These hypotheses
are then operationalized and tested statistically. The tests find that war is
a relatively important source of human rights violations, and economic
underdevelopment a relatively unimportant source. The tests also show
that cultural factors are by far the most important influence. Frustrated
national ideals have an impact comparable to that of religious tradition.
This suggests that rational and instrumental ways of interpreting the in-
fluence of culture may be a promising addition to existing approaches,
which emphasize non-rational, habitual effects of culture. A briefer treat-
ment of the consequences of variation in human rights practices follows.
The concluding section summarizes the findings. It also discusses how the
rational, instrumental approach to culture might be used to explain vari-
ation in human rights practices in other regions and time periods.
Causes of variation in human rights practices in

the post-communist world
Theory and hypotheses
Movement towards full democratization is usually associated with signif-

icant progress towards respect for human rights generally. In evaluating
this relationship, there are important issues of definition and potential
overlap. Full democratization necessarily involves not only free and fair
elections to positions of real political power but also freedom of expres-
sion, freedom of the press, and freedom of association for political pur-
poses and organizations. Suppose human rights are defined narrowly in
terms of civil liberties. It is conceivable that all the political freedoms
relevant to democratization might exist alongside severe restrictions of
other human rights. For example, arbitrary and corrupt use of police and
judicial powers might be significant, but not directed at political targets.
There might be significant restrictions of economic opportunities of indi-
viduals and groups, but these might affect people of all political persua-
sions more or less equally. However, such a separation between political
and other freedoms is relatively rare. Arbitrary exercise of police and
judicial powers and restrictions of economic opportunities often involve
discretionary political power on a large scale. Those in positions of au-
thority almost invariably use such discretionary power for political as
well as other ends.1
This is the basis for the argument that democratization should tend to
increase protection of civil liberties. This will be true by definition for

civil liberties in their directly political dimensions. Furthermore, the po-
litical consensus and institutional protections favouring political freedoms
will tend to extend to other types of freedoms. After all, political free-
doms are highly sensitive, because they provide access to political power
that can affect all other types of activities. If it is possible to tolerate and
enforce political freedoms, then the same climate of opinion and institu-
tional procedures should be similarly accommodating to enhanced cul-
tural and economic freedoms and to more neutral police and judicial
institutions.
The potential problem with an explanation based on political regime
type is that it verges on being practically tautological. The point here is
not the definitional one – that there is inevitably some overlap between
free and fair elections along with political freedoms on the one hand and
civil liberties more broadly on the other. It is still possible for there to be
significant differences between the two outcomes taken in the aggregate,
since protection of non-political civil liberties may differ significantly
from political civil liberties. The problem is that, as discussed, the capac-
ity for political toleration is one of the most sensitive types of freedom, so
that it is relatively obvious that this capacity, once improved, will be
more likely to extend to other freedoms. From a theoretical point of
view, the more interesting question is why the capacity to tolerate and
enforce both political and other freedoms has developed. In this sense, it
may be more accurate to see democracy as an often-important interven-
ing variable that commonly mediates the relationship between more fun-
damental factors and non-political civil liberties.
The decline and fall of the Soviet, Yugoslav, and Albanian regimes
meant the break-up of specific types of authoritarian political orders and
heavily interventionist economic systems. Most juridically independent
Eastern European countries regained real political autonomy, which had
been lost to the Soviet Union during and immediately after World War
II. The break-up of the Soviet Union and Yugoslavia also meant the
break-up of older territorial orders – which had been internally recon-
structed using the Soviet system of ethnically defined provinces (‘‘Re-
publics’’) administered by ethnically defined sub-parties of the central
communist parties.
Politically, there were three important dimensions of the Soviet and
Yugoslav collapses. First, they provided an opportunity for individuals to
acquire greater political freedoms and civil liberties, both for their own
sake and as a means of pursuing other goals. Second, with the exceptions
of Albania and, arguably, Russia, the successor states gained real politi-
cal independence from their former Soviet or Yugoslav overlords. To
the extent that these successor states incorporated traditions of political,
246 HOROWITZ
economic, and cultural development that were set back or blocked by

Soviet or Yugoslav rule, genuine political independence provided an op-
portunity to revive and pursue such national developmental goals.
Third, many of the successor units incorporated large, territorially con-
centrated, ethnic minorities with their own autonomy or independence
aspirations. Such aspirations were amplified by often-legitimate fears of
discrimination, for minorities were typically confronted by new regimes
oriented towards political, economic, and cultural revival of the dominant
ethnic group. Such situations often erupted into violent ethnic conflicts,
and these conflicts were often intensified when other states intervened.
If Russia’s conflict in tiny Chechnya is excluded, eight of the 28 post-
communist states became embroiled in large-scale, ethnically based war-
fare.2
Economically, the collapse of planned or socialized economies meant
that a broad redistribution of opportunities and resources became possi-
ble. Apart from the privileges enjoyed by those directly employed in high
party and state positions, planned and (in the Yugoslav case) socialized
economies directed large subsidies in typical patterns. As a general rule,
capital-intensive industry and agriculture were subsidized by the mostly
urban service sector. These subsidies were taken in the form of over-
priced or unavailable consumer goods and compressed incomes. They
were distributed to industry and agriculture through open-ended soft
credits to cover enterprise debts and artificially cheap inputs (particularly
energy and energy-intensive inputs). The debate over transition to a
market economy predictably pitted the mostly urban service sector
against heavy industry and agriculture, for a transition to a market econ-
omy would mean subjecting industry and agriculture to greater competi-
tion (particularly from abroad) and eliminating most credit and input
subsidies. These resources would flow back to the service sector in the
form of higher retained incomes and cheaper, higher-quality, consumer
goods.3
A more advanced economy has a larger service sector and smaller in-
dustrial and agricultural sectors. Moreover, in more advanced economies,
a higher percentage of communist-era industry is likely to be economi-
cally viable after transition to a market economy. Among other things,
democracy and improved human rights were typically used as means of
pursuing market reforms. So, more advanced economies should have
larger economic interest groups favouring market reform, democratiza-
tion, and improved human rights practices, and smaller economic interest
groups opposing them. A readily available measure of economic devel-
opment is the agricultural share of the workforce.4
During the late Soviet and post-Soviet periods, movements for national
independence and revival of national identities were an important source
of political reform. What are here termed ‘‘frustrated national ideals’’ are
widely held beliefs that the communist system frustrated pre-communist
national potential, particularly in the areas of political autonomy and
greatness, economic development, and cultural autonomy and expres-
sion. Such widely held beliefs should be reflected in better-organized,
more politically aggressive, nationalist opposition movements and in lo-
cal communist parties more sympathetic to the agenda of national re-
vival. Such opposition movements and reformist communist parties did,
in fact, have central roles in the cases where communist regimes were
replaced by more democratic governments. More democratic govern-
ments typically showed greater respect for human rights and imposed
more radical market reforms.
There is no inherent reason why nationalist movements should pursue
democracy, human rights, and market reform. However, there was a
good reason for this in the specific post-communist context. The commu-
nist system was typically viewed as something imposed by alien rulers;
democracy, human rights, and market reforms were the most obvious
means of destroying the alien system and replacing it with one more
compatible with national developmental objectives. Methods that were
less democratic, more repressive, and more economically interventionist
were discredited as all-too-Soviet or all-too-Yugoslav. On the other hand,
the combination of democracy, human rights, and market economies was
politically ascendant in other parts of the world and was politically and
economically compatible with pursuing national-revival goals.
Measurement of the extent of frustrated national ideals is a more diffi-
cult undertaking. The measure proposed here starts with pre-communist
political and economic achievements. Where these achievements were
greater, there should be greater hostility to the communist system as
one that set back national developmental potential. Greater pre-commu-
nist achievements might also be expected to amplify resentment at
communist-era repression and at threats to demographic and territo-
rial integrity associated with communist rule. A quantitative index de-
signed to predict stronger frustrated national ideals is offered below. The
index is based on country classifications given in table 11.1 and explained
in more detail in the Appendix (pages 260–263).
The predictive power of frustrated national ideals can be compared
with that of predominant religions. It is relatively obvious that predom-
inantly Islamic post-communist countries have had the worst human
rights practices, and that predominantly Orthodox Christian countries
have had worse human rights practices than predominantly Catholic or
Protestant countries. One can devise intrinsic reasons why this should
be so, but such reasons have a strongly ex post facto character. To take
the most obvious example, efforts to explain outcomes such as economic
248 HOROWITZ
development, democratization, and human rights practices in Western

Europe and Latin America have typically classified Catholicism as a rel-
atively authoritarian tradition. Similarly, if, in the post-communist world,
the Orthodox Christian countries had seen outcomes such as those in the
Catholic and Protestant countries, it would be easy to rationalize a simple
dichotomy between Christianity and Islam.
Large-scale military conflicts are threats to human rights and democ-
ratization. Directly, apart from combat-related casualties per se, war is
commonly associated with a situation of national political emergency.
Human rights tend to be pushed aside to the extent that they are per-
ceived to interfere with the conduct of military operations or with the
achievement of maximum mobilization and solidarity. Such perceptions
also serve as a convenient pretext for using repression to consolidate
more exclusive political control. War also has important indirect effects
by causing economic deterioration and military setbacks. These develop-
ments make democratic regimes (which are typically more respectful of
human rights) more vulnerable to electoral defeat or military coups. On
the other hand, authoritarian regimes (which are likely to have inferior
human rights records) are less vulnerable to such threats. The longer
large-scale military conflicts last, the greater should be the damage to
human rights practices.
This discussion is the basis for the following hypotheses:
1. The main proximate cause of improved human rights practices should
be greater democratization.
2. The most important sources of both greater democratization and im-
provement in human rights practices should be stronger ‘‘frustrated
national ideals,’’ a more advanced economy, and absence or brevity of
large-scale military conflict.
Method, measurement, and data sources
The variables to be considered in the statistical hypothesis tests are hu-

man rights practices, democratization, frustrated national ideals, agri-
culture’s share of the workforce, and share of time at war. The 28
post-communist countries are Albania, Armenia, Azerbaijan, Belarus,
Bosnia–Herzegovina, Bulgaria, Croatia, the Czech Republic, Estonia,
Georgia, Hungary, Kazakhstan, Kyrgyzstan, Latvia, Lithuania, Mace-
donia, Moldova, Mongolia, Poland, Romania, Russia, Slovakia, Slovenia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and the Federal Repub-
lic of Yugoslavia (Serbia and Montenegro). All models of interrelations
among the variables are estimated using ordinary least-squares regres-
sion.
Human rights outcomes are measured at three intervals: approximately

two years following the onset of the new regime (two years after the
founding election in Eastern Europe and Mongolia, and two years after
the collapse of the Soviet Union for the Soviet successor states); four
years following the end of the first interval; and approximately eight
years following the end of the first interval. Since the new regimes came
to power over the three years 1989–1991, the first interval ends in one of
the years 1991–1993, the second in 1995–1997, and the third in 1999–
2001, depending upon the country. As data were not gathered beyond
the end of 1999, the third interval is truncated to less than four years for
a number of countries.
Variables are measured as follows:
Human rights practices
Human rights practices are measured using Freedom House’s Civil Lib-
erties Index (CLI). This includes four major categories of freedoms or
rights: freedoms of expression and belief (including freedoms of the press
and religion); freedoms of association and organization; a neutral rule of
law and an independent, professional judiciary; economic freedoms and
opportunities, and protection of property and contractual rights. Rank-
ings on these indices are then averaged to produce an overall ranking on
a scale of one to seven, with one indicating most complete protection of
human rights.
Democratization
Democratization is measured using Freedom House’s Political Rights In-
dex (PRI). There are direct and indirect dimensions. Directly, there must
be elections in which all parties can compete equally, in which votes are
accurately counted, and in which the victors take political power. Indi-
rectly, the ability of parties to compete equally is affected by the ability of
individuals to express themselves politically, through both free associa-
tion and organization for political purposes, and open competition of
political views in the mass media. Again, rankings on these indices are
then averaged to produce an overall ranking on a scale of one to seven,
with one indicating most complete protection of human rights.5 In two
areas there is limited but unavoidable overlap between the CLI and PRI:
individual expression and association, particularly through the mass me-
dia and formal organizations, are general human rights. In specifically
political forms, they are also necessary conditions of free political com-
petition. All the other components of the two indices – the overwhelming
majority – are, in principle, distinct. As discussed, there is reason to ex-
pect a much greater overlap for practical political reasons.
250 HOROWITZ
Frustrated national ideals

This is an index of pre-communist political and economic achievement,
along with a weighted component picking up communist-era repression
and threats to national cultural and territorial integrity. It is designed to
predict the extent to which the communist era is viewed as a serious set-
back to national development, and thus to predict the extent to which
the most plausible alternative systems will be embraced as a means of
achieving a political, economic, and cultural renaissance of the nation.
The index is operationalized as follows:
½ðPol i þ Econ i Þ=2 ½1 þ ðPol i þ Econ i =10ÞðRepressi þ ImmigTerri Þ;
where Pol i is pre-communist political achievement of country i, Econ i is
pre-communist economic achievement, Repressi is severity of communist-
era repression, and ImmigTerri measures significant threats to national
integrity in traditional homelands. Past political and economic achieve-
ments are ranked on a scale of one to five, with five indicating highest
achievement. Note that the middle term ðPol i þ Econ i =10Þ makes the
impact of repression and anti-national policies or situations conditional
on the level of national expectations deriving from pre-communist
achievements. Repression and threat to ethnic identity each receive
weights over a five-level spectrum from 0 to 0.25 (at intervals of 0.0625).
Their sum is then weighted on a scale from 0.2 to 1 (at intervals of 0.1)
based on scores for frustrated economic and political potential. This com-
posite term added to one – with a maximum of 1.5 – is then multiplied
by the average of the political and economic weights. The maximum is
7.5. The overall score is then divided by 1.5 to bring the maximum back
down to 5. Classifications of countries along the different component
dimensions of the index are given in table 11.1, and explained in more
detail in Appendix A.6
Predominant religion
Two dummy variables are used. For the first, a country is coded as a one
(where the most widely observed religion is Islam) and otherwise as a
zero. For the second, a country is coded as a one (where the most widely
observed religion is Orthodox Christianity) and otherwise as a zero.7
Agriculture’s share of workforce
This is the percentage of the workforce directly employed in agriculture,
fishing, and forestry.8
Share of time at war

The total amount of ‘‘independent political time’’ starts with the first
post-communist election for Eastern Europe and Mongolia and from
Table 11.1 Sources of frustrated national ideals in the post-communist context
Threat to national
Index of past economic Index of past political integrity (demographic
achievement achievement dilution or territorial loss) Repression
Very Czech Republica, Baltic States, Hungary, Bosnia–Herzegovina, Mongolia, Soviet
strong Hungary, Slovenia Mongolia, Poland Kazakhstan, Kyrgyzstan, Republics
Latvia
Strong Croatia, Estonia, Latvia, Bulgaria, Croatia, Czech Estonia, Macedonia, Albania, Poland,
Poland, Slovakia Republic, Serbia– Moldova, Tajikistan Romania
Montenegro, Slovenia
Moderate Albania, Armenia, Armenia, Georgia, Romania, Azerbaijan, Belarus, Croatia, Hungary
Azerbaijan, Bosnia– Slovakia Croatia, Georgia,
Herzegovina, Bulgaria, Lithuania, Serbia–
Georgia, Lithuania, Montenegro,
Macedonia, Romania, Turkmenistan, Ukraine,
Russia, Serbia– Uzbekistan
Montenegro
Weak Belarus, Moldova, Albania, Moldova, Russia, Armenia, Poland, Bulgaria, Czech Republic,
Tajikistan, Ukraine, Tajikistan, Ukraine, Romania, Slovakia Serbia–Montenegro,
Uzbekistan Uzbekistan Slovenia, Slovakia
Very Kazakhstan, Kyrgyzstan, Azerbaijan, Belarus, Bosnia– Albania, Bulgaria, Czech Bosnia–Herzegovina,
weak Mongolia, Herzegovina, Kazakhstan, Republic, Hungary, Macedonia
Turkmenistan Kyrgyzstan, Macedonia, Mongolia, Slovenia,
Turkmenistan Russia
a. For the early period in which a unified Czechoslovakia still existed, its rankings are the same as for its dominant Czech part.
251
252 HOROWITZ
August 1991 for the Soviet successor states. It ends at the points at which
human rights practices and democratization are being examined (1991/
92/93, 1995/96/97, and 1999). The share of time at war is the proportion
of the time during which the country has been engaged in large-scale
military hostilities. The countries embroiled in such hostilities for ex-
tended periods of time were Armenia, Azerbaijan, Bosnia–Herzegovina,
Croatia, Georgia, Moldova, Tajikistan, and the Federal Republic of
Yugoslavia.9
Model results and discussion
Models 1A–3B of table 11.2 show the relationship between democrati-

zation, frustrated national ideals, agricultural share of the workforce, and
share of time at war on the one hand, and human rights practices on the
other. Democratization has extremely strong predictive power, account-
ing for almost all of the variation in human rights practices. As can be
seen by comparing the ‘‘A’’ and ‘‘B’’ versions, the other independent
variables add virtually no predictive power. Frustrated national ideals
and agricultural share of the workforce have the predicted relationships,
but are not statistically significant. Share of time at war usually has the
opposite of the predicted relationship. As is shown hereafter, this in-
dicates not that the variables other than democratization are not impor-
tant but only that most of their explanatory effect is picked up through
their indirect influence on the more directly important democratization
variable.
Models 4A–6B of table 11.3 show the estimated impact of agriculture’s
share of the workforce, share of time at war, and cultural factors – either
frustrated national ideals or predominant religion – on human rights
practices. Models 7A–9B of table 11.4 show the estimated impact of
these same variables on democratization. Recall that high CLIs and PRIs
indicate poorer human rights practices and weaker democratization, so
that all the variables are estimated to have an effect in the expected di-
rection. The impact of the three variables on human rights practices and
democratization is generally similar. The cultural variables – either frus-
trated national ideals, or Islam and Orthodox Christianity – and share
of time at war are almost uniformly statistically significant. Frustrated
national ideals or Islam have the most consistent impact and account for
the largest share of explained variation. Agricultural share of the work-
force has some impact on human rights practices, but is not generally
statistically significant. Share of time at war has a dramatic effect, al-
though somewhat more so on democratization than on human rights
practices.
Table 11.2 Democratization and other factors as predictors of human rights practices
Model 1A Model 1B Model 2A Model 2B Model 3A Model 3B

1991/92/93 1991/92/93 1995/96/97 1995/96/97 1999 1999
Political rights index 0.635*** 0.759*** 0.558*** 0.655*** 0.599*** 0.700***

(0.134) (0.088) (0.111) (0.054) (0.099) (0.052)
Frustrated national ideals 0.148 0.214 0.240
(0.220) (0.197) (0.185)
Agriculture’s share of the 0.015 0.044 0.017
workforce (0.044) (0.032) (0.031)
Share of time at war 0.853 0.123 0.040
(0.513) (0.597) (0.700)
Intercept 1.617* 0.994** 2.352*** 1.552*** 2.309*** 1.446***
(0.922) (0.385) (0.759) (0.217) (0.697) (0.204)
R2 0.780 0.748 0.864 0.849 0.884 0.874
Adjusted R 2 0.740 0.738 0.840 0.843 0.863 0.869
N 27a 27a 28 28 28 28
*** p < :01, ** p < :05, * p < :10

a. Models 1A and 1B include a unified Czechoslovakia, so there is one less data point.
253
254
Table 11.3 Cultural, economic, and conflict-related sources of human rights practices
1991/92/93 1991/92/93 1995/96/97 1995/96/97 1999 1999
Frustrated national ideals 0.879*** 1.038*** 1.152***
(0.217) (0.155) (0.168)
Islam 2.475*** 2.296*** 2.780***
(0.561) (0.509) (0.505)
Christian Orthodoxy 0.923** 1.106** 1.293***
(0.531) (0.471) (0.468)
Agriculture’s share of 0.068 0.053 0.093** 0.066 0.041 0.013
workforce (0.059) (0.058) (0.043) (0.056) (0.049) (0.057)
Share of time at war 1.752** 1.743** 1.430* 1.480 1.769* 1.773
(0.663) (0.656) (0.725) (0.912) (0.994) (1.148)
Intercept 5.539*** 2.583*** 5.884*** 2.571*** 6.156*** 2.406***
(0.563) (0.366) (0.405) (0.326) (0.438) (0.324)
R2 0.556 0.597 0.715 0.569 0.700 0.618
Adjusted R 2 0.498 0.524 0.679 0.494 0.662 0.551
N 27a 27a 28 28 28 28
*** p < :01, ** p < :05, * p < :10
a. Models 4A and 4B include a unified Czechoslovakia, so they have one less data point.
Table 11.4 Cultural, economic, and conflict-related sources of democratization
1991/92/93 1991/92/93 1995/96/97 1995/96/97 1999 1999
Frustrated national ideals 1.153*** 1.477*** 1.521***
(0.243) (0.201) (0.219)
Islam 2.878*** 3.685*** 3.958***
(0.688) (0.586) (0.588)
Christian Orthodoxy 0.842 1.527*** 1.414**
(0.651) (0.543) (0.544)
Agriculture’s share of 0.083 0.069 0.088 0.057 0.040 0.016
workforce (0.066) (0.071) (0.056) (0.064) (0.064) (0.067)
Share of time at war 1.415* 1.493* 2.786*** 2.774** 3.020** 2.966**
(0.742) (0.805) (0.940) (1.051) (1.298) (1.335)
Intercept 6.178*** 2.510*** 6.333*** 1.536*** 6.422*** 1.494***
(0.630) (0.449) (0.526) (0.376) (0.572) (0.377)
R2 0.572 0.533 0.758 0.710 0.716 0.712
Adjusted R 2 0.516 0.448 0.728 0.660 0.680 0.662
N 27a 27a 28 28 28 28
*** p < :01, ** p < :05, * p < :10
a. Models 7A and 7B include a unified Czechoslovakia, so they have one less data point.
255
256 HOROWITZ
It is notable that the instrumental and intrinsic cultural factors –

frustrated national ideals on the one hand and predominant religion on
the other – have virtually identical explanatory power across all the
models. However, although the predominant religion variable cannot be
dismissed as totally irrelevant, the frustrated national ideals variable
seems to have significant logical and empirical advantages. First, in the
post-communist historical context, frustrated national ideals have intelli-
gible policy implications. They provide a rationale for why masses and
élites would support improved human rights practices and democratiza-
tion as means to achieving widely held collective goals. It is less clear that
traditional Islamic or Christian Orthodox religious values and institutions
would be better served by having weaker human rights practices or less
democracy. If the influence of traditional religious values and institutions
is supposed to be a habitual one, it is not clear why the secularized, lit-
erate, urban élites that led both establishment and opposition political
formations should have been strongly influenced by such habits.10
Second, if one looks at the political discourse of both opposition and
establishment parties in the post-communist countries that chose im-
proved human rights practices and greater democracy, one finds a dis-
course of reform nationalism. Similarly, in the countries with weaker
human rights practices and more authoritarian regimes, one also finds a
nationalist discourse – although one that emphasizes the need for politi-
cal and economic stability. The latter is of course much more self-serving
for the power and economic interests of incumbent élites. In both cases,
though, it is national development rather than religion that is at the
ideological centre of political life.
For some examples, consider the majority Islamic countries of Albania,
Azerbaijan, Kazakhstan, Kyrgyzstan, Tajikistan, Turkmenistan, and Uz-
bekistan. Among all these countries, there is only one example of a
prominent late Soviet or post-Soviet movement or party that prioritized
religious revival per se – the Islamic Renaissance Party (IRP) of Tajiki-
stan. Apart from having a relatively narrow, regionally specific, popular
base, the IRP was also internally divided over whether respect for human
rights and democratization would best serve the cause of Islamic re-
vival. IRP leaders more inclined towards authoritarianism and repressive
methods appear to have come to the fore later, as a consequence of
the bloody post-Soviet civil war.11 Reform nationalist opposition parties
in the Islamic countries, which favoured revival of Islam as part of a
broader rebirth of national cultural traditions, also favoured improved
human rights practices and democratization. This was in marked contrast
to the communist successor parties, which outside of Albania have been
authoritarian and usually quite repressive.12
Consequences of human rights variation in

the post-communist world
Theoretically, stronger human rights protection favours democratization.
Regimes able and willing to provide stronger human rights protection are
less likely to view democratization as a political or personal threat and
are less likely to be ideologically opposed to democratic norms. On the
other hand, there can be significant protection of human rights outside
the political sphere per se, without free elections or extensive political
freedoms. Although this situation often produces pressure for greater
democratization, authoritarian regimes are often able to resist such pres-
sures – particularly when the economy performs well.
Human rights protection in the legal and economic spheres is necessary
to provide broad equality of economic opportunity. Nevertheless, such
opportunities, although necessary for sustained economic growth, are not
sufficient. Moreover, broad human rights protection in the legal and eco-
nomic spheres can coexist with extensive restrictions on the rights of
various minorities, as well as with significant selective restrictions on the
rights of the broader population.
Last, in the presence of significant internal or international conflicts,
one would not expect human rights practices to have a strong relation
with conflict resolution. This is because stronger human rights protection
can intensify as well as pacify sources of conflict.
The effects of human rights practices on democracy, economic devel-
opment, and conflict resolution are not easily subject to statistical testing.
This is because, as already discussed, human rights practices are likely in
the first instance to be largely caused by these other variables, and then
to have secondary, feedback impacts on them. There is no space here to
attempt a thorough discussion of this difficult subject. Only a briefer,
suggestive treatment of the apparent feedback impact of human rights
practices in the post-communist world is offered.
Human rights and democracy
A large democratization literature emphasizes the importance of demo-

cratic norms and culture for the consolidation of democratic political in-
stitutions. Arguably, human rights practices should play a central role in
establishing and sustaining such norms. The evidence and discussion
above suggest some supplementary points. Democracy and strong human
rights practices often have an instrumental as well as an intrinsic position
in the pursuit of national ideals. If this instrumental position is not
strongly positive, both popular and élite support for democracy and hu-
258 HOROWITZ
man rights practices will more easily flag in the presence of military, po-
litical, and economic instability. Although human rights practices may
play an important role in sustaining democracy, in the face of war and
political and economic polarization such ‘‘traditions of civility’’13 may
prove unreliable where they have not been ideologically incorporated as
conditions of fulfilling the national collective’s potential.
Human rights and economic development
Human rights practices, to the extent that they have contributed to max-
imum equality of economic opportunity, appear to have made an im-
portant contribution to the more successful post-communist transition
economies. The dismantling of the planned economies invariably pro-
duced a large-scale collapse of capital-intensive industries and an asso-
ciated economic downturn and unemployment surge. In all the economies
that experienced rapid recoveries and sustained post-recovery growth, a
crucial role was played by new, small-scale enterprises. This was, of
course, made possible by permissive and stabilizing economic policies
and supplemented by a range of other factors. Among these other fac-
tors, great importance is attributed to rule-of-law conditions.14 These
conditions are easily recognized as the basic human rights protections of
equality under the law, along with neutral and efficient enforcement and
adjudication.
Human rights and conflict resolution
In the former Soviet Union and Yugoslavia, enhanced human rights were
often associated with increased conflict. This was because underlying
ethnic conflicts over political and cultural autonomy, territory, and eco-
nomic resources were controlled under the old regime – largely through
the credible threat to use overwhelming force. When the ‘‘enforcer’’ dis-
appeared, the disputes had to be resolved somehow. In particular, when
it came to disputes over collective ethnic ‘‘rights’’ to territorial autonomy,
it was often quite difficult to come to a mutually acceptable accommoda-
tion. Such disputes were at the root of all the severe post-communist
ethnic conflicts.
Improvements in human rights practices were often associated with
nationalist mobilizations and uncontrolled local and regional inter-ethnic
hostilities – for example, in Croatia, Bosnia–Herzegovina, Serbia, Mol-
dova, Azerbaijan, Georgia, and Tajikistan. Of course, often this did not
happen – for example, in Ukraine, Latvia, and Estonia. On the other
hand, communist parties retaining authoritarian powers were typically
careful to avoid provoking inter-ethnic strife – for example, in Kazakh-

stan and Uzbekistan.
When it was in their interest to do so, authoritarian regimes were able
to end ethnic fighting through timely concessions. For example, this was
done by Heidar Aliev’s regime in Azerbaijan and by Imomali Rakhmo-
nov’s in Tajikistan. However, these settlements are likely to last for only
as long as ‘‘cold peace’’ is in the rulers’ survival interests. It is typically in
the interest of such rulers to maintain the rhetorical diversion of an un-
resolved conflict, as well as the option of a ‘‘hot’’ diversion should this
prove desirable.
Democracies, even after learning that their maximal national goals
may be unattainable, will not thereby automatically make whatever con-
cessions are necessary to achieve a lasting peace agreement – even if this
is possible, given the nature of their adversaries. Even after Slobodan
Milošević, Serbians are not about to ratify an independent Kosovo Al-
banian state. Under Alija Izetbegović and his successors, Bosnian Mus-
lims do not accept a partition in which the Serbs and Croats adhere to
their mother nations. Ethnic Moldovans do not accept independent Ga-
gauz and Transnitrian Slavic states. Under Eduard Shevardnadze, Geor-
gians do not agree to an independent Abkhazian state or to the transfer
of South Ossetia to form a ‘‘greater’’ Ossetia within the Russian Federa-
tion.15 However, in all these cases, catastrophic military losses have con-
vinced both masses and élites that they need to offer stronger political
and cultural autonomy than they could comfortably contemplate in pre-
war days. This is not to say either that conflict could have been avoided,
had these concessions come at the outset, or that such concessions are
sufficient to reach a long-term settlement at any later stage of the conflict.
All sides must usually be willing to make significant compromises for a
long-term settlement to be possible. Where reciprocal concessions were
forthcoming, from a more popularly legitimate and moderate Gagauz
leadership in Moldova, a long-term settlement was, indeed, reached.
Conclusions
All the hypothesized causes of variation in post-communist human rights

practices appear to have had impacts in the predicted direction. How-
ever, frustrated national ideals and war had much stronger and more
consistent effects than did level of economic development. Partly, this
may be because pre-communist economic development remains some-
what correlated with post-communist economic development, so that the
more powerful national identity variable picks up some of the impact of
260 HOROWITZ
post-communist economic development; nevertheless, the influence of

economic development remains surprisingly weak.
Stronger human rights protection is likely to have beneficial conse-
quences for democratization and economic development; however, these
beneficial effects are likely to be limited unless an array of other condi-
tions are also favourable. The effects of improved human rights protec-
tion on conflict resolution are more difficult to predict.
The discussion of causes of human rights practices supports a way of
examining cultures and national identities that is somewhat at variance
with the norm. Rather than trying to assess whether religious, political,
and other traditions are intrinsically more or less hospitable to modern
conceptions of human rights, it is possible to assess whether those up-
holding such traditions are likely to view modern conceptions of human
rights as advancing their cultural and national causes in a specific histori-
cal context.
Future research on causes of human rights practices might attempt to
apply this rational and instrumental approach to culture in other regions
and time periods. Very briefly, it may be helpful to suggest some possi-
bilities. Natural comparisons to the post-communist states are offered by
Latin America, the Middle East, Africa, and South and East Asia fol-
lowing decolonization. Within and across all of these regions, there was
significant variation in the outcomes. The present approach would imply
that two factors should be investigated in looking for cultural explana-
tions of this variation: one factor is the pre-colonial history of political
and economic development; another is the most powerful alternative
model or models of national development existing at the historical mo-
ment of decolonization. The hypothesis is that regions and peoples with
memories of greater pre-colonial political and economic development
should be more likely to choose the most powerful contemporary alter-
native models of national development – those not tainted by association
with the colonial regime. In turn, these post-colonial choices of develop-
ment models should have systematic implications for human rights prac-
tices.16 Needless to say, such implications might be negative as well as
positive.
Appendix: Country rankings on predictors of frustrated

national ideals
This appendix offers a brief explanation of the country rankings in table
11.1, which are used to construct the predictive index of frustrated na-
tional ideals. The idea behind the first, economic ranking is that countries
with greater pre-communist economic achievements will look much more
unfavourably on the consequences of planned (Soviet) or socialized

(Yugoslav) economic regimes. The best available quantitative index of
development is share of the workforce employed in agriculture. Particu-
larly in the former Soviet Union, the titular ethnic group’s share was
often markedly higher than the total share, owing to the predominance of
ethnic Russians in the big cities. The units fall into six distinguishable
groups: (1) Czechoslovakia is at the bottom, with 34.6 per cent; (2) Hun-
gary and Slovenia have around 50 per cent; (3) Croatia, Estonia, Latvia,
and Poland have around 60 per cent; (4) Albania, Armenia, Azerbaijan,
Bosnia–Herzegovina, Bulgaria, Georgia, Lithuania, Macedonia, Roma-
nia, Russia, and Serbia–Montenegro have 70–85 per cent; Ukraine, Be-
larus, Uzbekistan, and Tajikistan have 85–95 per cent; and Kazakhstan,
Kyrgyzstan, Turkmenistan, and Mongolia have 95–100 per cent.17
The second ranking refers to past political achievement for states hav-
ing independent juridical and administrative status under communism,
and to past independence and political achievement for states not hav-
ing such independence under communism.18 Thus, Russia, Mongolia,
Poland, and (somewhat more ambiguously) Hungary were all once cen-
tres of greater empires. However, this standard would not have been
violated during the communist period for Russians, the dominant ethnic
group of the former USSR. Czechoslovakia, Bulgaria, and Romania were
once truly independent states that were reduced to satellite status after
World War II. Under Nicolae Ceausescu, Romania was able to carve out
a limited autonomy from Soviet control; hence, Romanians would not be
expected to feel the same level of resentment towards the communist
political order per se. Newly independent Slovaks, emerging from the
shadow of the more numerous and economically advanced Czechs, would
not be expected to feel the same level of political hostility towards the
period of communist rule. Albania was able to maintain an independent
national communism, while Russia, again, provided the ethnic core of the
USSR.
Among states that did not have separate juridical status under com-
munism, the Baltic States (Estonia, Latvia, and Lithuania) had the most
recent and most popularly legitimate period of independence. Here, the
Soviet political yoke was felt most strongly. The Caucasian States had a
few brief years of independence after the end of World War I, but only in
Armenia and Georgia did this involve an influential mass mobilization
process aimed at securing a self-consciously held national identity. Nor is
this surprising, given that Armenia and Georgia both had broken (but
consistently recovered) histories of political independence and regional
prominence going back over a millennium. Given the dominant role of
Serbia within the interwar Yugoslavia, and the preceding decades of
Serbian independence following the collapse of Ottoman power in Eu-
262 HOROWITZ
rope, the Federal Republic of Yugoslavia could be plausibly placed in

between the Baltic and Caucasian states. Although Serbs were numeri-
cally preponderant in the Yugoslav state and army, they increasingly
viewed Josep Broz Tito’s federal system as artificially marginalizing them
relative to the smaller ethnic groups. Slovenia and, to a somewhat lesser
extent, Croatia had strong traditions of regional political autonomy
within larger territorial units. Both would have preferred independence
after World War I, but felt compelled to unify with Serbia in order to
protect themselves from Italian and Hungarian territorial ambitions.
They, too, viewed Tito’s system as one that marginalized them. Ukrai-
nian political independence developed in the ninth through the eleventh
centuries, but the region was then partitioned among different empires
until its consolidation under Soviet rule after World War II. Over the
centuries, a large part of the Ukrainian population came to identify
closely with the Russian nation. In Moldova there was a distinct pre-
communist national identity, as in the Baltic States violated in more re-
cent memory; however, this identity was as part of the Romanian nation.
The Persian-speaking Tajiks and Turkic-speaking Uzbeks were jointly at
the core of a number of medieval Islamic empires and civilizations cen-
tred on Bukhara and Samarkand. But their distinct national identities
developed only during the Soviet period and, to this day, there is dispute
over which people has the ‘‘correct’’ claim to Bukhara, Samarkand, and
their historical legacies. None of the other Soviet successor states had a
prior independent political existence. The same can be said for Bosnia–
Herzegovina. Macedonian Slavs are ethnically closest to Bulgarians, and
were subjected to intense Serbianization during the interwar period. A
sharply distinct Macedonian political identity did not develop until the
Yugoslav period.
These political rankings can, of course, be debated at the margins. For
example, compared with Bulgaria, the Czech Republic arguably achieved
more and had greater popular legitimacy during the interwar period of
independence. Arguably, Croatia and Slovenia had somewhat weaker
traditions of political independence than Serbia. However, making lim-
ited adjustments, such as moving the Czech Republic up one level and/or
moving Croatia and Slovenia down one level, do not significantly affect
the overall rankings.
Threat to national integrity (the third ranking) refers to extent of
large-scale presence and immigration of other ethnic groups – often un-
der Soviet auspices – and, to a lesser extent, to Soviet territorial annex-
ations. Upon the collapse of the old regimes, Kazakhstan, Kyrgyzstan,
and Latvia all had huge minority populations (46 per cent or more of the
total), while Bosnia–Herzegovina had no ethnic majority. The minority
populations of Macedonia, Estonia, Moldova, and Tajikistan were also
quite large (35–38 per cent). Croatia, Belarus, Lithuania, Ukraine, Azer-
baijan, Georgia, Uzbekistan, Serbia–Montenegro, and Turkmenistan had
sizeable but not so threateningly large minority populations (20–30 per
cent). Romania (despite its 9 per cent Hungarian minority) and particu-
larly Poland were more homogeneous, but suffered significant territorial
losses at the hands of Russia and the Soviet Union in the recent past.
Armenia was also relatively homogeneous, but her claims to Nagorno-
Karabakh must be factored in.19
Repression under communism (the fourth ranking) was most severe
within the Soviet Union itself and in Mongolia. Collectivization and
mass purges and deportations under Stalin took the greatest human tolls,
although repression and casualties on a comparable scale often oc-
curred during the period of civil war following the Bolshevik Revolu-
tion. In Eastern Europe, all countries experienced severe purges of non-
communist élites during and/or after World War II. Of the latter, Poland
and (somewhat less so) Hungary suffered most in the Soviet sphere, and
Croatia and (to a lesser extent) Serbia–Montenegro and Slovenia most
in the Yugoslav sphere. National communist regimes in Albania and
Romania maintained high levels of repression until just before their
collapse.20
Notes
1. To clarify, two issues are being argued. There is some definitional overlap between
human rights and necessary elements of democratic political processes. For practical
reasons, protection of political rights is more likely to be associated with protection of
non-political rights, and violation of political rights with violation of non-political rights.
2. For overviews, see the relevant chapters in Ian Bremmer and Ray Taras, New States,
New Politics: Building the Post-Soviet Nations, Cambridge: Cambridge University Press,
1997, and Bogdan Szajkowski, ed., Political Parties of Eastern Europe, Russia and the
Successor States, London: Longman, 1994.
3. See Janos Kornai, The Socialist System: The Political Economy of Communism, Prince-
ton: Princeton University Press, 1992; Marie Lavigne, The Economics of Transition:
From Socialist Economy to Market Economy, London: Macmillan, 1995; and World
Bank, From Plan to Market: World Development Report 1996, Washington, DC: Oxford
4. Another measure, which is highly correlated with agricultural share of the workforce, is
gross domestic product at purchasing power parity. However, the latter measure is not
available for many poorer post-communist countries.
5. The CLI and PRI indices are given in Freedom House, Annual Survey of Freedom
Country Scores, 1972–1973 to 1999–2000, Washington, DC: Freedom House, 2001.
Along with a more detailed discussion of the ranking criteria, they are also available at
the Freedom House website, hhttp://www.freedomhouse.orgi.
6. Alternatively, simpler indices could be constructed by using the average or the maxi-
mum of the rankings of pre-communist political and economic achievement. Since the
264 HOROWITZ
correlations between these alternative indices and the one in the text exceed 90 per
cent, the alternative indices have a virtually identical impact. Results for the two alter-
native indices are available upon request.
7. Except in Bosnia–Herzegovina, the plurality religion is everywhere the majority reli-
gion.
8. For data on agricultural share of the workforce and GDP per capita at purchasing
power parity, see World Bank, From Plan to Market, pp. 188–189 and pp. 194–195;
World Bank, The State in a Changing World: World Development Report 1997, Wash-
ington, DC: Oxford University Press, 1997, pp. 214–215 and pp. 220–221; Socialist
Federal Republic of Yugoslavia, ‘‘The Non-Agricultural Population,’’ Yugoslav Survey,
No. 28, 1987, pp. 3–24.
9. Information on the incidence and duration of warfare can be found in Szajkowski, Po-
litical Parties; Karen Dawisha and Bruce Parrott, eds, Conflict, Cleavage, and Change in
Central Asia and the Caucasus, Cambridge: Cambridge University Press, 1997; Karen
Dawisha and Bruce Parrott, Democratic Changes and Authoritarian Reactions in Russia,
Ukraine, Belarus, and Moldova, Cambridge: Cambridge University Press, 1997; and
Karen Dawisha and Bruce Parrott, eds, Politics, Power, and the Struggle for Democracy
in South-East Europe, Cambridge: Cambridge University Press, 1997.
10. The virtually all-pervasive institutions of the communist system itself would appear far
more relevant for this sort of habitual impact. Yet these institutions should have af-
fected all post-communist countries more or less equally. Duration of time under com-
munist rule is also a weak predictor: it cannot explain the significant variation both
across the former Soviet Union and Mongolia and across Eastern and South-eastern
Europe.
11. A similar story holds for the relatively less important Islamic Renaissance Party of Uz-
bekistan.
12. See the summaries of party platforms in Szajkowski, Political Parties, and in the 1997
Cambridge University Press series edited by Dawisha and Parrott: Conflict, Cleavage,
and Change in Central Asia and the Caucasus; The Consolidation of Democracy in East-
Central Europe; Democratic Changes and Authoritarian Reactions in Russia, Ukraine,
Belarus, and Moldova; and Politics, Power, and the Struggle for Democracy in South-
East Europe. For Tajikistan, see also Shahram Akbarzadeh, ‘‘Why Did Nationalism Fail
in Tajikistan?’’ Europe–Asia Studies, Vol. 48, July 1996, pp. 1105–1129; Allen Hetma-
nek, ‘‘Islamic Revolution and Jihad Come to the Former Soviet Central Asia: The Case
of Tajikistan,’’ Central Asian Survey, Vol. 12, Summer 1993, pp. 365–378; and Hab-
ibollah Abolhassan Shirazi, ‘‘Political Forces and Their Structures in Tajikistan.’’ Cen-
tral Asian Survey, Vol. 16, Fall 1999, pp. 611–622.
13. This phrase is used by the British political theorist, Ernest Barker.
14. Anders Åslund, How Russia Became a Market Economy, Washington, DC: Brookings
Institution, 1995; EBRD [European Bank for Reconstruction and Development], Tran-
sition Report, London: EBRD, 1994–1999; World Bank, From Plan to Market: World
Development Report 1996, Washington, DC: Oxford University Press, 1997.
15. For treatments of these conflicts, see Bruno Coppieters, Contested Borders in the Cau-
casus, Brussels: VUBPRESS, 1996, available at http://poli.vub.ac.be/publi/ContBorders/
eng/info.htm; Michael Croissant, The Armenian–Azerbaijani Conflict: Causes and Im-
plications, Westport, CT: Praeger, 1998; the series edited by Dawisha and Parrott; Laura
Silber and Allan Little, The Death of Yugoslavia, London: Penguin, 1996; and Szaj-
kowski, Political Parties.
16. For examples of studies that contain elements of such an approach, see Jill Crystal,
‘‘The Human Rights Movement in the Arab World,’’ Human Rights Quarterly, Vol. 16,
August 1994, pp. 435–454; and Bonny Ibhawoh, ‘‘Between Culture and Constitution:
Evaluating the Cultural Legitimacy of Human Rights in the African State,’’ Human
Rights Quarterly, Vol. 22, August 2000, pp. 838–860.
17. Czechoslovakia is grouped with Hungary and Slovenia in order to use five-level rank-
ings across all four dimensions. Allowing a sixth level for past economic achievement
has no significant effect on the results. Data are from Ralph Scott Clem, The Changing
Geography of Soviet Nationalities and its Socioeconomic Correlates, 1926–1970, PhD
Diss., Columbia University, 1976, p. 278; B.R. Mitchell, European Historical Statistics,
1750–1975, New York: Facts on File, 1980, series C1; Dijana Plestina, Regional Devel-
opment in Communist Yugoslavia: Success, Failure, and Consequences, Boulder, CO:
Westview, 1992, 22; Joseph Rothschild, East Central Europe between the Two World
Wars, Seattle, WA: University of Washington Press, 1974, pp. 37, 39, 91, 167, 204, 285,
359, 367, 369; Socialist Federal Republic of Yugoslavia, ‘‘The Non-Agricultural Popu-
lation’’; Jozo Tomasevich, Peasants, Politics and Economic Change in Yugoslavia, Stan-
ford, CA: Stanford University Press, 1955, pp. 239, 304.
18. Bremmer and Taras, eds, New States, New Politics: Building the Post-Soviet Nations;
D.A. Dyker and I. Vejvoda, eds, Yugoslavia and After: A Study in Fragmentation, De-
spair and Rebirth, London: Longman, 1996; Zev Katz, ed., Handbook of Major Soviet
Nationalities, New York: Free Press, 1975; Rothschild, East Central Europe between the
Two World Wars; Tomasevich, Peasants, Politics and Economic Change in Yugoslavia.
19. Bremmer and Taras, eds, New States, New Politics: Building the Post-Soviet Nations;
Adrian Karatnycky, Alexander Motyl, and Boris Shor, Nations in Transit 1997: Civil
Society, Democracy and Markets in East Central Europe and the Newly Independent
States, New Brunswick, NJ: Transaction, 1997; Szajkowski, Political Parties.
20. Stéphane Courtois, Nicholas Werth, Jean-Louis Panné, Andrzej Paczkowski, Karel
Bartosek, and Jean-Louis Margolin, The Black Book of Communism: Crimes, Terrors,
Repression, trans. by Jonathan Murphy and Mark Kramer, Cambridge, MA: Harvard
University Press, 1999; see also Nora Beloff, Tito’s Flawed Legacy: Yugoslavia and the
West, 1939–1984, London: Gollancz, 1985, pp. 115–128; Sabrina P. Ramet, Nationalism
and Federalism in Yugoslavia, 1962–1991, Bloomington, IN: Indiana University Press,
1992, p. 255; Peter Vodopivech, ‘‘Seven Decades of Unconfronted Incongruities: The
Slovenes and Yugoslavia,’’ in Jill Benderly and Evan Kraft, eds, Independent Slovenia:
Origins, Movements, Prospects, Boulder, CO: Westview Press, 1994, pp. 34–35.
12
Human rights and conflict in the
former Yugoslavia1
Aleksandar Resanovic
Overview of human rights and freedoms in the

political context
The former Yugoslavia was, and has remained, a politically tectonic re-
gion. Human rights and freedoms as political issues were insufficiently
known to the general public, and were pushed aside to be addressed in
future – hopefully better – times. The price of this policy turned out to be
high, particularly in the Federal Republic of Yugoslavia (FRY; since 4
February 2003, Serbia and Montenegro), Croatia, and Bosnia and Her-
zegovina.
The relations between Serbia and Croatia, often embittered by war
and crisis, should be the basis of peacemaking and integration processes
in the Balkans. The case of Serbia and Montenegro is interesting for a
number of reasons: the fate of this two-member union is still unknown,
because disputed relations between Serbia and Montenegro, and the
status of Kosovo, are all awaiting a final resolution. Finally, Bosnia and
Herzegovina, a very complex national and confessional community, has
since time immemorial been the object of aspirations and territorial
claims by Belgrade and Zagreb. Bosnia and Herzegovina’s Dayton
structure (see later) is very fragile and therefore remains in need of in-
ternational support.
The Communist regime that was in power during the post-World War
II period came to an end following the break-up of the former Socialist
266
THE FORMER YUGOSLAVIA 267
Federal Republic of Yugoslavia (former Yugoslavia) in 1991. Instead of

addressing the numerous political, economic, and other problems, the
regime used repression to suppress them. Following the death of former
President Tito in 1980, the problems, accumulated over decades, were
not appropriately addressed; they were, instead, put ‘‘on the back
burner.’’ The challenges of post-1980 former Yugoslavia were exacer-
bated by the country’s demographic and socio-cultural make-up, com-
prising several ethno-nationalities, with different religions, mentalities,
histories, and levels of development. In both the distant and more recent
past, these peoples had waged numerous conflicts, including wars with
tremendous human costs and other destruction. Continuous conflicts
created a culture of violence, not of rights and freedoms. Similar prob-
lems between former Yugoslavia and its neighbours – and within the
region – further aggravated the situation in Serbia and Montenegro.
Inter-ethnic, inter-religious conflicts between states and peoples of the
former Yugoslavia still exist. Both historically and currently, these con-
flicts have been worst between Serbs and Albanians. The subject of dis-
pute is the territory of Kosovo, which formally still belongs to Serbia,
with the status of an autonomous province; however, for decades the Al-
banians have been the majority population. The present situation re-
garding the status of Kosovo is well known: in compliance with UN
Security Council Resolution 1244, Kosovo has been placed under inter-
national rule, whereas Serbia exercises virtually no authority over the
area. Human rights violations have been commonplace in Kosovo for a
very long time, particularly during times of armed confrontations. They
are directed against Albanians and, nowadays, also against Serbs. This
has slowed (and sometimes prevented) democratization, establishment of
the rule of law, and economic development.
In order to understand the human rights situation in the various states
of the former Yugoslavia, it is important to reassess the events that un-
settled this region during the past decades. Our focus is on the last de-
cade of the twentieth century, in which we witnessed the break-up of the
state, tragic wars, various forms of state violence against citizens, an in-
ternational bombing campaign against one of the states (FRY), and vio-
lations of human rights and freedoms in all the states under review.
The accumulated problems in the territory of former Yugoslavia esca-
lated drastically in 1991. The war on the territories of Croatia and Bosnia
and Herzegovina lasted almost four years and ended with the signing of
the Dayton Peace Accords in 1995. The most conspicuous consequences
of the war were its many victims – including large numbers of brutally
killed civilians – and extensive infrastructure damage. This war was
waged contrary to all standards of international law and ethics. The most
drastic examples include the killing of some 8,000 Muslim civilians, in-
268 RESANOVIC
cluding women and children, by Bosnian Serb forces in the summer of

1995 in Srebrenica; extremely inhumane treatment of prisoners of war
(e.g. the Omarska camp); the removal of traces of the killing of members
of the opposite side by throwing dead bodies into pits and torching them;
and the rape of women of other nationalities for the purpose of humil-
iating their ethnic community. These acts, committed by all sides to the
conflict on many occasions, represent gross violations of international
humanitarian law. After the ratification of the Peace Accords, inter-
governmental relations between these former Yugoslav republics were
slowed down considerably by the ‘‘baggage’’ and memory of years of
conflict. The consequences are evident to this day.
Although the 1990s were marked by major violations of human rights
and freedoms, these were not exclusively caused by the war. The ‘‘war
of arms’’ had been preceded by a ‘‘war of words’’ or, more precisely, by
the language of hatred, as apparent in all state-owned media in all of the
mentioned states. This language of hatred drove and accompanied the
separation and independence movements that took place from 1991 in
Croatia, Slovenia, Bosnia and Herzegovina, and Macedonia.
Hate speech was used in the electronic media more than in the print
media. Special TV and radio stations were established in particular areas,
often close to the border, to put pressure on the population. This was not
ordinary propaganda: it was incitement of hatred toward persons be-
longing to other ethnic groups and religions, and a call to join new or
continuing armed conflicts. In particular, there were appeals to lynch in-
dividuals and groups, or such morbid proposals that every good ‘‘master
of the house’’ should kill at least one neighbour of another ethnic group
or religion. Such ‘‘hate speech’’ was broadcast on state television in Ser-
bia and Croatia almost daily from autumn 1991 (battles for Vukovar)
until the Croatian Army’s operations forced several hundred thousand
Serbs to leave Croatia and flee to Serbia (1991–1995). Almost all print
media were also strictly government controlled. They, too, incited hatred,
antagonism, and violence through hate speech, albeit not as intensively as
electronic media.
The states experienced largely interwoven and mutually interdepen-
dent historical, economic, and cultural development but they differed,
nevertheless. In the historical perspective, the accumulated problems
from our distant past surfaced especially during World War II, when a
large number of Serbs and Croats perished in brutal conflicts. Since pre-
vious Yugoslavia was formed in 1918, the nationality question has not
been solved. The complexity of these overarching problems indicates that
former Yugoslavia, formed for the most part following the diktat of
Western allies after World War I, did not have good prospects for devel-
oping into a common, multinational, and multi-confessional state. The
emphasis in former Yugoslavia throughout her life was on national, reli-

gious, and other differences, rather than on similarities that could have
been used as the basis of a common state or, at least, its peaceful demise
by agreement.
Most inhabitants of Serbia and Montenegro share the Orthodox faith.
Most scholars believe that Serbs and Montenegrins represent one people,
with particularities that have of late become more pronounced. These
two peoples managed to preserve their identity even during 500 years of
Turkish rule; however, they acquired characteristics from the Ottoman
Turks, including a tradition of disrespect for human rights. This is most
evident from the fact that the Balkan peoples are mostly intolerant
of persons belonging to other nations and religions and especially of
women, whom they view as second-class citizens. Other minority groups
are similarly discriminated against on racial, sexual, professional, politi-
cal, and other grounds. Various human rights violations result from such
national and cultural characteristics.
At the same time, Croatia came under considerable German influence,
as part of the Austro-Hungarian monarchy until its demise. The territory
of Croatia was, and remains, mostly inhabited by the Croats, a people of
Roman Catholic faith.
Bosnia and Herzegovina is characterized by an extremely complex
national and religious society. In certain stages of its development, this
was felt to be the national wealth and, hence, an advantage; in the later
stages, however, it was viewed as an insurmountable, aggravating cir-
cumstance, which was one of the main reasons for the outbreak of war
and the cruel inter-ethnic killings of the early 1990s.
In such historic circumstances, with very different religious and cultural
influences exerted by powerful states, the issue of human rights was a
purely academic one. The basic human right to life was, for the most part,
jeopardized, and the enjoyment of other human rights and freedoms was
made impossible.
Even if the best intentions had existed to overcome all the problems –
or, at least, to mitigate them – it would not have been easy to come to
terms with such a diverse historical legacy. However, there were no such
good intentions; rather, the political élite in former Yugoslavia (which
was, at the same time, the financial élite) wanted to gain state and legal
independence. Each élite in its own state became the only authority and
power. The successor states of the former Yugoslavia were governed by
these same élites, displaying the same disregard for human rights. This
made it extremely difficult for the process of separation, which was ini-
tiated in 1990, to end peacefully. It soon became clear that the republican
leaders did not intend to give up their positions on the future political
relations between the republics. Their initiatives for a peaceful division of
270 RESANOVIC
the former Yugoslavia were dishonest, and armed conflicts broke out in
the following year of 1991. It even seems that they wanted the break-up
of the common state to be brutal and violent, so that subsequent diffi-
culties could always be externalized, and blamed on another ethnic
group. Borne on the waves of nationalism, inter-ethnic intolerance, and
hatred, they set out to acquire and maintain political leadership and fi-
nancial power.
The methods employed by Slobodan Milošević in Yugoslavia/Serbia
were the same as (or very similar to) those used by Franjo Tudjman in
Croatia, or by Alija Izetbegović in Bosnia and Herzegovina. The rise of
nationalism on one side caused a corresponding phenomenon on the
other side – the strengthening (and hardening) of the position of one na-
tional leader had the same effect on the other national leaders. The ab-
sence of the desire and capacity for peaceful negotiations and dispute
settlements destroyed the prospects for peaceful inter-republic relations.
This dynamic resulted in the isolation of the FRY from the rest of the
world, impoverished it, and pushed it several decades into the past.
In all three of these states, authoritarian leaders imposed strict control
over legislative, executive, and judicial powers. All government institu-
tions functioned under their strict orders, in defence of the ‘‘national in-
terest.’’ They also controlled the media, universities, banks and other
financial institutions, insurance companies, business firms, phantom po-
litical parties, NGOs (that they, themselves, had established), and other
vital institutions. In cooperation with loyal, like-minded followers, they
therefore controlled all spheres of life. This situation was most pro-
nounced in Serbia. Milošević was a classical dictator and managed to stay
in power longer than any of the other post-Yugoslav leaders. The coun-
try’s international isolation facilitated his work.
Causes and consequences of human rights violations in the

FRY (Serbia and Montenegro), Croatia, and Bosnia and
Herzegovina
The Federal Republic of Yugoslavia – Serbia and Montenegro
For two reasons, the FRY deserves greater attention in this chapter than
Croatia and Bosnia and Herzegovina: first, massive political changes
have occurred only recently (some ten years later than in other former
Yugoslav Republics); second, widespread disrespect for human rights
was most pronounced in this republic. Human rights violations were
marked by certain particularities that require additional explanation.
The FRY’s constitution and human rights
Of a total of 144 articles in FRY’s constitution, one-third concern human

rights and freedoms (Section 2, Articles 19–68).2 This is not surprising, as
Milošević’s regime always formally advocated respect for human rights
and freedoms – while, of course, in reality treating them quite differently.
However, the constitutional arrangements are not sufficiently harmon-
ized with contemporary international legal standards and domestic laws.
Between 1992 and 2000, the FRY was expelled from numerous in-
ternational organizations or had its membership ‘‘frozen.’’ It could not
accede to a single instrument of these organizations. Yugoslavia’s full
membership in most of those organizations was restored after the fall of
the Milošević regime.
Serbia and Montenegro has been admitted to the Council of Europe
on 3 April 2003. As far as discrepancies of the internal legal system
are concerned, it should be noted that both Serbia’s and Montenegro’s
Republican Constitutions3 depart significantly from that of the FRY;
however, as major constitutional changes are on the horizon, these dif-
ferences do not have to be rectified now.
As for the lack of coordination between laws and the FRY Constitu-
tion, it should be noted that the Constitutional Law for the implementa-
tion of the FRY Constitution4 contains a list of 37 important laws that
were supposed to be harmonized with the FRY Constitution by 31 De-
cember 1992. Nevertheless, in 2001–2002, almost all of these laws have
been brought into line with the FRY Constitution.
The Constitutional Chapter of the union of Serbia and Montenegro5
transferred numerous hitherto former federal jurisdictions to the two re-
publics. Provisions for human rights are, however, one of the few items
that are within the competency of the union, regulated in the Chapter of
human and minority rights and civil freedoms.6 Both chapters have been
harmonized with international standards. The few positive legal devel-
opments that have taken place over the past ten years were rarely im-
plemented in practice.
The Serbian Premier Zoran Djindjić was assassinated on 12 March
2003, at the point when he was preparing for a showdown with the or-
ganized crime and mafia that have obstructed the cooperation with the
Hague Tribunal and the reform process. According to the Law on Mea-
sures to be Taken in the Case of a State of Emergency, ‘‘certain’’ citizens’
rights and freedoms guaranteed in the Constitution of Serbia were re-
stricted. The Interior Ministry was entitled to arrest a person who was
jeopardizing the safety of other citizens and to retain him/her in 60-day
custody, without the right to an attorney or visits by relatives. During the
state of emergency (six weeks) the Interior Ministry arrested over 18,000
272 RESANOVIC
persons suspected of being, in one way or another, connected with Pre-

mier Djindjić’s assassination, tied up with organized crime, or in posses-
sion of information crucial for tracing down suspects. Over 4,500 people
were brought into – and retained in – custody.
The Milošević regime
The malevolent nature of the situation in Yugoslavia came to full ex-
pression with Milošević’s ascent to power. He established a dictatorship
and surrounded himself with obedient and corrupt followers. He quickly
asserted total control over the entire political and economic system of the
country. The State Security Service (which was part of the Serbian Po-
lice) excelled in putting Milošević’s ideas into practice and, in the pro-
cess, showed brutal disrespect for human rights and freedoms. Milošević
utilized the (until then, mostly contained) national and patriotic feelings
of the Serb people to promote the idea that all Serbs should live together
in one state, which would have to be carved out at the expense of the
territories of Croatia and Bosnia–Herzegovina. Similar nationalist rheto-
ric and behaviour by Croatia’s dictator Franjo Tudjman played into his
hands.
Milošević played a significant role in creating public support for an
eventual war in the territories of Croatia and Bosnia and Herzegovina. In
the course of 1991 the media constantly carried information about meet-
ings between Milošević and Tudjman, who were negotiating how to carve
up and divide Bosnia and Herzegovina between Serbia and Croatia.
Failed negotiations on this issue were one of the reasons for the outbreak
of open armed conflict between Serbia and Croatia in the autumn of
1991.7 At the same time, and because of the dangerous policy pursued by
the Milošević regime, the international community imposed a political
and economic blockade on the FRY. The UN Security Council intro-
duced economic sanctions on 2 June 1992, suspended them in late 1995,
and finally lifted them in 1996. After 1996, the so-called ‘‘outer wall’’ of
sanctions remained in place; it was abolished after the changes of Octo-
ber 2000 in Serbia. These sanctions contributed in part to the conclusion
of the Dayton Peace Accords in November 1995, but at the same time
left a strong – and negative – imprint on the entire society and economy
of the country.
The economic situation
The intensity of sanctions varied over the years. The economic situation
was disastrous: in 1993 the registered annual inflation rate was more than
20 million per cent, a world record. In those days, monthly salaries of
highly educated professionals equalled roughly US$10; if not exchanged
for US dollars or another hard currency on the very day of receipt, it was
almost completely worthless a day later.
Factories were entirely deserted, with production halted. Miraculously,
life went on in the streets. Hundreds of thousands of people became
jobless and were forced to resort to smuggling and selling of goods that
were in short supply on the street, and to committing other petty criminal
offences.
Minority relations
Milošević’s authoritarian regime had no adequate answer to address the
challenges posed by the country’s national and religious minorities, who
make up more than 30 per cent of Serbia and Montenegro’s population.
The overall complexity of these problems can best be seen in Kosovo.
Over a long period, Albanian separatists have been advocating an ethni-
cally pure and independent state of Kosovo. In pursuing this goal, they
have committed drastic acts of violence against the non-Albanian popu-
lation and Albanians loyal to Yugoslavia;8 this has resulted in a steady
reduction in the number of Serbs and other non-Albanians in Kosovo.
According to a 1981 census, with participation of almost the entire pop-
ulation of Kosovo, Albanians accounted for 77 per cent and the Serbs for
13 per cent of a total population of 1,585,000. Judging by still preliminary
and unprocessed data from the population census carried out in Yugo-
slavia in April 2002 (and in which only the Serbian population, which
lives in enclaves, participated), Serbs now account for less than 4 per cent
of Kosovo’s total population.
However, these developments do not by any means justify a whole
range of violent political and military actions carried out over the years
by the authorities in Belgrade, that greatly diminished any chance for
peaceful cohabitation of Albanians, Serbs, and others. The atrocities
carried out by Serb forces in 1998 – not only against Albanian separatists
but also against the civilian population at large – are well known. In early
1998 the Serbian police and Yugoslav army began to shell mostly Alba-
nian settlements in Kosovo, forcing the Albanian civilian population to
move into areas that were not under control of the Kosovo Liberation
Army (KLA). In the process, a large number of Albanians were forced to
abandon their homes.
According to a report from December 1998, about 300,000 persons,
mostly Albanians and representing about 15 per cent of Kosovo’s popu-
lation, were displaced within the province during the first ten months of
1998. The United Nations reacted to such actions by ‘‘condemning the
excessive use of force by Serbian police forces against civilians and
peaceful protestors in Kosovo,’’9 and introduced an embargo on arms
274 RESANOVIC
exports to the FRY. Six months later, the United Nations noted ‘‘the de-
terioration of the situation in Kosovo and the FRY’’ and therefore de-
manded all sides to ‘‘cease all hostilities and the Serbian side to withdraw
security forces used for repression against civilians.’’10 These and similar
efforts resulted in the signing of an Agreement on the OSCE Verification
Mission for Kosovo.11 Regrettably, all these efforts did not alter the
situation on the ground in Kosovo, and from 1 January until 24 March
1999 many lives were lost in continuing outbursts of violence. According
to FRY government sources, the casualties included 102 Albanians, 26
Serbs, and 4 persons of other nationalities.12 In contrast, according to the
Kosova Information Centre, during the first 40 days of 1999 alone, Serb
forces had killed 171 Albanians.13 Particularly during 1998 and 1999,
such significant differences in the number of casualties became a standard
feature of reports from Kosovo, which is characteristic of the lack of im-
partiality and level of politicization in data collection and interpretation.
Much information, from all sources, should be taken with a grain of salt.
Albanian citizens were detained for no reason and subsequently sub-
jected to various acts of physical and mental torture. The Humanitarian
Law Fund in Belgrade registered the commission of 500 torture cases
during 1998 in Yugoslavia, of which over 400 were registered in Kosovo
alone.14 To this day an estimated 2,000 cases of torture have remained
unaccounted for.15 The killing of 45 Albanian civilians in the village of
Štimlje on 15 January 1999 served as a direct pretext for NATO to
launch air strikes on the FRY and Kosovo, lasting from 23 March to 7
June 1999. The precise number of civilian victims of the bombing cam-
paign is unknown. As the level of violence rose during the campaign,
around 600,000 Albanians fled Kosovo; about 2,000 of them have re-
mained unaccounted for to this day. According to unconfirmed NGO
reports, over 800,000 people, mostly Albanians, were forced out or vol-
untarily abandoned their homes. Following the suspension of the NATO
intervention, the Albanian forces also engaged in unbridled violence
against Serbs and other non-Albanian civilians: according to UNHCR
data, an estimated 240,000 of these civilians were forced to flee Kosovo.
NATO’s bombing campaign

NATO bombing operations were suspended with the passing of UN Se-
curity Council Resolution 1244.16 The Resolution envisaged a political
solution for the Kosovo crisis, including the immediate end to all armed
hostilities, urgent withdrawal of the Yugoslav Army and Serbian police
forces, as well as the deployment of representatives of international civil
institutions and security forces under UN auspices. On 20 June 1999, all
Yugoslav and Serbian forces pulled out of Kosovo.17 As a result of the
international military and civilian presence, a shaky peace has been
maintained in Kosovo; without such presence, inter-ethnic war would

probably reignite.
A similar scenario has also begun to unfold in southern Serbia. At the
end of 2000, groups of Albanian militants carried out open armed attacks
and incursions into the territory of southern Serbia. Following military
threats and attacks, several thousand inhabitants fled these multinational
municipalities. A peace agreement was concluded in May 2001, signed by
Nebojša Čović, Vice-Premier of the Serbian Government and Šefćet
Musliu, representative of the local Albanians. In addition to the cessation
of all armed operations, the most important provision of this agreement
was the disbanding of the Liberation Army of Preševo, Bujanovac, and
Medvedja, previously commanded by Musliu. After signing the agree-
ment, the Serbian government invested significant funds in this region: it
attempted to raise the living standards of the population and thereby
partially offset the prevailing dissatisfaction with government authorities.
The Serbian government and many NGOs have been developing projects
that address, among others, respect for human rights (especially those of
minority groups), cohabitation of persons belonging to different ethnic
communities, development of democratic institutions, establishment of
the rule of law, and women’s rights.
Civic unrest and the fall of Milošević
Particularly from 1998 to 2000, the Milošević regime’s pressure on the
media and universities intensified. The regime recognized the seriousness
of an unfolding process of civic activism on the part of democratic oppo-
sition parties, various NGOs, Otpor (Resistance), the free media, intel-
lectuals, and all those who openly raised their voices against the regime.
Milošević began to apply drastic force to suppress the very few human
rights and freedoms that remained. Struggling for these human rights and
freedoms, the citizens of Serbia spent months in the streets of Serbian
towns protesting against Milošević’s dictatorship. Country-wide public
protests in response to the regime’s refusal to recognize the outcome of
the November 1996 elections had already generated peaceful marches
and rallies three months long, attended by several million Serbs between
November 1996 and January 1997. Similar accusations sparked ten days
of protests between 25 September and 5 October 2000.
The long-awaited end of this dictatorial regime came on 5 October
2000. A peaceful, democratic revolution asked for the implementation of
the will of the people, as expressed at the elections held two weeks pre-
viously. After his attempts to rig the elections, and the subsequent open
opposition of a vast majority of citizens, Milošević’s regime was forced to
acknowledge electoral defeat. About 71.5 per cent of the electorate had
turned out for the presidential elections on 24 September 2000:18 50.2
276 RESANOVIC
per cent of the electorate voted for Koštunica and 37.2 per cent for Mi-
lošević. The remaining votes were evenly distributed among three more
candidates. Elections for the Federal Assembly were held at the same
time, with a turnout of 74.4 per cent: the Association of Opposition
Parties (Democratic Opposition of Serbia; DOS) won 53.7 per cent of the
seats, Milošević’s Socialist Party of Serbia (SPS) 40.7 per cent, and
Šešelj’s Serb Radical Party (SRS) 5.6 per cent. In the republican parlia-
mentary elections in Serbia, held on 23 December 2000, 74.4 per cent of
the voters took part:19 in these elections, DOS won 70.4 per cent of the
seats, SPS 14.8 per cent, and SSJ (Party of Serb Unity; the party of the
late Željko Ražnatović Arkan) 5.6 per cent.
The newly elected authorities at the Yugoslav and, subsequently, at the
Serbian level faced the extremely difficult task of democratizing the soci-
ety, promoting respect for human rights, and – in a nutshell – bringing all
regulations and practices in Yugoslavia into line with relevant interna-
tional standards.
The most daunting challenge for the new democratic authorities in
Serbia is the need either to improve relations between Serbia and Mon-
tenegro or to separate peacefully by agreement.20 Furthermore, in co-
operation with the international community, they must settle the issue
of Kosovo. Kosovo is only formally a part of Serbia, with actual power
being exercised by international civil and military bodies. The Ser-
bian authorities must regulate relations with their neighbouring states,
particularly Croatia and Bosnia–Herzegovina, and integrate more than
800,000 refugees from Croatia, Bosnia and Herzegovina, and Kosovo
into Serbian society.
The authorities must pursue full inclusion in the international commu-
nity and membership in international organizations, and cooperate fully
with the Hague Tribunal (including the surrender of persons charged by
this Court with war crimes). They must implement the transition to a
democratic society, despite a ten-year lag behind other former commu-
nist countries of Eastern and Central Europe. Together with the other
countries that have been formed from the ruins of former Yugoslavia,
they must address the issue of succession (i.e. property rights and li-
abilities of the former Yugoslavia).21 They must establish an ombuds-
person, as Serbia and Montenegro is one of the few countries in the
world that still has not established this institution for the protection of
human rights.
The new democratic authorities of Serbia were installed after all dem-
ocratic opposition forces united. This anti-Milošević coalition, composed
of 18 parties with very different orientations, inherited a number of
problems and obligations that date from the time of the Milošević re-
gime. Moreover, they take different positions on a variety of issues, dif-
ferences that have become increasingly pronounced over time. Although

the burden of the past has been alleviated to a great extent, in both po-
litical and economic respects, the rift between the two largest parties of
the DOS coalition – the Democratic Party (the late Zoran Djindjić) and
the Democratic Party of Serbia (Koštunica) – is threatening to jeopardize
the gains made in the 2000 elections and the subsequent October revolu-
tion.
Republic of Croatia
Croatia’s constitutional arrangements are similar to those of Yugoslavia.

Approximately one-third of Croatia’s Constitution is devoted to human
rights issues.22
Laws are much better harmonized with the Constitution than in the
case of the FRY. In the first few years following the formation of the in-
dependent state of Croatia, under wartime conditions (1991–1995), great
disrespect was shown for human rights. The broad powers of President
Tudjman were virtually limitless: he surrounded himself with loyal, cor-
rupt, and incompetent persons and assumed full control of all political
and economic institutions. For several years, public embrace of national-
ism was encouraged: pent-up nationalist emotions, both cause and effect
of Croatia’s independence in 1991, were instrumentalized by the leader-
ship. Intolerance of, and even hatred against, the Serb people developed,
particularly in the aftermath of Serb operations in Slavonia and Krajina
and the 2–3 May 1995 Serb shelling of Zagreb.23
Notwithstanding his authoritarian rule, Tudjman nevertheless initiated
a process of transformation from communism to democracy – in terms of
both actual changes and skilful presentations of changes that had little to
do with genuine democratization. In any case, the international commu-
nity acknowledged his ‘‘efforts’’ and offered him their support. On that
basis, Croatia secured for herself much more favourable relations with
the international community than did Yugoslavia (or Serbia), although
human rights and freedoms were oppressed in a similar fashion: for ex-
ample, during two successive local elections for the Mayor of Zagreb,
President Tudjman simply did not allow the election results to be rec-
ognized; freedom of the press existed only to the extent that the media
supported the Tudjman regime. On occasion, the people took to the
streets to raise their voice against these restrictions of their rights and
freedoms.24
Military actions against the Serb population – in Operations Flash and
Storm – led to the emigration of more than 200,000 Serb civilians from
their ancestral homes in Krajina and Eastern Croatia. During Operation
Storm alone (4–7 August 1995), 267 Serb civilians were killed.25
278 RESANOVIC
The situation improved in many respects following the death of Presi-

dent Tudjman and the January 2000 elections. The authoritarian leader’s
departure from the political scene contributed significantly to the democ-
ratization of Croatian society. The newly elected democratic authorities
delegated the wide powers of the former president, his family members,
and followers to the Parliament and to other political and economic in-
stitutions. The electoral victory of the coalition of six democratic parties,
which won close to two-thirds of the seats in Parliament, allowed Croatia
in November 2000 to adopt constitutional amendments that switched
from its specific semi-presidential system to a parliamentary one.
Nevertheless, the official attitude towards Serbia and the Serbs did not
change significantly. This can be seen from the behaviour of the new au-
thorities towards Serb refugees. The new authorities prevented their re-
turn by persistently creating new and difficult conditions. A large number
of their burnt-down or destroyed homes, as well as other properties, have
not been restored. Only 15,000 refugees have so far been able to return
to the region of Kninska Krajina and only some 3,000 to the region of
Eastern Slavonia. At the same time, the process of quiet emigration of
Serbs from these areas continues. This can be confirmed by preliminary
and unofficial data of the population censuses carried out in Croatia in
199126 (when Croatia was still part of the former SFRY) and in 2001.27
According to the 1991 census results, there were 580,000 Serbs in Cro-
atia; the 2001 census counted 180,000 Serbs, although the voters’ lists for
elections held in 2000 contained the names of 280,000 Serbs. In other
words, in the 1991–2000 period, the number of Serbs fell from 580,000 to
280,000. From 2000 to 2001 – in just one year – it declined further from
280,000 to 180,000. In this connection, Milorad Pupovac, President of the
Serbian National Council (of Croatia) stated that this was the result of
‘‘the ethnic cleansing of the Serb people.’’28 In contrast, Siniša Tatalović,
a Croatian expert on national minorities, explained this phenomenon
with the claim that 100,000 Serbs asked to be deleted from the national
minority voting rolls.29
The most daunting challenges for the new democratic authorities in
Croatia are the following:
0 to achieve genuine reconciliation between the Tudjman-era, hard-line,
nationalist party (HDZ), which still enjoys strong support of the peo-
ple, and the new democratic policies championed by President Mesić
and Prime Minister Račan;
0 to opt truly, both in words and in deeds, for democracy and for the rule
of law;
0 to ensure the speedy repatriation, under a simple procedure, of all ref-
ugees who wish to return;
0 to integrate refugees effectively from specific parts of Croatia and of

Bosnia and Herzegovina into the post-war society;
0 to regulate relations with the neighbouring countries, particularly with
Yugoslavia, Bosnia and Herzegovina, and Slovenia;
0 to engage in full cooperation with the Hague Tribunal, including the
surrender of persons indicted for war crimes;
0 to eliminate the effects of war operations – in particular, to clean up an
estimated one million anti-personnel mines;
0 to continue and to speed up Croatia’s substantive transformation into a
democratic society; and
0 to raise the low living standard of the population.
Bosnia and Herzegovina
The Constitution of Bosnia and Herzegovina (BiH) guarantees a broad

range of human rights and freedoms. These are also in the constitutions
of the two entities of BiH – the Republic of Srpska and the Muslim–
Croatian Federation. Nevertheless, reality is quite another issue.
The tragic war in BiH left hundreds of thousands of people dead,
wounded, or as refugees;30 enormous infrastructure damage; a territory
covered with some 1.5 million anti-personnel mines;31 and inter-ethnic
hatred. According to the 1991 population census, the total population of
BiH32 numbered 4,378,000 inhabitants – including 1.9 million Muslims,
1,365,000 Serbs, and 760,000 Croats – together accounting for some 92
per cent of the total population. According to estimates, some 220,000–
290,000 people went missing or were killed33 in the 1991–1995 war; 1.2
million people fled from BiH; and around 1 million inhabitants were
forcibly displaced within BiH.34
The seemingly senseless war caused large-scale resettlements of the
Bosnian peoples and their eventual separation into two ethnic commu-
nities. Naturally, this horrible task has not been fully completed – enclaves
of national and religious minorities still exist. According to estimates by
the BiH state authorities,35 at the end of 2001 around 600,000 refugees
were still living outside BiH and 550,000 persons remained displaced
within BiH’s borders. According to the same estimates, the population of
BiH at that time was 3.5 million; that figure would have been about 4.5
million had it not been for the war.
After the war, the international community supported the creation of a
Muslim–Croatian Federation, the dominant entity in BiH, under its
leader Alija Izetbegović. In the first years after the war, Izetbegović’s
authoritarian regime attempted to force its will upon all of BiH’s citizens.
However, the Serbian and Croatian communities resisted such efforts.
280 RESANOVIC
The Serbian population was, and has remained, strongly nationalistic.

The Serbian Democratic Party (the party of the former President of
the Republic of Srpska, Radovan Karadžić) has won all parliamentary
elections held so far in the Republic of Srpska. Likewise, the Croatian
Democratic Union (HDZ) in the BiH Federation remained very homo-
geneous and resentful of attempts to move towards a more civil and
democratic society.
Substantial changes were initiated upon Izetbegović’s departure from
the political scene. Political authority has returned to government in-
stitutions, and the international community, in the form of the UN High
Representative, is now in charge of supervising and administering overall
political affairs. The High Representative’s authority to change or rescind
decisions of the parliaments, governments, and other authorities, to over-
ride the will of the people expressed at elections, and to adopt laws with
retroactive effects, represents a wide-ranging influence on the political
life of BiH, reminiscent of the powers of governors in Commonwealth
colonies in the early nineteenth century. Nevertheless, the fact remains
that the common state of BiH has managed to survive only because of
the presence of the international community. It is generally believed that,
without this presence, an inter-ethnic conflict would break out immedi-
ately, escalating very soon to a full-blown war. Clearly, the lesser of two
evils – international involvement or more war – has been chosen.
The old wounds of the long inter-ethnic conflict have not yet healed. It
will probably take at least two generations before internal inter-ethnic
understanding and reconciliation can be achieved. The presence of rep-
resentatives of the international community is likely to be indispensable
for decades to come (the situation in Cyprus is a case in point).
With the latest elections in BiH, new, democratic, and pro-Bosnian
authorities were brought to office, composed of the Alliance for Change
and a dozen other civic and democratic-minded parties. The electoral re-
sults have, de facto, created conditions for the dissolution of the Croation
Union as a para-state within BiH and thus have eliminated efforts to
create a third, Croatian, entity. In the Republic of Srpska the authorities
have been divided. As a precondition set by the EU and United States
for granting financial assistance, an expert government was formed.
The Commission for Human Rights, established under the Dayton
Peace Agreement, holds an important place. It consists of the ombuds-
man’s office and the Council for Human Rights, and the work of both
has so far been very successful. Most importantly, citizens are actually
utilizing these offices, rather than shunning them. Official authorities ac-
knowledge their positions, statements, and findings – despite the fact that
they have no legal status.
The future development of BiH depends on its ability to evolve into an
integrated and authentic state and social community. This involves ac-
complishing a number of important – and difficult – tasks for the demo-
cratic authorities of BiH:
0 to establish genuine unity of state and society, given that nationalist
and separatist feelings are still very much alive;
0 to adopt a single constitutional document for the entire BiH, which
would aggregate all three existing constitutions – the BiH Constitution,
the Constitution of the BiH Federation, and the Constitution of the
Republic of Srpska;
0 to integrate BiH itself, as a precursor to join the processes of regional
and European integration legitimately and responsibly;
0 to join, along with other states of the region, European integration
processes and relevant organizations, especially the Stability Pact for
South-East Europe;
0 to promote and realize equality, inter-ethnic reconciliation, and the
return of all interested refugees;
0 to promote good-neighbourly relations with Yugoslavia and Croatia;
0 to cooperate with the Hague Tribunal, including the surrender of per-
sons accused of war crimes;
0 to eliminate the consequences of war operations, particularly in respect
of some 1.5 million remaining anti-personnel mines;
0 to continue genuine transformation of the state of BiH into a civil,
democratic society; and
0 to raise the living standards of the population.
Differences in the exercise of individual human rights and

freedoms in FRY (Serbia and Montenegro), Croatia, and
Bosnia and Herzegovina
The most crucial development of human rights and freedoms in all three
countries has been the departure of the authoritarian leaders Milošević,
Tudjman, and Izetbegović. Subsequent strides towards democratization
of all three societies have led to an expansion of human rights and free-
doms. However, there is a continuation of nationalist feelings and ac-
companying separatist tendencies among parts of the population in each
country. The nationalist-separatist ideas promoted by the former leaders
still have strong appeal, particularly in Kosovo, Montenegro, and both
entities of BiH. This represents one of the greatest problems and chal-
lenges of transition – to transform societies that harbour such feelings of
intolerance towards members of other nations and religions into demo-
cratic, civil societies.
282 RESANOVIC
Death penalty, prohibition of torture, inhumane or degrading

treatment, and punishment
The death penalty has been abolished in Croatia, BiH, and Yugoslavia.36
Other improvements have been sanctioned by legislation in all three
states. In practice as well, the situation is improving in all three states.
There are still instances of torture in police detention but their occur-
rence is substantially lower than in previous years, owing to improved
training of the police and harsh penalties for offenders.
Right to personal freedom and safety
Rights to personal freedom and safety have been addressed in the legis-
lation of all three states. An important legal inconsistency existed in Yu-
goslavia for more than ten years: the Constitution specified that only a
competent court can order detention, whereas the Law on Criminal Pro-
ceedings extended that right to the police as well. Relevant amendments
to criminal legislation, mentioned earlier in this chapter, have rectified
this inconsistency.
Treatment of persons deprived of liberty
Unfortunately, in all three states, poor prison conditions – primarily

health care, hygiene and food, harassment, abuse and blackmail by pris-
on guards, and, in some cases, inadequate treatment of women and
adolescents – are the result of a widely held belief that ‘‘the guilty ones
should suffer for what they have done.’’ As a consequence, in all three
states, conditions are well below contemporary international standards.
The right to a fair trial
The human right to a fair trial has been continually violated by authori-
tarian regimes in all three states. Courts and judges were (made) depen-
dent on the regime. For as long as Milošević, Tudjman, and Izetbegović
were in power, the practice of appointing only obedient and incompetent
party cadres as judges degraded the principle of an independent judi-
ciary: the right to a fair trial was greatly compromised. After the depar-
ture of the authoritarian leaders, the situation improved significantly in
Croatia and BiH; however, because the judges that were appointed by
Milošević’s regime are still in office, there has been no improvement in
the courts of Serbia. Very complicated recall procedures allow them to
stay in office and continue to follow the demands of their party chiefs,
thus hampering just trials. Eventually, the Law on Lustration (Sunshine
Law, banning former Communist operatives from public office) was

adopted in Serbia on 30 May 2003.
The right to privacy
In all three states, special services (primarily intelligence services) ruth-

lessly endangered numerous rights and freedoms of citizens, especially
the right to privacy (including access to personal data, sexual preferences,
protection of homes/apartments, correspondence, and honour and repu-
tation). Improvements have been noticeable since the departure of the
former authoritarian leaders. In Serbia, those improvements have been
slow, as the same secret service has been in place for decades, with only
minimal personnel changes. However, procedures are currently under
way for the adoption of a number of laws (on the reform of police, on the
separation of secret police from the regular police force into a special
agency, and on the opening of secret police files) that would call for sig-
nificant personnel changes, particularly in the secret service.
Freedom of expression, i.e. freedom of the work of the media
In all three states a strictly government-controlled media had been put in

the service of the regime to spread regime propaganda and ethnic hatred
among the population. Owners and editors-in-chief of the small number
of organizations that opposed such control (such as the Dnevni Telegraf
[Daily Telegraph], Danas, Anem, and the radio station B92) became vic-
tims of assassinations: for example, Slavko Ćuruvija, the owner of the
Daily Telegraph, was killed in Belgrade in 1999; the paper’s editor-in-
chief, Zeljko Kopanja, lost both legs after a bomb was planted under his
car in Banjaluka in 1998; numerous newspapers, magazines, or radio sta-
tions were prohibited and heavily fined; conditions in Serbia were par-
ticularly appalling. With the departure of the authoritarian leaders, the
situation improved radically.
The right to peaceful assembly
The right to peaceful assembly has been violated in all three states – most
blatantly, in Serbia. The authorities banned all gatherings that appeared
to threaten the regime. Public gatherings were immediately ordered to
disperse. The largest number of rallies was registered in Serbia. With all
political institutions and the media completely under the regime’s con-
trol, this was the only way for citizens to express their views. The Milo-
šević regime did shy away from using violence to put down protests (this
was particularly true during protests by students and Otpor against elec-
284 RESANOVIC
toral theft from November 1996 to January 1997 and against the gov-
ernment’s rigging of the September–October 2000 elections).
The right to unhindered use of property
The right to unhindered use of property was widely violated in all states.
The destruction, burning, seizure, or forcible acquisition of property of
refugees and internally displaced persons was used to further the nation-
alist policies of authoritarian leaders. The situation in Croatia and BiH is
still poor, as the return of Serbs and other refugees is still largely being
prevented. The situation is similar in Kosovo. The lion’s share of re-
sponsibility lies with the international community, which is not enforcing
conditions under which Serbs and other non-Albanians can return and
repossess their property without hindrance.
Minority rights
Minority rights have been disregarded in all three states. Irrespective of

existing legislation on minority issues in all three countries, their actual
behaviour towards persons from national and religious minorities has
changed only slightly since the departure of the authoritarian regimes:
persons belonging to other ethnic groups and religions are still widely
considered and treated as enemies. Their property was destroyed or
forcibly taken when they were forced to abandon their homes before or
during the war, all with the intent to prevent their eventual return. Worst
of all, the prevailing public attitude still holds that members of other
ethnic or religious communities should be driven out of the state or, in
some cases, should be assimilated. For instance, the Serb population of
Croatia has dropped by one-third, in the capital of Zagreb even to one-
sixth of its pre-war population. On the other hand, the number of Croats
in Yugoslavia, more precisely in the province of Vojvodina, has fallen to
one-eighth of its pre-war level.37
Clearly, a long and difficult road lies ahead for all three states in their
efforts to achieve inter-ethnic reconciliation and the creation of societies
that fully respect the rights of their ethno-national minorities.
The right to free elections
The right to free elections was also violated severely by all three states. It
was commonly assumed that those authorities that call elections are also
the ones that win them. This perception was the result of the regimes’
total control over the entire electoral process – from the adoption of
relevant election laws, to the elections, and to vote counting. Unfortu-
nately, this perception proved to be correct while these authoritarian re-

gimes were in power; nevertheless, elections did bring about political
changes, most recently in Yugoslavia during the elections of October
2002. However, events in Belgrade have shown that this was achieved
with much more difficulty in Yugoslavia than in Zagreb and Sarajevo.
Well-organized elections benefited the post-electoral protests that de-
fended the actual election results, which, in turn, led to Milošević’s sub-
sequent fall from power. A number of international organizations played
an extremely important role in these developments: in particular, the
observer missions of the OSCE and the Council of Europe significantly
contributed to the democratic organization and monitoring of elections.
Special protection of women and children
Special protection of women and children has not been adequately im-
plemented in any of the former Yugoslav states. Particularly in Mon-
tenegro and BiH, women are traditionally disparaged, and it is commonly
believed that women and children should be beaten, as ‘‘the stick is the
surest peacemaker.’’ Since none of these states provide either full practi-
cal or legal protection, numerous NGOs have dedicated their efforts to
educating the population and providing protection, including emergency
telephone lines for victims of violence, women’s autonomous centres, and
children’s rights centres.
Freedom of association
The constitutional freedom of association is guaranteed in all three

states. However, there are limits to the formation of political or trade
unions if their purpose is to undermine the Constitution.
Economic and social rights
Economic and social rights have been significantly jeopardized in all

three states, with the worst violations in Serbia. Ineffective economic
policies, the tragic legacy of the past, destroyed and plundered compa-
nies, and the grey economy are all problems that seem insurmountable at
the moment. Citizens are driven to smuggling, street peddling, and other
petty criminal offences. In all states, economic improvement can be
achieved only with efficient financial assistance. Usually, this comes with
political strings attached, further complicating a difficult situation. The
international community’s political demands on Yugoslavia (Serbia and
Montenegro) include close cooperation with the Hague Tribunal (in-
286 RESANOVIC
cluding the hand-over of all indictees and access to all state archives), a
domestic settlement of the relations between Serbia and Montenegro,
and an adequate political solution for Kosovo.
Certain contemporary human rights and freedoms (such as the protec-
tion of consumers and the right to a healthy environment) have not yet
become the subject of major research, as citizens of all three states are
still concerned with some of the more vital rights. The considerable fi-
nancial resources and civic–cultural level required of citizens for their
implementation are remote prospects: after all, it has been only a few
years since the war in Croatia and BiH ended and Yugoslavia witnessed
NATO bombing and the end of a dictatorial regime. In all three states
the first priority is to resolve the most burning problems of state regula-
tion, development of democratic institutions, and respect for basic human
rights and freedoms, before third- and fourth-generation rights can be
addressed.
Concluding remarks
In the FRY (Serbia and Montenegro), Croatia, and Bosnia and Herze-
govina, the authoritarian regimes and their leaders (Milošević, Tudjman,
and Izetbegović) were the main sources of human rights violations. They
skilfully utilized the rise of nationalism within the population, which re-
sulted from 50 years of communist dictatorship and numerous unresolved
national questions throughout the former Yugoslavia, in an attempt to
fulfil their own separatist aspirations and to emerge as undisputed rulers
of their newly formed states.
Nationalism and hatred of other peoples and religions were promoted
(and virtually institutionalized) as a precondition for the brutal break-up
of the former Yugoslavia. Ethnonationalism was, and has largely re-
mained, widely and deeply entrenched among the three constituent eth-
nic groups. So far, nationalism is not on the retreat, and nationalists have
not renounced the support they had given to their former leaders. Na-
tionalists have redirected their support to new leaders who have now
donned ‘‘democratic suits,’’ by skilfully declaring themselves as either
democrats or nationalists, depending on the political circumstances.
In all these states, political, economic, and judicial institutions, as well
as the media and other civic organizations, were tightly controlled by the
authoritarian leaders: their main function was to protect the regime.
None the less, movement towards democratization and establishment of
the rule of law has been initiated and the first results are visible. In large
part owing to the work of NGOs, the media, and academic experts, a
culture of human rights is taking root: numerous professional panels and
workshops are being organized, professional literature is being published,

and relevant international documents are being translated.
It is the general impression of citizens, international organizations, na-
tional NGOs, as well as local and foreign media, that governments have
improved their human rights record. This is not primarily due to a genu-
inely strengthened commitment to the culture of human rights and free-
doms; rather, governments know that both the international community
and their own citizens are not willing to tolerate the continuation of pre-
vious excesses.
Against this backdrop, the chances are slim of creating conditions in
which all contemporary human rights are respected and protected. In the
past, none of the three states had substantive human rights protection
policies in place: constitutional provisions were restricted or conditioned
by various legal provisions. This was particularly pronounced and com-
monplace in Yugoslavia, during the Milošević period.
In the three states, disrespect for human rights was exacerbated by
inter-communal conflict and war. Improvements took place after the wars
ended, in the wake of democratization, the strengthening of democratic
institutions, the establishment of the rule of law, and economic progress.
Consistent protection of human rights would be one of the wisest in-
vestments in these countries: respect for a wide gamut of human rights
would create a culture of tolerance that would help to prevent future vi-
olence. Sustained reconciliation and education are key components of
this process, along with the resolution of ongoing conflicts (Kosovo and
Macedonia); cooperation between the countries of the Balkan region;
their integration into the wider regional and international community
(EU, Stability Pact, Central-European Initiative, Council of Europe); and
internal and external professional, technological, and financial assistance
in strengthening democratic institutions, fostering economic develop-
ment, and thus significantly raising people’s social and economic security.
The three countries’ national governments play a key role in this pro-
cess: they must renounce all forms of violence; they must speak out
against nationalist parties and their programmes; and they must create,
through education, a climate that is conducive to the development of a
civil, democratic society committed to sustained and genuine reconcilia-
tion. As long as the criminals are divided into ‘‘ours’’ and ‘‘theirs;’’ as
long as ethnic discrimination is not replaced with moral and professional
criteria; as long as already initiated democratic processes do not take
roots; there will be little chance of reconciliation, economic development,
and respect for human rights and freedoms.
An important first step in this direction would be to implement the
already formally completed national commissions for truth and reconcili-
ation. For instance, the Truth and Reconciliation Commission in Yugo-
288 RESANOVIC
slavia was established by President Koštunica in March 2001,38 but until

now it has held only one public meeting.39 Such commissions are based,
not on revanchism and revenge but on the need for each nation to look
inward, to recognize its mistakes, and to remedy them; otherwise, what
happened in the past might happen again in the future. Further, the na-
tional governments should take all steps necessary to allow full inte-
gration with the wider international community. This will require full co-
operation with the Hague Tribunal and, as such, the surrender of all
persons indicted for war crimes. The Hague Tribunal is expected to act
professionally and impartially and to take actions also against Albanians
who have committed crimes against humanity in Kosovo.
The national governments should further strongly commit themselves
to the process of internal national reconciliation, to the development of
civil society, and to respect for the rights and freedoms of all citizens –
regardless of their national origin, religious affiliation, or any other such
defining characteristics.
Successful completion of internal integration should be the prerequi-
site for further regional or European integration. After concluding the
difficult process of domestic integration within each individual state, a
‘‘small Europe’’ should be created in the Balkans (perhaps within the
framework of the Southeast European Cooperative Initiative; SECI), to
prepare the region for entering the institutions and regional arrange-
ments of the larger Europe. In particular, the various IFIs should render
strong support to democratic institutions and – through investments,
credits, and other financial arrangements – assist the development of the
economy.
Human rights must be promoted by citizens organized in NGOs and in
professional and other associations, as well as by experts and the media.
Although NGOs were suppressed under the former dictatorial regimes,
citizens now realize that NGOs represent a popular voice, a corrective of
state rule, a place where citizens can actively join and work for their ideas
and objectives. Several hundred such organizations are already operating
in all three states, promoting a human rights culture and extending pro-
fessional and humanitarian aid.
The media continue to play an important role in shaping public opin-
ion. Media outlets in all states have recently begun to popularize human
rights by reporting on cases of human rights abuse. For instance, the daily
Today (Danas), which is published in Belgrade, regularly reports on
cases of state violence against citizens. The case of the disappearance
(murder) of Ivan Stambolić, who was President of Serbia from 1984 to
1987, has been covered on a daily basis during the period of August 2000
until April 2003.
These conclusions might create the impression that all these pro-
cesses and activities of the national governments and relevant interna-

tional organizations have already been initiated. Unfortunately, as a re-
sult of persistent nationalist feelings, including intolerance and hatred for
other nations and religious communities, these processes have not regis-
tered much progress. Tolerance and reconciliation are the most urgently
needed factors that will drive all subsequent improvements. Unless all
relevant actors address these with the greatest possible care and exper-
tise, the modest results achieved to date will be jeopardized.
Notes
1. The chapter covers the FRY, Croatia, and Bosnia and Herzegovina. It does not cover
the former Yugoslav republics of Slovenia and Macedonia.
2. The Official Gazette of FRY, No. 1, 1992.
3. Constitution of the Republic of Serbia, The Official Gazette of the Republic of Serbia,
No. 1, 1990, and Constitution of the Republic of Montenegro, The Official Gazette of the
Republic of Montenegro, No. 48, 1992.
4. The Official Gazette of FRY, Article 15, No. 1, 1992.
5. The Official Gazette of Serbia and Montenegro, No. 1, 2003.
6. The Official Gazette of Serbia and Montenegro, No. 6, 2003.
7. For this activity, an indictment was rendered against Milošević before the Hague Tri-
bunal on 24 May 1999 and amended on 16 October 2001. Milošević was in Central
Prison in Belgrade from 31 March until 28 June 2001.
8. This included murders, expulsions from land or evictions from homes under the threat
of murder, below-value buy-outs of land or houses, rape, and various other forms of
abuse.
9. UN Security Council Resolution 1160 (1998).
11. The Agreements were signed on 16 October 1998 by the FRY on the one hand and the
UN and OSCE on the other.
12. Report of the FRY Government of March 1999.
13. Report of the Kosovo Information Centre, February 1999.
14. ‘‘Under Scrutiny,’’ Report on Human Rights in the FRY in 1998, Humanitarian Law
Fund, No. 28, 1998, p. 3. There are definite indications that, of 400 cases of torture in
Kosovo committed during 1998, seven resulted in the death of persons tortured while in
detention (six Albanians and one Serb).
15. Humanitarian Law Fund, Report, July 1999.
17. Kosovo Force (KFOR)’s Report, July 1999.
18. Report of the Federal Election Commission, 2000.
19. Report of the Federal Election Commission, 2000.
20. In April 2001 elections, over 50 per cent of Montenegro’s citizens voted, for the first
time, for a coalition that favoured Montenegro’s separation from Serbia.
21. Accordingly, an international commission was established. After years of blockade, the
Commission produced its first results after the political changes in Yugoslavia in 2000.
22. The National Gazette (Narodne novine), No. 124, 2000.
23. In numerous appearances in various media in 1989–1991, Tudjman and other Croatian
national leaders portrayed the Serbs as plain ‘‘evil.’’
290 RESANOVIC
24. In the case of Radio 101, 100,000 citizens of Zagreb publicly protested against the clos-
ing of the station in March 1998. However, unlike in Serbia, where police violence
against Serb citizens was commonplace, police violence against Croatian citizens was
comparatively limited.
25. The Croatian Helsinki Committee for Human Rights Report, 1996. The regime had in-
formal links with notorious World War II war criminals, who had been hiding for de-
cades in Latin America and elsewhere in the world. This was an insult to the feelings of
all victims and honest citizens in Croatia.
26. Republic of Croatia Statistical Yearbook 1992, Zagreb, Central Bureau of Statistics,
1993, p. 64.
27. The population census was carried out on 1–15 April 2001 on the basis of the Law on
the Census of the Population, Households and Flats. The National Gazette No. 64, 2001.
28. Voice (Glas), 25 May 2002, p. 8.
29. Siniša Tatalović, ‘‘The Position of National Minorities in Croatia,’’ in Democracy and
National Minorities, Centre for Ethnic Studies, Belgrade 2002, p. 275.
30. UNHCR Report BiH, 1996.
31. Jody Williams, coordinator of the International Campaign Against Landmines, Speech
at ICBL Meeting, Oslo, September 1997.
32. Statistical Bulletin of the Statistical Office of BiH, No. 223, Sarajevo 1993.
33. See Ante F. Markotić, Bosnia Will Lose all Its Witnesses, Mostar: Croatian Homeland
Society (Matica Hrvatska), 1998, p. 253.
34. National Report on the Human Development of BiH–2001, Economic Institute of Sar-
ajevo and UNDP Sarajevo, 2001.
35. Ministry of Human Rights and Refugees of BiH, Information on the Implementation of
Annex VII of the General Framework Agreement for Peace in BiH, Sarajevo 2001.
36. Law on Amendments to the Criminal Code of FRY, The Official Gazette of FRY, No.
61, 2001.
37. Based on a comparison of the 1991 population census in the former Yugoslavia and
preliminary results of the 2001 population census in Croatia and the one carried out in
FRY in 2002.
38. Decision on the Establishment of the Truth and Reconciliation Commission, The Offi-
cial Gazette, No. 15, 2001.
39. The meeting took place on 28 May 2002 in Belgrade.
13
Human rights in transition societies:
The cases of Somalia and South
Africa1
F. Wafula Okumu
The restoration, protection, and promotion of a human rights culture is

one of the toughest challenges facing societies in transition. This is par-
ticularly so when the transitional process, institutions, and practices are
non-existent, inadequate, or warped to serve the interests of the oppres-
sive old regime. More than any other region of the world, Africa has so-
cieties that are constantly in transition; in Africa, too, there is an urgent
and immediate need for protection and promotion of a human rights
culture. Using Somalia and South Africa as case studies, this chapter is an
effort to show the difficulties in, and prospects for, protecting and pro-
moting human rights in transitional societies. The transition in South Af-
rica has been a difficult one, owing to the persistence of institutions and
practices that were established by the apartheid state. It has been a
nightmare in Somalia, as state institutions have been destroyed by a rag-
ing civil war. Whereas South African state institutions are being trans-
formed to guarantee and protect human rights fully, those in Somalia are
being rebuilt from scratch. Why have human rights practices deteriorated
in Somalia and significantly improved in South Africa? How and why did
human rights lose protection in Somalia? What has the international
community done to restore a culture of human rights in Somalia? How
did South Africa go through a successful transition that has prompted us
to view it as an international model? What can other societies in transi-
tion learn from the South African experience? These are some of the
questions that this chapter seeks to answer.
291
292 OKUMU
The people of South Africa and Somalia, who suffered misfortunes at

the hands of brutal regimes, have taken different transition paths towards
installation of democratic societies that are just and respectful of human
rights. After establishing that the Somalis have no state institutions that
can protect their right to life, political participation, property ownership,
and other basic rights prescribed in international human rights conven-
tions, this study gets to the roots of these human rights violations. It then
explains why and how the Somalis are still grovelling under the rule of
warlords, who have gained international infamy for grossly violating fun-
damental human rights and freedoms. Somalia lacks governmental in-
stitutions that can protect human rights, and the orgies of violence seem
to be unending.
Although the breakaway Republic of Somaliland has adopted a con-
stitution that highlights what rights and freedoms are to be protected, this
constitution does not fully protect human rights. Among the rights and
freedoms guaranteed under the new Somaliland constitution are the
right to participate in political, economic, social, and cultural affairs; the
right to life; security of the person; the right to liberty; the right to own
private property; the right to have one’s dignity, reputation, and private
life respected; freedom of movement and association; and freedom of
communication. It also prohibits human rights crimes such as torture,
extrajudicial killings, mutilation, and similar acts. Furthermore, it calls
on the state to guarantee and provide conditions for all the citizens to
enjoy and practise their rights. However, despite the constitutional claims
that human rights are upheld, political activities have been banned in
Somaliland.
Finally, South Africa is used to provide an example of a transition that
has overcome an oppressive regime and installed a government that is
democratic and respectful of human rights. Since the demise of apartheid,
South Africa, having learned from its history, has taken giant steps in
promoting and protecting human rights. It has a vibrant human rights
community with independent organizations. It has one of the world’s
best-written constitutions, which places emphasis on human rights and
establishes state institutions that strengthen constitutional democracy.
South Africa also went through a national catharsis, in which an attempt
was made to heal the old wounds of apartheid through a ‘‘Truth and
Reconciliation Commission.’’
The premise of this chapter is that transitions from autocratic or con-
flict societies, regardless of where they are taking place, require en-
abling environments. Such environments include an appropriate political
atmosphere and culture, political leadership, a constitution that ade-
quately protects human rights, and political will of the general popula-
tion. Whereas South Africa had all these elements, Somalia lacks some
SOMALIA AND SOUTH AFRICA 293
or all of them. The case of South Africa shows that it is not enough for
human rights to be recognized in a constitution: a political culture that
creates conditions for a genuine and lasting peace is a prerequisite for the
persistence of a human rights culture.
Analytical framework
Individuals form states for the main purpose of distributing and redis-
tributing goods and services, including public safety, and the creation of
an environment that allows them to meet their basic needs. Unfortu-
nately, most states in Africa have been unable, to use the words of H.J.
Kotze, ‘‘to deliver public goods to all citizens, irrespective of ascriptive
identity, communal affiliation, or partisan loyalty.’’ The failure of the
state to live up to this challenge leads to schisms, in which partisan inter-
ests seek to control and use the state as ‘‘an instrument of discrimination
and domination, favoring certain communities in the provision of public
goods.’’2 Eventually, when the state comes under total control of one
social group, as it did in apartheid South Africa and in Siad Barre’s So-
malia, it becomes an epitome of a ruling clique and its institutions are
transformed to serve that clique’s exclusive interests.
H.J. Kotze contends that, ‘‘in a truly democratic state, citizens must
have equal opportunity to gain access to public goods. In addition to
voting rights, these include the provision of social services such as schools,
welfare, and economic infrastructure, as well as less tangible symbolic
goods including official languages, flags, and national anthems.’’3 Con-
flicts and wars in Africa occur when small, rapacious, and praetorian co-
teries of politically well-connected individuals misuse and deny access to
public goods. It is a violation of one’s rights to be denied the benefits or
access to public goods that one has paid for or is entitled to. These rights
are further violated when one is stripped of basic freedoms to demand
access to those goods and services, or when an environment is created in
which these goods and services cannot be acquired. Although wars have
captured headlines of African-related events, the world has rarely been
told that human rights violations are one of the causes of these wars. In
the case of Somalia, the flagrant abuse of basic rights left Somalis so
paralysed by hopelessness that many are now virtually unable to take
care of themselves and have to rely on international humanitarian assis-
tance. Prior to the total collapse of their state in 1992, the Somalis were
already living in a state of fear and insecurity – they were fearful of arbi-
trary arrest, seizure or destruction of their properties, and loss of life.
The violation of human rights, I point out later in this chapter, is central
to the failure of the Somali state.
294 OKUMU
In his declaration of ‘‘the human right to peace’’ in 1997, the then

Director-General of UNESCO, Federico Mayor, pointed out that ‘‘last-
ing peace is a prerequisite for the exercise of all human rights and duties.’’4
He added that peace, development, and democracy mutually reinforce
each other and that none is sustainable without the other. Patrick Hay-
den argues that ‘‘both democracy and human rights are at risk unless
each includes the other.’’5 He adds that democracy and human rights
need a context in which they can be promoted. Hence, for there to be
‘‘democratic governments and sustainable human rights,’’ there has to
be ‘‘stable peace.’’6 In other words, stable peace in a nation-state is made
all the more possible by state institutions constituting a democratic gov-
ernment committed to human rights for all. Hayden calls on democratic
nations to ‘‘encourage and support transitions’’ from non-democratic
to democratic ones.7 ‘‘Such transitions will require enhancing the demo-
cratic commitment to norms of peaceful conflict resolution,’’ that
normally characterize mature and stable democracies. In this regard,
contends Hayden, a society that is undergoing a democratic transition has
not only to repudiate war but also to ‘‘embrace the ideals of social justice
and nonviolence.’’ Hayden’s argument is based on the Kantian notion
of cosmopolitan right that seeks to create ‘‘basic social conditions, in-
stitutions, and practices through which all human beings can actually re-
alize themselves as free and equal in nonviolent and peaceful’’ societies.8
These benchmarks are hard not only to meet but also to maintain, as the
following analysis of human rights practices in Somalia and South Africa
shows.
Human rights practices in Somalia

The civil war and factional fighting that have overwhelmed Somalia since
1988 have caused up to 500,000 deaths.9 The conditions in Somalia wors-
ened during 1991–1992, when violence and massive population displace-
ment produced famine, sending an estimated 800,000 Somali refugees to
neighbouring countries and internally displacing as many as two million
people. Before getting to this stage, people’s rights in Somalia had been
recognized only on paper as, in practice, constitutional guarantees had
been routinely violated. Political rights and freedoms were virtually non-
existent. The government of General Muhammed Siad Barre was a mili-
tary dictatorship that showed no respect for the constitution and its rights.
Mock elections were held from time to time to give the Barre regime a
veneer of ‘‘democracy,’’ and the right to peaceful assembly was restricted
to officially sanctioned rallies showing undying loyalty to the leadership.
At any one time the Barre government is known to have ‘‘held several
thousand prisoners entirely outside the framework of the law.’’10 Somalia

under Barre was a state in which . . .
long prison sentences awaited individuals who stepped out of line; any hint of in-
dependence was proof of links to sinister ‘‘dissident movements.’’ Women acti-
vists were especially cruelly treated – held in prison and subjected to sexual abuse
and rape as forms of torture. A climate of fear made the exchange of free opinion
virtually impossible.11
As anarchy still prevails in Somalia, economic and social progress has

been stalled. Somalia has lost its most talented people, who have been
either killed or forced to flee. Arbitrary actions by warlords have en-
dangered a sustainable way of life. Somalia has been systematically de-
stroyed: this is true not only of its delicate set of communal values and
structures that allowed survival of its people for generations but also of
its fragile ecosystems. Somalia is filled with the suffering that follows
when rights are denied or violated – it is a picture of the agony of self-
destruction:
. . . harsh Shari’a punishments, including public whippings, amputations, and

stoning; harsh prison conditions; the judicial system’s reliance in most regions on
some combination of traditional and customary justice, Islamic (Shari’a) law, and
the pre-1991 penal code; infringement on citizens’ privacy rights; some limits on
religious freedom; restrictions on freedom of movement; and the abuse of women
and children, including the nearly universal practice of female genital mutilation
(FGM).12
Other violations include ‘‘abuse and discrimination against ethnic minor-

ities in the various clan regions,’’ lack of protection of worker’s rights,
and isolated cases of forced labour.
In more specific terms, there is total lack of respect for the integrity of
the person. This has been manifested in several forms. In the political
and other extrajudicial killings that have taken place since the revolt
against Siad Barre started in January 1991, political violence and ban-
ditry have claimed tens of thousands of Somalis, mostly non-combatants.
There has also been an escalation of kidnappings and disappearances
that appears to be politically motivated. Torture and other cruel, inhu-
mane, and degrading treatment or punishment is also widely practised.
In the absence of constitutional or other legal protections, arbitrary
arrests and detentions without trial are prevalent in Somalia. Somali fac-
tions and armed bandits continue to engage in arbitrary detention, in-
cluding the kidnapping of humanitarian workers that prompted the Red
Cross to pull its aid workers out of the country. In 1997 in Somaliland,
a special security unit ordered approximately 100 individuals to be ar-
296 OKUMU
rested without warrants and then sentenced without trial. Among those
arbitrarily arrested and sentenced in a kangaroo court was businessman
Ahmed Farah Jire, who ‘‘came under suspicion when he brought his
clansmen together for a road construction project . . . (that) did not pose a
threat to the authorities.’’13
Owing to the legal system’s lack of uniformity, in most regions the ju-
diciary applies either traditional and customary law, Islamic Shari’a law,
or the penal code of the pre-1991 Siad Barre government, or a combina-
tion of the three. For instance, whereas Bardera courts apply a combina-
tion of Islamic Shari’a law and the former penal code, those in north
Mogadishu, a segment of south Mogadishu, the Middle Shabelle, and
parts of the Gedo and Hiran regions, base their decisions solely on
Shari’a law. In areas where Islamic culture is particularly entrenched,
such as in Gedo and Hiran, those convicted of certain offences might re-
ceive harsh punishments ranging from public whippings to amputations
and stoning.14
The Constitution of the Republic of Somaliland, which was endorsed
by clan elders in 1991, contains guarantees for human rights. However,
this constitution also contains inherent contradictions that compromise
some of the human rights. For instance, it places limitations on religious
freedom by making Islam the official and only religion. Christians are
not allowed to proselytize, although they can deliver relief aid and keep
their beliefs privately. It also guarantees the rights of women, but only
as ‘‘specifically ordained in Islamic Shari’a.’’15 This constitution only
‘‘encourages’’ the government to ‘‘legislate for the right of women to be
free of practices which are contrary to Shari’a and which are injurious
to their person and dignity.’’16 It also gives women ‘‘the right to own,
manage, oversee, trade in, or pass on property in accordance with the
law,’’ as well as ‘‘the right to have extended to them education in home
economics.’’17
The administration of justice is hampered by a shortage of qualified
judges and defence attorneys in Somaliland. In those areas where tradi-
tional and customary judicial practices or Shari’a law are applied, the
right to representation by an attorney and the right to appeal do not ex-
ist. In some cases the Shari’a courts have also contravened the norms of
Shari’a law by denying basic rights, including defendants’ rights to face
witnesses during trial. Although the Hargesa administration has not lived
up to the letter and spirit of the document, Somaliland has taken the
positive step of stipulating human rights protection in its constitution.
The other breakaway parts of former Somalia neither possess constitu-
tions nor practise the rule of law.
For democracy to thrive and peace to prevail in a society there must be
adherence to the rule of law. This law must also ‘‘be universally heeded,
that is, obeyed and complied with.’’18 The rule of law, according to I.
Mohammed, implies the following:
0 the law is sovereign over all authority, including the government;
0 the law must be clear and certain in its content and accessible and
predictable for the subject;
0 the law must be general in its application;
0 the judiciary must be independent and accessible to every aggrieved
citizen;
0 the law must have procedural and ethical content.19
All these components are lacking in Somalia; instead, the rule of law in
Somalia is guided by particularism – that is, it is based ‘‘on either expe-
rience or on substitution of some sort of moral judgment for legality.’’20
But more so, the Somali warlords have gained notoriety for their antipa-
thy to the rule of law. This is understandable, since power in Somalia is
arbitrary, personal, and unpredictable.
In the period following the fall of Barre, Somalis did not know how to
relate to the state or how the state ought to treat them, as none existed.
The collapse of the state coupled with the particularity of the rule of law
meant that renegade warlords and the people could take whatever laws
they deemed beneficial to their interests into their own hands. Gibson
and Gouws caution that ‘‘although rule of law is . . . necessary for demo-
cratic government, it is certainly not sufficient.’’ It must have ‘‘meaning as
an attribute of institutions, cultures, and the belief systems of ordinary
citizens.’’21 To help us better understand the present state of Somalia so
that we can propose viable solutions, we trace, in the next section, the
historical roots of the present lack of human rights guarantees and the
collapsed state.
What went wrong in Somalia?
In order to gain a better understanding of the present state of human

rights and the difficulties encountered in introducing a human rights cul-
ture, we need to put it in a historical perspective. In pre-colonial times,
Somalis had developed into a pastoral population that ‘‘despised settled
agricultural cultivation, the formal cooperation this required, and the hi-
erarchy, authority and governmental organization that resulted.’’22 Over
the years, and before the colonialists arrived, Somalis had fragmented
nomadic social organizations that were based on families. Although there
were inequalities between families, sub-clans, and clans, and ‘‘appetites
for the strong or the weak . . . to feed on this inequality, there is no reason
to suggest (that) Somalis’’ had a history of ‘‘perpetual and internecine
violence of the kind that characterized 1991.’’23 Chopra also notes that
298 OKUMU
Somalis had a code of conduct called xeer that established rules and
norms that promoted security and social justice among themselves. Fur-
thermore, Chopra adds, ‘‘clans and families could not muster enough
resources and were not sufficiently centralized to exploit inequalities. The
communitarian nature of Somali society prevented classes from being
stratified according to wealth.’’24 Abdi Ismail Samatar points out that,
acting as a social contract, the xeer regulated conflicts ‘‘in the absence of
centralized coercive machinery’’ by ensuring that people relied and lived
on their ‘‘labor/livestock rather than exploiting others.’’25
Leadership in pre-colonial Somalia was based on merit and conferred
upon proof of effective management of one’s household. Leaders were
‘‘elected by majority votes of informal councils or assemblies known as
Shir, composed of any member of a particular lineage. A Shir also made
most political and judicial decisions, hence limiting the exercise of lead-
ership powers. Committees of elders appointed for a specific purpose by
the elected leaders implemented decisions. In this manner, the ideal of
decentralization was guaranteed and checks and balances against exploi-
tation were safeguarded.’’26
When the British, French, and Italians arrived and claimed territories
(in 1886, 1888, and 1905, respectively) they established states that were
convenient for colonial rule – that is, centralized and with hierarchical
power structures. In the process of claiming supreme authority, the colo-
nial state had to ignore or undermine the existing traditional sources of
authority. Beside the colonial state that was designed in Europe, the
colonialists also introduced a form of capitalism that diminished the
role of pastoralism in economic production and the communitarian social
order. Colonialism also introduced into society an alien class of western-
educated Somalis that was ferocious in its accumulation of material goods
introduced by the Europeans. Henceforth, all Somali social institutions
and practices were either completely destroyed or weakened and sub-
jugated to serve the colonial interests.
The implantation of conflict in Somali society took form when Somalis
started resisting colonial domination and had to muster resources to do
so. This, Chopra claims, entailed competing for control of resources that
the colonialists were also seeking. The outcome of this was a complicity
in destruction of their own pastoral nomadic culture and creation of tools
to fight each other. By destroying the ‘‘xeer glue that regulated conflicts
and held Somali society together,’’ seeds for future chaos were planted.
This partly explains why the Somali conflict has become intractable.27
The situation was exacerbated by the failure of the colonial states to
govern effectively and justly. Instead of protecting and promoting human
rights, the British, French, and Italians established administrations that
made their violations a modus operandi. To make matters even worse,

the departing colonialists handed over power to their preferred leader-
ship, that of Aden Abdullah Osman Daar. This leadership not only as-
sumed powers similar to those wielded by the colonialists but also accu-
mulated more and more, ad infinitum. The new ruling élite’s obsession
for power was matched only by its drive to control all Somali-inhabited
territories in the region. As a result, Somalia went to war with Ethiopia in
1961, 1964, and 1977–1978, and with Kenya in 1963–1967.
In the absence of the xeer system to check the exercise of power, the
post-colonial leaders not only abused their authority but also misused
public goods and offices for personal gains. Not only were the new leaders
inexperienced in running the affairs of a colonial state, they also had no
knowledge of democratic practices and culture, which never existed dur-
ing the colonial period. The civil society necessary to support democracy
and human rights was too weak and was soon destroyed. The incompe-
tence of those running the state was also manifested in the mismanage-
ment of the economy, as a result of intense competition among the élite
to accumulate national resources at the expense of each other and of the
people. Samatar points out that ‘‘it was the competition among the élite
for these resources that ultimately led to the degeneration of the major
political parties and the demise of parliamentary governance.’’28
After politicians had weakened the Somali State through unbridled
corruption, it was not a surprise when, in 1969, Major-General Mu-
hammed Siad Barre seized power. Barre dismissed parliament, suspended
the constitution, banned political parties, proclaimed ‘‘scientific social-
ism’’ as the new national ideology, and named the country the ‘‘Somali
Democratic Republic.’’ In 1976 he established the Somali Revolution-
ary Socialist Party and named himself its Secretary-General. As he en-
trenched his dictatorship, Barre also created a kleptocracy that ushered
in a new competition for power, but this time through violent means. In
response to a coup attempt in 1978, Barre’s rule became more repressive
and personal: he increasingly used force to silence his opponents; he re-
lied on sycophants, who were allowed to loot national resources, to carry
out his unpopular and arbitrary decisions. Besides institutionalizing vio-
lence, Barre also nurtured nepotism by promoting the members and
interests of his sub-clan (Marehan) and clan (Darod) over those of the
nation. By personalizing the state, Barre helped to ensure its demise
when he was finally forced out of power in 1991.
However, Barre did not bring about the demise of the Somali state
single-handedly: he had foreign accomplices, mainly the Soviet Union
and the United States, who during the Cold War period endlessly sup-
plied him with arms in exchange for access to Somalia’s strategic port
300 OKUMU
facilities. Since these superpowers were driven by global geo-strategic

goals, they never held Barre accountable for his abysmal human rights
and bad governance record and practices.
When Barre was hurriedly spirited out of the country he left behind a
monumental mess that has turned out to be most difficult to clean up. His
tyranny was replaced by violent factional disorder that has now com-
pletely shredded the Somali social fabric and state. Instead of the various
warlords seeking to establish a democratic state, they have been vying to
re-create Barre’s Somalia. Their preferred means of doing this is violence.
Since the warlords have institutionalized violence as the best means for
survival, democracy, peace, and human rights have become major casu-
alties. Although there are no full-scale armed hostilities at the time of
writing, the warlords have remained obstacles to the creation of a new
government.
Somalia’s Transitional National Government (TNG) that was installed
in August 2000 never got off the mark. Owing to the obstinacy of Hussein
Mohammed Aideed (son and successor of the late General Mohammed
Farah Aideed), Osman Ali Atto, and Musa Sudi Yalahow, among others,
it was not able to establish peace or authority in Mogadishu, let alone in
the whole country.29 These three men, who belong to the same Hawiye
clan, continue to make life intolerable in the capital for the young tran-
sitional government. Another infamous warlord, General Mohammed
‘‘Morgan’’ Hersi, who used to control Kismayu (Somalia’s second port),
now operates from Baidoa, a town that, in the early 1990s, served as the
centre for international humanitarian assistance. Besides the 15 warlords
who are slinging shots at each other are Abdullahi Yusuf, who is in
charge of the predominantly Mejerteen-dominated Puntland, and Presi-
dent Dahir Riyale Kahin,30 who is heading the Isaak clan’s self-declared
Republic of Somaliland. None of these self-declared nations has been
recognized internationally. Both Yusuf and Mohammed Igal, before his
replacement by Kahin, are usually placed in a separate category from the
warlords, since they do not hold or defend their positions by force; Yusuf
was ‘‘elected by the leaders’’ of his clan, and Kahin was elected in a close
poll in April 2003, in which he won by an extremely tight margin of only
80 votes.
Among the daunting tasks that the Somalia transitional government
faced, and in which they failed miserably, were those of building both
national and international legitimacy, setting up means of communica-
tions (the two main radio stations in Mogadishu are controlled by Aideed
and Osman Atto), establishing basic services, coming to terms with the
warlords, and demobilizing the ‘‘technicals’’ (the freelance gunmen who
enforced the warlords’ versions of law and order). In order for the So-
malis to return to normal life there must be peace, which will usher in
stability and encourage economic activity. Somalia’s neighbours, particu-

larly Kenya, also have stakes in its peace: the Kenya government is anx-
ious to resolve the burdensome problem of refugees from Somalia and
to curb the inflow of illegal firearms, which Kenyan security personnel
blame on the porous border with Somalia.31
International response to human rights practices in Somalia
The international community has responded in different ways to the hu-

man rights tragedy in Somalia. Despite the various attempts to restore
peace in the war-torn country, the international community has yet to
come up with a workable approach. In South Africa, the international
community used sanctions to lend ‘‘positive legitimacy’’ to the ideals
of pluralism, tolerance, and democratic government;32 the same means
cannot be used to introduce these ideals in Somalia, which has no func-
tional government to be targeted.33 After hastily withdrawing in 1995,
the international community has undertaken only half-hearted and dis-
jointed actions to restore peace and a culture of human rights in Somalia.
However, rebuilding Somalia into a peaceful and democratic nation
where human rights are respected will require a much more concerted
effort than the feeble one currently being carried out by the United
Nations, the African Union, and the Intergovernmental Authority on
Development (IGAD). The United Nations might have good intentions,
as illustrated by its high-sounding policy documents and the rhetorical
statements of its top-ranking officials,34 but Somalia will need more than
these to complete its transition from anarchy to a democratic state that
provides for the human security of the Somalis. The high hopes that
many had in the AU–IGAD-led talks, which have been taking place in
Kenya since October 2002, have now fizzled out. The talks are on the
verge of collapse for various reasons, ranging from clan rivalry to poor
management of the peace process.
Somalis are unlucky in that their country does not have South Africa’s
economic importance, which saw international governments jump on the
anti-apartheid bandwagon for reasons of national interest. For instance,
whereas third world and Soviet bloc governments opposed apartheid on
the ‘‘principle of anti-racism or the ideological priority of socialism,’’
Western governments did so ‘‘to protect their economic and strategic
interests.’’35 The Somalis are suffering partly because of the Cold War
and its end: the Cold War led the superpowers to support the oppres-
sive Barre regime; the end of the Cold War has meant that Somalia has
lost its geo-strategic value and has virtually disappeared from the radar
screens of most Western foreign-affairs offices.36 The 1993 debacles that
302 OKUMU
ended in the death of 25 Pakistani UN peacekeepers and 18 US Army

Rangers, and the abandonment of the international effort to enforce
peace and feed the starving Somalis, is still fresh in the international
community’s psyche and will be there for a long time to come.
Despite the international pullout in 1993–1995, there have been con-
tinuing efforts by the United Nations to build peace and the Somali state.
The UN Coordination Unit (UNCU)’s ‘‘operational plan to support gov-
ernance and peace building in Somalia’’ is premised on the fact that
‘‘formulation of a post-conflict transitional programme’’ will be contin-
gent on ‘‘peace and security’’ as one of the fundamental prerequisites.37
Hence a call for ‘‘commencement of post-conflict intervention aimed at
supporting peace, good governance and protection of human rights.’’ UN
Somalia, a consortium of 13 UN agencies working in Somalia, has com-
mitted UN agencies to continue supporting ‘‘on-going community efforts
to encourage respect for principles of good governance, human rights,
the equitable treatment of women and minorities, and social integration
of marginalized groups.’’38 Specifically, the Office of the High Commis-
sioner for Human Rights, in close cooperation with UNDP, will continue
its support of civil-society organizations that helped to establish the
Somalia National Peace Conference.39 UNIFEM will support women’s
rights and the elimination of all forms of violence against women, as well
as providing further capacity-building support to women’s organizations
and women living in displaced communities. UNICEF programmes in
this sector will continue working towards the eradication of FGM, sup-
porting women’s organizations to increase their empowerment in the
community, and furthering child protection.40
However, for these efforts to succeed, the United Nations must learn
from its past mistakes. In his candid criticism of the international com-
munity’s failure, particularly those of the United Nations and the United
States, to restore peace in Somalia, Martin Ganzglass points out that a
golden opportunity was lost when no concerted effort was made to assist
‘‘in restoration of governmental functions, particularly the police and ju-
diciary.’’41 In highlighting the haphazard nature of United Task Force
(UNITAF) and United Nations Operation in Somalia (UNOSOM) mis-
sions, Ganzglass specifically states that, instead of hunting down General
Muhammed Aidid (a notorious warlord), the mission should have con-
centrated on implementing ‘‘a full scale civil affairs programme’’ that
focused on rebuilding institutions. Ganzglass notes that UNISOM I was
doomed to fail when it was first launched as a humanitarian relief effort
that was to last six weeks. This became more apparent when the six
weeks were up, when the humanitarian mission confusedly started ‘‘re-
creating a central government’’ by committing ‘‘resources primarily for
military purposes,’’ building new national political institutions, and rec-
onciling warring clans.42 In a nutshell, UNOSOM failed to restore peace

in war-ravaged Somalia because it did not have the mandate to ‘‘disarm
the factions of all weapons’’ and to rebuild institutions that were ‘‘capa-
ble of preventing Somalia from descending into the chaos of civil war.’’43
Ameer Jan advises that any international effort to bring about peace in
Somalia must ‘‘first of all, . . . understand the local social and political
context.’’ This will involve ‘‘recognizing the fact that the country (is)
deeply divided along clan lines and that it would take a lengthy, in-
ternally generated process to heal those divisions.’’44 The role of the in-
ternational community in promoting peace in Somalia should first focus
on ‘‘clan political reconciliation’’ and then support the Somalis to deter-
mine their own political institutions and leadership. On top of this there
must be adequate international funding for rebuilding institutions and
training a new cadre of Somalis to run them. The rule of law must be
promptly established in Somalia as part of restoring a level of peace that
allows human rights to be protected and promoted, as happened in South
Africa. Indeed, South Africa offers numerous lessons for Somalia.
Lessons from South Africa

Afro-pessimists predicted that the transition from an apartheid system to
a democratic society would be bloody, chaotic, and (perhaps) a failure.
Nevertheless, South Africa has evolved not only into a democracy but
also into a society respecting human rights. David Black contends that
there is considerable truth in the perception that ‘‘South Africa’s transi-
tion from racial authoritarianism of the apartheid era to the non-racial
democratic institutions and entrenched constitutional rights of the post-
1994 period is . . . one of the great human rights triumphs of the post-
Second World War era.’’45 Despite a few bumps in its transition to a
democratic society, South Africa now boasts one of the best-written con-
stitutions in the world (as mentioned in the first section of this chapter),
which guarantees and promotes human rights and sustains democracy.
However, the reconstruction of a new South Africa will take time, as the
old apartheid system was deeply entrenched and will require years to
uproot completely.
When racial segregation was codified into law in 1948, it essentially
legalized the hardship endured by the majority non-White populations.
However, it was not long before massive resistance to apartheid emerged,
with the African National Congress (ANC) and the Pan Africanist Con-
gress (PAC) as trail-blazers for a just and democratic South Africa. The
deeper the system of apartheid entrenched itself by excluding and mar-
ginalizing Blacks, the more instability it created in South Africa: for in-
304 OKUMU
stance, it forced the ANC and the PAC to become more militant and
violent, transformed the Black townships into cauldrons of political may-
hem, and led the international community to isolate South Africa. By the
1980s, political violence had become a common means of communication
between the government and its oppressed populations. By the beginning
of the 1990s, it had become obvious to the apartheid stalwarts that the
system was doomed. As the burdens of apartheid became too heavy to
bear, the government of F.W. de Klerk made concessions: it legalized
nationalist movements, released Nelson Mandela and other jailed lead-
ers, and embarked on a path of ‘‘liberalizing’’ South Africa.
Human rights violations in South Africa attracted international atten-
tion, opprobrium, and action because they were specifically directed at
non-White racial groups. From 1948 to the early 1990s, the apartheid
regime – built on intolerance, violence, and disrespect for life – ‘‘was
responsible for a multitude of increasingly systematic human rights vio-
lations in the course of initiating, elaborating, and defending’’ the system
of racial discrimination.46 Among these violations were ‘‘arbitrary arrests
and detentions without trial; the denial of basic civil and political rights to
more than three-quarters of its people; systematic press censorship; de-
nial of equal social and economic rights and opportunities to its people;
and torture and extra-judicial executions.’’47
Apartheid was constructed as a scheme to deny non-Whites access to
public goods. By giving Whites exclusive access and maximum benefits,
the Whites came to enjoy ‘‘unprecedented rates of economic growth’’ in
the second half of the 1960s and first half of the 1970s.48 However, to-
wards the end of the 1970s, South Africa had become internationally
despised for its flagrant violations of human rights. As domestic opposi-
tion and international pressure mounted, the government was forced to
make piecemeal reforms. These were rejected, since they merely sought to
protect the privileges and extend the control of the Whites. The apart-
heid government responded to these pressures by adopting draconian
measures, including a partial state of emergency, strict media censorship,
brutal suppression of protestors, and extensive powers of arrest and de-
tention of state opponents. Using legislation, arbitrary executive orders,
and unregulated powers of executive officers such as the Minister of Law
and Order, the apartheid government flagrantly infringed the universal-
ism of the rule of law.49 By allowing the police and security forces to run
the state unrestrained and unfettered by the rule of law, South Africa was
essentially a police state.
Because apartheid was anti-human rights, it became very easy to sell
the anti-apartheid struggle to the international community as a human
rights struggle. This, in turn, greatly contributed to the success of protec-
tion of human rights in the post-apartheid society, as the anti-apartheid
movement and organizations that later formed the transitional govern-

ment have been an important socializing force. Human rights were one of
the main issues that both the domestic and international oppositions to
the apartheid state were seeking to advance. The anti-apartheid activists
carried out a struggle that sought a radical transformation of South Af-
rica to embody universally accepted human rights norms and practices.
Because apartheid was a system that denied access to public goods, the
anti-apartheid opponents’ agenda went beyond promotion of basic civil
and political human rights norms and aimed at instituting new human
rights that would guarantee all South Africans the right to social and
economic well-being.
In a chequered transition that dumbfounded many sceptics, the South
Africans entered into a number of pacts establishing rules for nego-
tiated agreements between the major players in the political system, em-
barked on serious discussions on creating a new South Africa, and
established foundations for a negotiated settlement. With the embrace of
constitutionalism and acceptance of a new Interim Constitution in late
1993, the birth of a new country was almost guaranteed. However, this
transition would not have reached this point without the nature of the
political leaders that South Africa possessed at that time. The various
political groups also deserve credit for the way they ‘‘negotiated together
in a multiparty forum, the Convention for a Democratic South Africa
(Codesa).’’50
The Constitutional Assembly took two years to write the final Consti-
tution that was adopted in 1996 and came into effect during February
1997. This constitution guarantees political rights, press freedom, a multi-
party political system, and proportional representation in the electoral
system. It also contains a Bill of Rights that protects fundamental rights,
and establishes an ombudsman and a judicial review process that en-
hances checks and balances in the political process.
A number of notable trends could be detected during the transition:
one of these was the popular support of the new processes, pacts, and
leaders; a second was the cooperation that took place in power transfer
and sharing between the former oppressed and the oppressors; lastly,
there was a realization by all parties that they had more to lose by not
playing a positive-sum game. Of course, there were exceptions, as some
parties (such as the Inkatha Freedom Party) chose to continue utilizing
violence to achieve their aims. Such violence manifested itself in ‘‘mas-
sacres, political assassinations, intimidation, and forced mobilization for
mass demonstrations, revenge attacks, attacks on rail commuters and
minibus taxi wars.’’51
As power transfer was taking place, the new South Africa had to
grapple with two main challenges – namely, how to transform the apart-
306 OKUMU
heid state into a democratic one, and how to reconcile and build a new
nation. The transformation of the apartheid state started with redistribu-
tion of political power. A new parliament was created, consisting of two
chambers – the National Assembly with 400 members and the Council
of Provinces with 90 members. Half of the members of the National
Assembly were elected from national constituencies, the other half being
elected proportionally from the provincial lists. After peaceful elections
in 1994, a ‘‘Government of National Unity’’ was formed and given a five-
year lease of life to establish a firm foundation for a new South Africa.
In the new cabinet that was formed, the 27 positions were distributed
among all the parties that received more than 5 per cent of the vote.
When Mandela was elected President, he picked former President F.W.
de Klerk (a former adversary and leader of the White National Party)
and Thabo Mbeki (of the ANC) as his deputies.
Although the final shape of the transition was not determined in ad-
vance, there is no doubt that the transition was driven by liberal interna-
tional human rights norms. Indeed, of the five minimum conditions that
the apartheid government was required to meet before the international
community could lift international restrictions, four were related to hu-
man rights: these were (1) repealing the state of emergency, (2) releasing
all political prisoners, (3) legalizing the ANC and other political parties,
and (4) eliminating apartheid laws.52 However, this international em-
phasis on political rather than on social and economic rights meant that
the transformation was not radical enough to restructure the economy
and ‘‘redress South Africa’s deep historic inequalities.’’53 By promoting
‘‘the more narrow goals of political democratization, particularly univer-
sal suffrage,’’ instead of the socio-economic transformation of apartheid
South Africa, the international community may have planted seeds for
future unrest.
Whereas Whites in post-apartheid South Africa have sought to protect
the gains they made during the apartheid era, the Black majority popu-
lation, who had been disadvantaged and deprived of economic oppor-
tunities and decent living standards, are demanding more than legal,
political, and civil rights:54 unless ‘‘South Africa’s deep, racially struc-
tured, inequities’’ are ‘‘addressed in some form,’’ the transition will be
not only stalled but possibly even reversed.55 This transition, of which
Western states were, basically, the midwives, has turned out to be a pro-
motion of Western liberal democracy and capitalism.56 Nevertheless, the
most important thing is that ‘‘the post-apartheid government, through its
socially progressive, constitutionally entrenched bill of rights, has dem-
onstrated its intent to entrench the prescriptive status of liberal human
rights norms, and to adhere to rule-consistent behavior.’’57 Among the
indicators that South Africa’s new government is committed to fostering
a human rights culture are the abolition of the death penalty and the es-
tablishment of the Truth and Reconciliation Commission to help heal the
wounds of the apartheid era.58
The final act of restructuring the state involves democratizing its in-
struments, which had been designed to oppress, suppress, and exploit the
majority of people. This is more important, since these instruments are
also needed to implement new policies of reconciliation and reconstruc-
tion of the nation, and redistribution of public goods and services. Nev-
ertheless, this task has not been easy: for example, the constitution
provides for a policy of affirmative action, with the intention of redistribut-
ing positions to Blacks previously denied public-service appointments
in the apartheid state; however, the implementation of such policies in
core state agencies (such as the military, police, and the courts) has run
into problems, particularly from the Whites, who have accused the state
of reverse discrimination. Great care is being taken because these state
apparatuses are crucial to the survival of the state, the rule of law, and
maintenance of civil order.
There was an urgency to create and promote a human rights culture
in South Africa after the fall of the apartheid state.59 Although human
rights are no longer at the top of the post-apartheid government agenda,
the country remains on the path toward a human rights-based constitu-
tional democracy. So far, all human rights institutions provided for in
both the interim60 and final61 constitutions have been established and the
legislature has enacted important human rights laws. South Africa has
also shown its commitment to human rights by signing the International
Covenant on Economic, Social and Cultural Rights, the International
Covenant on Civil and Political Rights, and the Convention on the Elim-
ination of All Forms of Racial Discrimination. By 1996, it had ratified the
Convention on the Rights of the Child, the Convention on the Elimina-
tion of All Forms of Discrimination Against Women, the Protocols to the
Geneva Convention, and the African Charter on Human and People’s
Rights. The South African Parliament has also played a leading role in
promoting human rights by passing laws that have ‘‘significant implica-
tions for the establishment of a human rights based democracy’’62 and
setting up of human rights institutions.63 To ensure that all laws and ex-
ecutive acts did not undermine the human rights standards established in
the Bill of Rights, a Constitutional Court was inaugurated in February
1995. So far, this court has handed down judgements abolishing the death
penalty, outlawing civil imprisonment for civil debt, and taking other de-
cisions related to equality, privacy, freedom of expression, and access to
information.64
South Africa took a major step towards the promotion of human rights
by establishing a Human Rights Commission. This Commission promotes
308 OKUMU
human rights by educating the people and the communities about their
rights, making recommendations to Parliament, reviewing human rights-
related legislation, and ‘‘investigating alleged violations of fundamental
rights and assisting those affected to secure redress.’’65 Another com-
mission that has played a crucial role in South Africa’s transition to a
democratic society was established to help the country come to terms
with its past. The Truth and Reconciliation Commission (TRC) was given
the primary role in developing a complete picture of the causes, nature,
and extent of the gross human rights violations committed from 1 March
1960 to 10 May 1994. Additional tasks included facilitating the grant of
amnesty to those who owned up to their political crimes, establishing the
fate or whereabouts of victims, restoring the human and civil dignity of
the survivors of abuse, and recommending measures to repair past hu-
man rights violations and prevent them in the future.66
South Africa has also identified the need to ensure that public goods
are not misused or abused by individuals, by establishing the office of the
Public Proctor. The Public Proctor has the duties of investigating any
conduct in state affairs that is alleged or suspected to be improper, to re-
port that conduct, and to take remedial actions. According to Jeremy
Sarkin, the Public Proctor is also . . .
empowered to investigate, report, and take remedial action in relation to im-

proper prejudice, maladministration, dishonesty or improper dealings with re-
spect to public money, improper enrichment, and receipt of improper advantage.
The office is concerned not only with ensuring the honesty of those working for
the state but also with ensuring that they treat people with respect.67
Among the obstacles facing this transition are continuing violence in

KwaZulu-Natal and the taxi industry, high rates of crime, government
corruption, and widespread poverty among the majority Black popula-
tions. The human rights institutions established by the constitution are
still ‘‘functioning with different levels of energy and efficiency and some
have yet to demonstrate their capacity for achieving the objectives for
which they were established.’’68 As pointed out earlier, South Africa also
faces the challenge of restructuring the state instruments that had been
designed specifically to oppress, suppress, and exploit the majority of the
people. There is a great need for this transformation to take place rap-
idly, not only because most of the population hold these instruments in
contempt, but also because they have roles to play in the new society.
These instruments are needed to implement new policies of reconstruc-
tion, redistribution, reconciliation, and nation-building. One such instru-
ment is the police force, which, despite having become more transparent
and having embarked on an effort to build a human rights culture, still
faces enormous problems. These include ‘‘ever-increasing numbers of

deaths in custody,’’ widespread corruption, and brutal tactics including
torture.69 On top of this, a balance has to be struck between curbing ar-
bitrary or excessive police powers and curbing spiralling levels of crime.
A significant achievement in South Africa’s transition to a democratic
society has been the de-escalation of political violence since the demo-
cratic elections of 1994. Not only have the levels of deaths and injuries
from political violence decreased significantly but also the country seems
to be witnessing a climate of peace. This significant decrease in the
‘‘levels of political violence may be seen as a sign of progress towards a
culture of human rights.’’70 However, it can also be argued that ‘‘con-
tinuing deaths relating to political feuds and other indices of violence,
such as conflict in the taxi industry and at educational institutions, indi-
cate that a human rights culture is yet to permeate the fabric of South
African society in a meaningful way.’’71
The above analysis of South Africa’s transition to a democratic society
offers a number of useful lessons for restoring human rights. The first
lesson is that Somalia will need respected national leaders to put human
rights on top of the agenda for post-conflict reconstruction of the war-
torn nation. The second lesson is that there must be an environment that
enables human rights to be incorporated into the new national political
culture. Nation-building in a transitional society requires the depoliticizing
of ethnic and cultural groups, the creation of an enabling environment
for peace to be restored, the establishment of a human rights culture, and
the prevalence of democracy. The third lesson is that the international
community can play only a complementary role in supporting the resto-
ration of human rights, the most important aspect of such a role falling to
the international human rights community, which can be influential in
establishing a human rights culture.
Another important lesson is that, in a transitional society, there is a
need to balance the human need for justice and punishment with nation-
building, reconstruction, and reconciliation.72 South Africa was able to
do this by offering a full amnesty for full disclosure of political crimes
committed over a period of 34 years. However, Walter Wink, who lists
‘‘rules of thumb’’ that transitional societies should follow when dealing
with ‘‘issues of reconciliation,’’ argues that ‘‘leading architects of the
policy of disappearances, murder, and torture, should be prosecuted.’’73
Whereas South Africa has pursued the goal of reconciliation that was
based on the African notion of ubuntu,74 which explicitly excludes retri-
bution and favours restorative justice, the Somali notion of aar goosi
seeks vengeance and revenge. Somalia will continue to be a wounded
nation with elusive justice and peace unless its notion of retributive pun-
ishment is dispensed with and replaced by one that will contribute to
310 OKUMU
reconciliation and reconstruction of the conflict-battered nation. Besides

fostering a culture of human rights, the transitional period in Somalia
must also focus on reconciliation, which must take place in order to
overcome the trauma of the past undemocratic society and the civil war.
Conclusions
Violations of human rights, impoverishment of the population, and state

collapse are major indicators of emerging national conflicts in Africa. The
human rights situation in Africa is grave and deteriorating, despite 2000
having been touted as the beginning of the Millennium of Human Rights.
State collapses in Somalia and former Zaire were accompanied by mas-
sive and egregious violations of human rights. The continuing decay of
African states is an ominous sign for the future of human rights in Africa.
The collapsing states are now employing a wide array of measures, in-
cluding state terrorism and informal repression, to clamp down on civil-
society movements reacting against state violations of human rights.
Human rights abuses that result in civil wars have had the most far-
reaching effects, as wars have contributed to loss of lives, destruction of
the property and infrastructure that supports economic life, displacement
of populations, and untold psychological and physical suffering. Corrup-
tion, a breakdown in the rule of law, impunity for terrible abuses, and the
disenfranchisement of whole swathes of society, have created a breeding
ground for the likes of Muhammed Aidid, Ali Mahdi, Charles Taylor,
and Foday Sankoh. Finally, after the collapse of states (as was the case
with Somalia), the effective construction of new societies is impossible
without a culture of human rights as a cornerstone.
During South Africa’s transition period, ‘‘strategies for addressing hu-
man rights abuses concentrated on formulating treaties, adopting stan-
dards, and implementing procedures to remedy such human rights abuses
as torture and arbitrary detention.’’ Whereas the international commu-
nity, when promoting human rights, can use political pressure and eco-
nomic sanctions in pursuit of this goal, ‘‘these strategies, however, are of
limited value where political order has broken down and a government, if
it exists, can no longer conform its conduct to acceptable international
standards.’’75
With the establishment of the African Union, which will have the
mandate to intervene in collapsing states and to stem violations of human
rights, Africa now possesses a mechanism to enforce its human rights
treaties and standards. However, because it will be some time before this
mechanism can be used to protect human rights in countries such as So-
malia and the Democratic Republic of the Congo, the international com-
munity, particularly the United Nations, must continue to play a crucial

role in establishing a human rights culture and seeking justice. Somalia,
in particular, needs both bilateral and multilateral assistance programmes
to help her to strengthen the institutions of accountability, reconstruct
the judicial and law enforcement systems, ensure civilian control of the
military, build the capacity of democratic institutions, provide political
education for the population, and train political leadership.
Notes
1. The views expressed in this chapter are personal and do not necessarily reflect those of
the African Union.
2. H.J. Kotze, ‘‘The State and Social Change in South Africa,’’ International Social Science
Journal, No. 163, March 2000, p. 79.
3. Ibid.
4. Federico Mayor, The Human Right to Peace – Declaration by the Director-General,
Paris: UNESCO, 1997, p. 5.
5. Patrick Hayden, ‘‘From Laws of the Peoples to Perpetual Peace,’’ International Journal
on World Peace, Vol. 13, No. 2, June 2000, p. 48.
6. Ibid.
7. Ibid., p. 60.
8. Ibid., p. 58.
9. See US Committee for Refugees, Country Report – Somalia, 2002. hhttp://www.
refugees.org/world/countryrpt/africa/somalia.htmi.
10. Paulos Tesfagiorgis, ‘‘Democratic Elbow Room,’’ New Internationalist, No. 238, De-
cember 1992.
11. Ibid.
12. US Department of State, Somalia: Country Report on Human Rights Practices for 1998.
Available at hhttp://www.state.gov/www/global/human_rights/1998_hrp_report/somalia.
htmli. This list suggests that some traditional values still exist in Somalia and can be
used as foundations for reconstruction of a new human rights culture. See also the
Report of the Special Rapporteur on the ‘‘Situation of Human Rights in Somalia,’’
submitted to the United Nations Commission on Human Rights on 26 January 2000.
Document number E/CN.4/2000/110.
13. Ibid.
14. See the Report of the Special Rapporteur on the ‘‘Situation of Human Rights in Soma-
lia,’’ submitted to the United Nations Commission on Human Rights on 26 January
2000. Document number E/CN.4/2000/110.
15. See Article 36 of the Revised Constitution of the Republic of Somaliland, adopted on 31
May 2001.
16. Ibid.
17. Ibid.
18. James Gibson and Amanda Gouws, ‘‘Support for the Rule of Law in the Emerging
South African Democracy,’’ International Social Science Journal, No. 152, June 1997,
p. 174.
19. I. Mohammed, ‘‘Preventive Detention and the Rule of Law,’’ South African Law Jour-
nal, Vol. 106, 1989, pp. 547–549.
312 OKUMU
20. Gibson and Gouws, ‘‘Support for the Rule of Law,’’ p. 175.
21. Ibid.
22. Jarat Chopra, Peace-Maintenance: The Evolution of International Political Authority,
New York: Routledge, 1999, p. 133.
23. Ibid., p. 134.
24. Ibid.
25. Abdi Ismail Samatar, ‘‘Destruction of State and Society in Somalia: Beyond the Tribal
Convention,’’ The Journal of Modern African Studies, Vol. 3, No. 4, December 1992,
pp. 632–633.
26. Chopra, Peace-Maintenance, p. 134.
27. Ibid., p. 135.
28. Samatar, ‘‘Destruction of State and Society in Somalia,’’ p. 633.
29. An AU–IGAD fact-finding mission to Somalia in June 2003 found that the TNG had
control over only four buildings in Mogadishu, while Hussein Aidid controlled less than
200 square metres of the capital city.
30. Dahir Riyale Kahin replaced Mohammed Igal, who died on 2 May 2002.
31. Gitau Warigi, ‘‘Why Warlords Mission in Kenya Came Unstuck,’’ Sunday Nation, 18
March 2001.
32. David Black, ‘‘The Long and Winding Road: International Norms and Domestic Politi-
cal Change in South Africa,’’ in Thomas Risse, Stephen C. Ropp, and Kathryn Sikkink,
The Power of Human Rights – International Norms and Domestic Change, Cambridge:
Cambridge University Press, 1999, p. 102.
33. The TNG, embroiled in scandals over embezzlement of donor funds, has so far failed to
disarm and demobilize armed militias and to reunite Somaliland or Puntland with the
unstable regions in the south.
34. See Security Council Resolutions 733 (of 23 January 1992), 746 (of 17 March 1992), 751
(of 24 April 1992), 767 (of 27 July 1992), 775 (of 28 August 1992), 794 (of 3 December
1992), 814 (of 26 March 1993), 837 (of 6 June 1993), 865 (of 22 September 1993), 879 (of
29 October 1993), 885 (of 16 November 1993), 886 (of 18 November 1993), 897 (of 4
February 1994) and press statements of the President of the Security Council on 16
October 1992, 14 June 1993, and 18 June 1993.
35. Ibid., p. 106.
36. Somalia flickered on the screens after the 11 September 2001 terrorist attacks in the
United States, when it was suspected to have provided havens for some of the terrorists
and was targeted for retaliation. As a failed state, Somalia is regarded as a breeding
ground for al-Qaeda terrorists targeting Western and Israeli interests in the region.
37. See hhttp://www.unsomalia.org/UNCU/index.htmi.
38. See hhttp://www.unsomalia.org/unsomalia/unagencies.htmi.
39. Somalia National Peace Conference (SNPC) took place in Djibouti from 2 May to 13
June and led the creation of the Transitional National Assembly. On 25 August 2000,
it elected Mr Abdiqassin Salad Hassan as President of Somalia. For more details, see
hhttp://www.un.org/peace/africa/pdf/SOMALIA.pdfi.
40. See hhttp://www.unsomalia.org/i.
41. Martin R. Ganzglass, ‘‘Restoration of the Somali Justice System,’’ International Peace-
keeping, Vol. 3, No. 1; Spring 1996, p. 117.
42. Ameen Jan, ‘‘Somalia: Building Sovereignty or Restoring Peace?’’ in Chetan Kumar
and Elizabeth Cousins, Peacebuilding as Politics: Cultivating Peace in Fragile Societies,
Boulder: Lynne Rienner, 2001, p. 76.
43. Ganzglass, ‘‘Restoration of the Somali Justice System,’’ pp. 125–126.
44. Jan, ‘‘Somalia,’’ p. 76.
45. Black, ‘‘The Long and Winding Road,’’ p. 78.
46. Ibid., p. 80.

47. Ibid.
48. Ibid., p. 87.
49. Gibson and Gouws, ‘‘Support for the Rule of Law,’’ p. 175.
50. Kotze, ‘‘The State and Social Change in South Africa,’’ p. 81.
51. Ibid., p. 82.
52. The fifth condition was initiating negotiations that would lead to a new South Africa.
See Black, ‘‘The Long and Winding Road,’’ p. 98.
53. Ibid., p. 103.
54. Thomas Ohlson and Stephen John Stedman, The New is Not Yet Born – Conflict Reso-
lution in Southern Africa, Washington, The Brookings Institution, 1994, p. 148.
55. Black, ‘‘The Long and Winding Road,’’ p. 103. Black notes that in the negotiation pro-
cess with the National Party to write a new constitution, the ANC had to compromise
some of its principles, the exclusion of most second-generation social and economic
rights being among these.
56. Ibid., p. 103.
57. Ibid., p. 105.
58. Ibid., p. 106.
59. Jeremy Sarkin, ‘‘The Development of a Human Rights Culture in South Africa,’’ Hu-
man Rights Quarterly, Vol. 20, 1998, p. 629.
60. The Interim Constitution included a chapter on fundamental rights (or the Bill of
Rights, as it was commonly referred to), guaranteed citizens protection against state
abuses, and established human rights institutions such as the Human Rights Commis-
sion, the Commission on Gender Equality, the Commission on the Restitution of Land
Rights, and the Public Protector. See Chapter 8, Sections 110–123 of the South Africa
Interim Constitution of 1993.
61. It contains a Bill of Rights that also establishes socio-economic rights. See Chapter 2,
Sections 24–29 of the Final Constitution of 1997. This constitution also includes provi-
sions on equality, just administrative action, children’s rights, and the right to freedom
and security of the person (that includes reproductive autonomy).
62. For instance, in 1996 the Parliament enacted legislation that transformed the police
service. Because of its central role in the protection of the Apartheid State, this institu-
tion was one of the most despised.
63. These were the Human Rights Commission, the Truth and Reconciliation Commission,
the Land Restitution Commission, the Public Protector, and the Pan South Africa
Language Board. See Sarkin, ‘‘The Development of a Human Rights Culture in South
Africa,’’ pp. 639–640.
64. Sarkin, ‘‘The Development of a Human Rights Culture in South Africa,’’ pp. 642–643.
65. Ibid., p. 649.
66. For an analysis of the TRC see Aletta Norval, ‘‘Truth and Reconciliation: The Birth of
the Present and the Reworking of History,’’ Journal of Southern African Studies, Vol.
25, No. 3, September 1999.
67. Sarkin, ‘‘The Development of a Human Rights Culture in South Africa,’’ p. 653. How-
ever, Sarkin feels that, owing to ‘‘South Africa’s history of human rights abuse and the
difficult challenges involved in the current transformation and the building of a human
rights culture, the Constitution ought to have offered maximum protection to human
rights.’’ See ibid., p. 634.
68. Ibid., p. 630.
69. Ibid., p. 645.
70. Ibid., p. 649.
71. Ibid.
314 OKUMU
72. David Little, ‘‘A Different Kind of Justice: Dealing with Human Rights Violations in
Transitional Societies,’’ Ethics and International Affairs, Vol. 13, 1999, p. 65.
73. Walter Wink, When the Powers Fall: Reconciliation in the Healing of Nations, Minne-
apolis: Fortress Press, 1998, p. 53.
74. For a detailed analysis of ubuntu, see Michael Battle, ‘‘The Theology of Community:
The Ubuntu Theology of Desmond Tutu,’’ Interpretation, Vol. 54, No. 2, April 2000.
75. Peter Manikas and Krishna Kumar, ‘‘Protecting Human Rights in Rwanda,’’ in Krishna
Kumar, ed., Rebuilding Societies After Civil War, Boulder: Lynne Rienner, 1997, p. 63.
14
Human rights and transition
societies in Western Africa
Eghosa E. Osaghae
Context and challenges of transition in West Africa
In spite of differences of colonial legacy, post-colonial affiliations, and

the resulting patterns of political organization, countries of the West Af-
rican geo-political region have enough in common to make the region a
meaningful unit of analysis.1 The commonalities, which are germane to
the concerns of this chapter, include the longer years of political inde-
pendence of West African countries relative to countries in other regions
of Africa, a high degree of ethnic division and conflict, pervasive military
intervention and rule, political violence and civil war, prolonged eco-
nomic decline, informal commercial flows and migration, and the fact
that West Africa has been a breeding ground for regional integration and
collective security, which are currently built around the Economic Com-
munity of West African States (ECOWAS).
West Africa has also been a hotbed of human rights violations. Unfair
trial, suppression of freedom of the press and of opposition, torture, de-
tention without trial, murder, disappearances, rape, and war-situation
abuses are common in the region. Interventions by the international
community against repressive regimes, ostensibly on account of human
rights abuses and other excesses, can also be taken as evidence of the
despicable state of human rights in the region. The interventions have
ranged from denial (or threat of denial) of aid and sanctions, to suspen-
sion or expulsion from membership in international organizations. In
315
316 OSAGHAE
1994, for instance, Gambia was suspended from the Commonwealth after
Yahya Jammeh overthrew President Dauda Jawara in a coup and un-
leashed a reign of terror on the country. Sanctions were similarly im-
posed on Nigeria’s repressive military governments, especially after the
annulment of the 1993 elections and the execution of Ogoni minority
rights activists, led by Ken Saro-Wiwa, by the government of General
Sani Abacha in 1995. They were also imposed on Liberia’s President
Charles Taylor in May 2001 because of his involvement in the illegal
trade in diamonds and his support for rebels in Sierra Leone, which were
critical factors in the wars in Sierra Leone and Liberia.
The poor human rights situation in West Africa is a major factor in the
persistent domestic and external pressures for reforms, following which
West Africa has emerged as a centre of some of the most engaging
transitions in Africa. National conferences convened by self-asserting
civil-society organizations and previously excluded opposition elements
(of which the 1990 Benin conference became prototypical), represents
one face of these transitions. Military-managed transitions – which have
tended to produce relatively fragile but growing forms of democracy, as
in Nigeria, Ghana, Liberia, Sierra Leone, Guinea, and Niger – represent
another face of transition. There have also been less orderly and conflict-
aggravating transitions, such as those forced upon countries by civil war
and warlords.
It is against the backdrop of the transition ferment, and on the as-
sumption that human rights are critical instruments of conflict manage-
ment and state reconstitution, that this chapter analyses the trajectories
of human rights in West Africa. The remainder of the chapter is divided
into three sections. The next section presents a broad overview of human
rights in West Africa and searches for the sources of human rights abuses
across the region. Then the transformation of the human rights regime
under democratization is examined. The final section grapples with the
question of why recent transitions in West Africa, which held the promise
of the much-touted ‘‘second liberation’’ in Africa, failed to transform the
human rights regime.
Sources of human rights violations in West Africa

Although notions of human rights are embedded in traditional African
thought and institutions,2 human rights of the so-called Western genre
are a recent phenomenon in West Africa. They emerged as elements
of decolonization, when nationalist movements invoked the provisions
of human rights charters and covenants that affirmed the right of self-
determination to all peoples to legitimize their demands for indepen-
WESTERN AFRICA 317
dence. What is of interest in this beginning is that rights were conceived

of as belonging to the state for which independence was sought and its
(collective) ‘‘peoples.’’ In the hierarchy of rights that subsequently de-
veloped, this rendered the rights of the state superior to those of in-
dividuals and groups.
This was the background to the poor human rights regime of the post-
independence period. To be sure, the constitutions of many countries
were ‘‘decorated’’ with bills of rights modelled on the Universal Decla-
ration of Human Rights (to which many countries have now added the
African Charter on Human and Peoples’ Rights). In addition, franco-
phone countries imported and grafted portions of the French Declaration
of the Rights of Men and Citizens. For example, the Preamble to the
independence constitution (1960) of Côte d’Ivoire stipulated that: ‘‘The
people of Côte d’Ivoire proclaim their attachment to the principles of
Democracy and Human Rights, such as they have been defined by the
Declaration of Human and Citizens Rights of 1789, by the Universal
Declaration of 1948, and such as are guaranteed in this constitution.’’
Diabate’s commentary that, ‘‘[t]he explicit reference to the vested inter-
ests of the French Revolution and to the Declaration of 1948 leaves not a
shadow of doubt as to the meaning of the words ‘democracy’ and ‘human
rights,’ ’’3 summarizes the hollowness and mere formality of human rights
provisions.
Thus, although the bills of rights provide for a wide range of civil or
democratic rights (of access and participation), political or liberalization
rights, and socio-economic or preservation rights that empower individ-
ual capacity for survival and sustainability (food, shelter, employment,
social security, etc.), they have all had little success in the region. Socio-
economic or third-generation rights, which are usually considered pre-
requisites for the enjoyment of other rights, have fared worst of all. In
fact, there are no explicit socio-economic rights in West Africa other than
those that can be inferred from declarations of social, economic, and
political objectives (or intentions) in the preambles or statements of ob-
jectives and principles of the various constitutions. The 1999 Nigerian
constitution, for example, provides that the state shall direct its policy
towards ensuring that ‘‘all citizens without discrimination on any ground
whatsoever have the opportunity for securing adequate means of liveli-
hood as well as adequate opportunities to secure suitable employment.’’
Similar provisions are made with regard to adequate health care, the
protection of children against exploitation, equal pay for equal work, etc.
But the enjoyment of these ‘‘rights’’ is tied to the solvency and capability
of the state, which calls their justiciability into question.4
Let us now turn to a more detailed examination of the major sources of
human rights violations in West Africa.
318 OSAGHAE
Political institutions
The state in West Africa typifies the post-colonial African state, and
therefore suffers from the pathologies that are associated with that state.
Foremost of these is an endemic legitimacy crisis that is embedded in the
imposed origins of the state under colonial rule. The crisis manifests it-
self in different ways, such as low level and sectional support for govern-
ment, lack of transparency and accountability in the public domain, and
contested and disorderly succession to power, including a vicious cycle
of inconclusive elections and military interventions. Civilian control of
the military is problematic and frequently breached. There is also neo-
patrimonial rule, in which state power is privatized and over-centralized,
support is secured through patron–client linkages and pay-offs, and gov-
ernment positions are made instruments of accumulation by predatory
office holders.5
The cumulative effect of the foregoing factors is that constitutionalism
and governmental institutions are underdeveloped, weak, and fragile,
leading in many cases to arbitrary and ineffective governance. Typically,
civil society is emasculated by what Bayart calls the totalizing tendency of
the state,6 which includes attempts at mobilizing popular support through
state-directed schemes such as the ‘‘June 4 movement’’ in Ghana and the
‘‘movement for economic recovery, self-reliance and social justice’’ in
Nigeria. Furthermore, separation of powers exists mostly in the formal
sense, as the legislature and judiciary function more or less as elonga-
tions of the executive, which is built around a powerful ruler and a single
or dominant party (the military variety had supreme councils with un-
challengeable powers).
The political scene in West Africa has witnessed some of the most ex-
treme forms of these pathologies. By 1989, on the eve of the end of the
Cold War, virtually every country in the region was under one form of
authoritarian rule or another. The regime of authoritarianism had two
demonstrable effects: first, it raised the stakes of politics and made the
struggle for state power grim, zero-sum, and violent. Second, the constant
threats to the survival of incumbent rulers led to an emphasis on the se-
curity and stability of the ruler at the expense of the well-being of citi-
zens. In many states, state security services, secret police, terrorist units,
and so-called élite forces were probably the most developed agencies of
the state and attracted disproportionately large budgetary allocations.
Demands and struggles by aggrieved elements for access, participation,
redress, and equitable allocation of resources were suppressed through
instruments such as preventive detention, emergency power, and state
security acts.7
The fractional nature of élite organization and competition is another
WESTERN AFRICA 319
major factor in explaining the adverse political situation in West Africa.

As far back as the period of the independence struggles, the political élite
have mobilized support on the basis of ethnic, religious, and regional
cleavages. In the ensuing zero-sum politics, domination of government by
members of one or a few ethnic groups (Americo-Liberians in pre-1980
Liberia and members of Samuel Doe’s Krahn ethnic group after 1980,
or Hausa–Fulani in Nigeria) was all the displaced, marginalized, or ex-
cluded élite needed to engage in counter-mobilization through military
coups, warlord politics, and bitter opposition.
The persistence of élite division and acrimony may be taken as an in-
dication of the underdevelopment of what Horowitz has termed ‘‘multi-
ethnic democracy,’’8 that is the arrangement of state power relations in a
manner that guarantees a reasonable level playing field for competing
ethnic interests, including access to resources and privileges. For a long
time, Nigeria (and Ghana to a lesser extent) seemed to be the exception
in the region in this regard. Spurred by a federal arrangement, the coun-
tries’ leaders built an impressive system of multi-ethnic democracy that
thrived even under the military. The main instrument was guaranteed
power sharing, which was built around the principle of federal character,
creation of states and local governments, and a flexible system of re-
source allocation.9 Although these instruments helped to keep the div-
ided country together in the period after the civil war (1967–1970), their
efficacy was seriously weakened by the de-federalizing policies of pro-
longed military rule.10
Let us now briefly consider civil society, the active non-governmental
segment of the public sphere. Civil society has been weak, in part be-
cause it has been difficult for it to withstand the totalizing onslaught of the
post-colonial state. Another reason is that many civil-society constituents
– labour, professional associations, youth organizations, the press, inde-
pendent churches, farmers’ associations, women’s groups, and voluntary
ethnic associations – were part of the nationalist coalitions that won in-
dependence; hence, they were easily co-opted into government. Those
who stayed out (and probably joined ranks with the opposition) became
‘‘enemies’’ of the state. For reasons of its fragility, contested legitimacy,
and instability, the state was highly suspicious and intolerant of autono-
mous spaces in the public domain.
Autonomous civil-society constituents were routinely proscribed, while
the leaders of ‘‘enemy’’ organizations were detained and imprisoned. The
legal requirement that NGOs had to be formally registered by the state
to operate was exploited to the fullest. Under such suffocating conditions,
the efficacy of civil society was greatly constrained. Part of the problem
was the privileging of the state, which, at least in the African situation,
conferred superior and overarching claims on it. The other problem was
320 OSAGHAE
that civil-society constituents were not in a position to confront the state

in any realistic way without some form of support from forces stronger
than the state itself. It was only when human rights became an issue of
global politics, to which world powers and international organizations
were committed, that such support came.
In sum, it can be said that human rights were not an important part of
the state agenda for a long time. The best that was on offer consisted of
declarations and formalistic bills of rights. Worse still, the institutions for
promoting and protecting or safeguarding rights were either absent or
poorly developed and ineffective. The independence of the judiciary was
compromised by the non-separation of powers and the expectation that
judicial interventions should be consistent with state interests, as deter-
mined by the executive and ruling party. There were instances when
judgements not favourable to state power holders were set aside (as in
the case of Lakanmi and Anor v. Attorney-General (West) and others
in Nigeria), or when judges were sacked for giving independent judge-
ments (as happened to Chief Justice Sir Arku Korsah in Ghana under
Nkrumah).
Where rights-protecting institutions existed – such as the ombudsman
in Ghana and the Public Complaints Commission in Nigeria – their sub-
ordination to the whims and caprices of the rulers also rendered them
ineffective. Overall, the notion that the state had to survive and be stable,
cohesive, and developed, made human rights issues of secondary impor-
tance. The only right that was to be jealously guarded was the right of
the state to self-determination and of its power holders to the loyalty
and support of the citizenry. In this scheme, opposition was demonized,
eliminated, and suppressed.
Economic institutions
The basic formations and tendencies of the economies of West African

countries, the roots of which date back to the integration of African
economies into the global capitalist system and which have implications
for human rights violations, can be briefly outlined as follows. First, the
dominant economic configuration is centralized planning, an inevitable
concomitant of political centralization and state-led development. Sec-
ond, on the basis of quality-of-life and development-capacity indexes
(gross national product, income per capita, literacy, industrialization,
health-care delivery, etc.), West Africa has some of the poorest countries
in Africa and in the world, including Burkina Faso, Niger, Sierra Leone,
and Nigeria.11 The economies are basically agrarian, with an average
of 70 per cent of the population of each country engaged in subsistence
agriculture in rural areas. This makes land a very important production
WESTERN AFRICA 321
factor, explaining why contestation over land is one of the main sources
of communal and ethnic conflicts. In addition, a significant proportion of
ordinary people, especially in the urban areas, are engaged in the vibrant
informal sector that runs parallel to the formal sector. The informal sec-
tor helps to absorb large portions of the population that would other-
wise be unemployed or live below the poverty line. It also houses such
illegal practices as smuggling, moonlighting, piracy, currency counter-
feiting, drug trafficking, prostitution, child labour, and foreign-exchange
‘‘black markets’’ that are subversive of government economic policies.
Accordingly, they usually attract punitive measures – crackdowns, mass
arrests, demolition of illegal structures, etc. – from the state.
Third, virtually all the states in the region are monocultural, dependent
on the export of one main agricultural or mineral commodity: crude oil
accounts for over 90 per cent of Nigeria’s total revenue; cocoa is the
mainstay of the Ivorian economy; gold and cocoa for Ghana; rubber for
Liberia; diamonds for Sierra Leone; and so on. Largely because the
states have no control over the prices of their export commodities, their
economies are susceptible to, and have been adversely affected by, un-
stable commodity prices and other shocks and depressions that the global
economy suffers from time to time. One direct effect of this has been the
accumulation of foreign debts. The volume of debts owed by West Afri-
can countries (estimated at $77.3 billion by 1996) is not unduly large,
compared with the rest of the third world (Nigeria and Côte d’Ivoire,
with estimated debts of $32 billion and $19.8 billion respectively, are the
exceptions). However, when the volume of total debt service is consid-
ered, such debts are quite a burden on poor and fragile economies. It is
as such that foreign debts have diminished the developmental capacity of
the states and left them with no option but to swallow the bitter pill of
International Monetary Fund and World Bank-authored economic re-
forms built around structural adjustment programmes (SAPs).
Fourth, although most states have been active in the economy since
independence and have tried to live up to their titles of developmental
states, they have depended on rents and royalties paid by multinationals
that dominate the productive sector of mining and agriculture. The gov-
ernment’s greatest showing is in the bloated public service and enter-
prises sector, which is not only the largest employer of labour in the for-
mal sector but also the recipient of the bulk of revenues, with as much as
90 per cent of total revenue going to recurrent expenditures (salaries and
overheads) in many countries. The industrial and manufacturing (assem-
bly) sectors are miniscule (most countries in the region recorded negative
real growth rates in these sectors in the 1980s and 1990s). Fifth, going
back to the foundations laid during colonial rule, the economies are
dominated by foreign concerns – multinationals and hosts of Asian and
322 OSAGHAE
Middle-Eastern business people (Lebanese, Syrians, Indians, Koreans,

and Chinese) who control the organized private sector. A large number
of the multinationals are found in the trading sector; however, they also
constitute the major players in the mining and manufacturing sectors.
The rise to prominence of issues of environmental preservation, local
self-determination, and good governance, at the same time that the de-
velopmental capacities of states have declined, has opened multinationals
to the demands and vagaries of local politics. Although they might be
exceptions to the rule, the cases of Shell, Chevron, Elf, Mobil, and other
oil companies in Nigeria are instructive. As resource allocation from the
state declined, oil-bearing minorities of the Niger Delta region increas-
ingly vented their anger and frustrations against the state on the oil
companies, which were forced to become involved in state security
arrangements. Shell, for instance, was reported to have supplied arms to
the Nigerian police and security agencies for protection of strategic oil
installations. To pacify the angry communities, the oil majors were forced
to expand their involvement in the development of their host commu-
nities.
Sixth, the economies of West Africa remain closely tied to those of the
West and the erstwhile colonizers. This is especially true of the franco-
phone countries, whose fiscal and monetary policies were literally con-
trolled from France, and whose currency (the Communauté Financière
Africaine; CFA) was tied to the French franc until the mid-1990s. Al-
though the Cold War afforded a few ‘‘socialist’’ countries such as Benin
and Togo the opportunity to diversify foreign economic relations, the
pattern of trade and investment inflows was highly skewed in favour of
the West and former colonial masters. This pattern of dependence was
a crucial facilitator when it came to exerting external pressure on the
countries to embrace economic and political reforms. As indicated ear-
lier, SAPs were the mainstay of economic reforms. The programmes
basically involved sets of macroeconomic reform policies (liberalization of
trade; the financial sector; foreign exchange; prices of goods and services;
and retrenchment of the public sector through privatization, rational-
ization, and downsizing), the aim of which was drastically to reduce
so-called ‘‘unproductive’’ state control of the economy and to entrench
market forces.
Although Ghana was touted as a successful case of adjustment, the
demonstrable effect of adjustment programmes in almost all cases was
aggravation of poverty and a reduction of the quality of life of citizens to
levels far below those of the years immediately following independence.
There were huge job cuts and retrenchments in the formal sector, deval-
uations of currency, whittled-down incomes and purchasing power, and
increased costs of such basic services as water, electricity, transport, edu-
WESTERN AFRICA 323
cation, and health care to beyond the reach of most ordinary people. The
state itself was also a major casualty: with the decline in resources and
revenues that prefaced SAP and the increased dependence on foreign
aid, governments found it increasingly difficult to satisfy the minimum
imperatives of statehood, including provision of such basic goods and
services as the regular payments of salaries to public officers, the security
of lives and property, the running of public schools and hospitals, and
the maintenance of infrastructure. Increased poverty is a major factor in
the upsurge in violent crimes, prostitution, child labour, emigration, the
spread of HIV/AIDS, and the resurgence of the slave trade and such
killer diseases as malaria and cholera.
It did not come as a surprise, therefore, that, after a review of initial
failures, the World Bank became a major proponent of poverty allevia-
tion. However, this could not stem the tide of massive opposition by
labour, youth, academics, professional associations, women’s associa-
tions, and the urban poor, nor of the phenomenal increase in anti/
counter-state conflicts. The massive opposition led the state to higher
levels of authoritarianism and repression, without which SAPs could not
be implemented – indeed, the real success cases were those implemented
by more authoritarian rulers – such as General Babangida of Nigeria
(who passed a decree forbidding discussion of alternatives to SAP) and
J.J. Rawlings of Ghana.
Cultures and identities
All countries in West Africa are multi-ethnic, although the difficulties and
state-threatening problems posed by this make-up have differed from
country to country. Nigeria – with over 300 ethno-linguistic groups (the
divisions of which are reinforced by a complex mix of regional and reli-
gious cleavages) and with a long history of separatist agitations and
ethnic, regional, religious, and communal conflicts – is clearly the worst
case. Another country that has failed in ethnic terms is Liberia, the oldest
republic in the region. Although the country has only 16 major ethnic
groups, it has suffered bitter ethnic feuds that ultimately resulted in civil
war in 1989. Ghana’s post-independence history has witnessed con-
tinuous wrangling between the Asante and the Ewe, the largest of the
country’s (over 90) ethnic groups, for control of the state, and a fairly
large number of localized ethnic and communal conflicts (involving the
Kokomba and Nanumba, Nawuri and Gonja, etc.), which have been on
the increase since the 1990s.
In general, ethnicity has been more politically salient and troubling in
anglophone countries (notably Nigeria, Ghana, and Sierra Leone) than
it has been in such francophone countries as Côte d’Ivoire, Benin, and
324 OSAGHAE
Burkina Faso. This can be largely attributed to differences in colonial

legacy: whereas the British pursued a policy of indirect rule that nurtured
and strengthened ethnic identities and loyalties, and operated a relatively
open system that permitted ethnic political mobilization and participa-
tion, the French system was much more centralized and closed.
After independence, the francophone countries moved along the
one-party–centralist–assimilationist trajectory, whereas the anglophone
countries were relatively more open, pluralistic, competitive, and decen-
tralized. However, this semblance of tranquility and cohesion did not
prevent the francophones from also tasting the bitter pill of ethnic poli-
tics, mostly in their struggle for state power. Thus, state power holders
in Niger and Senegal have respectively had to contend with Tuareg and
Casamance separatists. Côte d’Ivoire, which had enjoyed relative peace
and stability under Felix Houphouet-Boigny, has had more than its fair
share of ethnic troubles, including separatist agitations by the Sanwi and
Guebie and the rash of ethnic and religious tensions over control of state
power in the post-Boigny years.12
The point that emerges fairly clearly from what has been said so far is
that ethnicity and ethnic conflicts have been instigated by competition, in
most cases for scarce resources and control of state power. The élite (and
political parties), who are at the forefront of the struggle for power, are
at the pivot of ethnic mobilization. The élites manipulate members’ fears,
which arise from conflicts carried over from the past, colonial legacies
of favoured ethnic groups and races, uneven development, and partisan
actions of state power holders. In the process, personal ambitions, suc-
cesses, and failures become tied to those of the group, and inter-élite
competition becomes inter-group conflict. What is of greater concern
to us, however, is the state’s response to ethnicity and ethnic conflicts –
especially to those that directly threaten its existence, such as demands
for equitable power and resource sharing, claims to self-determination,
and warlord politics.
The response has basically been twofold. On the one hand, as was
consistent with the state-privileged hegemonic approach that dominated
national cohesion discourse in Africa for a long time, ethnic claims were
seen as a threat that had to be eradicated (or reduced to the barest min-
imum). This approach has been highly unsuccessful, to the extent that the
suppression of ethnic nationalism served only to justify claims to ethnic
rights and entitlements and strengthened the case of ‘‘marginalized,’’
‘‘displaced,’’ ‘‘excluded,’’ and ‘‘oppressed’’ élites and groups.
On the other hand, expediency and good politics have frequently led
even such avowed enemies of ethnicity as Kwame Nkrumah of Ghana
and Sekou Toure of Guinea to embrace ethnic-balancing formulas and
other reconciliatory measures. Attempts to build supra-ethnic national
WESTERN AFRICA 325
cultures through the adoption of a lingua franca, and cultural symbols

(such as President Tubman’s integration of the Poro society into Liberia’s
national culture), also belong to the reconciliatory trajectory. However,
the advent of warlord politics and the centrality of ethnic grievances to
civil wars and separatist agitations suggest that power sharing has to be
taken more seriously.
Civil and international conflict
As in most other parts of the world, in West Africa the post-Cold War
political scene witnessed an upsurge in civil conflict and war. There have
been protracted civil wars in Liberia, Sierra Leone, Niger, Guinea, and
Guinea Bissau, the effects of which have resonated all over the region.
Furthermore, virtually every country in the region has experienced one
form or another of devastating ethnic, regional, religious, and commu-
nal conflict. Counter-state mobilization, including separatist agitation, has
risen phenomenally since the late 1980s. Examples include Casamance
separatism in Senegal, Tuareg separatism in Niger, the Niger Delta up-
rising in Nigeria, and ‘‘rebel’’ activities in Liberia, Sierra Leone, Guinea-
Bissau, Guinea, and Côte d’Ivoire. In a word, West Africa has become
something of a theatre of war, as attested to by the presence of warlords,
refugees, displaced persons, exile communities, child soldiers, and so on.
The scenario may be regarded as one of the inevitable consequences
of Cold War manipulations and tensions, especially the arms build-up
and support lent to authoritarian regimes and ethnic adversaries while
the war lasted. A host of other factors, however, served to accentuate the
state of instability and war in the region. Foremost among these is the
combination of desperate economic crises and state collapse, which af-
forded the opportunity, finally, for previously marginalized and oppressed
groups, ambitious politicians, and warlords to demand reconstruction
of the state.13 Second, there has been a paradigm shift in the discourse
on national cohesion. The collapse of the Soviet Union, Czechoslovakia,
and Yugoslavia seemed to have brought the old conventional wisdom –
which privileged the state and justified the hegemonic projects of post-
independence ruling élites in Africa – to an end. Ethnic claims were no
longer illegitimate, after all; in fact, the rights of minorities, indigenous
peoples, and oppressed groups became the new privilege, and various
groups in the region were on line to make the most of the opportunities
created by that new privilege.
The political reforms prescribed (some would say imposed) by the he-
gemony-seeking global powers, whose hallmark was political liberaliza-
tion – pluralism, multi-partyism, and human rights – further boosted the
new-found voice for ethnic claimants. Indeed, there was something of
326 OSAGHAE
a direct link between developments in the international arena and the

upsurge of ethnic restiveness and claims in Africa, which were integral
parts of the democratization in the continent. For example, the Ogoni
uprising in Nigeria, one of the notable examples of new-style minority as-
sertiveness, benefited a great deal from the support of international
environmental and minority activists, as well as from the facilitative dec-
larations of the United Nations and other international organizations on
the rights of indigenous peoples, minorities, and other oppressed
peoples.14
What has been the impact of war and violence on human rights prac-
tices in West Africa? The first general point that needs to be made is that
situations of war and violence elicit different human rights practices and
challenges from situations of peace and stability, with the medley of ref-
ugees, displaced persons, child soldiers, and war crimes and the collapse
of normal law and rights enforcing institutions in war situations. War sit-
uations also legitimize and justify violence and the denial of fundamental
human rights. Worse still, the atrocities are usually concealed and beyond
public scrutiny. Rebel forces, in particular, are secretive and distrustful
of outside interference: women are raped, unarmed civilians are tortured
and killed in the most bizarre ways, children are abducted and forcibly
conscripted into fighting armies, and soldiers are treated as people with-
out rights of any kind – all in the name of propagating and winning the
war. These situations raise a different set of questions. What rules and
rights apply, and who would monitor and enforce them? Who would be
held responsible for war crimes, considering the lack of accountability on
the part of the leadership?
The inability of subsisting governments – or what is left of them –
to enforce rights makes foreign backers of rebel groups, peacekeeping
forces, the United Nations, and other international bodies (including
humanitarian agencies and NGOs) critical actors in the wartime human
rights discourse. Foreign backers wield a great deal of influence and can,
for example, make compliance with war laws a condition for assistance.
Nevertheless, they failed to do so in Liberia and Sierra Leone, where
the illegal diamond and timber trade (which was facilitated by war) was
the main attraction. It took the intervention of the United Nations for
Charles Taylor of Liberia finally to be charged with war crimes. In both
Liberia and Sierra Leone, indiscipline and corruption among the ECO-
WAS Military Observer Group (ECOMOG) peacekeepers, upon whom
a lot depended, further worsened the human rights situation. The human
rights unit of the UN Observer Mission in Sierra Leone (UNOMSIL) and
its follow-up mission – the UN Mission in Sierra Leone (UNAMSIL) –
reported gross human rights abuses on the part of ECOMOG in 1999.15
Another human rights problem associated with war, which certainly
WESTERN AFRICA 327
arose from the wars in Liberia and Sierra Leone, is that of the status and
rights of refugees and displaced persons. Host states have all kinds of
problems with refugees, not the least of which is the security risk they
pose. Indeed, refugees from Liberia were a source of tension in neigh-
bouring Côte d’Ivoire, Sierra Leone, and Guinea, and were believed to
be conduits in the outbreak of war in these countries. However, even
more urgent problems arose over the welfare of refugees. Being poor and
unstable themselves, the host countries were not in a position to provide
adequate food, shelter, and security for them. In some cases, refugees
were forced to seek employment – mostly menial jobs for men and pros-
titution for women – which exposed them to the danger of xenophobia
from members of the host communities.
Civil wars were only the more extreme situations of conflict in West
Africa: other localized conflicts afforded the state the opportunity to de-
prive individuals and groups of their rights. Conflicts that were perceived
as a threat to the stability, cohesion, and survival of the state were met
with the full might of state terrorism, and the rights of the ‘‘offending’’
groups were brazenly violated. This point is illustrated by the virtual war
declared by the Nigerian federal government on the country’s oil-rich
Niger Delta region to ‘‘crush’’ the rebellion of aggrieved equity-seeking
minorities.
Transition consequences
Democratization and the transformation of human rights
Human rights were pivotal to the wave of democratization that swept

through Africa from the late 1980s onwards. However, although the im-
pulses for democratic change were generated internally by the malcon-
tents and failings of the state, the process was strengthened by a number
of supportive external factors that emerged in the aftermath of the Cold
War.16 Chief among these were the stipulation of pluralism/multi-party
politics, human rights, and good governance as conditionalities for aid by
the international donor community; the effort to build up civil society as
an alternative engine room of development to the state; and the material
and moral support given to pro-democracy and other civil-society con-
stituents in the struggle against the state.
There were also the less hegemony-seeking factors of globalization.
These ranged from the demonstration effect of dramatic events in pre-
viously authoritarian parts of the world such as the former USSR and
Poland, to the key roles played by citizens of the democratizing countries
in the diaspora, who helped to expose the atrocities and human rights
328 OSAGHAE
violations of the repressive regimes in their countries and, with the sup-
port of sympathetic ‘‘host’’ states, played an active part in the diplomatic
offensives to oust dictators. What is of importance, however, is not the
mechanics of democratization per se, but the pivotal role of human rights
in the process. In a real sense, the struggle was for liberation – for the
rights and freedom of the people, as opposed to the state, which, as the
repository and recipient of rights at independence failed to actualize
the expected gains of decolonization. It was the failure of the state, as it
were, that made a second liberation struggle necessary – this time, from
internal colonialists and despots.17
The concept of a second liberation, which I consider the most original
contribution by African scholars to democratization scholarship, helps to
place the transformation of the human rights agenda in the context of
transition in perspective. This involves a shift in conception from that
of rights as state property to that of rights as the property of individuals
and groups, and from that of rights as duties to the state to that of rights
as rights from and against the state. To elaborate, we use the insights
offered by Ekeh, who has made the most remarkable attempt so far to
interrogate the analytical power of the concept of second liberation in
relation to human rights.18 For him, liberation as freedom is at the core
of democratization, and the main difference between the first and second
liberations lies in the differing conceptions of freedom that informed the
movements. In the first liberation, freedom was approached as the col-
lective right of peoples and states. This, as we have already indicated, not
only submerged individual rights but also made it possible to deny indi-
vidual rights, if doing so was perceived to be in the interest of the state.
By contrast, the freedom of the individual was the object of the second
liberation.19
The lesson from the failure of the first liberation was that any struggle
for freedom from the all-powerful state would be hollow if steps were not
taken to safeguard the autonomy of individuals and groups and to pre-
vent a relapse to state monopoly of the public sphere. This meant that
practical ways of checking the totalizing tendency of the state had to be
found, making its power holders responsive and accountable, and pro-
tecting human rights. From the common steps taken throughout the re-
gion, there was something of a consensus that constitutional reform and
constitutionalism held the best promise.
However, the resulting constitutions were no longer to be clones of
erstwhile colonial authorities with elegant but hollow bills of rights. A
major objective in the struggle was, therefore, to have constitutions that
reflected the balance of social and political forces, were people-centred
and, above all, were not imposed from above (that is, by incumbent gov-
ernments). Thus, civil-society leaders were critical of the 1999 Nigerian
WESTERN AFRICA 329
constitution: on the grounds that it was written and fraudulently passed

by the military administration of General Abdulsalami Abubakar with-
out popular consultation, they campaigned for its repeal. They also criti-
cized the constitutional review process initiated by the successor civilian
administration of General Olusegun Obasanjo because, as they argued,
government control limited the extent to which the constitutional process
could have been democratic and sovereign.
Other measures that were deemed capable of preventing a relapse to
authoritarianism were embraced by constitutional reforms. The 1992
Ghanaian constitution, for example, forbids parliament from establishing
a one-party state and declares as unlawful any activity ‘‘which suppresses
or seeks to suppress a lawful political activity.’’ The reformers were par-
ticularly mindful of the need to prevent violent and unlawful overthrow
or abrogation of the constitution by the military, which was a major
source of human rights abuse in the past. The constitution saddles citi-
zens of Ghana with the responsibility and duty, at all times, to resist any
person or group of persons seeking to overthrow the constitution, and
stipulates the death sentence for those who aid and abet such overthrow.
Such provisions can do very little to stop ambitious military officers from
seizing power, as Nigerians learnt when, in spite of similar provisions
in the 1979 constitution, the military still struck in 1983. Nevertheless,
Ihonvbere thinks that such provisions are still significant, because they
represent a feeling ‘‘that such illegal seizures of power ought to be re-
sisted and discouraged.’’20
Another area that has received the attention of constitutional reforms
is the promotion and protection of rights enshrined in the constitution.
The constitutions of Nigeria (1999) and Ghana (1992) provide for the
establishment of Human Rights Commissions (Commission on Human
Rights and Administrative Justice in Ghana), which are mandated to in-
vestigate and deal with cases of human rights violations. The Benin con-
stitution provides for a constitutional court to deal with similar issues.
The Ghanaian constitution also provides for a National Commission for
Civic Education, and assigns it functions that include creating and sus-
taining awareness of the principles and objectives of the constitution, and
educating and encouraging the public to defend the constitution at all
times, against all forms of abuse and violation. The commission is further
mandated to formulate programmes intended to inculcate in the citizens
of Ghana awareness of their civic responsibilities and an appreciation of
their rights and obligations as free people.
However, it goes without saying that constitutions, by themselves,
cannot keep the state in check or affect people’s rights. In any case, the
Nigerian and Ghanaian constitutions retain emergency powers provisions
and other detestable laws that can potentially make nonsense of what-
330 OSAGHAE
ever gains were made in the democratization struggles. Considering how

crucial are the organization and distribution of state power to the enjoy-
ment of rights, the real test of the success of democratic transitions would
include the following:
0 Is there greater freedom now for opposition, and how realistic are the
opposition’s chances of securing power?
0 Have electoral machineries and processes become more independent
and open, and are elections now more free and fair?
0 Are political institutions now stronger?
0 Have separation of power and independence of the judiciary become
meaningful?
0 Does the system now ensure greater access and safeguards to compet-
ing groups, or is the state still dominated or controlled exclusively by
people from one or a few ethnic, religious, or regional groups?
0 Is the state now more accountable, transparent, and responsive?
Answers to these questions suggest that West African democracies
have not yet arrived: this conclusion is based on the persistence of ten-
dencies toward one party (dominant) rule; the deprivations (such as state
subsidy and access to official media) and harassments from which oppo-
sition parties still suffer; and the continued organizational weaknesses,
tight control of electoral commissions by incumbent power holders, and
the generally violent and inconclusive nature of elections. However, the
2000 elections in Ghana and Senegal (which saw rare defeats of in-
cumbents) give hope that things may be changing in the region. By vigo-
rously contesting control of the public sphere with the state, civil society
has also been actively involved in the struggle to entrench pluralism,
multi-party politics, good governance, and human rights. In Nigeria, for
example, a number of NGOs (with the support of foreign donors) have
set up teams to monitor and assess the state of democracy and human
rights records and to publicize cases of violation and abuse. One of these
teams, Media Watch, publishes weekly reports in newspapers, which ex-
pose and discuss state wrongdoings and excesses. Human rights aware-
ness campaigns, voter and civic education programmes, and provision
of free legal aid to the poor, complete the efforts that civil-society orga-
nizations have made to promote a human rights culture and defend the
people against the excesses of the state.
Economic development
Two points are crucial to analysing the human rights implications of the
economic transition that occurred in West Africa from the late 1980s.
The first is the precipitate decline in the developmental capacities of
states and their ability to discharge the basic functions of statehood ef-
WESTERN AFRICA 331
fectively. The decline is more visible in countries such as Sierra Leone

and Liberia, where NGOs, humanitarian agencies, international organi-
zations, and foreign donors have taken over many of the functions that
traditionally belonged to the state. However, the situation is not much
better in the relatively more peaceful states: long periods of neglect and
lack of maintenance have ruined basic infrastructure and public estab-
lishments. Capital expenditures have declined, especially in the social
sector. Salaries of public servants go unpaid for months. The withdrawal
of so-called subsidies on essential public goods has increased social costs.
Privatization of government enterprises has accentuated the steady dis-
appearance of the state.
The only way to appreciate fully the implication of this decline is to
remember the central role played by the state in the economy and to see
that its decline has not changed that role in popular perception. This
largely accounts for the massive social unrest – protracted workers’
strikes, urban riots, and demonstrations – that has greeted state decline.
On the other hand, the exigencies of meeting the challenges of survival
and development have forced more people to rely increasingly on the
shadow state functions performed by the traditional self-help (voluntary
ethnic, hometown, religious) organizations that dot the social landscape.
The ranks of the informal sector have also been swollen by an increase
in the number of people entering ‘‘self-employment’’ and small-scale en-
terprises. Interestingly, these relocations have received encouragement
from governments. The advent of poverty alleviation programmes, in
particular, led to a stepping-up of the efforts to encourage people to look
away from the state and meet their basic needs themselves.
The implications of these developments for human rights, especially
socio-economic rights, should be fairly obvious: responsibility for the well-
being of citizens is removed from the state and placed on the shoulders
of the citizens themselves, which negates the norm of reciprocity that
governs the rights–duties intercourse in citizenship. It might be argued
that a freeing of socio-economic relations from the stranglehold of the
state is a necessary condition for liberalization and, therefore, that a re-
trenchment of the state is positive rather than negative. However, this
overlooks the fact that the state still has responsibility for important
areas of the capital-intensive development sector (run-down universities,
dilapidated roads and transport systems, hospitals); that the poor will
continue to need the support of the state; and that state intervention is
still necessary to ensure that, as much as possible, there is a level playing
field in the competition for scarce resources. With regard to the last point,
the need for the ‘‘correction factor’’ to ensure that members of weak and
disadvantaged groups are in a position to compete with others cannot
be overemphasized. In Nigeria, where privatization of government en-
332 OSAGHAE
terprises provoked ethnic sentiments and tensions, the Bureau for Public
Enterprises (the state agency saddled with the exercise) was forced to
advance loans to members of poor communities to ensure that the exer-
cise was not turned into an opportunity for members of more affluent
communities to take over the economy. The overall point, I think, is that
political democracy has to be matched with economic and social democ-
racy to make human rights meaningful.
The second point relates to the fact that economic reforms embodied
in SAPs were undertaken alongside political reforms. Several studies
have pointed to the contradictory pulls elicited by a twinning of the two
processes:21 whereas political liberalization is participatory and support-
ive of democracy, the packaging and implementation of economic re-
forms encourages authoritarian tendencies. This often sets governments
on collision courses with the more discerning elements of civil society –
notably labour, students, and academics – and reinforced authoritarian
tendencies.
However, the major problem remains that the reforms so far under-
taken have not led to significant transformations in economic structures
and recovery. The economies remain monocultural and as vulnerable as
ever to external shocks; trade liberalization and privatization have not
yielded the expected dividends, whether in terms of foreign investment or
increased local and global competitiveness; the public sector, with all its
inefficiency, remains at the core of the economy; the commanding heights
of the economies are still controlled by multinationals and other foreign
interests; poverty levels appear to be on the increase in spite of the pop-
ularity of poverty-alleviation programmes; foreign debts are still a major
burden and have left the countries at the mercy of the World Bank and
the IMF; and the social sector has remained in the doldrums.
Explanations for the apparent failure of adjustment programmes have
ranged from the lack of will and managerial ability on the part of the
state (whose efficiency, contrary to expectation, was not enhanced by its
trimming), to cultural inertia, the point being that African cultures are
generally impervious to change. Although these explanations are partly
valid, the missing link is still the state. The only realistic path to economic
recovery would be to invest more in its dwindling credibility and legiti-
macy by strengthening its capacity for just and equitable distribution
of resources. This is an area that needs urgent attention because of the
primacy of economic development to democratization, conflict resolu-
tion, and the creation of a culture of rights. The point cannot be over-
emphasized that the continued poverty of African states poses a threat
not just to the stability of the states but to the peace and security of the
global system as a whole.
WESTERN AFRICA 333
Conflict resolution
The fact that democratization processes were taking place in West Africa
while several parts of the region were embroiled in civil war and violent
conflicts, had direct consequences for conflict resolution in individual
countries and the region as a whole. One of these was the realization
that, as Dahl has argued, peace, resolution of conflict, and stability are
necessary for democracy and development.22 This realization saw the
emergence of new attitudes towards conflicts and adversaries, as in the
reconciliatory meetings organized by the government of Côte d’Ivoire in
2001, and the workings of the Oputa panel in Nigeria, whose sessions
were similar to those of the Truth and Reconciliation Commission in
South Africa. It also underlay the rapid growth of the conflict-resolution
industry, involving both governmental and non-governmental agencies.
Another was the realization that the democratization and development
of any state were closely tied to the peace and stability of the entire sub-
region. A key variable in this regard is de-militarization, an absolutely
necessary condition for peace, civility, and human rights. This regional
dimension increased the importance of the bold initiatives of ECOWAS,
the regional organization, in the areas of collective security (through
ECOMOG), a regional culture of peace (through arms-proliferation con-
trol), and regional development (through establishment of a regional
parliament, a high court, and a common currency).
Three other developments combined to raise the challenge and ur-
gency of conflict resolution. First was the increase in the number and size
of conflicting parties (as a result of the opening up of previously closed
systems), which afforded groups that had been suppressed or excluded,
the opportunity to join first-order competition, leading to an expansion of
grievances and competitors. The problem was not, however, the expan-
sion of competitors per se, but the fact that some transitions involved the
loss of state power and that this engendered counter-revolutionary action
on the part of ‘‘losers.’’ These losers – such as the conservative Hausa–
Fulani of northern Nigeria – swelled the ranks of the aggrieved. In South
Africa, the short-term compensations conceded to the White Afrikaners
who were displaced from power contributed immensely to the smooth
passage of transition. In Nigeria, there was no such compensation or re-
assurance; instead, there appeared to be an attempt literally to vanquish
the losers – to punish them for the excesses of past military governments.
Such actions increased the tension and bitterness of transition.
The second development was that, unlike the past, when the state en-
joyed the privilege of dealing with demands that were deemed ‘‘illegiti-
mate,’’ the new discourse of pluralism and liberalization privileged rival
334 OSAGHAE
groups, whose claims and demands on the state were accordingly legiti-
mized. To be able to cope with this new challenge and enhance its legiti-
macy, it was obvious that the state had to devise new forms of political
accommodation in place of the old authoritarian and hegemonic struc-
tures. The third development was the (near) breakdown of law and order
in many countries, which was a concomitant of state collapse. The break-
down, which manifested itself in different ways, including an increase in
crime and criminal violence and the rise of ethnic militias, demonstrably
made the task of conflict resolution more difficult.
So how did the various states cope with the new challenges? This takes
us back to the major source of conflicts discussed in the previous section:
the fact that the state lacked relative autonomy (or ‘‘neutrality’’) and was
not insulated from exclusionary personal or ethnic capture. The opening
up of political systems means that one of the structural requirements
for a turnaround has been met; however, the question is how this can
be translated into greater accountability, responsiveness, and guaranteed
access to competing groups, especially those in opposition. Constitutional
safeguards may be helpful, to the extent that they reduce the fluid and
volatile character of power contestation and provide a reference point for
seeking redress; however, a lot more needs to be done in the realm of
political action to make political institutions and processes effective. This
is where the role of civil society, as the ultimate watchdog over state ac-
tions, becomes very useful.
Not yet Uhuru
Although some significant changes have taken place, the overall state of
affairs in the region suggests that no fundamental change has occurred. It
is, therefore, not surprising that, in his classification of regimes at the end
of 1997 (based on the average Freedom House score on political and civil
liberties), Diamond listed only Benin in the lower rung of the category
of ‘‘free’’ states, while Mali was an ‘‘outside’’ entry at the very bottom
of the category.24 Most of the countries in the region were listed under
the categories of ‘‘(Non-liberal) Electoral Democracies’’ and ‘‘Pseudo-
Democracies,’’ while Nigeria and Sierra Leone fell in the category of the
countries with the least freedom (authoritarian regimes). Changes in
some countries since 1997 would give them better – or worse – ratings:
Nigeria, for example, has come closer to being an electoral democracy
since the inauguration of civilian government there in 1999; Ghana post-
Rawlings would probably be ahead of Benin; and Guinea, Liberia, and
Côte d’Ivoire would have descended to the category of least freedom.
Nevertheless, the overall picture remains as Diamond found it in 1997.
WESTERN AFRICA 335
Specifically, the level of human rights violation and abuse remains

high despite the constitutional reforms and democracy/human rights-
protection initiatives of civil society discussed in the last section. Disap-
pearance, torture, and suppression of opponents remain common;
freedoms of speech, of political association, and of assembly are still
highly circumscribed; and the superior will of the state remains the prism
from which human rights are approached. Social and economic rights
continue to be injusticiable, for the ostensible reason of state incapacity.
Why have the excitement and hope generated by the second liberation
not translated into the emergence of a culture of rights as expected? The
reasons are not hard to discern.
The first is that rights still remain abstract and meaningless to people
who have still not found any viable alternative to the omnipotent state.
Civil society has come on strongly, but is not strong enough to seriously
counter the state or take its place. The other problem is the extent to
which the rights granted in the constitution can be redeemed. Given the
high costs of litigation and the corruption of law courts in Nigeria, for
example, legal redress remains unattractive, despite the efforts of various
civil society organizations at providing legal aid. As for social and eco-
nomic rights, these remain tied to state solvency, as indicated earlier.
Perhaps the only rights that have made tremendous progress in places
like Nigeria, where they have been used as weapons and objects of
struggle (especially by minorities), are group rights. The growing signifi-
cance of group rights, which is at issue in most of the civil wars in the
region, suggests that the second liberation may have been more about
expanding political space to enable non-governing élites previously ex-
cluded and in opposition to renegotiate access to, and participation in,
government, than about defending the rights of the individual.
Second, the authoritarian instruments of the state remain strong. In at
least two cases (Eyadema’s Togo and Kerekou’s Benin) the authoritarian
one-party state remains virtually intact. This is largely because the logic
of over-centralization and strong state power remains firmly entrenched.
The liberalization policies of adjustment have been too half-hearted
and opportunistic (some governments merely pretended to liberalize and
decentralize just to satisfy donor conditionalities) to change this logic.
Furthermore, the brutality and impunity of the military, police, and
other security forces that are yet to be ‘‘born again,’’ including their self-
bestowed ‘‘immunity’’ from scrutiny and accountability, have not changed.
The same applies to the judiciary, which lost its independence in most
countries and was a key agent of authoritarianism in the past. In addition,
the draconian legislation that sustained past authoritarian regimes, in-
cluding provisions for preventive detention and detention without trial,
remain in force and have encouraged anti-democratic tendencies. For
336 OSAGHAE
example, shortly after coming to power, the Obasanjo administration

in Nigeria invoked the emergency powers of the 1999 Constitution to
crush groups protesting against government high-handedness in the
Niger Delta in Odi village. The Nigerian state has also used the land use
decree, which vests the state with ownership of land in the country, to
deny property rights and compensation in the case of government take-
overs.
Third, and finally, a combination of continuing – or worsening –
economic crisis and foreign debt, repression-inducing adjustment pro-
grammes, fear of military intervention, and the potentially destabilizing
spill-over effects of the civil wars and political turmoil in most parts of the
region, have provided state power holders with the justification they need
to continue to violate human rights. All in all, it seems that the more
things have changed, the more they have remained the same – or even
worsened. Hence, there is no liberation yet for oppressed and deprived
individual citizens. Even so, the gains of democratization that have been
discussed in this chapter should not be underplayed. Without a doubt,
more and more people have become aware of their rights and the need
to defend them. Also, even though we have been critical of the over-
whelming concern with group rights and entitlements, there is no doubt
that the struggles for these rights have restored dignity and have been
empowering for minorities and other marginal groups. Members of these
groups can be expected to use this as a launching pad in coming struggles
for individual self-actualization.
The growing importance of, and familiarity with, human rights issues
has also enabled people to draw the line between the state realm, which
is to be kept in check, and the private autonomous realm, which is to be
defended at all costs. Human rights awareness has been advanced through
the activities of the human rights commissions and panels, such as that
headed by Justice Oputa in Nigeria, which investigated past human rights
violations. In such places as Ghana and Nigeria, where the links between
military rule and human rights abuses have become part of the popular
consciousness, it is unlikely that future military interventions will be
welcome. The popular resistance to military take-over in Mali and Côte
d’Ivoire may, in fact, be prototypical of future trends. Over and above
all this is a nascent culture of constitutionalism. This culture’s chances
appear bright, given the determination of civil society to ensure that
accountability becomes a key feature of governance. These are a few of
the modest gains of democratization that will, it is hoped, make the next
struggle – the third liberation, perhaps – for individual rights and dignity
more meaningful. Finally, of course, the processes of de-militarization
and economic recovery have to be accelerated. Here, the support of the
WESTERN AFRICA 337
donor community and international organizations, in terms of funds and

monitoring skills, cannot be overemphasized.
Notes
1. The states in the region belonging to ECOWAS are Benin, Burkina Faso, Cape Verde,
Côte d’Ivoire, Gambia, Ghana, Guinea, Guinea-Bissau, Liberia, Mali, Niger, Nigeria,
Sierra Leone, Senegal, and Togo.
2. Joy Mukubwa Hendrickson, ‘‘Rights in Traditional African Societies,’’ in John A.A.
Ayoade and Adigun A.B. Agbaje, eds, African Traditional Political Thought and In-
stitutions, Lagos: Centre for Black and African Arts and Civilization, 1989, pp. 19–43.
3. H. Diabate, ‘‘The Process of Nation and Constitution-Building in Côte d’Ivoire,’’ in I.G.
Shivji, ed., State and Constitutionalism: An African Debate on Democracy, Harare:
SAPES, 1991, p. 170.
4. O.C. Eze, Human Rights in Africa: Some Selected Problems, Lagos: Nigerian Institute of
International Affairs (NIIA) and Macmillan, 1984, p. 27.
5. P. Chabal and J. Daloz, Africa Works: Disorder as Political Instrument, Oxford: James
Currey, 1999; P. Englebert, State Legitimacy and Development in Africa, Boulder:
Lynne Rienner, 2000.
6. J.-F. Bayart, ‘‘Civil Society in Africa: Reflections on the Limits of Power,’’ in P. Chabal,
ed., Political Domination in Africa, Cambridge: Cambridge University Press, 1986,
pp. 106–125.
7. In Nigeria, the instruments multiplied under military rule, but the main one was the
State Security (Detention of Persons) Decree no. 3 of 1966, which was amended as
deemed fit by successive military governments. In Ghana, it was the Executive Instru-
ment: 151 Preventive Custody (no. 54) Order of 1977 that was used to legalize the de-
tention without trial of opponents of the government.
8. D.L. Horowitz, ‘‘Democracy in Divided Societies,’’ in L. Diamond and M.F. Plattner,
eds, Nationalism, Ethnic Conflict and Democracy, Baltimore: Johns Hopkins University
Press, 1994, pp. 35–55.
9. P.P. Ekeh and E.E. Osaghae, eds, Federal Character and Federalism in Nigeria, Ibadan:
Heinemann, 1989, pp. 1–10; E.E. Osaghae, ‘‘Human Rights and Ethnic Conflict Man-
agement: The Case of Nigeria,’’ Journal of Peace Research, Vol. 33, No. 2, 1996, pp.
171–188.
10. R. Suberu, ‘‘The Travails of Federalism in Nigeria,’’ in Diamond and Plattner, eds, Na-
tionalism, Ethnic Conflict, and Democracy, pp. 56–70; K. Amuwo, A.A.B. Agbaje, R.
Suberu, and G. Herault, eds, Federalism and Political Restructuring in Nigeria, Ibadan:
Spectrum, 1998.
11. African Development Bank (ADB), African Development Report 1998: Human Capital
Development, Oxford: Oxford University Press for ADB, 1998.
12. G. Gonnin, ‘‘Ethnicity, Politics and National Awareness in Côte d’Ivoire,’’ in O. Nnoli,
ed., Ethnic Conflicts in Africa, Dakar: CODESRIA Books, 1998, pp. 159–182.
13. R. Joseph, ed., State, Conflict, and Democracy in Africa, Boulder: Lynne Rienner, 1999.
14. E.E. Osaghae, ‘‘The Ogoni Uprising: Oil Politics, Minority Nationalism, and the Future
of the Nigerian State,’’ African Affairs, Vol. 94, No. 376, 1995, pp. 325–344.
15. W.G. O’Neill, ‘‘Gaining Compliance without Force: Human Rights Field Operations,’’
in Simon Chesterman, ed., Civilians in War, Boulder: Lynne Rienner, 2001, pp. 93–
122.
338 OSAGHAE
16. While the focus here is on supportive external forces, it should be noted that, by the
very nature of the contradictions that attend relations between African states and the
global capitalist system, the external factors also had democracy-weakening aspects.
A case in point is the adjustment programmes that African states were compelled to
implement.
17. G. Nzongola-Ntalaja, ‘‘The State and Democracy in Africa,’’ in G. Nzongola-Ntalaja
and M.C. Lee, eds, The State and Democracy in Africa, Harare: AAPS Books, 1997, pp.
9–24; P.P. Ekeh, ‘‘The Concept of Second Liberation and the Prospects of Democracy
in Africa: A Nigerian Context,’’ in P. Beckett and C. Young, eds, Dilemmas of Democ-
ratization in Nigeria, Rochester: University of Rochester Press, 1997, pp. 91–106; E.E.
Osaghae, ‘‘The ‘Second Liberation’ and African Development,’’ in Myriam Gervais,
ed., Development: The Need for Reflection, Montreal: Centre for Developing Areas
Studies, 2000, pp. 22–29.
18. Ekeh, ‘‘The Concept of Second Liberation and the Prospects of Democracy in Africa,’’
p. 96.
19. Ekeh, ‘‘The Concept of Second Liberation and the Prospects of Democracy in Africa,’’
pp. 96–97.
20. J. Ihonvbere, Towards a New Constitutionalism in Africa, Centre for Democracy and
Development Occasional Paper Series No. 4, London: CDD, 2000.
21. Various contributions in P. Gibbon, Y. Bangura and A. Ofstad, eds, Authoritarianism,
Democracy and Adjustment: The Politics of Economic Reform in Africa, Uppsala: Nor-
diska Afrikainstitutet, 1992.
22. R. Dahl, ‘‘Democracy and Human Rights under Different Conditions of Development,’’
in O. Savic, ed., The Politics of Human Rights, London: Verso, 1999, p. 172.
23. Uhuru is Kiswahili (the commonest language for most of East, Central, and Southern
Africa) for ‘‘freedom’’.
24. L. Diamond, Developing Democracy: Toward Consolidation, Baltimore: Johns Hopkins
University Press, 1999, pp. 279–280.
15
Political development and
democratic rights in Greater China
Man-To Leung1
Human rights issues are among the most disputable issues in interna-
tional discourse. After World War II, various countries, especially the
European countries, felt an urgent need to have some kind of consensus
on the importance of respecting human rights. This led to an agreement
on a Universal Declaration of Human Rights (UDHR), the International
Covenant on Civil and Political Rights (ICCPR), the International Cov-
enant on Economic, Social and Cultural Rights (ICESCR), and dozens of
other international covenants and conventions.
Both the ICCPR and the ICESCR conventions came into force in
1976. Countries ratifying these two covenants have to submit reports to
the Human Rights Committee and can be criticized for violating human
rights. For those countries that have not ratified the conventions, the
force of international pressure comes indirectly through diplomacy and
the influence of international human rights NGOs. The three regions
in Greater China – the Mainland, Taiwan, and Hong Kong – have been
under pressure from various sources to improve their human rights
record.
Apart from international pressures, internal forces also affect human
rights implementation. The Republic of China (Taiwan) (ROC) was ef-
fectively governed by the Kuomintong (KMT) before the founding of the
Democratic Progressive Party (DPP). After the lifting of the martial law
in July 1987, the process of democratization sped up in Taiwan. It took
15 years for the DPP to take control of the government. Significant im-
339
340 MAN-TO LEUNG
provements in Taiwan’s socio-economic conditions now provide a solid

base for improving the implementation of political and civil rights.
The PRC is led by a Leninist party, the Chinese Communist Party
(CCP). The political system is the so-called ‘‘democratic centralism.’’ Since
the adoption of the open door policy, the PRC has emerged as a great
economic power. The economic system has changed from a command
economy to state capitalism and is on the road to private capitalism. It is
not clear whether this gradual change will induce democratization. Hong
Kong has been transferred from the colonial authoritarian government to
the local government of the PRC. The future of democracy in the Hong
Kong Special Autonomous Region (HKSAR) depends largely on the
political development in the PRC.
The Republic of China
Immediately after World War II, the Republic of China played an im-
portant role in the drafting process of the UDHR. With regard to the
Charter of the United Nations, China (represented by the ROC) made
substantive contributions to the provisions on international cooperation
in the solution of economic, social, cultural, and other humanitarian prob-
lems. At the end of the 183rd Meeting of the General Assembly, the
ROC voted in favour of the UDHR. Dr P.C. Chang, the ROC represen-
tative on the Commission on Human Rights, declared that the objectives
of the Declaration were to set up a universal moral standard.2
The ROC signed the ICCPR and the ICESCR in 1967, but did not
ratify them under the KMT government, although that government rati-
fied 16 other covenants.3 As a result, the ROC was not held formally
accountable to the international community. This is one reason why the
implementation of civil rights and political rights in the ROC was defec-
tive through the 1960s. After being expelled from the United Nations in
1971, the ROC has not been subject to international pressure with re-
spect to the implementation of these two covenants. Nevertheless, the
ROC government, under the leadership of the DPP, showing its deter-
mination to protect human rights better, ratified the two covenants in
April 2001. However, as the ROC is no longer recognized by the United
Nations as an independent sovereign country, the government in Taiwan
does not have to submit human rights reports to the United Nations, and
this has proved to be an important set-back to monitoring the human
rights situation in Taiwan.
In the past, despite the fact that the KMT government committed itself
to the drafting process of the UDHR and other covenants, the KMT had
been criticized as an authoritarian government suppressing human rights.
GREATER CHINA 341
Taiwan had been a Japanese colony for several decades before its res-
toration to Chinese control in 1945. The mainlanders, appointed by the
KMT, imposed authoritarian rule over the local Taiwanese, who are
mostly ancestors of migrants from the mainland to the island before
Japan’s occupation. The 28 February incident of 1947 was the first case
of massive human rights suppression. Later, the KMT and its followers
fled to Taiwan. Chiang Kai-shek imposed martial law on Taiwan in 1949,
suspending the Constitution and subjecting hundreds of individuals to
unlawful arrests, inhumane torture, long-term imprisonment, and extra-
judicial executions. In 1954, the National Assembly extended the Tem-
porary Provisions, which allowed the KMT to issue a Garrison Command
that placed people under martial law, thereby curtailing peoples’ demo-
cratic rights.
From its arrival in Taiwan in 1950 until 1986, the KMT was intolerant
of political opposition. Under the leadership of Chiang Kai-shek, internal
reform was slow. The KMT government introduced electoral competition
at the local level in the early 1950s. Direct elections were later extended
to cover the Provincial Assembly. Since the 1977 local election, the po-
litical opposition (Tangwai) has participated in local elections;4 however,
supplementary elections for the Legislative Yuan and the National As-
sembly were tightly controlled by the KMT. Together with activists and
intellectuals of both local and mainland origin, Lei Chen (the founder
and editor of the liberal journal Free China Fortnightly) attempted to
form the China Democratic Party in 1960. When this attempt failed and
Lei Chen was arrested, the development of political rights was severely
hindered.
More importantly, freedom of the press was not respected before the
lifting of martial law. Censorship by the government was vigorous during
the 1950s and 1960s. Violators of martial law faced long-term imprison-
ment. Despite improvements in the 1970s and the early 1980s, there was
widespread confiscation of underground magazines and newspapers: the
number of journals and newspapers banned from publishing continued to
increase in the 1980s.
Freedoms of demonstration and association were not respected, either.
The so-called Kaohsiung incident or Formosa incident of 10 December
1979 is perhaps the most significant human rights issue in Taiwan. A
massive demonstration organized by the Formosa (Mei-li Tao, the coali-
tion of dissidents) was held to celebrate International Human Rights Day
and to protest against alleged government violations of human rights;
however, the police brutally suppressed this demonstration and arrested
more than 100 members of the political opposition.
The seeds of democratization in Taiwan were sown during the pro-
cess of ‘‘Taiwanization’’ of the KMT in the 1970s.5 Under the leadership
342 MAN-TO LEUNG
of Chiang Ching-kuo, the percentage of local Taiwanese elected to the

KMT Central Committee increased from 6.1 per cent in 1969–1976, to
19.3 per cent in 1976–1981.6 As the local presence within the KMT ma-
tured, the original authoritarian system could not be maintained with-
out great cost. The political system under which mainlanders (who fol-
lowed Chiang’s family) had ruled Taiwan for several decades, gradually
changed. Martial law was imposed in the hope of retrieving the Main-
land from the CCP; as this hope proved illusory, martial law was lifted
in July 1987, during the final stage of Chiang Ching-kuo’s leadership.
Subsequently, the presence of ageing parliamentarians in the National
Assembly and the Legislative Yuan, who had not faced competitive
elections since the late 1940s, could no longer be justified.
Before the lifting of martial law, human rights activists fought for basic
civil and political rights through campaigns calling for the release of po-
litical prisoners; an end to the practice of blacklisting; and demands for
freedoms of speech, association, and assembly. The political opposition,
Tangwai, formed the DPP on 28 September 1986, a milestone event in
the democratization process of Taiwan.
After martial law was lifted in 1987, human rights movements pushed
Taiwan further towards democracy. Open elections for public offices were
held; the rights to free expression, assembly, and association were grad-
ually introduced. Human rights activists focused on the revision of un-
democratic laws and administrative regulations – such as the National
Security Law, the Parade and Assembly Law, the Civic Organizations
Law, and restrictions on radio broadcasting – all of which deprived peo-
ple of basic civil rights.
The democratic and human rights movement relied a great deal on
the student movement that emerged in the early 1970s. The KMT tried
to take control of the movement: for instance, by feeding ‘‘political stu-
dents’’ into universities, the KMT ensured that students would not par-
ticipate in anti-government campaigns or join political opposition groups.
In the early 1970s, however, some university students were actively in-
volved in protesting against the KMT’s weakness in the international
community after Taiwan’s withdrawal from the United Nations. This
nationalist movement soon developed into a campaign for political and
social reforms; however, the students’ enthusiasm was quickly channelled
into non-political social service campaigns.7 Student movements in the
1980s mainly focused on universities’ internal affairs,8 but some individ-
ual student activists joined the political opposition.
Towards the end of the 1980s, students were active in promoting de-
mocracy. Stimulated by the 4 June Tiananmen Square incident on the
Mainland and the democratic movements in Eastern Europe, Taiwan’s
students demonstrated, at the Chiang Kai-shek Memorial Hall in March
GREATER CHINA 343
1990, in favour of direct popular election of the president. President Lee

agreed to call for a National Affairs Conference from 28 June to 3 July
1990: this was the first step in the reform of the presidential system. On 1
May 1991, Lee Teng-hui went further, to announce the termination of the
Period of Communist Rebellion. In a White Paper published on 5 July
1994, the KMT government announced that the ROC would no longer
compete with Beijing for the right to represent China in the international
arena. This symbolic move was important in paving the way for direct
presidential elections. In fact, on 28 July 1994, the reformed National
Assembly voted to amend the constitution to allow for direct presidential
elections at the end of Lee Teng-hui’s presidential term in 1996. The un-
derlying message was that the directly elected future president would
represent the people living in Taiwan, not those living on the Mainland.
The cumulative effort of the political opposition paid off in March
2000, when Chen Shui-bian won the presidential election. This was the
most significant event on Taiwan’s path towards democratization, as it
was the first transfer of political authority from the KMT to the political
opposition; however, the KMT still controlled the Legislative Yuan. As
Taiwan suffered a serious recession in 2001, many observers were sur-
prised that the DPP won even more seats in the December 2001 election,
becoming the largest political party in the Legislative Yuan. Chen’s
strategy was to accuse the opposition – the KMT and the People First
Party – of irresponsible obstruction in the Legislative Yuan.
Democratization in Taiwan is a result of the social movements led
by local élites and of the democratic movements led by political leaders.
Human rights NGOs played an important part in promoting human rights
in Taiwan; however, because the two main local human rights NGOs –
the Chinese Association for Human Rights (CAHR) and the Taiwan
Association for Human Rights (TAHR) – have different political back-
grounds, it is difficult to predict whether sincere collaboration between
them will result in human rights initiatives.
With the support of the KMT, the CAHR was founded in 1979 after
the Formosa incident; however, it was criticized as a conservative orga-
nization used by the KMT to defend the deplorable human rights situa-
tion in Taiwan under martial law. In 1984, despite the existence of
martial law, the political opposition decided to set up its own organiza-
tion, the TAHR. This organization was under great pressure from the
KMT government and could not be officially registered until 1995. De-
spite the fact that the CAHR was formed much earlier than the TAHR,
the latter claims to be ‘‘the oldest independent human rights organization
in Taiwan.’’9 The implication is that the CAHR is not independent and
thus is biased. As the DPP now controls the government, it now seems
that the TAHR is not an independent organization: the CAHR has thus
344 MAN-TO LEUNG
become more and more critical of the current government. Ironically,

despite the apparent improvement in human rights implementation, the
CAHR published human rights indexes in 2001 and 2002 suggesting that
the human rights situation in Taiwan has deteriorated under Chen’s
presidency.10
Apart from the two main human rights NGOs, organized activities of
so-called disadvantaged groups developed into various types of human
rights movements – the environmental movement, labour movement,
women’s movement, the Hakka Rights movement, the Non-homeowners’
‘‘Shell-less Snail’’ movement, the Indigenous People’s Rights movement.
This resulted in a gradual expansion of Taiwan’s civil society.11 Never-
theless, the impact of these movements is restricted because of their lim-
ited financial support. Most local foundations are government-funded or
party-funded, and many NGOs depend on the government for financial
support. The ROC remains a country with a strong state and a weak civil
society: the state controls cultural groups; state-owned enterprises have a
major presence in the economy. The development of an independent
third sector was hindered by the lack of funding from sources other than
the government. Despite the fact that President Lee Teng-hui has re-
allocated resources to civil society, prospects for a healthy development
of civil society remain limited.12
The main determinant of human rights standards in the ROC has been
the nature of the political regime. As long as the KMT regime felt itself
under siege and maintained that it was the legitimate government of
all China, mainlander élites would not begin the process of transfer-
ring political rights and powers to the Taiwanese majority. However, as
rapid economic growth provided a new source of legitimacy and fuelled
the rise of a middle class, KMT leaders increasingly took advantage of
the opportunity to pursue mass legitimacy for the regime. Although this
did not make a full transition to democracy inevitable, it made it easier
for more enlightened KMT leaders to pursue this goal without jeopard-
izing the social and economic positions of the hitherto dominant main-
landers.
Towards the end of the 1990s, the KMT government led by President
Lee began to acknowledge past human rights violations. On 10 Decem-
ber 1999, Lee’s government established a human rights monument on
Green Island, where political prisoners had been imprisoned. The KMT
apologized to the victims of ‘‘White Terror’’ under martial law: such vic-
tims might now seek compensation from the government through legal
means. The DPP is determined to end the era of ‘‘White Terror’’: re-
cently, the DPP government announced that the prison on Green Island
would be shut down before the end of 2002;13 this is a symbolic action to
demonstrate that there will never be political prisoners again.
GREATER CHINA 345
Before the March 2000 presidential election, 22 NGOs formed a coali-

tion in December 1999 to exert pressure on candidates. They campaigned
for the establishment of the National Human Rights Commission and
forced the three chief presidential candidates – Chen Sui-bian, Lien
Chan, and James Soong – to address human rights issues. In his inaugural
address on May 2001, Chen declared his intention to strengthen human
rights implementation in Taiwan. In response to the demand of local hu-
man rights NGOs, the new president promised to work for the adoption
of international standards of human rights as domestic law.
In October 2000, President Chen established a President’s Advisory
Group on Human Rights, headed by Vice-President Annette Lu. This
group consists of 21 individuals, who are human rights activists, leaders
of human rights NGOs, and representative scholars. The group members
are responsible for promoting human rights education, raising human
rights consciousness among Taiwanese, advising the president on human
rights issues, reviewing existing legislation, and investigating human rights
abuses. In the long run, the group works for the establishment of an in-
dependent National Human Rights Commission.
The most acute problem in Taiwan under the KMT regime is the rule
of law. This is reflected in the problem of vote-buying and corruption.
In past elections, candidates have alleged that there has been large-scale
vote-buying; this is also evident in the recent election of mayors and
members of the Legislative Yuan. The new government of President
Chen is determined to eliminate political corruption. In addition, the le-
gal system should be better instituted so that the rule of law is respected
more fully. Given the situation of strong-state/weak-society in the ROC,
the lack of respect for the rule of law is detrimental to the implementa-
tion of human rights. Although many student activists under the ‘‘White
Terror’’ are now politicians or bureaucrats, as Taiwan is in the initial
stages of democratic consolidation it is not clear, at the moment, how far
they can facilitate democratic reform within their government.
According to the Corruption Perception Index provided by Transpar-
ency International, Taiwan was ranked 25th out of 41, with a score of
5.08 (10 is the full mark) in 1995, before the introduction of the direct
presidential election.14 The score increased to 5.9 in 2001, but then fell to
5.7 in 2002 (the rank is 29th out of 102). Democratization and, hence, the
better implementation of democratic rights seem to have contributed to a
reduction in corruption.
On the international level, the transition was also facilitated by close
military ties with the United States and international cultural and eco-
nomic integration. Again, these factors did not make a full transition to
democracy inevitable; rather, they provided sustained exposure to dem-
ocratic norms and models that were increasingly compatible with the
346 MAN-TO LEUNG
ROC’s internal development. This helped to convert the ruling main-

lander élites to the democratic norms championed by an increasingly self-
conscious and vocal Taiwanese civil society.
The People’s Republic of China
Although the PRC had not yet been established at the time of the draft-
ing process of the Universal Declaration, the representative of the CCP
(Dong Biwu) took part in the process. Nevertheless, owing to its isolation
policy, the PRC had not paid much attention to the development of the
international human rights regime since the early 1950s.15 The Cultural
Revolution – which, ironically, emerged in the year (1966) that the two
international covenants of human rights (ICCPR and ICESCR) were pro-
posed, and which ended in the year (1976) that the two covenants came
into force – was disastrous for human rights protection. Whereas, since
the adoption of the Open Door Policy, liberalization in the economic
sphere has become unstoppable, in the early stages of the economic re-
form human rights were still regarded as a bourgeois slogan.16
In the process of liberalization, the PRC faces a dilemma. If it opens
itself up to the world, it subjects itself further to international norms and
standards; this would curtail its sovereignty. From the PRC’s perspective,
human rights are used as a propaganda weapon by particular Western
countries to spread their political system and values all over the world.
Although Deng Xiaoping seldom talked about human rights directly,
nevertheless (under pressure from the West) he once made an infamous
comment: ‘‘What are human rights? Are human rights for the majority
or for the minority, or for the people of the whole country? So-called
‘human rights’ as understood in the Western World and human rights we
talk about are two different things. There are different viewpoints re-
garding this matter.’’17 Deng’s comments on the difference between the
Western interpretation of human rights and the PRC’s interpretation are
regularly quoted by Chinese officials and human rights scholars.
The Tiananmen Square incident marks an important turning point in
the attitude of the CCP toward human rights issues. The suppression of
the student anti-corruption movement to a certain extent undermined the
legitimacy of CCP rule. The CCP was forced to deal with the issue of
human rights. Before the Tiananmen Square incident, the notion of hu-
man rights was understood as a weapon used by the West to overthrow
the CCP: the initial response from the PRC was a ‘‘hard-line’’ policy
founded on the concept of national sovereignty, suggesting that the PRC
had the right to resist foreign intervention.18
After the suppression of the student movement in Tiananmen Square
GREATER CHINA 347
in June 1989 in the PRC, Western countries imposed various types of

sanctions on the PRC.19 The PRC’s official response to the West was re-
actionary: when dealing with international pressure, the CCP attempted
to launch a series of propaganda events to show that the PRC had always
guaranteed human rights.20 From the perspective of the Chinese gov-
ernment, an extensive study of human rights theory and practice in the
PRC was seen as indispensable to the development of a positive re-
sponse to the West. The early 1990s have thus seen a tide of human rights
studies in the PRC. This was triggered by an important change in official
attitudes towards the issue of human rights.21 Moreover, Chinese human
rights scholars attempted to develop a socialist theory of human rights to
back up official propaganda.22
Unlike previous attempts to deny the validity of human rights norms
in the late 1980s, CCP officials maintained in the 1990s that the human
rights situation in the PRC deserves examination. The White Paper on
Human Rights of 1991 was the first official document that dealt with the
human rights situation in the PRC. The Paper acknowledges that it is ‘‘a
long-term historical task for the Chinese people and government to con-
tinue to promote human rights and strive for the noble goal of full im-
plementation of human rights as required by the PRC’s socialism.’’23
Other official reports summarized the human rights situation in the
PRC.24 These reports are intended to show that human rights have been
sufficiently implemented in the PRC. The publication of these reports
does not imply that human rights implementation in the PRC is as ade-
quate as is depicted in the documents, or that it will necessarily improve:
these documents are largely the result of an attempt to take human rights
seriously among scholars and officials. Nevertheless, from the viewpoint
of the West, these reports are merely cover-ups of gross violations of
political and civil rights, and the validity of these reports was denied. To
be fair, just as no one can deny that the PRC has tried to improve its
legal system in order to protect human rights, equally no one can plausi-
bly declare that there are only a few defects in the protection of human
rights in the PRC.25
The PRC’s concessions to human rights norms are partly a result of
pressure from the international community. The pressure from interna-
tional human rights NGOs is of crucial importance. The CCP government
has been severely criticized by international NGOs, such as Amnesty In-
ternational, Human Rights Watch, Freedom House, and Human Rights
in China. These NGOs criticize not only the PRC but also all other
countries that violate human rights norms. The claim that human rights
promotion is a political weapon of particular countries in attempting to
overthrow the CCP government does not hold up in the face of these
criticisms. Freedom House ranks the record of political rights and the
348 MAN-TO LEUNG
protection of civil liberties in the PRC at the same level as that of Cam-
eroon, Congo, and Rwanda.26
As a response to persistent and harsh attacks from international NGOs,
the PRC appeals to relativism. While agreeing with the universality of
the human rights concept, PRC officials and human rights scholars claim
that the implementation of human rights should be subject to variations
of cultural contexts in different countries. In arguing for their views on
human rights, the PRC leaders also appeal to developmentalism,27 ac-
cording to which political and civil rights may be curtailed for the sake of
social and economic development.
Western countries, especially the United States, are unhappy with the
deplorable human rights situation in China. The United States and the
European Union have published reports on the human rights situation
in the PRC. In the last decade, attempts were made through the Human
Rights Commission of the United Nations to censure the PRC for its al-
legedly appalling human rights record. The PRC used a procedural rule
to block a vote on the merits of the Commission’s motion, which ex-
pressed deep concerns about the reports of violations of various civil
rights.28
Despite its reluctance to adopt the so-called Western perspective, the
Beijing government signed both the ICCPR and the ICESCR covenants
in 1998 in order to demonstrate the CCP’s commitment to human rights
protection. Other factors, including the bid for the 2008 Olympic Games
and efforts to gain World Trade Organization (WTO) membership, are
all part of Beijing’s increased effort to show this commitment in recent
years. The People’s Congress ratified the ICESCR in March 2001; the
PRC has ratified over thirty other conventions,29 and it is possible that
the People’s Congress will ratify the ICCPR in the near future.
As long as the CCP is in power, the United States and other Western
countries will continue to use ‘‘human rights’’ in international political
bargaining. Human rights will still remain a ‘‘structural weakness for the
PRC’s diplomacy’’ and an important part of many countries’ foreign pol-
icies towards the PRC.30 However, as the PRC now enters the WTO, the
PRC’s economic concerns will have much less influence on human rights
issues. It is not clear how far the international community may affect hu-
man rights implementation in the PRC in the future. What is important
for the development of the international human rights regime is sincerely
to respect human dignity and protect individual and group interests. The
role of international NGOs may prove to be even more important in the
implementation of human rights norms in the PRC in the future.
The PRC leadership’s gradual change in its attitude towards human
rights norms is not only a result of international pressure but also a
product of domestic pressure for democratization. The Democratic Wall
GREATER CHINA 349
Movement, led by the dissident Wei Jing-Sheng, is well known in its sig-
nificance as a grass-roots demand for political democratization. It origi-
nated in the discontent with the government’s failure to redress the
grievances of those who suffered in the Cultural Revolution;31 however,
as soon as CCP élites felt that their political monopoly was challenged,
the movement was suppressed.
Similar democratic movements occurred some 11 years later in 1989,
when the Chinese people were discontented with the corruption and
authoritarianism of the government. From the perspective of dissidents,
political democratization was seen as the only remedy for misgovern-
ment. Wei Jingsheng, Hu Ping, and Yan Jiaqi all appealed to the idea of
human rights.32 However, because the political monopoly of the CCP
was directly challenged, the demand for democratization was brutally re-
pressed. Large-scale political movements have changed into bold small-
scale attempts to organize political parties. These attempts have failed,
and organizers have been imprisoned or subjected to unlawful long-term
detention.
It should be noted that, whereas political reform at the national level
has been avoided, local political reforms have carried on since 1987, when
the Standing Committee of the National People’s Congress adopted the
Organic Law of Village Committees.33 The focus of political reform is
placed on village democracy. It looks promising but it poses serious diffi-
culties for the CCP, because many elected representatives at the village
levels are not CCP members.
Although the human rights situation before Deng’s death is well docu-
mented, it is useful to look at recent developments. First, people on the
Mainland cannot freely express ideas that differ from those of the CCP
political élites without fear of severe punishment. Freedom of expression
of those who oppose the CCP rule and policy has been reduced to a
minimum. In the summer of 2000, four right-wing scholars of the Chinese
Academy of Social Sciences, who openly urged the CCP fully to liberal-
ize the economy or who criticized President Jiang were expelled from
the institute. In the summer of 2001, leftists criticized President Jiang for
allowing ‘‘red capitalists’’ to enter the CCP, in a piece of ‘‘ten-thousand
words’’ circulated on the Internet. Subsequently, two journals that are
controlled by the leftists and supported by government funding were
banned. Democratic change in China is possible only if there is better
political and civil rights implementation. Freedoms of speech and expres-
sion are essential for democratization. Without a marketplace of ideas,
there will not be a ‘‘common democratic consciousness’’ that will pro-
mote political reform.34 It is reasonable to believe that the political con-
trol of free speech has become even tighter after the transition of political
power from the old generation to the new generation of CCP leaders in
350 MAN-TO LEUNG
late 2002: this is because, to ensure the legitimacy of the new leadership
and political stability, voices from opposition on the right and the left
need to be suppressed.
Second, religious freedom and freedom of association are still sup-
pressed.35 Political monopoly by the CCP is possible only if religions
are marginalized in (if not totally swept out from) the PRC. In Marx’s
dictum, religion is the ‘‘opium of the people.’’ Since 1999, Falun Gong
members have not been allowed to propagate their views and practise
their qigong in public.36 For many who practise qigong, it is incompre-
hensible that they would find themselves accused of committing a politi-
cal crime. Of course what Li Hongzhi, the founder of Falun Gong, has
in his mind is not known. It may be possible that Li Hongzhi intends
to subvert communist rule or, at least, to harass CCP leaders. But what
seems clear is that he is able to capture people’s dissatisfactions with the
government. The number of Falun Gong practitioners, estimated to be
more than 100 million all over the world, even exceeds the number of
CCP members, which is about 60 million. Many CCP members and even
government officials are Falun Gong practitioners. More importantly,
Falun Gong’s mobilization power is even greater than that of the CCP.
On 25 April 1999, 10,000 members of Falun Gong surrounded Zhong-
nanhai, the Beijing compound housing the CCP leaders. This not only
embarrassed the CCP leaders but also posed a threat to the political
leadership of the CCP. This was followed by the repression of Falun
Gong, and large-scale persecution of qigong associations, religious groups,
and family churches.
The message from the PRC leadership is very clear: no matter what
their background or class, intelligentsia, social élites, economic tycoons,
and religious leaders who support CCP rule are in good standing; those
who disagree with the CCP leadership, even if they are proletarians, will
be suppressed.
In contrast to the élites in civil society, the public is more concerned
about freedom of information. Freedom of information has been a key
human rights issue in the PRC. It seems that, in the foreseeable future,
this freedom will be even further restrained. The Beijing government
blocked domestic access to thousands of Internet websites early in Jan-
uary 2002.37 There are three reasons for the Beijing government having
done so: first, there is information on the Internet that is considered po-
litically sensitive and believed to convey messages that damage the image
of the government and its policies; second, the flow of information inevi-
tably introduces public space for free discussion, which, in turn, fuels
calls for democratization; third, cyberspace supersedes the territories of
nation-states. In cyberspace there is no supreme sovereignty, and there
is no central government. In the PRC’s efforts to resist international
GREATER CHINA 351
pressure for democratization and better implementation of human rights,

national sovereignty is of the utmost importance.
In order to maintain national sovereignty, the Beijing government
lays a heavy hand on the Internet. Observers are quick to point out that
virtual censorship is nothing but a defensive policy to prevent China’s
domestic cyberspace from being merged with foreign cyberspaces.38
However, it should be noted that high technology is also used to in-
terfere with exchange of information and opinions within the PRC. As
reported by Human Rights Watch, ‘‘the Ministry of State Security has
installed monitoring devices on Internet service providers capable of
tracking individual e-mail accounts.’’39
Apart from the Internet, the influence of foreign media on the people
exceeds the limit set by the CCP. The Beijing government has tightened
control over the media: there are new regulations that dictate who is
allowed to view overseas cable and satellite television broadcasts; from
December 2001 onwards, all universities, government institutions, hotels,
and residences have to re-apply for the right to view foreign television
programmes. This move calls for an 80 per cent reduction of foreign
television programmes in Beijing via cable and satellite. The ‘‘Provisions
on the Management of Satellite TV’’ clearly state that the move is con-
cerned with curbing the negative influence that, in the opinion of the
Beijing government, is exerted by foreign broadcasts.
Apparently, there is a sign of positive development: as revealed in
President Jiang’s speech of 1 July 2001, entrepreneurs who consent to
CCP rule are genuine red capitalists and may be able to join the CCP.40
It is obvious that the nature of the CCP will be changed if red capitalists
are allowed to enter the party: this move will result in a crisis of the for-
mal legitimacy of its rule. If the nature of the CCP has changed, its po-
litical legitimacy will be undermined and there is no a priori reason why
other groups of people cannot, and should not, form new political parties
and compete for political authority. If capitalists are able to grasp real
power, it will become more and more difficult to stop the rising middle
class from searching for political power in the future. Allowing red
capitalists to become members of the CCP induces more diverse voices
within the party but, ironically, this may result in further suppression of
dissidents. It is not at all clear whether or when this political reform will
end the CCP’s political monopoly.
The rise of red capitalists brings to the forefront the acute issue of
corruption. The problem of corruption in the PRC is worse than that in
the ROC: according to the Corruption Perception Index (CPI), the PRC
was ranked 40 (the second worst) with a score of 2.16 in 1995.41 Al-
though the score increased to 3.5 in 1998, from 1998 to 2002 there has
been no improvement on a CPI score of 3.5. One possible reason for the
352 MAN-TO LEUNG
stagnation is that, without democratization, the coalition between red

capitalists and government officials has remained strong; hence the prob-
lem of political corruption shows little improvement.
Economic liberalization led to greatly increased economic opportu-
nities, as well as ongoing legal reform efforts to build a more neutral rule
of law. However, the CCP’s desire to retain power has led it to slam the
brakes on civil and political rights whenever and wherever these appear
to create new political threats. Although international economic and
cultural integration and political pressure by Western governments and
NGOs have led the CCP to address human rights issues, so far this ap-
pears to be merely part of an effort to justify CCP policies designed to
maintain its political monopoly.
Hong Kong
Under British colonial rule, Hong Kong has had an undemocratic system
since the cession of sovereignty to the British in the unequal treaty in
1842. The system was undemocratic in two senses. The first concerns
Hong Kong’s constitution, which was founded on the Letters Patent is-
sued by the Crown: according to these Letters Patent, the British gov-
ernment had unrestrained power to invalidate any ordinances enacted by
the Hong Kong Legislative Council. The second sense concerns the way
in which legislators were elected: before 1991, legislators were appointed
by the Governor; It was not until 1991 that Hong Kong had directly
elected members in the Legislative Council.
The British persistently used force to suppress political dissent in Hong
Kong. The first large-scale use of force by the British can be traced
back to the 1920s, after strikes by the Seamen’s Union. The suppression
of freedom of speech can be traced back to 1925, when a local critical
newspaper, San Man Po, was ordered to be closed because of its anti-
British stance. Despite the fact that the British have boasted about their
achievements in Hong Kong, the human rights record under their rule
was poor before (and even after) World War II.42
Although Britain is a signatory to the ICCPR and ICESCR, the people
of Hong Kong hardly enjoyed their benefits, even in the 1970s and 1980s.
The Letters Patent did not contain any guarantee of civil liberties and
human rights, and the British attached some reservations to the ICCPR
that restrained Hong Kong people from political participation.43 The
British justified their reservations with the claim that Hong Kong was not
ready for self-governance;44 this is a typical nineteenth-century justifica-
tion for maintaining British rule in its colonies.
The attitude of the British changed (or was forced to change) when the
GREATER CHINA 353
British and Beijing governments signed the Sino-British Joint Declara-

tion in 1984, according to which there would be a transfer of sovereignty
from Great Britain to China. The agreement declared the establishment
of ‘‘one country, two systems,’’ with the emphasis on the protection of
human rights and the maintenance of the rule of law. Since the time of
Governor Grantham, Britain has expressed its commitment to ensure the
rule of law in Hong Kong.45
Although the colonial government did not promote democracy in Hong
Kong, it had attempted to establish a legal system as reliable as any other
liberal democracy since the 1970s. The anti-corruption campaign since
the early 1970s has been successful: to a certain extent, the success of
the Independent Commission Against Corruption (ICAC) safeguards the
maintenance of the rule of law, even after 1997.
In a Green Paper and a White Paper proposed in 1984, and believing
in its benevolence, Britain attempted to grant Hong Kong people the
right to elect directly members to the Legislative Council and the Mu-
nicipal Councils in 1988.46 This suggested either that Hong Kong people
were now ready for self-governance or that Hong Kong people, govern-
ing themselves under a system designed by the British, would be better
than the CCP governing Hong Kong directly. In any case, the direct
elections were postponed under pressure from Beijing; it was not until
1991 that the Legislative Council would be chosen in direct elections.
A further restraint on democratization in Hong Kong was the alleged
political apathy of its people. Yet, during the Tiananmen Square incident,
millions of Hong Kong people marched in the streets supporting the anti-
corruption student movement in Beijing. The CCP leaders feared that
Hong Kong might be turned into a base of subversion. Since the arrival
of Governor Chris Patten in mid-1992, the British had not ceased to
attempt to speed up the democratization process in Hong Kong. How-
ever, from the perspective of the PRC leaders, stepping up the democra-
tization process in Hong Kong was a Western anti-China conspiracy;
PRC officials even complained that the British tried to politicize Hong
Kong.
The 1990s witnessed important changes in the implementation of dem-
ocratic rights. The human rights movement pushed Hong Kong towards
democracy. Pro-democracy activists founded the Hong Kong Human
Rights Commission (HKHRC) in March 1988, to promote political and
civil rights. The HKHRC is a coalition of 11 NGOs, including religious,
community, women’s and students’ groups.47 In the early 1990s the
HKHRC remained inactive, apart from issuing occasional statements;
however, since 1997 the HKHRC has become much more active, led by
Mr Ho Hei-wah, the Director of the Society for Community Organiza-
tion, an active grass-roots organization.
354 MAN-TO LEUNG
In April 1995, another human rights NGO, the Hong Kong Human
Rights Monitor (HKHRM), was established by professionals and aca-
demics and sponsored by democrats.48 It focuses mainly on promoting
democratic rights. The organization publishes shadow reports on hu-
man rights, supplementing the government’s reports. By submitting these
shadow reports to the UN Human Rights Commission, the organization
attempts to present a critical perspective from civil society alongside the
official viewpoint of the government.
After the suppression of the student movement in June 1989 in Beijing,
Hong Kong people feared that the Chinese government would not fulfil
its promise to maintain ‘‘one country, two systems.’’ In response, Beijing
allowed the endorsement of two basic international covenants of human
rights in the Basic Laws for post-1997 Hong Kong. However, before the
People’s Congress passed the Basic Law in 1990, the colonial government
had planned to grant Hong Kong a Bill of Rights. In November 1989, the
former Governor of Hong Kong, Sir David Wilson, had revealed the in-
tention of the government to adopt a Bill of Rights for the people of
Hong Kong. In 1991 the Legislative Council passed the Bill of Rights,49
and the Letters Patent were amended to guarantee the ICCPR supremacy
over future ordinances.50
The Bill of Rights served two purposes. First, it tried to relieve the
confidence crisis in Hong Kong (as evidenced by another tide of emigra-
tion) after the Tiananmen Square incident. Second, the British believed
that they were obligated to make sure that Hong Kong would not be
turned into a totalitarian society ruled by the CCP; the Bill of Rights was
used to demonstrate the benevolence of the British. As the British had
granted a Bill of Rights in the Falkland Islands and other dependent ter-
ritories by the end of the 1980s, there seemed to be no reason why there
could not be one in Hong Kong, especially when the British government
was very uncertain about whether Hong Kong peoples’ rights would be
respected by Beijing after 1997.
As a cosmopolitan city, Hong Kong always tried to comply with inter-
national norms and standards. Before the take-over of Hong Kong by the
PRC, the Bill of Rights Ordinance assumed supreme constitutional sta-
tus. Section 4 of the Ordinance dictates that all legislation enacted on or
after the commencement date of the Ordinance shall be construed so as
to be consistent with the ICCPR as applied to Hong Kong. In February
1997, the Standing Committee considered that this section and two other
sections (2(3) and (3)) of the Bill of Rights Ordinance had an overriding
effect over other laws, including the Basic Law. Thus, the Committee
decided that they contravened the Basic Law and could not be adopted
after the take-over of Hong Kong by Mainland China.51 This move hin-
dered implementation of political and civil rights. For the pro-China local
GREATER CHINA 355
élite, there is no need to implement the Bill of Rights, as the Basic Law
already protects Hong Kong people’s basic rights and freedoms.52
Regarding the election in Hong Kong, in the first election under PRC
sovereignty, on 24 May 1998, pro-democracy candidates won more than
60 per cent of the directly elected seats in the Legislative Council. In
September 2000, elections for the Legislative Council were held for the
second time since 1997. It is noteworthy that only half of the seats in the
legislative body will be directly elected in 2003. The pace of democrati-
zation is severely restrained under the provisions of the Basic Laws.
In the early 1990s, PRC senior officials kept reminding Hong Kong
people and Western countries of the PRC’s commitment to guarantee
freedom of the press in Hong Kong.53 In 1994, however, reporter Xi
Yang was sentenced to 12 years in prison for allegedly stealing state se-
crets. The PRC’s action was a warning to Hong Kong reporters that they
should exercise greater self-restraint. During a trip to the United States
in March 1995, Lu Ping, the top official on Hong Kong Affairs, declared
that freedoms of the press and speech are guaranteed in Hong Kong;
however, in June 1996, he suggested that the freedom of the press in
Hong Kong could not remain unbridled.54 He warned that advocacy
of Hong Kong and Taiwanese independence would not be allowed after
the take-over.55 The Xi Yang incident definitely fostered self-censorship
among reporters and editors working in the local media. One way for the
PRC to restrict freedom of press in Hong Kong is to refuse visas to
blacklisted journalists.56 Following the reversion of Hong Kong to PRC
sovereignty, there has been no obvious evidence of direct interference
by the Beijing government, although it is likely that there is severe self-
censorship by members of the media themselves.57
Before and after the take-over, political power in Hong Kong was
vested in the hands of the entrepreneurs and pro-Beijing élite. In the
transition, both the first Chief Executive (Tung Chee-Hwa) and the Pro-
visional Legislature were chosen by a 400-member Selection Committee,
consisting mainly of entrepreneurs. The election of the new chief ex-
ecutive in 2002 was also by a selection committee, now consisting of 800
people. Even before the nomination period started, President Jiang, Pre-
mier Zhu, and Vice-Premier Qian Qichen openly announced their sup-
port for Tung. Although President Jiang Zhemin claimed that Tung was
widely supported in the HKSAR,58 this is not in accordance with the
facts: popular support for Tung has remained weak since the take-over.
Given the blessing of the Beijing leaders, the élite cohesion inevitably
guaranteed that Tung was re-elected. The pace of democratization in
HKSAR is exceptionally slow.
The take-over of Hong Kong posed a challenge for the PRC. The CCP
leaders sincerely hoped that the success of Hong Kong would continue.
356 MAN-TO LEUNG
In spite of the fact that the PRC intends to grant autonomy to Hong
Kong, the CCP leaders have to ensure that the HKSAR will not become
out of control; they hope to prove that ‘‘one country, two systems’’ is
also a suitable model for the reintegration of Taiwan and the Mainland.
However, no significant improvement in the implementation of human
rights has been made. Two incidents merit a brief discussion – namely,
Falun Gong and the right of abode.
Falun Gong poses a challenge to the HKSAR government. In order to
maintain the autonomy of the special administrative region, the govern-
ment allows Falun Gong practitioners in the HKSAR to demonstrate and
to organize public meetings. The local leftists and pro-China élite have
been urging the government to enact laws to prohibit acts of subversion
against the central government. The laws in the PRC forbidding treason,
secession, sedition, and subversion against the government are not appli-
cable to the HKSAR, as, according to Article 23 of the Basic Law, the
region has to enact its own laws. Nevertheless, as it is an extremely sen-
sitive issue, the region has not enacted its own laws to punish treason,
secession, sedition, and subversion against the government. Since the
Falun Gong practitioners do not violate the laws of the HKSAR, they are
allowed to promote their beliefs and practise their qigong publicly.
Another major human rights issue after 1997 is that of the right of
abode. Because of lack of resources and the allegedly heavy economic
burden on public expenses, the HKSAR Government decided to exert
strict control over the quota of immigrants from the Mainland, thereby
failing to assist those who have the right to come to HKSAR for the
purpose of family reunion.59 On 10 July 1997, the Provisional Legislative
Council, whose members are pro-Beijing, enacted two ordinances to pro-
hibit the originally qualified immigrants from entering HKSAR without
prior application.
Human rights activists objected on the grounds that the government
was violating a basic human right to have a family reunion. The defend-
ers of the mainlanders who have the right of abode argued that the re-
strictions breached the Basic Law, and the mainlanders submitted a legal
appeal; subsequently, on 29 January 1999, the Court of Final Appeal de-
clared the two ordinances unconstitutional. In June 1999 a major debate
arose over whether the HKSAR Government should seek the judgement
of the Standing Committee of the National People’s Congress (NPCSC)
in Beijing for interpretation of the Basic Law on Right of Abode. How-
ever, critics argued that it was inappropriate for the HKSAR government
to seek an NPCSC interpretation because this would infringe the auton-
omy of the HKSAR. The government decided to seek an interpretation
from the NPCSC, which subsequently declared that the HKSAR gov-
ernment’s immigration ordinances are constitutional and that the verdict
GREATER CHINA 357
of the Court of Appeal was inconsistent with the basic intent of the Basic
Law. Accordingly, the rights of abode of qualified immigrants were cur-
tailed.
Since the take-over, the PRC intends to demonstrate that the human
rights of HKSAR are well protected. Although the PRC, the sovereign
authority in HKSAR, has yet to ratify the ICCPR, the Central People’s
Government has made special arrangements for HKSAR to submit the
reports to the treaty-monitoring body and to attend this hearing. How far
these reports reflect the real situation is, however, debatable.
It should be noted that, as in the case of Taiwan, democratization and
the improved implementation of democratic rights has reduced the level
of corruption in Hong Kong: from 1995 to 1997, the CPI score was be-
tween 7.01 and 7.28; it increased to around 7.7–8.2 in the period from
1998 to 2002.60 Thus, despite HKSAR’s difficulties in coping with the
Asian economic crisis, the prevalence of corrupt practices seems to have
decreased.
To sum up, human rights violations in the ROC and PRC are driven by
policies that suppress freedom of association, of speech, and of expres-
sion. Despite the protection promised by the laws, the political system
in Hong Kong remains largely undemocratic after the take-over by the
PRC. Government officials are held accountable to the Chief Executive
of HKSAR rather than to the people. Thus, it is the PRC-backed regime
and its larger power-conserving objectives that stand in the way of further
progress relating to civil and political rights in HKSAR.
Prospects for human rights implementation in

Greater China
The international human rights movement is faced with the difficulty that
not all sovereign states have ratified the international covenant, thereby
accepting their provisions as binding. From this perspective, regional in-
struments have proved to be indispensable in enabling the protection
of human rights.61 Regional commissions on human rights – such as the
African, the Inter-American, and the European commissions – provide
viable instruments for human rights protection in their respective re-
gions.62 The Asian Human Rights Commission (AHRC) was founded
in 1986 by a prominent group of jurists and human rights activists in
Asia;63 however, unlike other regional commissions, the establishment of
the AHRC was not endorsed by Asian governments. The AHRC is only
a non-governmental body seeking to promote greater awareness and
better implementation of human rights in the Asian region. For cultural
and political reasons, there is no intergovernmental regional instrument
358 MAN-TO LEUNG
for Asia as a whole: the countries of that continent embrace a wide range
of cultures with a great diversity of religious and cultural traditions. Un-
fortunately, conflicts between the constituent nations persist at the sub-
regional level.
Without an intergovernmental regional instrument, it is difficult to
monitor the human rights situation in Greater China at the regional level.
Since there is no intergovernmental human rights organization in Asia,
the role of NGOs is of crucial importance, Amnesty International and
Human Rights Watch Asia being the most influential NGOs in this re-
gion. The PRC, the ROC, and Hong Kong should cooperate with the in-
ternational NGOs and endeavour to achieve the objectives stated in the
Asian Charter.
In Taiwan, the KMT government was protected by Taiwan’s diplo-
matic isolation from international pressure; however (ironically), Tai-
wan’s isolation now constitutes an obstacle to the promotion of human
rights. The ROC is moving forward as human rights activists are working
towards the establishment of a National Human Rights Commission. To
go further, the DPP government should promote exchanges with the in-
ternational human rights community. In Hong Kong, the implementation
of democratic rights depends on the provisions of the Basic Law. The
HKSAR government should submit reports to the UN Human Rights
Commission that truly reflect HKSAR’s human rights situation. Interna-
tional pressure and the effort of local NGOs can be effective in pressing
for improved human rights provisions in Greater China.
When we compare the situation in the PRC, Hong Kong, and the
ROC, one has to ask if the rule of law should have higher priority than
democracy in the course of political development, or vice versa. Taiwan
and Hong Kong have taken two different routes towards political devel-
opment: Taiwan is more democratic than Hong Kong in the sense that, in
Taiwan, there are more open competitions for most of its political offices;
however, Hong Kong has a better legal system, as the rule of law is re-
spected to a greater degree. The PRC’s performance is the worst in terms
of both democracy and the rule of law; however, it is not certain that
a sudden transition from democratic centralism to a multi-party system
would be a useful path to take. Arguably, it would be more promising to
follow the Taiwan and Hong Kong precedents and focus first on the rule
of law and economic prosperity. Once China has attained economic
development and a rule of law comparable to those of Hong Kong or
Taiwan, there will be greater internal pressure for enhanced political
rights. The CCP regime will have an easier pathway towards political lib-
eralization, as did the KMT before it in Taiwan. However, it is difficult
to predict whether the CCP would take the democratic route.
Greater China remains deficient in three main areas – rule of law, in-
GREATER CHINA 359
dependence of the judiciary, and accountability of the police and military

authorities. Discrimination in all its forms remains pervasive. Human
rights consciousness among the people is relatively low. Although gov-
ernment leaders are familiar with international human rights norms and
mechanisms, they seldom take these provisions seriously. Local NGOs in
Taiwan and Hong Kong and international NGOs should launch more
joint campaigns to protect basic civil and political rights, safeguard due
process of law, secure fair trials, and eliminate all types of discrimination.
Notes
1. This chapter is based on research conducted within a broader project on ‘‘The Theory
and Practice of Human Rights in mainland China, Hong Kong, and Taiwan: A Com-
parative Study’’ (Grant No.: HKU 7129/98H), which is financially funded by the Hong
Kong Research Grant Council. The author would like to thank Dr Joseph C. W. Chan,
as well as the editors and referees of this book, for valuable suggestions in the prepara-
tion of this chapter.
2. See Kuen-Chen Fu, ‘‘Application of International Human Rights Law within the Legal
Framework of the Republic of China,’’ Journal of Social Sciences (Taiwan), No. 37,
1988, pp. 488–489.
3. See hhttp://www.tahr.org.tw/internaliz/nu.htmli (in Chinese), accessed on 12 November
2001.
4. For the development of the Tangwai into the DPP see Alexander Ya-Li Lu, ‘‘Political
Opposition in Taiwan: The Development of the Democratic Progressive Party,’’ in Tun-
jen Cheng and Stephan Haggard, eds, Political Change in Taiwan, Boulder: Lynne
Rienner Publishers, 1992, pp. 121–145.
5. Hung-mao Tieb, ‘‘Transformation of an Authoritarian Party State: Taiwan’s Develop-
ment Experience,’’ Political Change in Taiwan, pp. 40–43.
6. Yun-han Chu, ‘‘Taiwan’s Unique Challenges,’’ Journal of Democracy, No. 7, 1996,
p. 73.
7. Hsin-huang Michael Hsiao, ‘‘The Rise of Social Movements and Civil Protests,’’ in
Political Change in Taiwan, p. 62.
8. Jaushieh Joseph Wu, Taiwan’s Democratization, New York: Oxford University Press,
1995, pp. 66–67.
9. See hhttp://www.tahr.org.tw/english/engintro1.htmli.
10. See hhttp://www.cahr.org.tw/human.htmi.
11. Hsin-huang Michael Hsiao, ‘‘The Rise of Social Movements and Civil Protests,’’ in
Political Change in Taiwan, pp. 63–69.
12. For an overstatement see Chyuan-jeng Shiau, ‘‘Civil Society and Democratization,’’
in S. Tsang and Hung-mao Tien, eds, Democratization in Taiwan, London: Macmillan,
1999, p. 114.
13. China Post, 1 January 2002.
14. See hhttp://www.gwdg.de/~uwvw/i.
15. R. Cohen, ‘‘People’s Republic of China: The Human Rights Exception,’’ Human Rights
Quarterly, No. 9, 1987, pp. 447–549.
16. Xiao Weiyun, Luo Haocai, Wu Xieying, ‘‘Makesi zhuyi zenmayang kan ‘renquan’
wenti’’ (‘‘How Marxism Views the Question of Human Rights’’), Hongqi (‘‘Red Flag’’)
No. 5, 1979.
360 MAN-TO LEUNG
17. See hhttp://english.peopledaily.com.cn/dengxp/i.

18. John F. Cooper, ‘‘Peking’s Post-Tiananmen Foreign Policy: The Human Rights Factor,’’
Issues and Studies, 1994, pp. 49–73.
19. For a discussion with regard to the MFN status see R.F. Drinan, S.J. and T.T. Kuo,
‘‘The 1991 Battle for Human Rights in China,’’ Human Rights Quarterly, Vol. 14, 1992,
pp. 19–42.
20. For an insightful treatment of China’s response see Rosemary Foot, Rights Beyond
Borders: The Global Community and the Struggle over Human Rights in China, Oxford:
Oxford University Press, 2000.
21. Zhou Wei, ‘‘The Study of Human Rights in the People’s Republic of China,’’ in J.T.H.
Tang, ed., Human Rights and International Relations in the Asia Pacific, London: Pinter,
1995, p. 83.
22. For a list of selected Chinese human rights literature see Zhu Guobin, ‘‘Research on
Human Rights in China: A General Survey and an Annotated Bibliography of Selected
Chinese-Language Publications,’’ China Law Reporter, Vol. VIII, 1999, pp. 157–185.
23. Information Office of the State Council, Human Rights in China, Beijing: Foreign Lan-
guages Press, 1991, p. III.
24. All these documents and other official reports, such as reports on human rights in Tibet
and women’s rights, are collected in Dong Weizhen, Zhongguo Renquan Baipishu
Zonglan (A Collection of White Papers on Human Rights in China), Sichuan: Sichuan
Renmin Chubanshe, 1998.
25. In fact, the legal system of China has been under severe criticism from the human rights
perspective. See, for example, Guo Luoji, ‘‘A Human Rights Critique of the Chinese
Legal System,’’ Harvard Human Rights Journal, No. 9, 1996, pp. 1–14.
26. The scores of China are 7 and 6, respectively, with 7 referring to the least free category.
See hhttp://216.119.117.183/research/freeworld/2001/table1.htmi. The score of China has
stayed roughly the same over the last decade.
27. Michael J. Sullivan, ‘‘Development and Political Repression,’’ Bulletin of Concerned
Asian Scholars, No. 27, 1995, pp. 24–39.
28. See R. Foot, Rights Beyond Borders: The Global Community and the Struggle over Hu-
man Rights in China, New York: Oxford University Press, 2000, chapter 7; Ann Kent,
China, the United Nations, and Human Rights: The Limits of Compliance, Philadelphia:
Pennsylvania Press, 1999, chapter 7.
29. For a list of these conventions in Chinese, see Li Yunlong, Renquan Wenti Gailun (A
Comprehensive Study of Human Rights Issues), Sichuan: Sichuan Renmin Chubanshe,
1998, pp. 138–142.
30. Cf. A. Nathan, ‘‘Human Rights in Chinese Foreign Policy’’, China Quarterly, 139, 1994,
p. 643; R. Foot, Rights Beyond Borders, p. 165.
31. Hua Sheng, ‘‘Big Character Posters in China: A Historical Survey,’’ Journal of Chinese
Law, No. 4, 1990, p. 245–251.
32. See Baogang He, The Democratization of China, London: Routledge, 1996, chapter 4.
33. D. Kelliher, ‘‘The Chinese Debate over Village Self-Government,’’ The China Journal,
No. 37, 1997, pp. 63–86; Tianjian Shi, ‘‘Village Committee Elections in China: In-
stitutionalist Tactics for Democracy,’’ World Politics, No. 51, 1999, pp. 385–412.
34. Peter Lin, ‘‘Between Theory and Practice: The Possibility of a Right to Free Speech in
the People’s Republic of China,’’ Journal of Chinese Law, No. 4, 1990, p. 268.
35. For a discussion of religious rights in China see E. Kolodner, ‘‘Religious Rights in
China: A Comparison of International Human Rights Law and Chinese Domestic Leg-
islation,’’ Human Rights Quarterly, No. 16, 1994, pp. 455–490.
36. Danny Schechter, Falun Gong’s Challenge to China: Spiritual Practice or ‘‘Evil Cult’’?,
New York: Akashic Book, 2000.
GREATER CHINA 361
37. ‘‘China Issues Internet Controls,’’ 18 January 2002, Associated Press, hhttp://www.
washingtonpost.com/wp-dyn/articles/A2124-2002Jan18.htmli.
38. Jack Linchuan Qiu, ‘‘Virtual Censorship in China: Keeping the Gate between the Cy-
berspaces,’’ International Journal of Communication Law and Policy, No. 4 1999/2000,
p. 3.
39. ‘‘China and Tibet,’’ Human Rights Watch World Report 2000, available at hhttp://
www.hrw.org/wr2k/Asia-03.htm#i.
40. Jiang Zemin’s Speech at the Meeting Celebrating the 80th Anniversary of the Founding
of the Communist Party of China, Section III. Available at hhttp://www.china.org.cn/
e-speech/a.htmi.
41. See hhttp://www.transparency.orgi.
42. For an excellent account see Richard Klein, ‘‘The Empire Strikes Back: Britain’s Use of
the Law to Suppress Political Dissent in Hong Kong,’’ Boston University International
Law Journal, No. 15, 1997, pp. 1–70.
43. Nihal Jayawickrama, ‘‘Hong Kong and the International Protection of Human Rights,’’
in R. Wacks, ed., Human Rights in Hong Kong, Hong Kong: Oxford University Press,
1992, pp. 129–131.
44. Linda Butenhoff, ‘‘East meets West: Human Rights in Hong Kong,’’ in Peter Van Hess,
ed., Debating Human Rights, London: Routledge, 1998, pp. 107–109.
45. Shiu-hing Lo, The Politics of Democratization in Hong Kong, London: Macmillan, 1997,
p. 49.
46. See Hong Kong Government, The Further Development of Representative Government
in Hong Kong, Green Paper, July 1984; Hong Kong Government, The Further Devel-
opment of Representative Government in Hong Kong, White Paper, 1984.
47. See hhttp://www.hkhrc.org.hk/i.
48. See hhttp://www.hkhrm.org.hk/i.
49. For a detailed discussion of the Bill of Rights see Raymond Wacks, ed., Hong Kong’s
Bill of Rights, Hong Kong: Faculty of Law, University of Hong Kong, 1990; Johannes
Chan and Yash Ghai, eds, The Hong Kong Bill of Rights: A Comparative Approach,
Singapore: Butterworth Asia, 1993.
50. A.Y. Chen, ‘‘The Interpretation of the Basic Law,’’ Hong Kong Law Journal, No. 30,
2000, p. 418.
51. See Peter Wesley-Smith, ‘‘Maintenance of the Bill of Rights,’’ Hong Kong Law Journal,
No. 27, 1997, pp. 15–16, and Yash Ghai, ‘‘The Continuity of Laws and Legal Rights and
Obligations in the SAR,’’ Hong Kong Law Journal, No. 27, 1997, pp. 141ff.
52. Article 4 of the Basic Law reads, ‘‘The Hong Kong Special Administrative Region shall
safeguard the rights and freedoms of the residents of the Hong Kong Special Adminis-
trative Region and of other persons in the Region in accordance with law.’’
53. See, for example, ‘‘Assurance on Freedom for Journalists,’’ South China Morning Post,
10 April 1995.
54. D.C. Turack, ‘‘The Projected Hong Kong Special Administrative Region Human Rights
Record in the Post-British Era,’’ Akron Law Review, No. 31, 1997, pp. 96–97.
55. See Frances H. Foster, ‘‘The Illusory Promise: Freedom of the Press in Hong Kong,
China,’’ Indiana Law Journal, No. 73, 1998, pp. 765–796.
56. James E. Sciutto, ‘‘China’s Muffling of the Hong Kong Media,’’ Annals of the American
Academy of Political and Social Science, No. 547, 1996, p. 136.
57. W.H. Overholt, ‘‘Hong Kong: the Perils of Semidemocracy,’’ Journal of Democracy, No.
12, 2001, p. 7.
58. Ming Pao, 20 December 2001.
59. J.M.M. Chan, H.L. Fu, and Y. Ghai, eds, Hong Kong’s Constitutional Debate, Hong
Kong: Hong Kong University Press, 2000.
362 MAN-TO LEUNG
60. See hhttp://www.transparency.orgi.

61. For a discussion of the role of regional instruments in human rights protection see T.
Meron, Human Rights Law-Making in the United Nations: A Critique of Instruments and
Process, Oxford: Clarendon Press, 1986, pp. 165ff, 229ff.
62. See hhttp://www.hg.org/cgi-bin/redir.cgii and hhttp://www.umn.edu/humanrts/africa/
index.htmli.
63. See hhttp://www.ahrchk.net/index.htmli.
16
Human rights in India
D.R. Kaarthikeyan
‘‘Om Sarvey bhavantu Sukhinaha

Sarvey Santu Niraamayaha
Sarvey Bhadraani pashyantu
Ma kashchit dukhbhaak bhavet’’1
[Om, May all be happy
May all be healthy
May all see auspiciousness
May none suffer.
Om, Peace be! Peace be!! Peace be!!!]
From ‘‘Vasudaiva Kutumbakam’’ – an ancient scripture of India in Sanskrit
language
The human rights movement in India is an offshoot of the social and cul-
tural renaissance that began in nineteenth-century British India. The es-
tablishment of British rule united the subcontinent. The pioneering work
of orientalists such as Sir William Jones, James Prinsep, Charles Wilkin,
and Max Muller established and promoted intellectual unity.
However, the ideals of modern-day human rights can be seen in vari-
ous classic religious and secular sources, such as the Vedas, Puranas, and
epics. Although human rights in the ancient Indian literature did not
form a coherent unified structure, they were widely referred to. The Rig
Veda talks about three civil liberties – Tana (body), Skridhi (dwelling
house), and Jibazi (life). Mahabaratha, the great Indian epic, describes
363
364 KAARTHIKEYAN
civil liberty of the individual in a political state.2 The Aitareya Brahmana

states that kings were required to act according to ‘‘whatever law there is
and whatever is dictated by ethics and not opposed to politics.’’3 The
Arthasastra, the greatest political treatise of ancient India, written by
Kautilya, provides for detailed civil and legal rights. It states that ‘‘the
king shall provide the orphan, the aged, the infirm, the afflicted and
helpless with maintenance. He shall also provide subsistence to the help-
less expectant mothers and also to the children they give birth to.’’4 The
Manusmriti, Mahabaratha, and Arthasastra also focus on the conduct of
war – when a war should and should not be fought, as it was one major
cause of human rights violations in ancient India. Furthermore, the un-
derlying principle of vasudaiva kudumbakam propounded the concept of
universal equality.5
In modern history, Raja Ram Mohan Roy can be considered as the
father of India’s human rights movement. He was the first to oppose all
discriminations and evil practices against women. He pursued his efforts
against polygamy and sati (widow burning) at two levels: first, he ap-
proached the British rulers directly to legally ban such practices; second,
he mobilized the masses in favour of such a ban. He published Modern
Encroachments on the Ancient Rights of Females according to the Hindu
Law of Inheritance in 1822 and established Brahmo Samaj in 1828. The
Brahmo Samaj deplored sacrifice and emphasized love of mankind, irre-
spective of colour, race, or creed. As a result of Raja Ram’s efforts, Lord
William Bentinck, then Governor-General, passed Regulation XVII in
December 1829, which declared sati illegal and punishable. Thus began
the human rights movement in India in the 1820s.
The formation of Brahmo Samaj led to the growth of an organized
social movement, which gave importance to many modern-day human
rights ideals. Keshav Chandra Sen,6 following Raja Ram, took up issues
such as women’s education and intercaste marriage, and began a cam-
paign against child marriage. Sen started a fortnightly journal called the
Indian Mirror (which later became the first Indian daily in India) to
propagate these ideals. Jyotiba Phule7 took up the ‘‘untouchable’’ issue
and began an organized crusade against untouchability. He formed Satya
Shodak Samaj in 1873 to liberate the oppressed castes and to create
awareness among them. The Theosophical Society was established in the
1870s and preached universal brotherhood of men, irrespective of caste,
creed, and race.
The efforts of these various nineteenth-century movements were re-
flected in the Indian National Congress in the twentieth century. The
Congress fought both against the British and the social evils within India.
Long before Indian independence, Jawaharlal Nehru, Mahatma Gandhi,
and other Congress leaders created awareness on various human rights
INDIA 365
issues. The Indian National Congress, to an extent, could be considered

as one of the largest human rights movements. The Motilal Nehru Com-
mittee, appointed in 1928, made recommendations that include the fol-
lowing:
0 personal liberty and inviolability of dwelling place and property;
0 freedom of conscience and of profession and practice of religion;
0 right of free expression of opinion;
0 right to free elementary education;
0 equality for all citizens before law.
When India became independent, these ideals were reflected in its new
constitution, especially in the Fundamental Rights and the Directive
Principles of State Policy.
However, promulgation of a new constitution incorporating various
human rights provisions did not automatically do away with violations.
The age-old traditions and evil practices, coupled with problems facing a
newly independent country, proved to be an effective stumbling-block in
achieving the human rights objectives. Even today, problems of nation-
building and society-building haunt the country. As a result, human
rights violations still persist, despite the efforts made over the last 53 years.
The change-over and transition did not come overnight: the process
has been spread over centuries. India’s freedom movement led by Ma-
hatma Gandhi brought about considerable diminution and reduction in
age-old inequalities in social, economic, and political spheres. The delib-
erations that took place during the formation of the United Nations and
those discussions in the UN General Assembly, which ultimately led to
the Universal Declaration of Human Rights, had a great impact on the
Constituent Assembly of India and the founding fathers of the Indian
Constitution.
This chapter analyses forms of human rights violations; their causes;
provisions in the constitution; and the role of the government, the judi-
ciary, and governmental and non-governmental organizations in fighting
human rights violations.
Violence against children: Child labour and abuse
According to the 1991 census estimates, some 11.3 million children of 200
million aged between 5 and 14 years are engaged in child labour.8 These
children work in various spheres, from agriculture to mining. Although
the practice continues (despite a ban and a series of court verdicts), en-
couragingly, child labour is in decline. According to the National Sample
Survey, there were 16.3 million child labourers in 1981 and 11.3 million in
1991.
366 KAARTHIKEYAN
There are at least three types of child labour. First, there is non-
monetary domestic labour: in this case, girls do most of the domestic
work. Second, there is monetary labour, which is non-domestic: here,
children are employed as wage labourers in organized and unorganized
sectors, both in rural and urban areas. Third, there is bonded labour,
where children are pledged by their parents.
Most of the child labourers are employed primarily in the agricultural
sector as workers. They also work in industries including leather facto-
ries, hosiery units, carpet factories, glass factories, textile units, and plas-
tics factories. Some work as servants in private homes. Worse, some work
as bonded labourers and sex workers. According to a UNDP Position
Paper on Child Labor, India accounts for the largest number of child
workers in the world.9 According to a UNICEF study, there are more
than 100,000 child labourers in the Mirzapur carpet industries, 50,000 in
the Firozabad glass industries, 30,000 in the Moradabad brass industries,
and 10,000 in the Aligarh lock industries (which manufacture various
articles – such as locks, scales, letter boxes, badges, knives, and scissors –
for supply to the postal department country-wide).10
The government and child labour
The Indian government has passed several laws prohibiting child labour,
the most important being the Child Labour (Prohibition and Regulation)
Act of 1986, which prohibits employment of children below 14 years of
age in specified hazardous occupations and processes. The Juvenile Jus-
tice Act (1986) superseded all existing legislation related to children in
Cultivation Agricultural labour

34.8% 41.2%
Others
5.6%
Mining and quarrying
Household industries
6.5%
4.0%
Trade and commerce
2.5%
Manufacturing (excluding
household industries)
5.4%
Figure 16.1 Where children work

INDIA 367
different states and Union territories. The Act provides for the creation
of Advisory Boards and the establishment of State Children Funds, the
objective of which is to protect children and to provide educational,
training, and rehabilitation facilities for neglected children. In 1993, the
Union government set up a National Authority to eliminate child labour.
It provided rupees 850 crore (Rs8.5 billion; US$185 million), which
aimed to benefit two million child labourers by undertaking measures on
education, poverty reduction, and awareness creation.
The Constitution, Supreme Court, and child labour
The following articles of the Indian Constitution prohibit child labour:

according to Article 23, ‘‘traffic in human beings and beggar and other
similar forms of forced labour are prohibited and any contravention of
this provision shall be an offence punishable in accordance with law.’’
Article 39 (f) states that ‘‘children are given opportunities and facilities
to develop in a healthy manner and in conditions of freedom and dignity
and that childhood and youth are protected against exploitation and
against moral and material abandonment.’’
The Supreme Court of India, in December 1999, directed the with-
drawal of children from hazardous occupations. It has also constituted a
welfare fund for children and has regulated working conditions in non-
hazardous occupations. Earlier, in M.C. Mehta v. State of Tamil Nadu
(known as the Child Labour Abolition Case), the Supreme Court ruled
that children less than 14 years of age cannot be employed in any haz-
ardous industrial, mining, or other employment.11 In addition, the Court
also directed the government to set up a Children Labour Rehabilitation
Welfare Fund, and ordered the offending employers to pay each child
Rs20,000 (US$435) as compensation. In non-hazardous jobs, children
should not work for more than four to six hours and the employer should
provide education for them.
The implementation of these judicial decisions varies from place to
place, depending on the level of awareness and political commitment of
the states. The increasing influence of NGOs, the media, and a proactive
judiciary has, to a great extent, made it possible for these regulations to
be adhered to.
Violence against women
Violence against women in India mainly relates to dowry deaths, female

infanticide and foeticide, sati (widow burning), and rape. Other forms of
violence against women include sexual abuse, wife beating, eve teasing,12
368 KAARTHIKEYAN
Table 16.1 Crimes against women in India, 1990–2000

Crime 1990 1999 2000
Rape 9,518 15,468 16,496
Kidnapping and abduction 11,699 15,962 15,023
Dowry deaths 4,836 6,699 6,995
Torture 13,450 43,823 45,778
Molestation 20,194 32,311 32,940
Sexual harassment 8,620 8,858 11,024
Source: National Crime Records Bureau.
and the refusal to allow women to inherit. The Indian National Crime
Records Bureau (NCRB) provides statistics of crimes against women in
the last decade (table 16.1). The increase in crimes is mainly due to an
increased willingness to report them, driven in part by a growing aware-
ness of women’s rights, pressure on law enforcement agencies, and the
work of voluntary organizations.
According to the statistics shown in table 16.2, the states of Rajasthan,
Madhya Pradesh, and Delhi record the highest levels of crimes against
women, whereas states such as Nagaland, Meghalaya, and Punjab have
reported lower levels.13 As table 16.3 reveals, lower-class women have
most crimes committed against them.
Dowry
Dowry is a major issue in crimes against women. Dowry is defined as any

property or valuable security given, or agreed to be given, directly or in-
directly, by one party to the marriage, or by parents of either party to the
marriage, or by any person to either party to the marriage, or to any
other person at (or before, or at any time after) the marriage, in connec-
tion with the marriage of the said parties.14
Dowry has been one of the most significant factors in violence against
women: it results in harassment, beating, and (in many cases) murder.
According to the NCRB, in 2000 alone there were 6,995 dowry deaths.
Dowry deaths per year have increased significantly since the beginning of
the 1990s, mainly because of increased reporting of occurrences.
Dowry-related violence against women, in which a woman has been
subjected to harassment by her husband and his family, has also been in-
creasing. In 2000, 45,778 cases were registered. It should also be noted
that the NCRB figures may not be accurate, as many dowry-related vio-
lence goes unreported. Lack of awareness, fear of retaliation, distrust of
legal instruments, or inability to take legal measures prevent families
INDIA 369
Table 16.2 Crime rate against women in Indian states and Union Territories
States/Union Territories No. of crimes per million persons
Daman and Diu 17.5
Nagaland 25.3
Meghalaya 29.9
Pondycherry 31.9
Punjab 35.8
Bihar 39.0
Manipur 44.6
Goa 50.5
Tamil Nadu 72.0
Karnataka 74.5
Andaman and Nicobar 75.2
Uttar Pradesh 77.4
West Bengal 86.8
Gujarat 89.3
Arunachal Pradesh 91.8
Chandigarh 92.2
Kerala 95.8
Tripura 99.1
Jammu and Kashmir 101.0
Orissa 110.4
Dadri and Nagar Haveli 111.0
Sikkim 114.6
Assam 118.8
Haryana 119.4
Andhra Pradesh 122.0
Mizoram 127.9
Himachal Pradesh 139.4
Maharahshtra 173.8
Delhi 197.1
Madhya Pradesh 207.0
Rajasthan 208.2
Source: Economic and Political Weekly, 27 October 2001, p. 4072.
Table 16.3 Composition of crimes against women by social status (values are
percentages)a
Kidnap/ Dowry Sexual Cruelty

Social status Rape Abduction death Molestation harassment at home
Low 34.0 25.0 12.2 11.7 1.3 15.8

Lower-Middle 11.2 17.3 7.7 23.0 5.7 35.0
Upper-Middle 16.7 19.5 2.5 33.8 3.9 23.7
High 14.3 14.5 5.3 28.1 5.3 32.6
Source: Economic and Political Weekly, 27 October 2001, p. 4072.
a. Some percentages do not total 100 because of rounding errors.
370 KAARTHIKEYAN
from reporting dowry-related violence to the police. To counterbalance

this, the increased figures could be the result of increased awareness, led
by the various women’s movements in all parts of India.15
Most of the victims of dowry death belong to the middle class and are
of the age group 21–24 years. Dowry deaths are found more among the
middle and upper castes than the in lower caste. Dowry deaths are more
prevalent in urban and semi-urban areas than in rural areas. One of the
main reasons for dowry deaths has been lack of economic self-sufficiency
among victims.
Rape
The above-mentioned statistics show that rape as a crime against women

has been increasing. Most of the victims belong to the age group of 16–30
years and are from all classes of society.
Female infanticide and foeticide
Female infanticide and foeticide is yet another form of crime against

women in India. Female infanticide, in most cases, takes place with the
consent of the parents after the baby is born. The main reason for female
infanticide in India is the cost of raising a girl child16 in a patriarchal so-
ciety. Female foeticide involves aborting the female foetus, once its sex
has been determined, the reasons being the same as those for female in-
fanticide. Female infanticide is more prevalent among the lower classes,
whereas foeticide is prevalent among the middle and upper classes.
According to the 2001 Census in India, though the overall sex ratio has
increased from 927 females per 1,000 males in 1991 to 933 females per
1,000 in 2001, there is a decline in sex ratio of the population in the age
group of 0–6 years. An analysis of the last 40 years would reveal a steady
decline in the F:M sex ratio in India (table 16.4). Although the sex ratio
has increased in such states as Bihar, Jharkhand, Rajasthan, and Tamil
Nadu, there has been a decline in Haryana, Himachal Pradesh, Punjab,
and Chandigarh (table 16.5).
The child sex ratio – especially in two states (Haryana and Punjab)
with sex ratios (of males per 1,000 births) of 122.8 and 123.3, respectively
– shows the ‘‘rampant practice of female foeticide along with a certain
amount of infanticide in these two states.’’17
The IPC and crimes against women
The Indian Penal Code (IPC) is the basic criminal law, prescribing de-
terrent punishments. Cases under the IPC are investigated and tried in
INDIA 371
Table 16.4 Sex ratio in India, 1901–2001

Census year Sex ratio (females per 1,000 males)
1901 972
1951 946
1961 941
1971 930
1981 934
1991 927
2001 933
Source: Census of India, New Delhi: Office of the Registrar-General, India, 2001.
higher courts of law. The IPC covers issues related to crimes against
women – rape (Section 376), kidnapping and abduction (Sections 363–
373), dowry killings (Sections 302 and 304B), molestation (Section 354),
eve teasing and sexual harassment (Section 509), and importation of girls
(Section 366 B).
Political violence: Terrorism

To a large extent, political violence in India affects human rights. It is
manifested mainly in terrorist violence against the state and affects the
Table 16.5 Sex ratio and child population in the 0–6-year age group in selected
states of India in 1991 and 2001
Child population
Total Total (0–6 years)
States and Union population population
Territories (1991) (2001) (1991) (2001)
Himachal Pradesh 976 970 951 897
Punjab 882 874 875 793
Chandigarh 790 773 899 845
Uttaranchal 936 964 948 906
Haryana 865 861 879 820
Delhi 827 821 915 865
Rajasthan 910 922 916 909
Uttar Pradesh 876 898 927 916
Bihar 907 921 953 938
Gujarat 934 921 928 878
Daman and Diu 969 709 958 925
Dadra and Nagar Haveli 952 811 1,013 973
Maharashtra 934 922 946 917
Source: Census of India, New Delhi, Office of the Registrar-General, India, 2001.
372 KAARTHIKEYAN
Table 16.6 Loss of life in Jammu and Kashmir since 1988

Lives lost by
No. of Security Total
Year incidents Terrorists Civilians forces lives lost
1988 390 1 29 1 31
1989 2,154 0 79 13 92
1990 3,905 183 862 132 1,177
1991 3,122 614 594 185 1,393
1992 4,971 873 859 177 1,909
1993 4,457 1,328 1,023 216 2,567
1994 4,484 1,651 1,012 236 2,899
1995 4,479 1,338 1,161 297 2,796
1996 4,224 1,194 1,333 376 2,903
1997 3,004 1,177 840 355 2,372
1998 2,993 1,045 877 339 2,261
1999 2,938 1,184 799 555 2,538
2000 2,835 1,808 842 638 3,288
2001 (up 1,628 760 503 278 1,541
to June)
Total 45,584 13,156 10,813 3,798 27,767
Source: South Asia Intelligence Review (SAIR), Weekly Assessments & Brief-
ings hwww.satp.orgi
common population. Terrorism results in the destruction of all human

rights of large segments of the population. India, at present, is facing
terrorist violence in two areas – (1) Jammu and Kashmir and (2) the
North East.
In Jammu and Kashmir, there has been armed and organized violence
against the state and the people since 1989. Three major terrorist groups
are operating in Jammu and Kashmir – Hizbul Mujahideen, Lashkar-e-
Toiba, and Jaish-e-Mohammad – along with a number of minor groups.
Inspection of the human and material casualties (table 16.6) reveals the
violations of human rights by these terrorist groups.
Of the seven states in India’s North East, the four most affected in
terms of militancy are Assam, Manipur, Nagaland, and Tripura. Assam
has been witnessing militancy for the last two decades, ever since the
start of large-scale migration from Bangladesh (previously East Paki-
stan). There are more than 30 militant groups in Assam today, including
the United Liberation Front of Asom (ULFA), the National Democratic
Front of Bodoland (NDFB), the Kamatapur Liberation Organization
(KLO), the Bodo Liberation Tiger Force (BLTF); the Dima Halim Dao-
gah (DHD), and the Karbi National Volunteers (KNV). These militant
groups have been fighting in various parts of India against the security
INDIA 373
Table 16.7 Civilians killed by various terrorist groups in Assam

Terrorist group 1992 1993 1994 1995 1996 1997 1998 1999 2000a
ULFA 35 48 49 16 59 68 97 55 35
NDFB 37 25 108 132 176 137 305 107 52
BLT&BTF 0 0 0 8 53 52 126 22 1
NSCN/DHD 8 1 16 14 14 28 3 30 5
UPDS 0 0 0 0 0 0 0 0 33
ings hhttp://www.satp.org/08aprilinternet/graph/Assam/Data-Civilians.htmi
a. Data up to 28 June 2000.
BLT&BTF: Bodo Liberation Tiger & Bhindranwale Tigers Force.
NDFB: National Democratic Front of Bodoland.
NSCN/DHD: National Socialist Council of Nagaland/Dima Halong Daga.
ULFA: United Liberation Front of Asom.
UPDS: United People’s Democratic Solidarity.
forces of India and also among themselves. For example, in India’s

heavily tribal north-eastern states, most militant organizations are or-
ganized on a tribal basis. These intratribal and tribe–state conflicts give
rise to a wide range of human rights violations (tables 16.7, 16.8).
Manipur is yet another north-eastern state facing both inter- and intra-
ethnic tribal conflict, with more than 30 tribes in the state, the Meiteis,
Nagas, and Kukis being among the most prominent. More than 30 mili-
tant groups operate in this small state, including the United National
Liberation Front (UNLF), the People’s Liberation Army (PLA), the
People’s Revolutionary Party of Kangleipak (PREPAK), the Kangleipak
Communist Party (KCP), the National Socialist Council of Nagaland–
Isak-Muivah (NSCN–IM), the Kuki National Front (KNF), and the Kuki
National Army (KNA) (tables 16.9, 16.10).
Table 16.8 Security force personnel killed by various terrorist groups in Assam
Terrorist groupa 1992 1993 1994 1995 1996 1997 1998 1999 2000b
ULFA 10 15 7 14 48 50 42 29 28
NDFB 10 6 22 16 25 25 22 14 6
BLT&BTF 0 0 0 1 6 1 5 8 0
NSCN/DHD 14 3 6 42 8 9 3 26 6
UPDS – – – – – – 0 2 0
Total 34 24 35 73 87 85 72 79 40
ings hhttp://www.satp.org/08aprilinternet/graph/Assam/Data-SF%20killed.htmi
a. Abbreviations as in Table 16.7.
b. Data up to 28 June 2000.
374 KAARTHIKEYAN
Table 16.9 Civilians killed by various terrorist groups in Manipur

NSCN 27 80 104 30 21 27 20 6 0
Meitei 43 119 79 139 90 62 57 75 26
Kuki 14 67 6 14 6 144 10 8 1
ings hhttp://www.satp.org/08aprilinternet/graph/Manipur/Data-Civilians.htmi
a. NSCN, National Socialist Council of Nagaland.
Table 16.10 Security force personnel killed by various militant groups in Manipur
NSCN 8 46 67 20 8 5 2 1 2
Meitei 22 41 21 38 52 67 57 63 24
Kuki 0 4 10 6 5 39 3 0 0
ings hhttp://www.satp.org/08aprilinternet/graph/Manipur/Data-SF.htmi
a. NSCN, National Socialist Council of Nagaland.
NSCN, the major militant group operating in Nagaland, is divided into

two factions – Isak-Muivah and Khaplang. As well as their fight against
the Indian security forces, the conflict between the two factions is very
intense (table 16.11).
Caste violence
Caste conflict is yet another source of human rights violation in India.

Caste violence is predominant in such states as Bihar, Uttar Pradesh,
Table 16.11 Insurgency-related killings in Nagaland
Lives lost by 1992 1993 1994 1995 1996 1997 1998 1999 2000a
Civilians 34 62 110 80 144 104 26 26 5
Security Force 33 43 26 25 48 38 14 4 4
Militants 29 68 56 108 112 218 72 118 52
ings hhttp://www.satp.org/08aprilinternet/graph/Nagaland/Data-Insurgency.htmi
a. Data up to 28 June 2000.
INDIA 375
Table 16.12 Senas (caste militias) of Bihar

Caste Year of
Name of Sena affiliation formation Operational districts
Kuer Sena Rajput 1979 Bhojpur, Rohtas
Kisan Suraksha Kurmi 1979 Patna, Jehanabad, Gaya
Samiti
Bhoomi Sena Kurmi 1983 Patna, Nawada, Nalanda,
Jehanabad
Lorik Sena Yadav 1983 Patna, Jehanabad, Nalanda
Brahmarshi Sena Bhumihar 1984 Bhojpur, Patna, Jehanabad,
Aurangabad
Kisan Sangh Rajput Brahmin 1984 Palamu
Kisan Sewak Samaj Rajput 1985 Palamu, Aurangabad
Sunlight Sena Pathans Rajput 1989 Palamu, Gaya, Garwah,
Aurangabad
Swarna Liberation Bhumihar 1990 Gaya, Jehanabad
Front
Kisan Sangh Bhumihar 1990 Patna, Bhojpur
Kisan Morcha Rajputs 1989–90 Bhojpur
Ganga Sena Bhumihar 1990 Bhojpur
Ranvir Sena Rajput and 1994 Bhojpur, Patna, Jehanabad,
Bhumihar Rohtas, Gaya, Aurangabad
Source: Economic and Political Weekly, 24 June 2000.
Tamil Nadu, and Andhra Pradesh. The main reasons for increased caste
violence in these states have been the feudal nature of society, the con-
centration of land in the hands of a select few, suppression of the lower
castes by land-owning upper castes, and the reluctance of the upper
castes to provide equal social status to the lower castes. The following
section focuses especially on caste violence in Bihar, where it is more
organized. States such as Bihar and Uttar Pradesh are characterized as
highly feudal societies, where caste lines are clearly drawn between the
upper and lower castes. These caste groups have well-funded and or-
ganized armed militias, known as Senas. Every caste group has its own
Sena, as shown in table 16.12. Of these caste militias, Ranvir Sena is the
most powerful. It has been involved in more massacres than any other
militia: since its formation it has been involved in more than 25 massa-
cres, in which more than 250 people have been killed.
Minorities and human rights
India is a multireligious society composed of Hindus (82 per cent), Mus-

lims (12 per cent), Christians (2 per cent), Sikhs (2 per cent), and other
small communities (each less than 1 per cent).18
376 KAARTHIKEYAN
Especially during the past three years, India has witnessed increased
attacks on minority communities, especially on Muslims and Christians.
More than 600 incidents took place in 1998; in December 1998, churches
and other Christian establishments were attacked in Gujarat in Dangs
district; on 22–23 January 1999, an Australian missionary, Graham
Staines, and his two sons were burnt alive; on 13 January 1999, a church
in Dangs district was burnt and a Muslim Dargah was razed to the
ground in the Surendranagar district of Gujarat. In April 1999, sectarian
violence between Shias and Sunnis resulted in the killing of two people;
in the same month, two more were killed in the Rai Bareli district of
Uttar Pradesh in a communal clash, and a priest of the Roman Catholic
Church was killed in the Koenjar district. Seven people were killed in
Surat, Gujarat, in September 1999, in a communal clash during a Lord
Ganesh procession.
Communal violence has been the result of religious conversions from
one faith to another, or of rival claims to property or land. These sensi-
tive and emotional issues are being handled carefully by various author-
ities: for example, a procession by a Hindu community through a street
where a mosque is located is handled with extreme care and caution by
senior officers of the state; although the right of a community to take part
in a procession needs to be maintained, this action should not offend the
religious sentiments of another community. Tact and diplomacy in han-
dling the situation is essential to ensure that the procession does not in-
volve loud music and drum beats while crossing select streets or places.
State violence
It is not only non-state entities that are involved in violence: the state, at
times, is also involved in violence against its citizens. Such state violence
takes place at four levels: first, it occurs in an insurgency situation where
the armed forces are involved in tackling terrorist groups; there are a
number of complaints against Indian armed forces deployed in Jammu
and Kashmir, and in the various north-eastern states; second, the police
used force to control organized political uprisings of armed groups, es-
pecially that of the Naxalites19 and caste militias; third, during political
crises – especially in situations such as bandhs (strikes) and processions –
the state has, in the past, used force to bring disorderly situations under
control; fourth, under even normal political conditions police atrocities
occur. The police force in India was set up by the British to serve their
colonial interests: even after independence, the police have not been able
to transform their mind-set to serve in a free and democratic society;
even then, the laws of procedure remained unchanged and, as such, were
INDIA 377
not in the best interests of the police. The enactment of a large number of
laws places a great burden on a police force that is inadequate and not
appropriately equipped to discharge their responsibilities effectively. The
police force is one of the most visible arms of the government and fre-
quently confronts a public that is disenchanted with the government’s
failure to fulfil election promises. The increasing politicization of the law-
and-order machinery has been undermining the neutrality, credibility,
acceptability, and effectiveness of the police force. The birth and spread
of organized crime, terrorism, insurgency, and extremism also puts enor-
mous pressure on the police. Unable to bear such pressure of rising ex-
pectations of both the government and the public, the police lose their
equilibrium and balance: to prove themselves to be effective, at times
they resort to excesses. However, with the public becoming increasingly
aware of their rights, and with human rights organizations growing more
active, efforts are being made to bring about legal reforms. The situation
seems to be changing for the better.
Police atrocities are considered a major area of human rights violations
falling under the category of state violence. This includes torture and
death in police custody, ‘‘encounter’’ death,20 and atrocities against
women including rape and illegal detention.
The government has also been accused of systematically violating in-
ternational law by using lethal force against peaceful demonstrators and
engaging in widespread and arbitrary arrest of persons suspected of
sympathizing with the militants, detaining them for extended periods
without charge or trial.
Conditions in Indian prisons, rights of prisoners, and

duration of trials
While addressing the issues of prison conditions in India, it is important
to draw attention to the rights of prisoners, including that of a speedy
trial.
To begin with, prisons in India are overcrowded. According to a recent
survey, there were around 9,000 prisoners against a capacity of a mere
2,500 in Tihar jail in New Delhi, and 3,000 against a capacity of 650 in
Meerut. Invariably, the conditions are very similar all over India. The
reasons for such overcrowded facilities are mainly an administrative fail-
ure to provide adequate jails and the slow process of investigations and
trials. These overcrowded prisons ‘‘do not have space, facility and re-
sources to provide prisoners their normal work, training and other edu-
cational opportunities.’’21
Second, the medical facilities in jails in India are very poor. The Na-
378 KAARTHIKEYAN
tional Human Rights Commission (NHRC) received reports of 308 cases

of deaths in 1995–1996, and 700 deaths in 1996–1997. One of the reasons
for the high incidence of death in jail custody is the complete inadequacy
of treatment facilities in jails.22
The judiciary of India has played a leading role in prison reforms and
the rights of the prisoners and their conditions. In Sunil Batra v. Delhi
Administration, the Court expressed the opinion that:
To fetter prisoners in irons is an inhumanity unjustified save where safe custody is

otherwise impossible. The routine resort to handcuffs and irons bespeaks a bar-
barity hostile to our goal of human dignity and social justice.23
In yet another judgement in Kishore Singh v. State of Rajasthan, it was

observed that,
. . . the State must reeducate the constabulary out of their sadistic acts and incul-
cate a respect for human person – a process which must begin more by example
than precept if the lower rungs are really to emulate . . . Nothing is more cowardly
and unconscionable than a person in police custody being beaten up and nothing
inflicts a deeper wound on our constitutional culture than a state official running
berserk regardless of human rights.24
Third, the cases pending trial, the slow process of prosecution (both
deliberately and by chance), and the attitude of the administration (both
State and Centre), need to be discussed. Confinement without trial for a
long period is against the spirit and principles of the Indian Constitution
and its commitment to the 1948 Universal Declaration of Human Rights.
As Sharma argues,
The distributive justice demands that the criminal justice should be swift and sure,
that the guilty should be punished while the events are still fresh in public mind
and that the innocent should be absolved as early as is consistent with a fair and
impartial trial. A criminal trial, which drags on for an unreasonably long time, is
not a fair trial. Sometimes, the offences with which the accused charged are so
trivial that even if proved, would not warrant punishment for more than few
months, but the accused has to suffer detention because of the protracted nature
of the trial.25
According to Article 9(3) of the International Covenant on Civil and

Political Rights, 1966, to which India is a party, ‘‘[a]nyone arrested or
detained on a criminal charge shall be brought promptly before a judge
or other officer authorized by law to exercise judicial power and shall be
entitled to a trial within a reasonable time or to release.’’ The Covenant
INDIA 379
also mentions that ‘‘[i]n the determination of any criminal charge against
him, every one shall be entitled . . . (c) to be tried without undue delays’’
(Article 14(3)(c)).
Although the judiciary in India has repeatedly condemned the delay in
trials, nothing much has happened in actual terms. Justice Krishna Iyer in
Babu Singh v. State of UP points to the following problem:
Our justice system, even in grave cases, suffers from slow motion syndrome,
which is lethal to fair trial whatever the ultimate decision. Speedy justice is a
component of social justice, since the community as a whole is concerned in the
criminal being condignly and finally punished within a reasonable time and the
innocent being absolved from the inordinate ordeal of criminal proceedings.26
In another case, Nimeon Sangma v. Home Secretary, Govt of Meghalaya,

it was observed that ‘‘[i]t is unfortunate, indeed pathetic, that there
should have been such considerable delay in investigation by the police
in utter disregard of the fact that a citizen has been deprived of his free-
dom on the ground that he is accused of an offence.’’27 Upendra Baxi
argues that, ‘‘[i]f I am locked up in ‘protective custody’ without even a
charge against me or if I am not produced before the magistrate periodi-
cally, I could remain under trial for an indefinite period of time. The state
is under no duty to render me legal assistance; nor is it under any liability
to pay me compensation for illegal or wrongful confinement.’’28
Environmental issues and human rights
Major environmental problems in India include air and water pollution,

as well as deforestation, discharge of hazardous wastes by industries, and
land degradation. These problems result in respiratory diseases, lung
cancer, and related illnesses. According to data compiled by Greenpeace,
up to September 2000 more than 100,800 tons of hazardous wastes have
entered the country illegally. According to Greenpeace,
Wastes such as zinc ash, residues and skimmings; lead waste and scrap; used
batteries; and waste and scrap of metals such as cadmium, chromium, cobalt,
antimony, hafnium and thallium have been exported to India from countries in-
cluding OECD nations such as Germany, USA, Australia, Denmark, the Nether-
lands, UK, Belgium and Norway. These imports have occurred without any
authorization or the knowledge of the Indian Ministry of Environment. Some of
these waste items are also illegal under the laws of European Union nations and
Australia, both of which have banned the exports of hazardous wastes to non-
OECD countries.29
380 KAARTHIKEYAN
Such issues as protection of the environment and access to pure water

and air have been viewed in India as a part of human rights, especially
since the 1990s. Although the government and the people in general are
yet to become aware of this issue, it has been championed by the judi-
ciary and NGOs.
The rights of people to unpolluted air and water have been seen as a
part of Article 21 of the Indian Constitution, which states that ‘‘[n]o per-
son shall be deprived of his life or personal liberty except according to
the procedure established by law.’’ In one of its verdicts, the High Court
of Andhra Pradesh argued that
The enjoyment of life and its attainment and fulfillment guaranteed by Article 21
of the Constitution embraces the protection and preservation of nature’s gifts . . .
The slow poisoning by polluted atmosphere caused by environmental pollution
and spoliation should be regarded as amounting to violation of Article 21 of the
Constitution.30
In another judgement, the court gave the verdict that ensuring enjoyment
of pollution-free water and air should be considered as a part of Article
21.31
Human rights and the Indian Constitution
Parts III and IV of the Indian Constitution focus on many aspects of hu-
man rights: in fact, it is widely considered as a social document.32 Article
14 states that ‘‘[t]he State shall not deny to any person equality before
the law and equal protection of the laws within the territory of India.’’
Article 15 states, ‘‘(1) The State shall not discriminate against any citizen
on grounds only of religion, race, caste, sex, place of birth or any of them.
(2) No citizen shall on grounds only of religion, race, caste, sex, place of
birth or any of them be subject to any disability, liability, restriction or
condition with regard to (a) access to shops, public restaurants, hotels
and places of public entertainment.’’ Article 16 states ‘‘(1) there shall be
equality of opportunity for all citizens in matters relating to employment
or appointment to any office under the State.’’ Article 19 states that all
citizens shall have the right to freedom of speech and expression; to as-
semble peacefully and without arms; to form associations or unions; to
move freely throughout the territory of India; to reside and settle in any
part of the territory of India; and to practise any profession or to carry on
any occupation, trade or business.’’
Article 20 states that ‘‘[n]o person shall be convicted of any offence
except for violation of a law in force at the time of the commission of the
INDIA 381
act charged as an offence, nor be subjected to a penalty greater than that

which might have been inflicted under the law in force at the time of the
commission of the offence.’’ Article 21, the most important article of all
in the Fundamental Rights section, states that ‘‘[n]o person shall be de-
prived of his life or personal liberty except according to the procedure
established by law.’’
All of the above-mentioned Articles of the Indian Constitution come
under the Fundamental Rights guaranteed by the State. Article 32 pro-
vides that, if any of the above Fundamental Rights are violated, one
has the right to call on the Supreme Court directly. Thus the above-
mentioned articles form the bedrock of human rights, guaranteed by the
Indian Constitution.
In addition, a number of other rights come under the ‘‘Directive Prin-
ciples of the State Policy.’’ Although these rights (unlike the Fundamen-
tal Rights) are not enforceable, they provide guidelines for the states to
follow in legislating and implementing laws. These rights focus on the
following:
0 Providing adequate means of livelihood (Article 39 (a));
0 Equal pay for equal work for both men and women. (Article 39 (d));
0 Adequate protection of the health and strength of workers, men and
women (Article 39 (e));
0 Equal justice and free legal aid (Article 39A);
0 Living wage, conditions of work ensuring a decent standard of life and
full enjoyment of leisure and social and cultural opportunities (Article
43);
0 Free and compulsory education for children (Article 45);
0 Increasing the level of nutrition, the standard of living and improving
public health (Article 47);
0 Prohibiting the slaughter of cows and calves and other milk and
draught cattle (Article 48).
Judiciary and human rights in India
In India, the judiciary plays a leading role in protecting and enhancing

human rights. Broadly speaking, the judiciary performs the following
major functions in protecting human rights. First, it ensures that human
rights are not legally violated. Article 32 of the Indian Constitution con-
fers the enforcement of fundamental rights on the Supreme Court. Under
Article 32, every citizen has a right to request the Supreme Court directly
to enforce the Fundamental Rights. The Supreme Court has the power to
issue orders or writs in the nature of habeas corpus, mandamus, prohibi-
tion, and certiorari, whichever may be appropriate.33 This power to issue
382 KAARTHIKEYAN
writs has been used extensively by both the Supreme Court and the High
Courts.
Second, the judiciary has interpreted the Constitution in various cases,
expanding the scope of human rights in India. Some of the cases and
their judgements are worth mentioning. In Francis Coralic Mullin v. Ad-
ministrator, Union Territory of Delhi (1981), the Supreme Court of India
observed that,
The right to life includes the right to live with human dignity and all that goes
along with it, namely the bare necessaries of life such as adequate nutrition,
clothing and shelter and facilities for reading, writing and expressing oneself in
diverse forms, freely moving about and mixing and commingling with fellow hu-
man beings.34
In Bandhara Mukti Morcha v. Union of India (1984), the Supreme Court

expressed the opinion that,
. . . Right to live with human dignity . . . must include protection of the health and
strength of workers, men and women, and of the tender age of children against
abuse, opportunities and facilities for children to develop in a healthy manner
and in conditions of freedom and dignity, educational facilities, just and humane
conditions of work and maternity relief. These are the minimum requirements
which must exist in order to enable a person to live with human dignity and no
state – neither the Central Government nor any State government – has the right
to take any action which will deprive a person of the enjoyment of basic essen-
tials.
That governments do face problems in achieving these ideals is due to

the social and economic backwardness of the nation and its huge popu-
lation. The state is attempting to reach these ideals and, of course (as in
any society), there are always shortfalls that need to be taken into con-
sideration.
In another judgement in Consumer Education and Research Centre v.
Union of India, the Supreme Court held that,
‘Right to life’ in Article 21 includes protection of the health and the strength of
the worker. The expression ‘life’ in Article 21 does not connote mere animal ex-
istence. It has a much wider meaning, which includes right to livelihood, better
standard of life, hygienic conditions in workplace and leisure.35
Fighting human rights violations in India

Human rights violations, whether perpetrated by state actors or by non-
state entities, are being countered by three major agencies – namely, the
INDIA 383
National Human Rights Commission and the State Human Rights Com-
missions (all funded by the State), NGOs, and the judiciary.
The National Human Rights Commission (NHRC)
The National Human Rights Commission (NHRC) was established by

legislation – the Protection of Human Rights Act 1993. The main objec-
tive of the NHRC is to protect human rights by inquiring into specific
complaints of human rights violations and to provide human rights edu-
cation. Although the NHRC is instituted by the government, its auton-
omy has been ensured through the following provisions. First, the Chair-
person and the members of the NHRC are appointed by the President of
India from a list of individuals recommended by a committee, which
consists of the Prime Minister, Speaker of the House of the People,
Leader of the Opposition in the Lower and Upper Houses, Minister of
Home Affairs, and the Deputy Chairman of the Council of States. Sec-
ond, the members of the NHRC can be removed only by the order of the
President of India on the grounds of proved misbehaviour or incapacity.
Third, the members have a fixed tenure – they are elected for a period of
five years.
The main functions of the NHRC include the following:
0 Inquiring suo moto or on petition presented to it by a victim or any
person on behalf of victims on complaints of human rights violations;
0 Reviewing factors that curtail the enjoyment of human rights acts such
as terrorism, and giving recommendations;
0 Reviewing the provisions in the Indian constitution that protect human
rights;
0 Studying international treaties and documents and ensuring their ef-
fective implementation;
0 Undertaking research to promote human rights in India;
0 Promoting human rights awareness.
In the last eight years of its existence, the NHRC has issued a number
of directives and guidelines to the government, especially in the following
areas:
0 Misuse of police power, especially arbitrary arrests;
0 Elimination of child labour;
0 Compulsory education;
0 Setting up human rights cells in state and city police headquarters;
0 Prison reforms;
0 Caste and communal violence.
One of the major limitations of the NHRC has been that its scope of
investigation does not include human rights violations by the Armed
Forces. The success of the government in applying the recommendations
384 KAARTHIKEYAN
made by the NHRC is varying, owing to the economic and social factors
discussed earlier in this chapter.
State human rights commissions
The Protection of Human Rights Act 1993 also provides for the estab-
lishment of State Human Rights Commissions (SHRC). An SHRC is to
consist of a Chairperson, who has been a Chief Justice of a High Court,
one member who is/has been a High Court Judge, one member who is/
has been a District Judge in that State, and two members who are per-
sons having knowledge of human rights.
As in the case of the NHRC, the members of the SHRCs are appointed
by a committee consisting of the Chief Minister of the State, Speaker of
the Legislative Assembly, Minister of Department of Home, Leaders of
the Opposition in the Legislative Council and Assembly, and the Chair-
man of the Legislative Council. The Governor appoints the members for
a fixed period of five years. Members can be removed by the Governor
only on the grounds of misbehaviour or incapacity; this strengthens the
autonomy of the SHRCs. The effectiveness of the SHRC depends on its
structure, its chairman, and its members. The responsibilities of the Chief
Minister, who heads the State government, also play a crucial part in
making the SHRC effective. Moreover, the success of an SHRC depends
on public awareness and the role of society, led by the media and volun-
tary organizations. At present only 12 of 28 states in India have estab-
lished SHRCs.
Other human rights commissions
Besides the NHRC and the SHRCs, there are other commissions, whose
functions involve protecting human rights in India.
National Commission for Women (NCW)

The National Commission for Women was established in January 1992
under the National Commission for Women Act (1990). The Commission
consists of a chairperson and five other members. The main functions of
the NCW are as follows:
0 To examine issues relating to the safeguards provided for women un-
der the Constitution and other laws;
0 To provide reports to the Central Government on safeguards provided
for women under the Constitution;
0 To recommend measures to implement the safeguards effectively by
the Union or any state;
0 To take up cases of violations of constitutional provisions and of other
laws related to women’s issues with the appropriate authorities;
INDIA 385
0 To analyse and address complaints related to the deprivation of wom-

en’s rights; the failure to implement laws aimed at protecting women;
the failure to implement laws aimed at gender equality and develop-
ment; and the failure to comply with policy decisions, guidelines, or
instructions aimed at mitigating hardship and ensuring the welfare of
women.
National Commission for Minorities (NCM)

The National Commission for Minorities was established in 1992 under
the National Commission for Minorities Act. The objectives of the NCM
include:
0 Evaluating the progress of the development of minorities issues in
India;
0 Monitoring constitutional and legal safeguards for minorities, as en-
acted by the National Parliament and the State Legislatures;
0 Recommending effective implementation of safeguards for the pro-
tection of minority interests by the Central Government or the State
Governments;
0 Focusing on specific complaints regarding the deprivation of rights and
safeguards of minorities;
0 Suggesting appropriate measures to be undertaken by the Central
Government or the State Governments.
National Commission for Scheduled Castes and Scheduled Tribes

The National Commission for Scheduled Castes and Scheduled Tribes
(SC/STs) was originally formed as the Commission for Scheduled Castes
and Scheduled Tribes in 1978. Its functions include the following:
0 Monitoring issues related to constitutional safeguards provided for
SC/STs;
0 Enquiring into specific complaints with respect to the deprivation of
rights and safeguards of SC/STs;
0 Reporting to the President regarding the functioning of these safe-
guards;
0 Recommending measures that should be taken by the Union or any
state for the effective implementation of these safeguards and other
measures for the protection, welfare, and socio-economic development
of SC/STs.
Non-governmental organizations
Besides commissions established by the government at the Union and

State levels, a number of NGOs function at the national and regional
levels to protect human rights and protest against their violations. There
are at least three major NGOs – the People’s Union for Civil Liberties
386 KAARTHIKEYAN
(PUCL), the People’s Union for Democratic Rights (PUDR), and Citi-
zens for Democracy.
The PUCL was originally founded as the People’s Union for Civil
Liberties and Democratic Rights (PUCLDR) in 1976 by Jayaprakash
Narayanan. The objective was for PUCLDR to be free from political
ideologies, so that people of different groups and parties would come to-
gether to fight for civil liberties and human rights. PUCL was established
in its present form after a conference held in November 1980, at which a
new Constitution was drafted and adopted. This made the PUCL a
membership-based organization, with branches all over the country.
The PUCL had set up units in various states (for example in Delhi,
Bombay, Bihar, Madhya Pradesh, and Allahabad) and efforts are being
made to establish units in other states. The PUCL is actively involved in
fighting human rights violations, whether by the state or non-state actors.
It has set up a number of fact-finding missions to investigate human rights
violations, and has published many reports, which are mostly based on
the results of those missions.
The PUDR is another offshoot of the PUCLDR. Like the PUCL, the
PUDR has also been involved in a number of fact-finding missions and
reports related to social, economic, and political issues. In particular, the
PUDR focuses on police atrocities and ‘‘encounter’’ deaths.
Conclusions
The main categories of human rights abuses – such as untouchability,

dowry, and atrocities against women – are social. Although the Hindu
religion, at its inception, had no such discrimination or distinction, over a
period of time these distortions crept in, in a physically and economically
male-dominated society.
The second category is economic – child labour, bonded labour, and
violence related to economic factors, such as Naxalite violence. These
categories result from the economic subjugation and exploitation of the
weaker sections of society by dominant classes. The third major category
is political – denial and/or abrogation of fundamental rights. These rights
are denied by the state and the politically dominant sections for a variety
of reasons, such as inadequate resources and a desire to perpetuate priv-
ileges inconsistent with the fundamental rights.
All these and related abuses can be remedied to various degrees in
different parts of the country by the enactment of laws, by revision of
existing laws to make the procedures simpler, by enhancing the punish-
ments, by speeding up investigations and trials, by granting financial
relief to the victims, and by creating social awareness of human rights
violations.
INDIA 387
The colonial mind-set of the past still exists in certain sections of bu-
reaucracy, in law enforcement agencies, and even among the civil society.
Loopholes exist in law and procedure. Powerful elements exploit the ex-
isting ineffective investigation and undue delay in judicial trials. Political
power and wealth sometimes impede the course of investigation and dis-
pensation of justice. Poverty and ignorance on the part of victims very
often prevents them from seeking relief. Poor, ignorant, and vulnerable
sections of the society need to be empowered to seek and to obtain rem-
edy and justice.
India must accomplish a number of key tasks before major – and
sustainable – advancements in human rights protection can be achieved.
These include an increase in literacy; reduction of poverty, particularly in
rural areas of the country; and revision of laws and investigative proce-
dures concerning human rights violations. Other key tasks are decentral-
ization of political and economic powers from the national government to
state governments, from states to districts, and from the latter to the vil-
lage level. Such advancements will create a more secure and just envir-
onment, conducive to economic growth, political stability, and social
justice ensuring ‘‘All Human Rights for All.’’
Notes
1. Vasudaiva Kutumbakam is a concept that believes all human beings are one family and
that we are part of each other.
2. Subhash Kashyap, Human Rights and Parliament, New Delhi: Metropolitan Publishers,
1978, p. 19.
3. Aitaraya Brahmana, I, 14 cited in Subhash Kashyap, Human Rights and Parliament.
Brahmanas are explanations of the Vedas; Aitaraya Brahmana is appended to the Rig
Veda.
4. Ibid., p. 20.
5. M. Sundara Raj, ‘‘Awakening of Human Rights,’’ in C.J. Nirmal, ed., Human Rights in
India, New Delhi: Oxford University Press, 1999, p. 2.
6. Keshav Chandra Sen joined the Brahmo Samaj in 1857 and established Sangat Sabha in
1859. He focused especially on humanitarian activities and provided help during fam-
ines and epidemics.
7. Jyotiba Phule played a significant role in the nineteenth-century fight against untouch-
ability. He fought for the rights of all non-Brahmins, as they were considered untouch-
able.
8. The census in India takes place every ten years. The latest census was taken in 2001, but
until now there has been no official report on this issue. Children in the 5–14 age group
constitute roughly 23 per cent of the population. Ram Ahuja, Social Problems in India,
New Delhi: Rawat Publications, 1997, p. 218.
9. hhttp://us.cry.org/child_issues/unicef.htmli.
10. Ram Ahuja, Social Problems in India, New Delhi: Rawat Publications, 1997, p. 218.
Mirzapur, Firozabad, Moradabad and Aligarh are leading industrial towns in Uttar
Pradesh State.
11. AIR 1997 SC 699.
388 KAARTHIKEYAN
12. ‘‘Eve teasing’’ is a form of harassment, especially of young girls in public places.
13. Lower levels of crime against women correspond to higher levels of literacy – female
literacy in particular.
14. N. Jayapalan, Human Rights, New Delhi: Atlantic Publishers, 2000, p. 118.
15. These include, for example, the Self Employed Women’s Association (SEWA), the Fo-
rum against Oppression of Women, Maitri, Sakshi, and the Women’s Rights Initiative.
16. Dowry is one major factor that is considered to be a major burden in raising a girl.
However, dowry is not a one-time affair that is given at the time of marriage: even after
marriage, the girl’s family (not only the parents of the girl, but also her brothers) is ex-
pected to offer ‘‘gifts’’ on various occasions, especially during religious festivals. In ad-
dition, there are certain rituals and practices (although not uniform all over India) in
which, during ceremonies conducted for the children, the mother’s family side is ex-
pected to offer huge sums as gifts.
17. Mahendra K. Premi, ‘‘The Missing Girl Child,’’ Economic and Political Weekly, 26 May
2001, p. 1880.
18. These (approximate) figures are based on 1995 data.
19. Naxalites are armed groups that follow the teachings of Karl Marx and other Commu-
nist thinkers and leaders. They believe in armed conflict with the state and the élite
sectors of society to achieve their goals. At present there are a number of Naxalite
groups in the states of Bihar, Jharkhand, Andhra Pradesh, and Madhya Pradesh.
20. ‘‘Encounter’’ deaths refer to those deaths that occur in clashes with the police. Whereas
the police claim that all such deaths are due to self-defence, in many cases NGOs claim
that such deaths are ‘‘false encounters,’’ meaning that innocent, unarmed persons were
killed unjustifiably by the police. Very often a judicial or administrative inquiry is
ordered by the government to establish whether the death is due to a ‘‘genuine en-
counter’’ justified under the law.
21. Sankar Sen, ‘‘Indian Prisons: A Survey,’’ in K.P. Saxena, ed., Human Rights: Fifty Years
of Indian Independence, New Delhi: Gyan Publishing House, 1998.
22. Ibid., p. 102.
23. AIR 1980 SC 1675.
24. AIR 1981 SC 625.
25. See Sudesh Kumar Sharma, ‘‘Realization of Speedy Justice: An Overview of Human
Rights in Criminal Proceedings,’’ in B.P. Singh Seghal, ed., Human Rights in India, New
Delhi: Deep and Deep, 1995, p. 318.
26. AIR 1978, SC 527.
27. AIR 1979, SC 1518.
28. Upendra Baxi quoted in Sudesh Kumar Sharma, ‘‘Realisation of Speedy Justice: An
Overview of Human Rights in Criminal Proceedings,’’ p. 325.
29. Greenpeace, ‘‘India Remains a Favored Dumping Ground for Global Toxic Wastes,’’ 11
September 2000. hhttp://zope.greenpeace.org/z/gpindia/pressdetails?pressid=9i.
30. Damaodar Rao v. Muncipal Corporation, Hyderabad, AIR 1987, AP 171.
31. Subhas Kumar v. State of Bihar, AIR 1991, SC 420.
32. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Bombay: Oxford
33. J.N. Pandey, Constitutional Law of India, Allahabad: Central Law Agency, 1997, p. 405.
34. AIR 1978 SC 597.
35. (1995) 3 SCC 42.
17
Human rights, the military, and
the transition to democracy in
Argentina and South Korea
Terence Roehrig
During the 1960s, numerous countries around the world experienced the
tragedy of military-led coups d’état and the imposition of rule by the
armed forces. Over time, these regimes accumulated long lists of human
rights abuses, including kidnapping, torture, and execution. Two such
cases were Argentina and South Korea: in both instances, these regimes
were responsible for serious human rights violations carried out by mili-
tary and security forces, although with differences in the scope and methods
of the violations. The abuses also largely resulted from perceived politi-
cal and economic threats to these countries – threats emanating from
both internal and external sources. Finally, the legacy of human rights
abuses complicated the transition to democracy, which both countries
began in the 1980s as part of what Samuel Huntington called the ‘‘Third
Wave’’ transitions.1 Specifically, these governments faced two important
questions: (1) should members of the previous military regime be prose-
cuted for past human rights abuses, and (2) can these trials occur without
disrupting the transition to democracy? Although in both cases the
new civilian governments attempted to prosecute their former military
leaders, each case had different results and different consequences for the
protection of human rights.
Two important conclusions seem evident from an analysis of these two
cases: first, the human rights violations in Argentina and South Korea
were based primarily on political divisions, as opposed to more deeply
rooted racial, ethnic, and/or religious differences; second, these two cases
389
390 ROEHRIG
offer lessons on how states can hold perpetrators of human rights abuses
accountable without derailing the transition to democracy. Both coun-
tries tried to prosecute their former leaders for human rights violations;
however, the results differed and may offer lessons for others involved in
democratic transitions.
This chapter is divided into four sections. The first section briefly re-
views the history of these two military regimes and their transitions to
democracy. The next sections examine the causes of human rights viola-
tions in each case and the consequences that these violations had for the
transition to democracy. The final section concludes with some lessons
that these two cases provide concerning human rights and countries in
transition.
Military rule and the transition to democracy
Argentina
Argentina’s most recent experience with military rule occurred during

two relatively contiguous periods, from 1966 to 1973 and then again from
1976 to 1983. Military intervention has long been a part of Argentine
politics. However, on most previous occasions (for example, the coups of
1930 and 1943), the armed forces intervened to replace civilian leaders,
bring order to a political system in disarray, and install a more acceptable
civilian regime before returning relatively promptly to the barracks.
When the military intervened in 1966, they were determined to do it dif-
ferently: now, the military leadership remained in power and led the
country (as, they believed, only they could). In their view, as opposed to
previous democratic governments that were ineffective and locked in
partisan bickering, the military could impose needed solutions to Argen-
tina’s political and economic problems. Furthermore, military leaders
believed that they had acquired the necessary expertise through new
curricula taught in many of the service academies in Latin America: these
included studies in management, politics, economics, and business. The
first years of military rule produced some important economic gains, in-
cluding decreased inflation and industrial growth. However, by 1969, the
economy had again begun to tumble, prompting the working class (upset
by its exclusion from politics and the economic downturn) to take to the
streets.2
Opposition to military rule also escalated from leftist guerrilla groups.
The junta responded with harsh measures in an effort to defeat the in-
ternal threat of communist subversion. The left answered with even
greater counter-attacks that included the kidnapping of business execu-
ARGENTINA AND SOUTH KOREA 391
tives, attacks on military institutions, and (in May 1970) the abduction
and eventual murder of former President and General Pedro Eugenio
Aramburu.
By 1973, it was becoming clear that the military junta had failed to
achieve a broad consensus for their rule and had difficulty in maintaining
public support for its policies. After achieving some initial success, their
economic policies began to fail. Increased opposition from labour, and
bombings and kidnappings by leftist guerrillas, added to the discontent
with military rule. Even the junta was divided over what to do, as evi-
denced by the several changes made within the junta’s leadership during
the early 1970s.3 By 1972, it was evident that the junta was in trouble and
the country was falling apart, with little hope for peace and stability in
the near future. At this time, the head of the junta, General Alejandro
Agustı́n Lanusse, started a dialogue with Juan Domingo Perón, the one
man most thought could bring order to the country and unite the people.
For years, Perón had been a powerful force in Argentine politics, hav-
ing risen to fame as the Secretary of Labour and champion of the work-
ing class. In 1946, he was elected to the presidency with over 60 per cent
of the vote. However, in 1955, opponents removed Perón in a coup and
he was exiled to Spain. Perón remained outside Argentina until military
authorities contacted him for a possible return to help bring peace and
stability to the troubled country. Perón returned in 1972 but declined to
run for office himself, insisting that Dr Héctor José Cámpora run in his
stead, while he remained behind the scenes.4 It was not long before
Cámpora angered military leaders and conservatives by failing to control
leftist violence and giving numerous pardons to imprisoned guerrillas.
After only a few months, Cámpora was forced to resign and new elec-
tions brought Perón himself to power in October 1973.
Unfortunately, Perón’s rule was short-lived, as he died of heart prob-
lems after less than a year in office.5 His Vice-President and third wife,
Isabel Martı́nez de Perón, was now thrust into leading a country whose
economy was unravelling yet again and was being pressed by ever more
aggressive guerrilla actions. Isabel Perón struggled in her new role, hav-
ing little political experience and often being subject to manipulation by
subordinates.6 As the economy worsened and the political violence esca-
lated, the military intervened in 1976 to remove Isabel Perón from office.
Once more, the armed forces seized control of the government, deter-
mined to remain in power; however, this time, the officers believed that
they would do a better job in bringing order and prosperity to Argentine
society. As Gary Wynia noted, the military was convinced that ‘‘Argen-
tines needed discipline not liberty and now they would have it.’’7 To that
end, military and security forces conducted a massive campaign to elimi-
nate the ‘‘terrorist subversives’’ of the left, especially the Montoneros
392 ROEHRIG
and ERP (Ejército Revolucionario del Pueblo – Revolutionary Army of

the People) guerrillas. The junta also terrorized the population at large,
in order to deny the guerrillas a base of operation. The campaign would
be conducted in secret and, according to Iain Guest, ‘‘[t]he generals were
determined not to make the same mistakes that Pinochet had made in
Chile. They would not round up thousands of people in the football sta-
dium and haul them away to be tortured in front of television cameras.’’8
In the course of the conflict (often referred to as the ‘‘dirty war,’’ human
rights groups estimate that approximately 30,000 people were abducted,
tortured, and killed. Close to one-third of those who disappeared (desa-
parecidos) were affiliated in various ways with the guerrilla groups, but
many of those who were seized had done little or nothing to warrant their
fates.9 Guest maintains that, ‘‘if someone’s face appeared on a wanted
poster they pulled in his tailor, his barber, anyone remotely connected to
the wanted man.’’10 Friends, relatives, neighbours, co-workers, and for-
mer classmates were often guilty by association. According to a report
released after an investigation of the dirty war, ‘‘it was enough to appear
in somebody’s address book to instantly become a target . . . .’’11 Other
horrors of the regime included drugging detainees and dropping them,
while still alive, into the Atlantic Ocean12 and selling the children of vic-
tims seized or born in captivity to police or military families for adoption.
It is estimated that authorities distributed close to 400 children for adop-
tion in this manner.13
By the close of 1976, the military had largely defeated the guerrillas
and succeeded in winning this ‘‘Third World War.’’ General Leopoldo
Fortunato Galtieri, a hard-liner in the junta, declared in a La Prensa ar-
ticle in 1981: ‘‘The First World War was a confrontation between armies,
the Second was between nations, and the Third is between ideologies.
The United States and Argentina must stand together because of their
common concerns and aspirations.’’14 Despite the victory, repression
continued as military leaders maintained that the danger was ever pres-
ent and required constant vigilance.
The military’s economic policies had shown some initial success but
soon became ineffective. Discontent with the junta was growing as infla-
tion increased and protests from business and labour mounted. In an ef-
fort to boost sagging support for the regime, the junta launched a daring
gambit in April 1982 to seize the Malvinas/Falkland Islands from Britain.
However, military leaders gravely miscalculated Prime Minister Margaret
Thatcher’s determination and a British expeditionary force soundly de-
feated the Argentine military.
Defeat at the hands of the British was the last straw, and public sup-
port for the regime crumbled. The junta soon broke apart and beat a
hasty retreat back to the barracks. In 1983, the country held elections
and, to the surprise of many, the people chose Radical Party candidate
Raúl Alfonsı́n as president and leader for the transition to democracy.
Following the Malvinas War there was deep contempt for the military:
according to David Pion-Berlin, ‘‘a profound gulf separated the armed
forces from society. Military incompetence, self-aggrandizement, and re-
pression in office contributed to an unprecedented repudiation of the
profession at the hands of civil society. The military found itself dis-
credited by and ostracized from the larger Argentine community to a
degree not previously experienced.’’15 Nevertheless, the military re-
mained adamant that it had done nothing wrong. During the election
campaign, Alfonsı́n had pledged to prosecute the armed forces for the
past and, once in office, he began a limited effort to go after high-level
officers that had actually been part of the junta. He hoped that, by steer-
ing this more moderate course between no trials and extensive prose-
cutions deep into the ranks, some measure of the military regime could
be held accountable without provoking a backlash that would disrupt the
transition to democracy. In addition, Alfonsı́n simultaneously undertook
several efforts to reassert civilian control of the military, including re-
structuring the Ministry of Defence, drastically cutting the military bud-
get, and confining the armed forces to an external security mission – thus
excluding them from involvement in domestic surveillance. In the end,
Alfonsı́n was unable to control the judicial proceedings and avoid the
military backlash he feared.
Alfonsı́n resigned in 1989, five months before his term expired – not
because of the trial but, rather, because of the continuing economic mal-
aise. In early elections in 1989, Carlos Saúl Menem won the presidency
and chose a different route from his predecessor. Although continuing to
push the democratic transition forward, Menem moved to end the trials.
In the election, he received a significant share of the votes of military
personnel and, according to Wynia, ‘‘Menem neither feared nor loathed
the armed forces as Alfonsı́n did. He knew that he could not allow offi-
cers to claim any more authority than Alfonsı́n had allowed them, but he
also believed that direct assaults on the military had to stop.’’16 Between
October 1989 and December 1990, Menem issued pardons for all those
who had been convicted or were still under indictment. The pardons
were very controversial and angered many, but Menem argued that they
were necessary to restore the military’s faith in constitutional govern-
ment.17 In 2001, lower courts ruled that earlier measures enacted to
protect the military were unconstitutional. The matter is awaiting a final
ruling from Argentina’s Supreme Court. If the Supreme Court affirms the
lower court rulings, another round of prosecutions may follow.
394 ROEHRIG
South Korea
The military’s involvement in South Korean politics has been relatively

recent compared with that of Argentina, but Korea has had a long history
of authoritarian rule. From 1392 to 1910, Korea was governed by a series
of monarchs where power was centralized in Seoul and administered by a
strong bureaucracy. From 1910 to 1945, Korea was subjected to a harsh
occupation under the Japanese empire until its liberation after World
War II. Neither dynastic rule nor Japanese occupation did much to pre-
pare Korea for a democratic system of government.
Liberation in 1945 was bitter-sweet for Koreans. Although they were
freed from imperialism, US and Soviet authorities divided the peninsula
at the 38th parallel to take the Japanese surrender. The subsequent Cold
War made the reunification of North and South Korea extremely diffi-
cult. After a brief period of US occupation that ended in 1948, South
Korea held elections and began a tumultuous period of supposedly
democratic civilian rule under its first President, Syngman Rhee. How-
ever, Rhee ruled much more like a monarch of old than a democratic-
ally elected president.18
In 1960, Rhee was driven from power by massive demonstrations fol-
lowing a particularly fraudulent election. After a short-lived attempt at
democracy, Major General Park Chung Hee led a coup in 1961 to bring
order to an increasingly chaotic political situation. In two years, Park re-
signed his commission and won a series of elections (although by small
margins) to remain in power until 1979. Park ruled most of the time as a
civilian, but there was little doubt that the military was the power behind
his authority. After his election in 1963, and until 1971, the authoritarian
character of Park’s rule subsided to a certain extent: opposition parties
and the press operated with little hindrance and, according to Bruce
Cumings, it was a ‘‘fairly stable, if often raucous, form of limited plural-
ism . . . .’’19 However, following the 1971 election, the regime became ex-
ceedingly authoritarian. In October 1972, Park dissolved the National
Assembly, declared martial law, banned political parties, and shut down
all colleges and universities. The following month, Park rammed through
a new constitution that granted him sweeping power and essentially
made him President for life.
Several reasons lay behind Park’s shift to a harsher version of authori-
tarian rule. First, the opposition was growing in strength under the lead-
ership of such men as Kim Dae Jung and Kim Young Sam, both of whom
would later become presidents.20 Park was becoming less tolerant of the
opposition and wanted more power to shape political outcomes. Second,
Park intended to shift South Korean economic policy in new directions
and believed that he needed the increased political power to accomplish
his goals. Finally, in the wake of the Viet Nam War and a US commit-
ment that seemed to be waning, Park believed that firm rule was neces-
sary to unify and strengthen South Korea for the possible decrease in
American support that seemed on the horizon.21
During his tenure, Park instituted economic policies that surpassed the
dismal performance of the Rhee era. However, Park ruled with an iron
fist: he showed little tolerance for the opposition, and extensive human
rights abuses occurred owing to his efforts to suppress political oppo-
nents. Thousands were arrested for criticizing the government or on sus-
picion of being communists, an accusation that could be used against
nearly any political opponent. Repression, especially during the latter
years of Park’s rule, included ‘‘arbitrary arrests, prolonged detentions,
forced confessions under torture, and sham trials followed by imprison-
ment or execution . . . .’’22 Emergency Measure Number 9 even made it a
criminal offence to criticize the President. Usually, the repression was
carried out by the Korean Central Intelligence Agency (KCIA), which
was given wide latitude in ferreting out opponents of Park’s rule.
In 1979, the Park era came to an abrupt end: in a heated argument
over the proper response to increasing political unrest, the head of the
KCIA shot and killed Park at a dinner meeting. Many thought that South
Korea might at last begin a transition to democracy; yet, once again, after
a brief period of democratic rule, Major General Chun Doo Hwan or-
chestrated a ‘‘multistage coup’’ in 1979–1980 that returned the military
to power.23 As Park had done, Chun resigned his commission and won
a series of elections under a system that gave his ruling party decisive
advantages. Chun continued the Park legacy of economic growth accom-
panied by suppression of the opposition and human rights abuses. Par-
ticularly galling to South Koreans was an event that occurred in May
1980 in the city of Kwangju: Chun sent in crack troops from the South
Korean army to crush demonstrations that had been building in response
to his seizure of power and years of economic neglect by the central
government. Although the government placed the number killed at 200,
other groups have maintained that the number was closer to 2,000. The
government announced that they had thwarted a communist plot; how-
ever, for South Koreans, Kwangju left a bitter memory. The violence at
Kwangju made it nearly impossible for Chun to establish any legitimacy
for his rule.
Throughout his term (which was to end in 1988), Chun maintained that
he would step down and comply with the constitutional restriction of one
seven-year term. However, under the electoral system of that time – an
indirect electoral college process that heavily favoured the ruling party –
it was virtually assured that whoever ran under Chun’s government party
label would become the next president. By 1986, pressure to reform the
396 ROEHRIG
political system (especially to institute a direct presidential election) was

mounting. When talks with the opposition stalled, Chun abruptly an-
nounced that he was suspending further discussions until a later date.
Furthermore, he nominated Roh Tae Woo (a former General and Ko-
rean Military Academy classmate who was involved in the coup and the
Kwangju massacre) to be his successor as the next ruling-party candidate.
Demonstrations against the government skyrocketed, as it appeared that
South Korea would once more have a General leading the country. In
the face of this determined opposition and Roh’s surprise announcement
in June 1987 of an Eight-Point Plan that supported many of the opposi-
tion’s demands, Chun relented and allowed the reform process to go
forward. In December 1987, South Korea held a direct, popular election
for the presidency to begin its transition to democracy.
Why did Chun decide that he was now willing to compromise with the
opposition? Several reasons seemed to be at play. First, South Korea had
won the right to host the 1988 Olympic Games and even Chun did not
want to jeopardize this chance to show off the economic progress that the
country had made in the past 20 years. Given the level of political vio-
lence, there was even a possibility that the Games would be cancelled or
moved to an alternative site. Second, the United States placed tremen-
dous pressure on Chun to reach a compromise with the opposition,
rather than to use force to crush it. Third, public support for reform was
now more broad based and included other segments of South Korean
society, especially the growing middle class that had mushroomed during
the country’s economic take-off. Finally, there is some speculation that
Chun and Roh gambled on the possibility that the two chief opposition
leaders – Kim Young Sam and Kim Dae Jung – would have difficulty in
uniting their camps to form a solid front against Roh Tae Woo, the
Government Party candidate.
The gambit worked, as neither Kim would step aside to let the other
unite the opposition: instead, they split the opposition vote, allowing Roh
to win the presidency.24 Thus, although South Korea began its transition
to democracy, it was an uncertain beginning that left many South Kore-
ans disillusioned with politics.
Once again, South Korea would have a president with ties to the mili-
tary. Was Roh Tae Woo eager to proceed with a true transition to de-
mocracy? Would he be willing to hold the previous regime accountable
for human rights abuses? Roh did lead South Korea forward in its tran-
sition to democracy, supporting greater freedom for the press, more tol-
erance of opposition, and a vastly improved respect for human rights. He
also instituted several measures to return the military to civilian control
by removing generals appointed for political purposes and replacing
them with officers committed to staying out of politics. He also prohibited
the Agency for National Security Planning, the former KCIA, from do-
mestic surveillance activities. Furthermore, Roh announced that the rul-
ing party’s next presidential nominee would not be a military man. As
Roh noted, ‘‘for the sake of the nation and its political development, I
should be the last president to come from the army.’’25 However, some
vestiges of the old regime remained, especially the National Security
Law26 and the government’s rough treatment of labour.
Despite tremendous pressure from the opposition, Roh and Chun were
able to escape prosecution. After all, Roh had as much incentive as Chun
to avoid any judicial action, given his own involvement in the coup and
the Kwangju massacre. Thus, this task would be left to the next Presi-
dent, Kim Young Sam, who assumed the office after the 1992 election.
President Kim continued South Korea’s transition but was also unin-
terested in pursuing an accounting of past abuses, preferring to leave
these events up to ‘‘the judgement of history.’’ As Kim noted, ‘‘we should
not forget the atrocities but let’s forgive them to achieve national recon-
ciliation.’’27 In large part, this was due to a surprising coalition formed by
his opposition party and Roh’s ruling party two years prior to the 1992
election. The merger gave Kim the inside track on the presidency; how-
ever, this meant that, if elected, he would have been going after members
of his own party.
However, President Kim also added fuel to prosecution efforts by de-
scribing the Kwangju incident as a ‘‘pro-democracy movement,’’ not a
rebellion, as Chun had maintained. He also said that the 12 December
incident was ‘‘a development tantamount to a coup d’état in which lower
ranking officers disobeyed the orders of superior officers.’’28 His com-
ments encouraged numerous individuals to initiate lawsuits in 1993 and
1994 against Chun and Roh. However, for a variety of reasons, the Seoul
prosecutor’s office chose not to indict them, possibly taking their cue
from President Kim’s preference to let the matter rest. Ultimately, an
unexpected revelation that Chun and Roh had accumulated huge cam-
paign slush funds re-energized efforts to prosecute them. Public pressure
rose to the point where the process could not be stopped. Owing to this
ground swell, Kim Young Sam reluctantly supported the prosecution of
Chun and Roh.
Causes
In both Argentina and South Korea, military leaders seized the reins of
government because they believed that there were serious threats to the
survival of the nation. In turn, the human rights abuses that followed
flowed largely from efforts to quell the threats and quash opposition to
398 ROEHRIG
their rule. These threats were political and economic in nature. The ab-
sence of deep-seated racial, ethnic, or religious divides within Argentina
and South Korea meant that the transition to democracy was likely to
have one less complication: societies that are severely fractured along
racial, ethnic, and/or religious lines have greater problems with power
sharing and establishing the necessary political institutions for an effec-
tive democracy. Let us now consider each case.
Argentina
When the military intervened in 1966 and again in 1976, they felt that
they were reacting to several threats that endangered the country. First,
despite efforts by the civilian government, the economy struggled during
the 1960s: inflation rates rose, agricultural production declined, and in-
vestor confidence waned. Numerous strikes and factory take-overs or-
ganized by the General Confederation of Labour (La Confederación
General del Trabajo; CGT) accompanied these woes, leading to a per-
ception that the government was in chaos and the country was spinning
out of control. In the military’s view, something had to be done to save
Argentina from the impending economic collapse.
In addition to the fears of economic breakdown, military leaders saw
communist subversion as a second threat that would prey upon the
country’s rapidly deteriorating economy. During much of the 1960s,
guerrilla groups supporting Marxist ideologies utilized unconventional
violence, including kidnapping and murder, to achieve their goal of
bringing societal change. These groups were interspersed within the
population, making their detection by the government unlikely. In the
junta’s view, these subversive elements were dangerous enemies bent on
destroying the state and, therefore, harsh measures were required to
eliminate the threats. As José Zalaquett noted, military leaders saw
‘‘Marxist penetration and insurgency as an all-pervading presence of a
new type of enemy fighting a new type of war,’’ and ‘‘since the war on
Marxism is an insidious one, unorthodox methods are called for, includ-
ing torture and extermination of irredeemable political activists.’’29 Ac-
cording to General Jorge Rafael Videla, army commander-in-chief
and leader of the junta in 1976, ‘‘we will combat, without respite, sub-
versive delinquency in all of its forms until its total annihilation.’’30
Subsequently, the government cracked down hard on these guerrilla
groups, arresting suspected leaders, many of whom were tortured and
executed.
When the military returned to power in 1976 after a three-year re-
spite, they were even more determined to end the threat of ‘‘left-wing
subversives.’’ According to General Videla, ‘‘[a]ll those persons neces-
sary will die in order to achieve the security of the country.’’31 As junta
leaders saw it, Argentina was being attacked from within by a cancerous
disease that, if left unchecked, would eat away at a society weakened by
an inept democratic system of government. Democracy had tried and
failed; now it was time for the military to bring order and structure to
society, a task at which they excelled. The remedy was radical surgery to
remove the infected parts, since it was unlikely that subversives could be
reformed. Also, given the high stakes for the country, any methods were
acceptable. According to Admiral Cesar Guzetti, the first Foreign Minis-
ter of the junta in 1976, ‘‘subversion or terrorism of the right – there is no
such thing. The social body of the country is contaminated with a disease
that corrodes its entrails and forms antibodies. These antibodies cannot
be considered in the same way that one considers the microbe.’’32
Can these actions taken against the left be considered as human rights
violations? In 1980, General Leopoldo Galtieri stated emphatically:
. . . in this country there was not, and could not have been any violation of human
rights. There was a war, an absurd war, unleashed by a treacherous and criminal
barbarism, a war which in spite of the fact that it was directed not only against the
people but also against a way of life which is supported by a large number of na-
tions of the world, had to be confronted and resolved by Argentines alone.33
The military argued vehemently that their actions were part of a war to
save the country. Rather than be accused of human rights abuses, they
instead should be congratulated for performing their patriotic duty in
rescuing the country from the scourge of communism. As the military
saw it, the disappeared (desaparecidos) were not the victims; instead,
they were the perpetrators and the military was protecting Argentine
society from their sickness.
Military leaders also saw the threat in terms of the National Security
Doctrine (NSD), an ideology of sorts developed in France and the
United States and taught at the time throughout many service academies
in Latin America. According to NSD, the most pressing threats to na-
tional security were not external but, rather, internal threats from subver-
sive elements, especially the spread of communism. These threats were
ongoing and difficult to detect, requiring constant vigilance and a vigor-
ous response with whatever means were necessary to ensure the safety of
the nation.34 Yet, despite the fact that the military succeeded in elimi-
nating the threat of these ‘‘subversive elements’’ during their first year in
power in 1976, the repression and horror continued, victimizing many
who had little or no connection with the left. As long as the ‘‘threat’’ re-
mained a possibility, military authorities believed that they were justified
in continuing to rule and impose their harsh measures.
400 ROEHRIG
South Korea
In South Korea, human rights abuses also flowed from the military’s
perception of serious threats to the country. However, whereas the threat
in Argentina was primarily an internal one, for South Korea the threat
had a much larger external component – namely, the danger of a grave
security threat from a hostile North Korea. In the face of growing politi-
cal unrest and economic turmoil, military officers stepped into power,
determined to impose order and bring economic development to the
country, while showing little tolerance for opposition to their political
rule or economic plans.
Early in the morning on 16 May 1961, the military seized power from
the civilian government in Seoul. One year earlier, South Korea had un-
dergone a major political shake-up with the ousting of Syngman Rhee,
President of South Korea since its inception in 1948. A fledgling democ-
racy followed Rhee’s tenure, but the coup led by a group of colonels and
lieutenant-colonels interrupted this brief period of democratic rule. The
junior officers had several reasons for intervening. First, the democratic
political system had great difficulty in functioning. The ruling Democratic
Party held a solid majority in the National Assembly but was badly frac-
tured, making it difficult to develop and execute policy.35 As a result,
serious problems (especially a stagnant economy debilitated by high
inflation rates) were left unattended. The political climate was so polar-
ized that accomplishing anything was a difficult task and, increasingly,
this government appeared feeble and ineffective.36
Second, students, who had been an important force in ousting Rhee,
continued large-scale demonstrations after his departure. The students
felt so energized by their power that they considered themselves to be
the ‘‘fourth’’ branch of government.37 On several occasions, students
marched into the National Assembly to lecture politicians on the proper
course of action in legislative matters. Even worse, these student groups
called for meetings with fellow students in the North and pushed for
peaceful reunification of the two Koreas.38 North Korea exploited these
developments by stepping up propaganda and infiltration activity.
Finally, the South Korean economy continued to struggle, showing few
signs of growth and suffering from spiralling inflation. Rhee had little
knowledge of (and almost no interest in) managing economic affairs:
during his 12 years of rule, Rhee never implemented a comprehensive
economic plan.39 Corruption was rampant and, despite large doses of US
economic aid, the South Korean economy made little progress. Following
Rhee’s rule, the administration under Chang Myon attempted to imple-
ment a major economic initiative, but the plan did not have sufficient
time to work. The lack of economic development threatened not only the
livelihood of the people but also the South’s ability to defend itself. As
military leaders saw it, economic growth had to occur soon to ensure that
the country had sufficient resources to maintain a robust defence capa-
bility in its struggle with the North.
For Park Chung Hee and other military leaders, these were dangerous
threats to the regime, and the civilian government seemed incapable of
addressing them. It was now their turn to bring order to the political sys-
tem and to implement an effective plan for economic development. Ac-
cording to Park, the country would now ‘‘have to resort to undemocratic
and extraordinary measures in order to improve the living conditions of
the masses . . . one cannot deny that people are more frightened of pov-
erty and hunger than totalitarianism . . . .’’40 A vigorous economy and
stable political order would end the threat of internal political and eco-
nomic disintegration and also build the country’s strength to confront the
external threat from the North.
As Park’s rule progressed, he tolerated little opposition to his eco-
nomic plans or political leadership. Thousands were arrested for criti-
cizing the government or on suspicion of being communists. As noted
earlier, his regime became particularly harsh in the later years of his rule.
To implement his draconian measures, Park utilized the KCIA. Many
were arrested, detained for long periods of time, tortured, and, after
hasty trials, imprisoned or executed.41
After Park’s assassination in 1979, Chun Doo Hwan continued the
legacy of authoritarian rule. His violent crackdown at Kwangju, followed
by further repressive rule, placed a cloud over the legitimacy of Chun’s
regime. Yet, as Chun and others maintained, given the threat from the
North, South Korea could not afford democracy: they believed that South
Korea had to be united politically and to grow economically in order to
confront the communist threat; thus, the internal and external threats
were linked. The danger of political unrest and economic chaos had a
direct bearing on South Korea’s ability to maintain the necessary defence
posture to deter Pyongyang.
Authoritarianism and the consequent human rights abuses in South
Korea and other Asian societies have some roots in Confucianism. As a
political philosophy and code of social order, Confucianism stresses the
importance of hierarchy and obedience to those above on the social and
political ladder: good citizens must be loyal and obedient to the central
authority, accepting of its dictates for the greater good of the entire
country; in return, leaders are expected to rule justly and provide for
their people. When things go wrong, leaders lose the ‘‘mandate of
heaven’’ and subjects have the right to overthrow those who are appar-
402 ROEHRIG
ently acting unjustly. Both Park and Chun utilized Confucianism to rein-
force their authority, emphasizing loyalty and obedience to the state and
to justify measures taken to halt opposition to their rule. In this manner,
they grounded their authoritarianism in traditional values and an ideol-
ogy familiar to all in an effort to legitimize their rule. During Park’s
tenure, phenomenal levels of economic growth helped to produce the
success that maintained the mandate for his rule. However, even con-
tinued prosperity under Chun could not overcome the lack of legitimacy
created by the Kwangju massacre and a growing desire for greater polit-
ical participation. Later, when Chun and Roh were accused of corrup-
tion in addition to the charges of mutiny stemming from the coup and
the events at Kwangju, it would become clear that the citizens of South
Korea took seriously the second portion of the mandate – namely, that
leaders must rule justly. South Korea demonstrates that democratization
and human rights can fit with the traditional values of Confucianism.
In the cases of both Argentina and South Korea, threat perceptions
played an important role as the chief cause for the military to seize power
and subvert human rights. The militaries in both countries believed that
the survival of the state was at stake. In Argentina, ‘‘reducing the
threats’’ meant that the subversives of the left were virtually wiped out in
the ‘‘dirty war,’’ although the economic problems remained. In South
Korea, authoritarian rule and economic growth created one of the eco-
nomic powerhouses of East Asia. As the threats lessened, the military
felt more assured that they could return to the barracks and allow the
democratic transition to begin.
Also important in explaining the movement to democratic rule and
greater respect for human rights is the role played by civil society and the
pressure it brought to bear on the respective regimes. In Argentina,
waning support for the junta’s economic policies followed by the Malvi-
nas debacle saw the military beat a hasty retreat in the face of growing
public criticism. Numerous segments of Argentine society initially sup-
ported the military coup for many of the same reasons espoused by the
military – democracy had failed to bring peace, order, and prosperity.
Public condemnation, coupled with the military’s realization that the
forces of communism had been defeated, made it easier for them to re-
linquish power. In South Korea’s case, the prosperity generated under
the military rule eliminated one of the threats to South Korea but
created seeds for its own demise – a strong, vibrant, middle class that
demanded a share of political power to accompany its growing economic
clout.42 In both cases, a growing weariness with authoritarian rule and
the suppression of human rights created pressure for a return to civilian
government.
Consequences
One of the most interesting consequences of human rights abuses in

these two cases is the dilemma of how to deal with the perpetrators of the
abuses during the transition to democracy.43 This raises a central ques-
tion: can military regimes that have horrendous human rights records be
held accountable for the past without provoking their return to power
and disrupting the transition to democracy?44 This has been an important
issue for other regimes making the transition and for the cause of human
rights in general. Most of the time, the military negotiated a pact before
leaving, to protect themselves from prosecution: on many occasions, the
pact was honoured; however, sometimes, civilian authorities revoked the
agreement once the military had stepped down. Nevertheless, new civil-
ian governments rarely tried to hold the military accountable for past
human rights abuses. The two cases in this chapter are exceptions to this
pattern: both Argentina and South Korea attempted to prosecute per-
petrators of human rights abuses, with different results.
Argentina
Although President Alfonsı́n initially intended to conduct limited and

carefully controlled prosecutions of only the top-ranking junta officials
responsible for human rights violations, the process soon spiralled out of
his control:45 eventually, approximately 3,000 cases were pending in Ar-
gentine courts. This appeared to many in the military as a process with-
out end.46
For the armed forces, these trials were a travesty. The ‘‘dirty war’’ had
been a struggle crucial to the national security of Argentina. Winning
that war, despite the brutal tactics, was a necessary and significant
achievement. General Roberto Eduardo Viola remarked in 1981: ‘‘[A]
victorious army is not investigated. If the Reich’s troops had won the last
world war the tribunal would have been held not in Nuremberg but in
Virginia.’’47 To be prosecuted for defending the nation was an absurd
accusation, in the minds of many soldiers. As Deborah Norden argues,
the trials:
. . . reflected an official condemnation of the military institution, and condemna-

tion on the one front where the armed forces believed they had succeeded.
Rather than honoring the military heroes for defending the nation from a dan-
gerous enemy, the trials portrayed them as criminals and the ‘‘enemy’’ as inno-
cent victims.48
404 ROEHRIG
As a result, it was difficult for the military to remain on the sidelines

while their institution was under attack for fulfilling their most noble
assignment – safeguarding the nation. The military viewed the prosecu-
tions as persecutions. Although the government did make efforts to con-
demn the leftist guerrillas for their share of the political violence, the
armed forces were not convinced: the trials were a threat to the military
as an institution and had to be stopped.49
The trials themselves represented an important dimension of the tran-
sition to democracy – namely, efforts to reassert civilian control of the
military. In addition to the trials, President Alfonsı́n placed civilians in
charge of the Ministry of Defence and reduced the power of the service
chiefs.50 The government also passed two laws that restricted the mil-
itary’s involvement in domestic politics: first, the penalty for leading a
coup was increased from 15 to 25 years; second, military intelligence
agencies were prohibited from any internal defence missions and con-
fined solely to operations against external enemies.51 In addition to
passing laws, the Argentine Government implemented drastic cuts in the
military budget: in 1979, three years into the junta, military expenditures
stood at $2.8 billion (6.2 per cent of GDP); by 1986, when the 3,000 cases
were pending, military expenditures had shrunk to $1.15 billion (1.7 per
cent of GDP).52
With the likelihood of ever-expanding prosecutions – which appeared,
to military personnel, to be part of a broader government policy to pun-
ish, and possibly destroy, the military – something had to be done. To put
an end to the trials, in April 1987, soldiers [named carapintadas (painted
faces) for the battlefield make-up worn on their faces] seized control of
an army base near Buenos Aires. President Alfonsı́n travelled to the base
and obtained the rebels’ surrender. In return (although this was not made
public) Alfonsı́n agreed to push a law that exempted from prosecution
any one below the rank of colonel. The law, Obendencia Debida [Due
Obedience], returned the trials to Alfonsı́n’s original intention of limiting
the prosecutions to only the top-ranking officers.53 Three more insur-
rections followed in January 1988, December 1988, and December 1990.
The last two rebellions were more an attempt to carve out a niche for
themselves in Argentine politics than an action to end the trials; however,
few in the military supported these efforts, and the last insurrection was
crushed decisively by loyalist troops.54
Alfonsı́n had embarked on a process that he hoped would lead to the
prosecution of several top-level junta members, while also keeping the
military on the sideline. In the end, he failed: despite his efforts, Alfonsı́n
eventually lost control of the process and led to a situation that threat-
ened not only the fate of individual officers but also that of the military as
an institution. For many in the armed forces, this was unacceptable and
required intervention to bring the trials to a halt. The public was out-
raged by the military’s actions and massive demonstrations followed.
Nevertheless, the military had demonstrated unmistakably that there
were limits to what they would tolerate during the transition, and the
government was unable to stop them from flexing their muscles. Al-
though some of the highest-ranking officers were convicted, eventually
they all received pardons after serving only partial sentences. Thus, the
transition to democracy did not include holding the military accountable,
and many Argentines still lament the lack of punishment for the atroc-
ities of the past.
South Korea
South Korea also prosecuted former members of its military government,

but with different results. In this case, the military stayed on the sidelines
and showed little interest in disturbing the judicial proceedings and the
transition to democracy. The differences here between South Korea and
Argentina provide some guidance about how prosecutions can go for-
ward without provoking military intervention.
In November 1995, South Korean authorities arrested former presi-
dent Roh Tae Woo on charges of accumulating a massive slush fund from
numerous businesses in return for government favours. Chun Doo Hwan
was also indicted for similar offences. Later, the charges grew to include
mutiny for the 1979–1980 coup and treason stemming from the Kwangju
massacre. Fourteen other officers and nine business leaders were added
to the list of defendants. When the dust settled, seven months later,
Chun and Roh were convicted: as the ringleader, Chun was given a death
sentence, while Roh received a sentence of 22.5 years in prison;55 the
sentences were later reduced on appeal to life in prison and 17 years, re-
spectively. In addition, 13 of the 14 officers were found guilty, receiving
sentences ranging from 4 to 10 years.
Throughout the trials, many expected President Kim Young Sam to
pardon Chun and Roh prior to leaving office. On 18 December 1997, two
days after South Koreans had elected Kim Dae Jung – Opposition Party
candidate and hated enemy of the former military regime – to be their
next president, the two Kims agreed to the pardons. Kim Dae Jung
had pledged during his campaign not to seek revenge against these two
leaders, who had sought his execution. The two Kims presented the par-
dons as a gesture of reconciliation to old enemies and a call for unity
in the midst of the 1997 economic crisis. However, Chun and Roh
were still responsible for $270 million and $350 million, respectively,
406 ROEHRIG
in fines as punishment for slush fund convictions.56 Many South Koreans

were unhappy with the pardons, but most grudgingly accepted the
outcome.
In contrast to the Argentine military, the South Korean armed forces
stayed on the sidelines while 16 of their highest-ranking officers were
prosecuted. There are several reasons for this course of action. First, in
South Korea, the trials were not perceived by the military as an attack on
the institution and were limited in scope (as government officials stated
from the outset) to the top leaders, namely Chun, Roh, and others. Nu-
merous actions were taken by authorities to establish civilian control of
the military, including purging officers, restricting intelligence agencies
from domestic surveillance, and banning the formation of private military
clubs; nevertheless, the armed forces as a whole did not see these trials as
a vendetta against the military as an institution. Second, the new civilian
government did not punish the military with drastic cuts in defence
spending; instead, throughout the transition and trials, the South Korean
government maintained a large military budget that rose from $4.4 billion
in 1986 to $15.1 billion in 1996 (a 243 per cent increase);57 these levels
of defence spending were necessary because of the serious security threat
that remained to the north. In addition, the continuing threat from
Pyongyang helped to keep the military out of domestic politics and oc-
cupied with external missions.
Second, South Korean leaders did not prosecute the military early in
their transition to democracy. To be sure, this was not intentional: the
first post-authoritarian president in South Korea was Roh Tae Woo; he
certainly had no desire to initiate prosecutions, since he was high on the
list of those to be tried! Furthermore, the next President, Kim Young
Sam, had ties to the ruling party of Chun and Roh and had little intention
of pushing the prosecutions forward. Once in office, President Kim noted
that ‘‘. . . the matter should be left to history. I think our unfortunate past
history should not be a road block to the progress of our nation.’’58 It
was significant that South Korea worked first to bring the military under
civilian control before mounting the prosecutions. By following this
route, the civilian government had more time to reassert and to institu-
tionalize its hold on the armed forces before testing that control with
trials, and thereby provoking a backlash that could derail the transition
to democracy.
Finally, the economic successes of the authoritarian period created
a relative political consensus on continuing its economic policies. This,
in turn, ensured the country’s military security. Thus, the South
Korean military could feel secure that threats to the nation would not re-
emerge if they allowed thorough civilian control over the military to be
restored.
Conclusions
Two conclusions seem evident from an examination of these two cases.

First, the human rights violations in Argentina and South Korea were
primarily a reaction to perceived political and economic threats, not to
divisions based on race, ethnicity, or religion. Their legacy of human
rights abuses was based primarily on political and economic threats that
were less deeply rooted or broad-based. Although there was a strong
desire to hold the regime and its leaders accountable, there was less re-
sidual animosity between larger segments of society to complicate the
transition to democracy. The absence of ethnic divisions should make it
easier to build the consensus, unity, and institutions necessary for a
functioning democracy. Concerns for power sharing between various
groups were not a serious issue in Argentina and South Korea. Also, with
the dissipation of the perceived security threats, the military (although
still protective of its institutional interests) was more willing to leave
the reins of government in the hands of civilians. Trials, or other efforts
to deal with the past – such as truth commissions or investigations –
complicate any transition to democracy. However, if the proceedings are
not made worse by issues of race, ethnicity, or religion, the trials may not
be problematic for the transition – as long as they do not become a ven-
detta against the military as a whole and are not perceived by the military
as facilitating the re-emergence of threats to the nation.
The human rights abuses were generated largely by the militaries’
perception of what needed to be done to save their countries from disas-
ter. With the military gone and democracy firmly in place, even appar-
ently given Argentina’s continued economic woes, respect for human
rights has returned. In Argentina and South Korea, human rights and
democratization go hand in hand: democracy has led to more respect for
human rights, and vice versa. Although some vestiges of the authoritar-
ian past remain, both societies enjoy high degrees of governing by the
rule of law, greater press freedom, and tolerance of political opposition.
In short, both Argentina and South Korea have been relative success
stories for human rights and societies in transition.
The second conclusion is alluded to in The Third Wave, where Samuel
Huntington asks whether it is better to ‘‘prosecute and punish’’ or ‘‘for-
give and forget.’’59 During the transition, there is often great pressure to
hold the offenders in the previous military regime accountable for human
rights abuses. As one newspaper reporter noted after covering the trial in
Argentina, ‘‘[o]ne has to ask oneself how it is possible to live in this
country with people who murdered, people who tortured and still walk
among us; with fathers who will grow old without their sons, and sons
who will have to grow up without their fathers.’’60 Holding members of
408 ROEHRIG
the military, or any authoritarian regime, accountable for human rights

abuses is a delicate but crucial undertaking. Democracies are grounded
in the rule of law and have an obligation to uphold the law. In addition,
many of the human rights abuses of these regimes are violations not only
of domestic law but also of numerous international legal agreements.
Prosecutions help to demonstrate and build the values and rule of law on
which the new democracy is founded. According to Juan E. Méndez, im-
posing justice ‘‘highlights the fundamental character of the new order to
be established, an order based on the rule of law and on respect for the
dignity and worth of each human person.’’61 To let perpetrators go with
no consequence is to encourage further egregious behaviour so ‘‘that
impunity will only encourage new abuses in the new or distant future.’’62
Determined judicial proceedings help not only to deter future human
rights abuses but also to encourage the military to remain in the barracks
all together. To embark on some path to accountability helps to establish
respect for the rule of law and human rights while dissuading others from
similar violations in the future.
But trials risk provoking the wrath of the military and derailing the
transition to democracy. How to accomplish both? There is no simple
answer to this dilemma. These two cases point to the possibility that the
perpetrators can be held accountable; however, this must be done care-
fully and, perhaps, in a more limited manner that does not provoke the
military. First, efforts to rein in the military need to be taken before
the trials begin, allowing civilians the time to establish a firm grip on
the armed forces. Second, civilian leaders need to be careful that their
actions do not threaten the military as an institution. The scope of pros-
ecutions may need to be more limited than many would like, and other
measures – drastic budget cuts, purges, restrictions on military prerog-
atives – may need to be less severe, or at least not implemented in rapid
succession. Third, prosecutions are unlikely to be successful if large pro-
portions of the military believe that these will open the way for fresh
threats to the nation. By taking account of these issues, human rights
standards can be upheld to some degree without provoking the armed
forces to step back into power.
Notes
1. Huntington’s study of democratic transitions identified three waves of democratization,

with the first two waves occurring from 1828 to 1926 and from 1943 to 1962. The ‘‘Third
Wave’’ began in 1974 with Portugal and Greece and concluded in the early 1990s with
Paraguay, South Africa, and the Former Soviet States. Samuel P. Huntington, The Third
Wave, Norman: University of Oklahoma Press, 1991, pp. 13–26.
2. Deborah L. Norden, Military Rebellion in Argentina: Between Coups and Consolidation,

Lincoln: University of Nebraska Press, 1996, p. 40.
3. Edward C. Epstein, ‘‘Democracy in Argentina,’’ in Edward C. Epstein, ed., The New
Argentine Democracy, Westport: Praeger, 1992, p. 11, and Norden, Military Rebellion in
Argentina, p. 43.
4. Epstein, ‘‘Democracy in Argentina,’’ p. 11.
5. Joseph Page, Perón: A Biography, New York: Random House, 1983, pp. 492–493.
6. Norden, Military Rebellion in Argentina, p. 46, and Gary Wynia, Argentina: Illusions
and Realities, 2nd edn, New York: Holmes and Meier, 1992, p. 62.
7. Wynia, Argentina: Illusions and Realities, 2nd edn, p. 86.
8. Iain Guest, Behind the Disappearances: Argentina’s Dirty War Against Human Rights
and the United Nations, Philadelphia: University of Pennsylvania Press, 1990, p. 22.
9. Thomas E. Skidmore and Peter H. Smith, Modern Latin America, 3rd edn, New York:
Oxford University Press, 1992, p. 103.
10. Guest, Behind the Disappearances, p. 30.
11. Nunca Más: The Report of the Argentine National Commission of the Disappeared, New
York: Farrar, Straus and Giroux, 1986, pp. 60–61.
12. Calvin Sims, ‘‘Argentine Tells of Dumping ‘Dirty War’ Captives Into Sea,’’ New York
Times, March 13, 1995; and ‘‘For the First Time, Argentine Army Admits ‘Dirty War’
Killings,’’ New York Times, 26 April 1995.
13. Nunca Más, pp. 286–305.
14. Ibid., p. 443.
15. David Pion-Berlin, Through Corridors of Power: Institutions and Civil–Military Rela-
tions in Argentina, University Park: Pennsylvania State University, 1997, p. 59.
16. Wynia, Argentina: Illusions and Realities, 2nd edn, pp. 213–214.
17. General Jorge Videla, one of the convicted junta members, was unrepentant to the end,
maintaining he would not accept a presidential pardon since he had done nothing
wrong. Ibid., pp. 214–215.
18. John Kie-chiang Oh, Korean Politics, Ithaca: Cornell University Press, 1999, p. 40.
19. Bruce Cumings, Korea’s Place in the Sun, New York: W.W. Norton, 1997, p. 356.
20. Kim Young Sam served as South Korea’s President from 1993 to 1998. Kim Dae Jung
became President in 1998, with a term ending in 2003.
21. Carter J. Eckert, Ki-baik Lee, Young Ick Lew, Michael Robinson, and Edward W.
Wagner, Korea Old and New: A History, Cambridge: Harvard University Press, 1990,
pp. 363–365.
22. Ibid., p. 369.
23. The coup began in December 1979 with a mutiny within the army, and eventually led to
his consolidation of power in August 1980. See Kim Sunhyuk, ‘‘State and Civil Society
in South Korea’s Democratic Consolidation,’’ Asian Survey, Vol. XXXVII, No. 12, De-
cember 1997, p. 1138.
24. The final results of the 1987 election gave opposition candidates Kim Young Sam and
Kim Dae Jung 28 and 27 per cent, respectively, of the vote count, for a total of 55 per
cent. Anything close to this combined total would have easily have topped Roh Tae
Woo’s 37 per cent.
25. Shim Jae Hoon, ‘‘No to Roh dynasty,’’ Far Eastern Economic Review, 25 April 1991,
p. 16; and ‘‘Kith and Kim,’’ Far Eastern Economic Review, 28 December 1989, p. 8.
26. The National Security Law (NSL), first passed in 1948, banned communism and any
activity that showed sympathy or support for the North. The law was used to arrest and
jail thousands of political opponents.
27. ‘‘Kim Vows to Restore Honor of Kwangju Citizens,’’ Korea Newsreview, 22 May 1993,
p. 4.
410 ROEHRIG
28. Shim Jae Hoon, ‘‘Bitter Harvest,’’ Far Eastern Economic Review, 27 May 1993, p. 15.
29. José Zalaquett, ‘‘From Dictatorship to Democracy,’’ The New Republic, Vol. 193, De-
cember 1985, pp. 18–19.
30. As quoted in David Pion-Berlin and George A. Lopez, ‘‘Of Victims and Executioners:
Argentine State Terror, 1975–1979,’’ International Studies Quarterly, 35, 1991, p. 71.
31. As quoted in J. Patrice McSherry, Incomplete Transition: Military Power and Democ-
racy in Argentina, New York: St. Martin’s Press, 1997, p. 78.
32. Buenos Aires Herald, 10 October 1976, as quoted in McSherry, Incomplete Transition,
p. 93.
33. Speech given by General Leopoldo Galtieri, contained in Brian Loveman and Thomas
M. Davies, eds, The Politics of Antipolitics, 2nd edn, Lincoln: University of Nebraska
Press, 1989, p. 202.
34. For more on the National Security Doctrine, see Pion-Berlin and George A. Lopez, ‘‘Of
Victims and Executioners: Argentine State Terror, 1975–1979,’’ pp. 69–71.
35. Eckert et al., Korea Old and New, pp. 356–358.
36. Han Sung-joo, The Failure of Democracy in South Korea, Berkeley: University of Cali-
fornia Press, 1974, p. 28.
37. Se-jin Kim, The Politics of Military Revolution, Chapel Hill: University of North Caro-
lina Press, 1971, p. 30.
38. Gregory Henderson, The Politics of the Vortex, Cambridge: Harvard University Press,
1968, p. 179.
39. Oh, Korean Politics, p. 31.
40. Seoul: Hyangmunsa, 1963, trans. Leon Sinder, pp. 105–107, as quoted in Oh, Korean
Politics, pp. 51–52.
41. Eckert et al., Korea Old and New, p. 369.
42. For an excellent treatment of South Korean civil society during the transition to de-
mocracy, see Sunhyuk Kim, The Politics of Democratization in Korea: The Role of Civil
Society, Pittsburgh: University of Pittsburgh Press, 2000.
43. A thorough treatment of transitional justice in Argentina, Greece, and South Korea is
contained in Terence Roehrig, The Prosecution of Former Military Leaders in Newly
Democratic Nations: The Cases of Argentina, Greece and South Korea, Jefferson:
McFarland Press, 2001.
44. There has been a lively debate among scholars and practitioners concerning the merits
of prosecuting human rights violations. The following is a small sample of the vast lit-
erature on the subject. Jamal Benomar, ‘‘Justice after Transitions,’’ Journal of Democ-
racy, Vol. 4, No. 1, June 1993, pp. 3–14; Luc Huyse, ‘‘Justice after Transition: On the
Choices Successor Elites Make in Dealing with the Past,’’ Law and Social Inquiry, Vol.
20, No. 1, Winter 1995, pp. 51–78; Neil J. Kritz, ed., Transitional Justice: How Emerging
Democracies Reckon with Former Regimes, Volumes I, II, and III, Washington D.C.:
United States Institute of Peace Press, 1995; Jaime Malamud-Goti, ‘‘Transitional Gov-
ernments in the Breach: Why Punish State Criminals?’’ Human Rights Quarterly, Vol.
12, February 1990, pp. 1–16; A. James McAdams, ed., Transitional Justice and the Rule
of Law in New Democracies, Notre Dame: University of Notre Dame Press, 1997; and
David Pion-Berlin, ‘‘To Prosecute or to Pardon? Human Rights Decisions in the Latin
American Southern Cone,’’ Human Rights Quarterly, Vol. 16, No. 1, February 1994,
pp. 105–130.
45. Despite Alfonsı́n’s hopes, civilian courts bucked efforts by the executive branch to limit
the number of prosecutions. When Alfonsı́n obtained legislative approval in 1986 for
Punto Final (End Point Law) that imposed a 60-day time limit on initiating new cases
against military personnel, judges and prosecutors raced to indict as many as possible
before the deadline expired.
46. Pion-Berlin, Through Corridors of Power, p. 91.

47. Cları́n (Buenos Aires), March 22, 1981 as quoted in Guest, Behind the Disappearances,
p. 277.
48. Norden, Military Rebellion in Argentina, p. 126.
49. Ibid., p. 126–127.
50. Robert A. Potash, ‘‘The Military under Alfonsı́n and Menem,’’ in Colin M. Lewis and
Nissa Torrents, eds, Argentina in the Crisis Years (1983–1990), London: The Institute of
Latin American Studies, University of London, 1993, p. 57, and Norden, Military Re-
bellion in Argentina, p. 96.
51. Norden, Military Rebellion in Argentina, p. 97; and Potash, ‘‘The Military under Alfon-
sı́n and Menem,’’ p. 61.
52. These figures are taken from The Military Balance, London: Institute of International
Studies, 1980–1981 and 1987–1988 editions. Given the high inflation rates and currency
fluctuations present in Argentina at the time, precise numbers are difficult to tabulate.
53. Norden, Military Rebellion in Argentina, p. 104.
54. Ibid., pp. 131–138, and Potash, ‘‘The Military under Alfonsı́n and Menem,’’ p. 66.
55. Sheryl WuDunn, ‘‘Ex-Leader in Seoul Faces Death Sentence,’’ New York Times, 26
August 1996.
56. Andrew Pollack, ‘‘New Korean Leader Agrees to Pardon of 2 Ex-Dictators,’’ New
York Times, 21 December 1997, p. A10 and ‘‘S. Korea president to pardon jailed ex-
presidents,’’ CNN Interactive hhttp://www.cnn.com/WORLD/9712/20/skorea.pardoni.
57. The figures given were taken from The Military Balance, London: Institute of Interna-
tional Studies. As a percentage of GDP, these numbers represent a decrease. However,
this was due more to the growth of the South Korean economy than to any cuts in mil-
itary spending.
58. ‘‘Controversy over Probing Former Presidents,’’ Korea Newsreview, 14 August 1993,
p. 8.
59. Huntington, The Third Wave, p. 211. In Huntington’s view, the most prudent course of
action is ‘‘do not prosecute, do not punish, do not forgive, and, above all, do not for-
get.’’ Ibid., p. 231.
60. Diario del Juicio 13, 20 August 1985, as quoted in Guest, Behind the Disappearances,
p. 6.
61. Juan E. Méndez, ‘‘In Defense of Transition Justice,’’ in A. James McAdams, ed., Tran-
sitional Justice and the Rule of Law in New Democracies, Notre Dame: University of
Notre Dame Press, 1997, p. 1.
62. Ibid., p. 3.
Conclusion
18
Protecting human rights in
transition societies: Lessons and
recommendations
Albrecht Schnabel and Shale Horowitz
In order to devise appropriate and effective policies to promote human

rights protection in transition societies, international, regional, and local
actors must be aware of the causes and consequences of human rights
violations. Important causes of violations are repressive political regimes
and leaders, self-serving manipulation of local cultures and identities
through state-controlled mass media and other cultural institutions, pov-
erty and economic instability, and civil and international conflict. Allevi-
ating or preventing these sources of human rights abuse considerably
raises the chances for adequate human rights protection. As the preced-
ing case studies have shown, human rights practices have an important
impact on a society’s ability to manage its conflicts peacefully, develop
economically, and build and strengthen institutions of democratic and
good governance. Favourable human rights practices foster peaceful and
prosperous futures, whereas negative human rights practices undermine
them.
Drawing on the thematic and case studies in this volume, this con-
cluding examination reviews some of the most crucial causes and con-
sequences of human rights violations and protections. It then offers
recommendations for national, regional, global, and civil-society actors
involved in shaping human rights practices in fragile transition societies.
415
416 SCHNABEL AND HOROWITZ
Reasons for human rights violations and protections
For internal and external actors to prevent human rights violations and
instil a pro-rights culture within society and state structures, they have to
address the root causes of violations, not just their symptoms. Under-
standing the reasons for human rights violations is the first step towards
effective proaction. As the findings of the various case studies in this
volume show, causes for human rights violations vary from region to re-
gion and from country to country. Nevertheless, there are a number of
overarching root causes that apply in similar fashion in many different
societies. Local, national, regional, and global actors must cooperate in
designing and implementing the most appropriate response strategies to
generic as well as context-specific root causes of human rights violations.
Furthermore, some countries develop and implement policies that ad-
vance human rights. The reasons for this tell us much about states’
motivations for protecting human rights – motivations that need to be
fostered from within the region and by the international community. In-
terestingly, these motivations are often quite similar to those of oppres-
sive states: to strengthen one’s hold on power and privilege – now, how-
ever, achieved through broad acceptance as a legitimate authority and
not through the spread of fear. With the old authoritarian alternatives
now more ideologically discredited, élites are forced to pursue their
power and wealth interests in more constrained and enlightened ways.
Drawing on the regional and country studies of this volume, the fol-
lowing paragraphs summarize some of the most salient root causes of
human rights violations, as well as reasons for policies that promote hu-
man rights.
The African continent is plagued by numerous instances of military,
one-party, and personal rule of collapsing and weakened states. Encour-
aged by the legacy of colonialism and Cold War-era superpower rivalry,
repressive regimes and leaders have perpetrated violations in efforts to
sustain unjust political structures. Political leadership tends to be repres-
sive and corrupt. Nation-building projects place emphasis on citizens’
duties to the state, rather than on citizens’ rights. Entrenched systems of
ethnic stratification, discrimination, domination, and exclusion are main-
tained and reinforced by state power holders. Indigenous cultures are
being destroyed and often replaced by alien values. Consequently, ordi-
nary citizens have lost faith in the state and increasingly view it as an il-
legitimate perpetrator of abuses, rather than as a protector of their rights.
The state subjugates citizen rights to the supposed imperatives of ‘‘de-
velopment,’’ while grave inequalities between the ‘‘haves’’ and ‘‘have-
nots’’ are perpetuated to secure wealth for ruling élites and their political
allies. The region is characterized by rigid and discriminatory economic
LESSONS AND RECOMMENDATIONS 417
structures. Severe economic crises and poorly implemented structural-

adjustment programmes further encourage and justify violations. More-
over, foreign-developed, natural resource-based income streams make
repressive leaders less dependent on broader economic development,
further insulating them from the need to pursue responsible policies.
There is increased militarization of politics in the region, resulting in
the spread of civil war and political violence. This is perpetuated by a
culture of impunity and non-accountability on the part of the police and
security forces. Civil strife and international interference heighten in-
stability and war. The interests and activities of multinationals and
rogue foreign investors arm combatants and help to fuel conflicts and
state violence. In this context, not even the most basic human rights
can be ensured.
Nevertheless, some states have pursued broader protection of human
rights in response to the post-Cold War legitimacy crisis of the authori-
tarian post-colonial state. This loss of legitimacy was associated with the
rise and intervention of pro-democracy, pro-civil liberties, and other po-
litically active civil-society constituents. When governments have become
more participatory, the goals of opposition parties and civil society in
general – labour, the middle class, students, academics, the media –
converge to sustain this new-found freedom and sense of participation
and to prevent a return to authoritarianism. This is paralleled by the
determination of minorities and other previously marginalized and ex-
cluded groups to stop any relapse into a system of unfettered domination.
Moreover, previously excluded élites pursue increased inclusion and
participation in the political and economic life of the society, thus bene-
fiting the population at large. Governments also pursue pro-human rights
policies, not just for ideological reasons but also to appease the citizenry
and to maintain legitimacy and power. In the same vein, development
and improved distribution of the benefits of increased wealth are seen as
a way to cling to power: where old authoritarian regimes are discredited,
the relative ideological legitimacy of human rights-oriented regimes is
greater. Unfortunately, without significant and parallel improvements in
political stability and economic development, such human rights gains
often prove fragile.
The Middle East does not fare any better. The region has been cursed
with military rule and a praetorian mentality of the élite (e.g. Algeria,
Iraq, Libya, Sudan, and Syria). Sometimes authoritarian regimes have
used politicized interpretations of Islam to justify internal repression (e.g.
Iran, Saudi Arabia, and Sudan). Energy-based rentier states make soci-
eties dependent on the welfare state and less able to influence rulers (e.g.
Algeria, Iraq, Iran, Libya, Saudi Arabia, and the Gulf States). The pres-
ence of implacable oppositions engaged in long-term conflict – such as
secessionist groups, Islamic opposition, or occupied peoples (e.g. Algeria,

Egypt, Iran, Iraq, Israel, Sudan, Syria, Turkey) – feeds chronic warfare
and fuels political cultures often defined by Sultanistic rule and a history
of civil rights violations. In many cases, such conflicts are cultivated and
perpetuated because they provide convenient diversions from internal
legitimacy problems. For many years, the international community con-
tributed to great suffering and human rights violations by imposing eco-
nomic sanctions on Iraq. If the international community was determined
to alter Saddam Hussein’s behaviour (and thus to forestall a regime
change by external, US-led military force), it should have attempted to
do so in a manner that influenced him more directly – whether with eco-
nomic sanctions or by other means.
In some countries of the Middle East, democratic governments have
pursued human rights protection as part of their mandate to serve the
interests of the populace (e.g. Turkey, Israel). Even limited forms of de-
mocracy (e.g. Iran, Jordan, and Lebanon) force authoritarian rulers to
devote more of their efforts and resources to goals supported by broad
segments of the population. Relatively benevolent élites and constitu-
tional guarantees in some countries also offer some human rights pro-
tection (e.g. Jordan, the Gulf Emirates, and Egypt). In other countries,
inducements are offered through trade agreements with major trading
blocs or individual countries (e.g. the European Union and the United
States vis-à-vis Turkey, Jordan, and Egypt). However, authoritarian re-
gimes tend to stop short of human rights improvements that are viewed
as threats to their power.
In Pakistan, the military has repeatedly intervened in political affairs.
This has been justified by reference to chronic internal corruption and
inefficiency and the need to combat internal and external threats to na-
tional unity. Nevertheless, both military and civil administrations have
been repressive, corrupt, and inefficient, and have used Islam and the
Kashmir conflict to divert attention from internal divisions and problems.
Although democratic institutions and human rights norms have had a fa-
vourable influence in India, a variety of factors – traditional norms and
social structures, an often corrupt and inefficient administration, and
poverty – have contributed to widespread local human rights violations.
Women, children, the poor, and various minority groups have suffered
most. However, human rights in India have benefited from strong demo-
cratic institutions and, in the last decade or so, from a more sustained
effort at economic development. Pakistan would have benefited from
both of these efforts; however, in the past, Pakistan’s greater internal
ethnic divisions have made rulers more fearful of the consequences of
giving up centralized power and patronage.
Authoritarian regimes in Eastern Europe, the former Yugoslavia, and
the former Soviet Union have used human rights violations as a means of
retaining power. Civil and international conflicts throughout the region
have undermined human rights directly. They have also done so indi-
rectly, by undermining reformist political movements and weakening civil
society. Some national identities are not oriented strongly enough to-
wards a break with the communist past and its poor human rights record.
To a lesser extent, human rights practices suffer from weak economic
development, associated with weaker national identities, lower levels of
education, and stronger economic interest groups opposed to reform.
Throughout the region, states are often plagued by insufficient capacity
to provide adequately for the security and well-being of their citizens.
On the other hand, democratic regimes not only have valued human
rights protection for their own sake but also have used human rights
protection as a means of consolidating democracy and achieving other
reforms. For many governments, particularly those unwilling to use au-
thoritarian methods, enlightened human rights policies help to preserve
legitimacy and popularity. A number of factors influence élite willingness
and ability to embrace democracy and human rights protection. These
include national identities that are strongly oriented towards a break with
the communist past, including a break with its poor human rights record;
an understanding of the need to avoid civil and international conflicts
(or, at least, to end them as quickly as possible); movement towards
integration with the EU; and, to a lesser extent, strong economic develop-
ment, associated with stronger national identities, higher levels of educa-
tion, and weaker economic interest groups opposed to reforms.
Human rights violations in the People’s Republic of China are driven
by the regime’s determination to pre-empt threats to its power, primarily
through laws that suppress civil and political rights. Poverty and corrup-
tion also restrict civil and economic rights throughout the country. Some
human rights protections are granted as means to a certain level of polit-
ical legitimacy, to developing and maintaining a minimum standard of
living and quality of life, and to enhancing national economic and mili-
tary power. In Taiwan, democratization has brought much greater re-
spect for human rights. This is enhanced by evolving local human rights
norms, as well as pressure from key external actors (particularly the
United States).
In both Argentina and South Korea, the primary cause for human
rights violations has been the military’s reaction to perceived threats.
They believed that their countries were experiencing a breakdown in the
economic and social order and were threatened by communism. In Ar-
gentina, that threat was primarily internal (communist subversion); in
South Korea, the threat was primarily external (North Korea), with a
more limited danger of internal subversion. Human rights violations oc-
curred in an effort to eliminate these economic and political threats and,

once in power, to keep hold of the reins of government. Military leaders
believed that only they (as opposed to a civilian government) could
safeguard the nation by increasing security and order. In both countries,
military regimes gave up power once perceived threats to the nation re-
ceded, and the regimes lost legitimacy because of repression, economic
mismanagement, or corruption. This unleashed rights-oriented civil soci-
eties which, in turn, helped to restore democracy and facilitated many
human rights improvements. These transitions were possible, largely be-
cause the military rulers did not seek power for its own sake and were
willing to cede power to civilian governments possessing broadly similar
ideological commitments.
The reasons for human rights violations can be quite diverse: they in-
clude external intervention or sanctions, politicization of Islam and other
traditional cultures and values, state control of energy resources, military
rule, caste structures, and communist or colonial legacies. Nevertheless,
some root causes appear to be almost universal: these are the presence of
corrupt, unaccountable, and repressive governments that are unable to
gain the support of their population by legitimate means; systems of eco-
nomic privilege perpetuating poverty and inequalities between rich and
poor segments of society; and religious or ethnic stratification, exclusion,
domination, or repression. These issues need to be tackled to prepare a
more fertile ground for state-sponsored human rights improvements. The
major reasons for positive developments in the protection of rights in-
clude political and economic pressure from external actors (strong states
and international organizations), including the prospects of joining prom-
ising regional organizations; new ideological standards, usually due to
poor performance of old authoritarian systems; pressure from civil soci-
ety; and the quest of governing élites for at least a modest degree of in-
ternal as well as external legitimacy – the latter, in essence, a compromise
attempt to maintain one’s hold on power.
Human rights violations and protection: Impact on conflict

management, economic development, and democratization
Human rights violations have strong negative effects on a society’s ca-
pacity to manage conflict, to develop economically, and to democratize,
whereas protecting and promoting human rights has the opposite effect.
These impacts can be seen in every regional and national context.
Throughout much of Africa, human rights violations exacerbate politi-
cal and social violence, growing out of the suffering of excluded, margi-
nalized, and dominated communities. In some countries – such as Li-
beria, Sierra Leone, Guinea-Bissau, or Guinea – this has led to full-scale

civil war. Human rights violations trigger and increase separatist agita-
tion by minorities: they trigger violence during elections and changes
of government; they delegitimize institutions – such as the police and
judiciary – that are crucial to the maintenance of law and order. More-
over, in war-torn societies, peace agreements are difficult to implement
and sustain in the presence of continued human rights violations. Cyclical
wars and conflicts have a negative impact on people’s daily lives. Only if
leaders and their constituents grow tired of conflict, will they end up ne-
gotiating settlements. By doing so, they make it possible to move from
violating human rights to reinforcing respect for them. However, conflict-
related and post-conflict-related human rights violations highlight persis-
tent injustice, inequality, and bad governance.
Human rights violations hamper economic development and encour-
age corruption and formal sector inefficiency (which are also causes of
human rights violations). They trigger violent opposition to multina-
tional corporations and foreign investors and, thus, stifle development
even further. There is general agreement that the economic situation in
Africa has favoured those leaders (and their cronies) who violate human
rights. Kleptocracies – which loot national resources and monopolize
opportunities – worsen societal schisms and deny some (or most) of the
population access to public goods and services and larger shares of na-
tional wealth. Human rights violations make democratization processes,
if existent, highly volatile and more violent. Human rights protection, on
the other hand, has given previously excluded and marginalized groups a
stake in the democratization process, by ensuring access and participa-
tion. It has also gradually restored the credibility of power sharing and
has given civil society some freedom to operate. This reduces the likeli-
hood that new civil conflicts will break out, and makes it easier to resolve
or damp down existing conflicts. Whereas human rights protections have
contributed to democratization and economic development, deep ethnic
cleavages and economic difficulties have meant that such advances have
been limited and, often, temporary.
In the Middle East, human rights violations by the government of Iraq
have exacerbated the Kurdish problem and have led to a virtual division
of the country. In addition, the UN Security Council’s economic sanc-
tions on Iraq have violated the human rights of ordinary Iraqis and have
extended the stalemate rather than contributed to a resolution of the
conflict. Violations of Kurdish rights by Turkey have led to domestic di-
visions and problems with the European Union and have failed to ad-
vance a solution to Turkey’s Kurdish situation. Israel’s violations of the
rights of Palestinians draw sharp criticism from the international com-
munity and even its closest ally (the United States). At the same time, the
decades-long war against Israel conducted by authoritarian regimes and

élites has forced Israel to fight a succession of high- and low-intensity
conflicts, often amid civilian populations. The conflict has been dramati-
cally worsened by these regimes’ needs to divert attention from internal
repression and corruption. Violations of civil, economic, social, and cul-
tural rights have been largely responsible for the economic stagnation
and decline afflicting the Middle East, and they have severely limited
progress towards democratization.
On a more positive note, protection of human rights has promoted
conflict prevention between the Jordanian government and its Islamic
opposition, and has contributed significantly to democratization (such as
a functioning parliament). Improvements in human rights practices in
Egypt have not led to real political liberalization but have contributed to
conflict management. In Iran, democracy has suffered as a result of the
violation of the civil and political rights of the opposition, but a slight
easing of repression by hard-liners in the government has reduced con-
frontation with the opposition. In Israel and Turkey, broader protection
of human rights has helped to advance democracy, economic develop-
ment, and Turkey’s prospects of joining the European Union.
In Pakistan, human rights violations have made it more difficult to
soften the country’s ethnic divisions and to address the Kashmir conflict
through non-violent means. They also contribute to keeping the country
mired in poverty. In India, ongoing limitations in civil, economic, social,
and cultural rights remain important obstacles to a more accountable
political system and broader diffusion of economic opportunities. How-
ever, recently improved protection of economic rights has improved
access to economic opportunities and facilitated faster economic devel-
opment.
In Eastern Europe, the former Yugoslavia, and the former Soviet
Union, human rights violations have had a particularly negative impact
on conflict management where demands of groups potentially engaged in
conflict were not better accommodated through stronger human rights
protections and democratic political compromise. As well, the impact of
human rights abuses on economic development has often been damaging,
principally by imposing less equal economic opportunities through cro-
nyism and corruption and thereby preventing resources from flowing to
their most profitable use. Human rights practices typically evolved along
with regime type: effective democratization typically accommodates the
basic goals of key groups and thus prevents violent conflict; on the other
hand, human rights violations destroy confidence in, and respect for,
democracy, and hence delegitimize and undermine democratization pro-
cesses. In particular, lack of fairness in electoral processes (during elec-
tion campaigns, voting, and vote-counting) undermines popular trust in

democratic institutions and discourages participation in political life and
development of effective political parties.
Positive human rights practices have been beneficial where demands
of groups that might potentially be engaged in conflict could be accom-
modated through political compromise. This prevents and minimizes the
escalation of differences to violent conflict. The impact on economic de-
velopment has been beneficial, principally by minimizing cronyism and
corruption and providing more equal economic opportunities. Protecting
individual security and property rights and developing a fair and just
legal system fosters investment and economic development. Human
rights practices were typically chosen along with democratization. Where
democratization can accommodate the basic goals of key groups, human
rights practices help to increase confidence in, and respect for, democracy
and hence help to consolidate democracy by increasing its legitimacy.
Freedoms of expression and association have been critical for the devel-
opment of political competition and are crucial for effective and lasting
democratization processes.
In the People’s Republic of China opposition voices are suppressed,
which often makes conflicts more difficult to resolve. Democratization
has been extremely slow, largely because of continued oppression of civil
society. In the last 20 years, however, greater protection of civil and eco-
nomic rights has facilitated economic development; on the other hand,
cronyism continues to restrict opportunities in many parts of the country.
Some protection of civil and political rights is the first step towards eco-
nomic development and democratization. In Taiwan, earlier and stronger
improvements in human rights practices facilitated more rapid economic
growth and, eventually, democratization.
In Argentina and South Korea, as often happens, human rights viola-
tions and authoritarianism went hand in hand. If anything, the human
rights violations in Argentina worsened economic conditions. On the
other hand, the South Korean example shows that, if basic civil and eco-
nomic rights are maintained and other economic policies are favourable,
authoritarianism can provide conditions favourable to economic growth.
In both countries, human rights protection and democratization are inter-
dependent forces, as democratization has led to human rights protection
and vice versa. In neither case is it obvious that economic development
has improved with broadened political rights; however, neither has eco-
nomic performance obviously deteriorated.
Both external and internal actors play critical roles in promoting and
supporting societies’ efforts to protect human rights and to further sta-
bility and development. The subsequent sections suggest some immediate
and medium-term actions that should be taken by national governments,

regional and sub-regional organizations, the United Nations, and civil-
society actors to advance human rights protection in transition societies.
Recommendations for national governments
Governments should seek to implement the Universal Declaration of

Human Rights in their national context, i.e. to implement the Interna-
tional Bill of Rights through national bills of rights. Many modern, newly
drafted, constitutions should follow the model or standard set by the
UDHR, which, because it is not in itself a legal document, floats above
national efforts in the hope that they will ‘‘copy’’ it. Societies in transition
countries should take heart from the fact that the Declaration includes
social, economic, and cultural rights: it can thus be used as a powerful
reference tool for measures taken to solve one’s own societal problems.
Moreover, as the Declaration is based on the premise of international as
well as sub-national cooperation, national governments need to address
the rights of members of minority groups – often particularly sore points
for societies in transition.
Addressing relativist approaches to human rights should be as much a
part of the dialogue with traditional and authoritarian societies as are
‘‘enforcement’’ procedures. Serving a multitude of interests and hetero-
geneous societies, national governments are often less relativistic than
internal subgroups, which should be shown respect and given ownership
in the development of national strategies on issues affected by relativism.
Governments should continue to invest in negative rights: these in-
clude physical security rights, freedom of speech, association, religion,
and due process rights. To the extent of available resources, governments
should promote cultural, social, and economic rights in areas such as
work, housing, health, or education. Governments need to match re-
sources to rhetoric, by optimizing available resources and attention. They
need to embrace long-term perspectives, develop realistic expectations,
and ensure that the link between human rights practices and develop-
ment, good governance (and government legitimacy), and political sta-
bility are well understood – by the government and by the society at
large.
NGOs play an important role in this task. Unfortunately, some coun-
tries are moving to restrict space for human rights NGOs and to increase
control over them. On the contrary, however, states must provide space
for domestic and international NGOs to lobby, campaign, and stage non-
violent protests to improve human rights practices. Thus, in transition
societies as well as the donor community, states must educate the public
about the benefits of the international promotion and defence of hu-

man rights, and about existing frameworks such as the UDHR and other
manifestations of human rights law. They must emphasize human rights
education in the teaching curriculum at all stages of the educational sys-
tem. National governments must educate, socialize, and persuade sub-
groups to share levels of human rights standards that may already be
promoted by progressive national élites.
Governments of rights-respecting states should realize that it is in their
long-term national interests for other countries to adopt and solidify
commitments to human rights norms. Pressure on rights-violating allies
will often be muted where political liberalization carries a risk of bringing
more threatening regimes to power. Nevertheless, even in such cases,
countries should encourage allies to begin by respecting civil, economic,
and other rights. Such limited improvements not only are desirable in
themselves but also can ease the way for future expansions of rights.
Finally, governments must support the authorization of humanitarian
intervention in cases of grave crimes against humanity. They must sup-
port the quest for an international consensus on the right and obligation
to undertake such interventions on a principled basis. Governments must
support international calls for UN-sponsored intervention in failed states,
and they need to penalize abuses justified in terms of humanitarian in-
tervention. Although humanitarian intervention will continue to be con-
strained by limited national interests, governments and their peoples
should be better educated about the long-term benefits, as well as the
legal and moral responsibilities, of effective human rights protection
abroad. As mentioned above, education and awareness-raising are thus
as important in the donor community as they are in human rights-
challenged transition societies.
Recommendations for regional and sub-regional

organizations and the United Nations
Regional and sub-regional organizations need to establish, encourage,
and enforce human rights commitments throughout their region. They
should establish regional standards for best human rights practices and
norms, build security communities, and foster regional trust and balance
among states. The European post-World War II experience could serve
as a useful reference point for other regional cooperation and integration
projects. (Sub)-regional organizations must embrace regional responses
to human rights violations – diplomatic, economic, and (if necessary)
military – to deal with rule breakers. Given international disagreements
over human rights, it may be less difficult to achieve consensus and a
willingness to act at the regional level. Regional approaches should serve

as bridges to more effective international measures, and as interim steps
for increasingly structured and institutionalized global cooperation.
Progress in this direction depends on achieving regional critical masses of
rights-respecting political regimes. Thus, (sub)-regional organizations
need to work more closely with governments to promote best practices in
human rights policy.
The United Nations must do more to hold major and great powers re-
sponsible to human rights standards, despite their political weight in the
Security Council and other UN organs. Although this may be difficult to
accomplish politically, yet, as the United Nations is the only organization
that is (at least, potentially) in the position to exert such influence, it must
at least attempt to live up to this responsibility; this will also improve its
legitimacy vis-à-vis smaller states. Notably, the United Nations must en-
sure that major powers do not abuse humanitarian operations to their
advantage, as it must also stop coalitions of weaker states from using the
norm of non-intervention to excuse or ignore human rights violations.
At the same time, it must discourage states from unjustifiably involving
themselves in other countries’ internal conflicts and rebuke those that
support conflict and war in other countries. The United Nations must
collaborate more effectively with (sub)-regional organizations in promot-
ing human rights- and human security-driven domestic and foreign poli-
cies. It must foster principled responses; act as the champion of regions
with weak and ineffective (sub)-regional organizations; and channel
funds to regional and (sub)-regional organizations and NGOs to provide
early warning, early assistance, and effective involvement in humanitar-
ian emergencies. Again, progress in these directions will probably de-
pend on – and accelerate with – piecemeal expansion of the number of
rights-respecting political regimes.
(Sub)-regional organizations and the United Nations should seek to
play a mediating role between the UDHR as an abstract statement and
the regional efforts already undertaken in Europe, Latin America, and
Africa. This would also help the United Nations to address issues of cul-
tural and regional relativism more successfully. All regions should have,
or should develop, their regional Charters of Human Rights. An Asian
Charter of Human Rights, for example, would force more frank and
thorough discussions of similar and divergent human rights norms and
practices and on acceptable degrees of diversity.
International organizations should devote greater efforts to building
the capacity of domestic NGOs, which need to be provided with oppor-
tunities to lobby and influence (sub)-regional organizations and the
United Nations. They must be given space and provisions to participate
in the official processes of regional IGOs and the United Nations. Once
international organizations have emphasized human rights education as a

critical task of responsible member states, they should promote NGO–
state partnerships as some of the most effective vehicles for improve-
ments in human rights practices.
(Sub)-regional organizations and the United Nations can take leading
roles in advancing multifaceted approaches to reconciling relativist and
universalist positions in national policies. This would focus on finding
joint approaches to specific weak areas of human rights practices. The
persuasive powers of IGOs, as well as those of NGOs, need to be aug-
mented, and strategies that have an impact on traditional thought and
practice, including economic development, need to receive greater atten-
tion as tools to circumvent relativist objections to human rights pro-
tection.
Finally, international organizations need to focus more on rights that
have yet to be developed. Regional human rights regimes need to be
strengthened by establishing more rigorous human rights-reporting re-
quirements. Human rights commissions need to be established that have
the authority to investigate human rights abuses, report on them, and
advise governments. Human rights educational commissions need to be
established to promote human rights education among school children,
university students, the media, churches, police, military, and government
officials. While an inter-civilizational dialogue is taking place at various
levels (facilitated, for instance, by UNESCO), inter-societal dialogues are
less evident. Public education that seeks to bring traditional societies and
subgroups into greater compliance is weak. Unfortunately – and proba-
bly because of political considerations – the approach of the international
community to public education often appears to be minimalist and half-
hearted.
Recommendations for non-governmental organizations
Non-governmental organizations must seek opportunities to collaborate

with (sub)-regional organizations and the United Nations in advocating
and promoting good human rights practices and in monitoring human
rights improvements. In relations with other NGOs, they need to reduce
counter-productive turf fights and, instead, to coordinate efforts. More-
over, international NGOs need to work in a collaborative and supportive
manner with domestic NGOs.
NGOs need to strengthen their focus on educating the public to respect
and protect rights; they also need to emphasize peace and human rights
education inside and outside schools and universities. In turn, schools
and universities need to do more to educate citizens on human rights.
Then, in turn, an educated citizenry will probably place greater pres-

sure on their own governments to respect human rights at home and to
support efforts abroad to promote human rights and prevent human
tragedies. NGOs need to encourage opinion makers, educators, and
faith-based organizations and movements to support peaceful conflict
resolution rather than to incite hostility. Likewise, in addition to mon-
itoring and evaluating government policies and the field activities of
(sub)-regional organizations and the United Nations, they must monitor
activities of fellow NGO actors, thus creating much-needed legitimacy
and accountability within the NGO community.
Local and international NGOs need to ensure transparency and ac-
countability in their work and procedures, so that accusations of pater-
nalism and corruption do not erode their legitimacy and moral authority.
Mutual codes of conduct are crucial in that effort: they need to emphasize
professionalism, non-partisanship, and independence. Local NGOs must
strive to become less dependent on foreign funding, by establishing
membership fees, by engaging in local fund-raising, and by creating a
stronger sense of local ownership. Both local and international NGOs
need to establish broader bases of membership to enhance their credi-
bility and visibility.
Summing up
Authoritarian regimes that preserve their power through political re-

pression, cultural control and manipulation, economic cronyism, and di-
versionary civil and international conflict are the most systematic source
of human rights violations. Because of the willingness of such regimes
to use repression and violence to stay in power, there is no easy way to
produce quick improvements across the board. Even in the rare cases
where other regimes are willing to use force to dislodge rights-violating
regimes, the conflicts have high costs and there is no guarantee that the
post-conflict situations will be significantly improved. There are similar
limits to the actions and even the ideological efforts of intergovernmental
organizations, including the United Nations.
The main recommendations therefore focus on longer-term efforts at
ideological persuasion and harmonization. The strength of the inter-
national human rights regime – at the national, intergovernmental, and
sub-national levels – has always been the creation and advancement of
human rights norms. It is this strength that promises the greatest long-
term prospects for reform. Such reform can be achieved broadly only
through the gradual conversion of mass and élite opinion, above all in the
rights-abusing authoritarian states that most strongly resist this message.
This requires a continuous effort to promote broad human rights norms

at every level, by national, intergovernmental, and sub-national actors.
This effort must be attentive to local traditions and conditions, without
compromising its basic principles.
An essential element of this ideological strategy is to emphasize the
need for broad economic development and peaceful conflict resolution.
This targets the authoritarian practices, observed throughout this vol-
ume, of protecting power indirectly through economic cronyism and di-
versionary conflict. It also offers authoritarian regimes an alternative
source of legitimacy. Even if such regimes are unwilling to offer broad
political rights in the near term, it is important to encourage them to
protect civil, economic, social, and cultural rights in pursuit of harmoni-
ous economic development and peaceful conflict resolution. In the fu-
ture, this also holds out the promise of a more consensual – and hence
more peaceful and lasting – transition to democracy. If sustained eco-
nomic development and peaceful conflict resolution are not achieved, it is
questionable whether democratization and other rights improvements
can be sustained.
Abbreviations and acronyms
ACUNS Academic Council on the United States System

ADB African Development Bank
AHRC Asian Human Rights Commission
AI Amnesty International
AKP Justice and Development Party (Turkish)
ANC African National Congress
ASEAN Association of South-East Asian Nations
AU African Union
BLT&BTF Bodo Liberation Tiger & Bhindranwale Tigers Force
CAHR Chinese Association for Human Rights
CCP Chinese Communist Party
CFA Communauté Financière Africaine (African Financial
Community)
CGT Confederación General del Trabajo (General Confederation of
Labour)
CIA Central Intelligence Agency (USA)
CLI Civil Liberties Index (Freedom House)
Codesa Convention for a Democratic South Africa
CPI Corruption Perception Index
DHD Dima Halim Daogah
DOS Democratic Opposition of Serbia
DPP Democratic Progressive Party
DSP Democratic Left (Turkish)
EBRD European Bank for Reconstruction and Development
EC European Community
430
ABBREVIATIONS AND ACRONYMS 431
ECOMOG ECOWAS Military Observer Group

ECOSOC Economic and Social Council
ECOWAS Economic Community of West African States
ERP Ejército Revolucionario del Pueblo (Revolutionary Army of the
People)
EU European Union
FAO Food and Agriculture Organization (of the United Nations)
FGM female genital mutilation
FRY Federal Republic of Yugoslavia
GDP Gross Domestic Product
GNP Gross National Product
HDZ Croatian Democratic Union
HIV/AIDS human immunodeficiency virus/acquired immunodeficiency
syndrome
HKHRC Hong Kong Human Rights Commission
HKHRM Hong Kong Human Rights Monitor
HKSAR Hong Kong Special Autonomous Region
ICAC Independent Commission Against Corruption
ICC International Criminal Court
ICCPR International Covenant on Civil and Political Rights
ICESCR International Covenant on Economic, Social and Cultural Rights
ICISS International Commission on Intervention and State Sovereignty
ICTR International Criminal Tribunal for Rwanda
ICTY International Criminal Tribunal for the former Yugoslavia
IFIs international financial institutions
IGAD Intergovernmental Authority on Development
IGO intergovernmental organization
ILO International Labour Organization
IMF International Monetary Fund
IMT International Military Tribunal
INGOs international non-governmental organizations
IOs international organizations
IPC Indian Penal Code
IRP Islamic Renaissance Party (Tajikistan)
KCIA Korean Central Intelligence Agency
KCP Kangleipak Communist Party
KDP Kurdish Democratic Party
KFOR Kosovo Force
KLA Kosovo Liberation Army
KMT Kuomintong
KNA Kuki National Army
KNF Kuki National Front
KNV Karbi National Volunteers
MCM million cubic metres
MHP National Action Party (Turkish)
MNF Multinational Force in Haiti
432 ABBREVIATIONS AND ACRONYMS
MPF Multinational Protection Force

NATO North Atlantic Treaty Organization
NCM National Commission for Minorities
NCRB National Crime Records Bureau (India)
NCW National Commission for Women
NDFB National Democratic Front of Bodoland
NED National Endowment for Democracy
NGO non-governmental organization
NHRC National Human Rights Commission (India)
NIIA Nigerian Institute of International Affairs
NPCSC Standing Committee of the National People’s Congress
NSCN/DHD National Socialist Council of Nagaland/Dima Halong Daga
NSCN–IM National Socialist Council of Nagaland–Isak-Muivah
NSD National Security Doctrine
OAS Organization of American States
OAU Organization of African Unity
OCHA Office for the Coordination of Humanitarian Affairs
OECD Organization for Economic Co-operation and Development
OPEC Organization of Petroleum-Exporting Countries
OSCE Organization for Security and Cooperation in Europe
PAC Pan-Africanist Congress
PCO Provisional Constitutional Order
PKK Partiya Karkeren Kurdistan (Kurdish Workers’ Party)
PLA People’s Liberation Army
PRC People’s Republic of China
PREPAK People’s Revolutionary Party of Kangleipak
PRGF Poverty Relief and Growth Facility (of the IMF)
PRI Political Rights Index (Freedom House)
PUCL People’s Union for Civil Liberties
PUCLDR People’s Union for Civil Liberties and Democratic Rights
PUDR People’s Union for Democratic Rights
PUK Patriotic Union of Kurds
RCC Revolutionary Command Council (Iraq)
ROC Republic of China (Taiwan)
RS Republika Srpska
SAIR South Asia Intelligence Review
SAPs structural adjustment programmes
SC/STs Scheduled Castes and Scheduled Tribes
SCIRI Supreme Council of the Islamic Revolution in Iraq
SECI Southeast European Cooperative Initiative
SFOR Stabilization Force
SFRY Socialist Federal Republic of Yugoslavia
SHRC State Human Rights Commissions
SLORC State Law and Order Restoration Council (Burma)
SNPC Somalia National Peace Conference
SPS Socialist Party of Serbia
ABBREVIATIONS AND ACRONYMS 433
SRS Serb Radical Party

SSJ Party of Serb Unity
TAHR Taiwan Association for Human Rights
TNG Transitional National Government (Somalia)
TRC Truth and Reconciliation Commission
UDHR Universal Declaration of Human Rights
ULFA United Liberation Front of Asom
UMIK United Nations Interim Administration Mission in Kosovo
UN United Nations (adj)
UNAMET UN Mission in East Timor
UNAMIR UN Assistance Mission for Rwanda
UNAMSIL UN Mission in Sierra Leone
UNCIO United Nations Conference on International Organization
UNCU UN Coordination Unit
UNDP United Nations Development Programme
UNHCR United Nations High Commissioner for Refugees
UNICEF United Nations Children’s Fund
UNITAF Unified Task Force
UNLF United National Liberation Front
UNMIH UN Mission in Haiti
UNOMSIL UN Observer Mission in Sierra Leone
UNOSOM UN Operation in Somalia
UNTAET UN Transitional Administration in East Timor
UPDS United People’s Democratic Solidarity
USAID United States Agency for International Development
USCR US Committee for Refugees
USIA United States Information Agency
WFP World Food Programme
WHO World Health Organization
WMD weapons of mass destruction
WTO World Trade Organization
Contributors
David P. Forsythe is University Responsibility of the American

Professor and Charles J. Mach Association for the Advancement
Distinguished Professor of Political of Science. His more than 75
Science at the University of publications on different aspects of
Nebraska-Lincoln, USA. Educated International Relations include:
at Wake Forest (BA) and Princeton Human Rights in International
(MA, PhD) universities, he joined Relations (Cambridge University
the faculty at UNL in 1973 and Press, 2000, translated into Arabic,
served as Department Chair from Chinese, and Bulgarian), Human
1993 to 1998. He has held Rights and Comparative Foreign
postdoctoral fellowships at Policy (United Nations University
Princeton and Yale and visiting Press, 2000; edited), The United
professorships at universities in States and Human Rights
Denmark, Ireland, the Netherlands, (University of Nebraska Press, 2000;
and Switzerland. He has been a edited), and The United Nations and
consultant to the International Red Changing World Politics (Westview
Cross and to the United Nations Press, 2000; with two other authors,
Office of the High Commissioner for 4th edn in process).
Refugees. He served as President of
the Human Rights Committee of the Shale Horowitz is an Associate
International Political Science Professor of Political Science at the
Association, Vice-President of the University of Wisconsin-Milwaukee.
International Studies Association, He was educated at the University
and a member of the Committee of California, Berkeley (BA) and
on Scientific Freedom and the University of California, Los
434
CONTRIBUTORS 435
Angeles (MA and PhD). He of Life Positive magazine; and

previously taught at the Central Chairperson/Adviser/Member in
European University (1996–1997). several voluntary organizations,
Horowitz is co-editor of Conflict in such as the World Community
Asia: Korea, China–Taiwan, and Service Centre, National Agricul-
India–Pakistan (Praeger, 2002) turist Awareness Movement, Human
and The Political Economy of Rights Organization, National
International Financial Crisis: Alliance for Fundamental Right
Interest Groups, Ideologies, and Education, Academy for a Better
Institutions (Rowman and Littlefield, World, All-India Conference of
2001). He is the author or co-author Intellectuals, World Congress for
of articles in Communist and Post- Peace and Harmony, Indian Council
Communist Studies, Comparative of Arbitration, Association of Asian
Political Studies, Comparative Union, and the ORG Institute of
Studies in Society and History, East Polity and Governance.
European Politics and Societies,
Man-To Leung is an Assistant
European Journal of International
Professor at the Department of
Relations, Journal of Peace
Political Science, National Cheng
Research, Nationalities Papers, Party
Kung University in Taiwan. He
Politics, and other journals. He
received his doctorate in politics
currently co-edits the quarterly
from Oxford University. His
publication Analysis of Current
research interests include theories
Events.
of democracy and human rights,
D.R. Kaarthikeyan is an Advisor in history of political thought, Enlight-
Law, Human Rights-Corporate enment thinkers, contemporary
Affairs. A trained lawyer, he joined political philosophy, and public
the élite Indian Police Service and ethics. He has published articles on
in that capacity held several human rights, theories of social
positions including District Super- justice, e-democracy, and good
intendent of Police, Director of governance.
Police Training Academy, Chief of Paul J. Magnarella is Professor of
Intelligence and Security, Director- Anthropology, Law and African
General of the Central Reserve Studies at the University of Florida
Police Force, Chief of Investigation and Professor of Peace Studies at
of former Prime Minister Rajiv Warren Wilson College, Asheville,
Gandhi’s assassination case, NC. He holds a PhD (Harvard
Director of the Central Bureau of University) and JD (University of
Investigation of India, Director of Florida). Magnarella serves as Legal
Trade Promotion in Australia with Counsel to the Association of Third
headquarters in Sydney, Diplomat World Studies (ATWS) and to the
and Head of Chancery in Indian American Anthropological
Embassy in Moscow (then USSR), Association’s Human Rights
and Director-General in National Committee. He has served as Expert
Human Rights Commission. He on Mission with the UN Criminal
is currently a Professor Emeritus Tribunal for the Former Yugoslavia.
at various universities; President His book, Justice in Africa:
436 CONTRIBUTORS
Rwanda’s Genocide, Its National USA. After writing articles on

Courts and the U.N. Criminal Aristotle’s biology, he published
Tribunal (2000), won the ATWS essays on the Universal Declaration
annual book award and was of Human Rights in the Human
nominated for the Raphael Lemkin Rights Quarterly. His most recent
book award. Ideas expressed in his work is The Universal Declaration of
chapter do not necessarily represent Human Rights: Origins, Drafting
the views of the above organizations. and Intent (University of
Pennsylvania Press, 1999), for which
Mahmood Monshipouri is Professor
book he received the 2000 Certifi-
and Chair of the Political Science
cate of Merit from the American
Department at Quinnipiac
Society of International Law.
University. He received his PhD
from the University of Georgia in
W. Ofuatey-Kodjoe is a Professor in
1987. He is co-editor of Constructing
the Department of Political Science,
Human Rights in the Age of
Queens College and the CUNY
Globalization (M.E. Sharpe, 2003),
Graduate Center, The City
and the author of Islamism,
University of New York. He
Secularism, and Human Rights in
received his PhD from Columbia
the Middle East (Lynne Rienner
University. He has served as
Publishers, 1998), and Democrati-
Director of the African Studies and
zation, Liberalization, and Human
Research Institute at Queens
Rights in the Third World (Lynne
College (1973–1982), Visiting
Rienner Publishers, 1995). His most
Professor at the University of
recent articles have appeared in
Ghana-Legon (1977), the University
Human Rights Quarterly, Inter-
of North Carolina at Chapel Hill
national Peacekeeping, and Middle
(1979), the School of International
East Policy. He specializes in human
Service at American University
rights, democratization, Middle
(1982–1983), and the University
Eastern Politics, European politics,
of Lagos (1986). His major
and globalization and its impacts
publications include ‘‘Regional
in the Muslim world. He is the
Organizations and the Resolution
President of the International
of International Conflict: The
Studies Association – Northeast
ECOWAS Intervention in Liberia,’’
Section, the Executive Director of
in International Peacekeeping,
the Center for Iranian Research and
Vol. 1, No. 3, (Autumn 1995);
Analysis, and Co-chair of the
‘‘The United Nations and the
Jewish–Islamic Cultural Studies
Protection of Individual and Group
Program at Quinnipiac University.
Rights,’’ International Social Science
Mahmood Monshipouri is also a
Journal, No. 144, (1995); ‘‘Self-
Visiting Fellow at the Yale
Determination,’’ in Oscar Schachter
Center for International and Area
and Christopher Joyner, eds, United
Studies.
Nations Legal Order (Cambridge
Johannes Morsink is Professor of University Press, 1994); Pan-
Political Philosophy in the Africanism: New Directions in
Department of Political Science at Strategy (University Press of
Drew University, Madison, NJ, America, 1986, edited); and The
CONTRIBUTORS 437
Principle of Self-Determination in His books include Between State and

International Law (Nellen, 1977). Civil Society in Africa (CODESRIA
Books, 1994), Structural Adjustment
Wafula Okumu is an Analyst in the
and Ethnicity in Nigeria (Nordiska
Peace and Security Directorate of
Afrikainstitutet, 1995), and Crippled
the African Union. Prior to joining
Giant: Nigeria Since Independence
the African Union he served as an
(C. Hurst/Indiana University Press,
Academic Programme Associate in
1998). Professor Osaghae is
the Peace and Governance
currently a MacArthur Fellow, and
Programme at the United Nations
is completing a book on The Federal
University. He has taught Peace
Solution in Africa.
Studies, Human Rights, and African
Politics courses at Prescott College, Aleksandar Resanovic works at the
Mississippi University for Women, Center for Antiwar Action, where
and Chapman University. His he is a member of the executive
undergraduate studies were at board. He previously served as
the University of Nairobi and Head of the Legal Affairs Depart-
his graduate work at Atlanta ment of the Yugoslav Federation
University, where he received a for Sports, as Counsellor of the
PhD in Political Science in 1992. He Minister in the Yugoslav Ministry
also holds an International Diploma of Justice, and as the founder and
in Humanitarian Assistance from first coordinator of the Yugoslav
the Center for International Health Campaign to Ban Landmines. He
and Cooperation at Hunter College was educated at the Faculty of
of the City University of New York. Law at Belgrade University and
He has conducted research and has published six books and several
published in the areas of peace, expert papers in the field of interna-
democracy, and human rights in tional public law. He is a member
Africa. of the Forum for International
Relations and the Serbian Bar
Eghosa E. Osaghae is Professor of
Association, both in Belgrade.
Political Science and Director of the
Ford Foundation’s Programme on Barbara Ann J. Rieffer is an Assistant
Ethnic and Federal Studies at the Professor of Political Science at
University of Ibadan, Nigeria. He Bethany College. After taking her
holds a PhD in Political Science BA from the State University of
from the same institution. He has New York at Geneseo, she received
held other academic appointments her Masters in Philosophy from the
in the United States, South Africa, University of Nebraska-Lincoln,
Liberia, Sweden, and Northern concentrating on moral philosophy
Ireland, and was until 1998 and the work of John Rawls. In her
Professor and Head of Political doctoral programme at UNL she
Studies at the University of emphasized the interplay of religion
Transkei in South Africa. His major and politics. She is particularly
research interests are in the state concerned with how religious
in Africa, federalism, and the freedom and religious identity affect
management of ethnicity. He has both conflict and conflict resolution.
published extensively in these areas. Her publications include ‘‘Religion
438 CONTRIBUTORS
and Nationalism: Understanding System Staff College course on

the Consequences of a Complex Early Warning and Early Response.
Relationship,’’ in Ethnicities His work on ethnic conflict, conflict
(Vol. 3, No. 2, June 2003), and ‘‘US prevention and management,
Foreign Policy and Enlarging the peacekeeping, peacebuilding,
Democratic Community,’’ Human refugees, and humanitarian
Rights Quarterly (Fall, 2000, intervention have appeared in
coauthor). numerous journals, reports, and
edited volumes. Recent edited
Terence Roehrig is an Associate
books include Kosovo and the
Professor of Political Science at
Challenge of Humanitarian
Cardinal Stritch University. He
Intervention (with Ramesh Thakur,
received his PhD from the
United Nations University Press,
University of Wisconsin-Madison in
2000); Southeast European Security:
political science and is the author of
Threats, Responses, Challenges
The Prosecution of Former Military
(Nova Science, 2001), Recovering
Leaders in Newly Democratic
from Civil Conflict: Reconciliation,
Nations: The Cases of Argentina,
Peace and Development (with
Greece, and South Korea
Edward Newman, Frank Cass,
(McFarland & Company, 2002). He
2002), Conflict Prevention: Path to
has published articles on North
Peace or Grand Illusion? (with
Korea’s nuclear weapons pro-
David Carment, United Nations
gramme, US–North Korean rela-
University Press, 2003) and
tions, and Korean security issues.
Democratization in the Middle East
Albrecht Schnabel is a Senior (with Amin Saikal, United Nations
Research Fellow at swisspeace – University Press, 2003).
Swiss Peace Foundation, Bern,
Switzerland. Most recently, he Richard Lewis Siegel is Professor of
served as Academic Officer in the Political Science and Faculty
Peace and Governance Programme Associate of the Grant Sawyer
of the United Nations University, Center for Justice Studies at the
Tokyo, Japan (1998–2003). He was University of Nevada, Reno. He
educated at the University of received a BA in Politics from
Munich, the University of Nevada, Brandeis University in 1961 and a
and Queen’s University, Canada, PhD in Public Law and Government
where he received his PhD in from Columbia University in 1967.
Political Studies in 1995. He has Recent publications include
taught at Queen’s University (1994), Employment and Human Rights
the American University in Bulgaria (University of Pennsylvania Press,
(1995–1996), the Central European 1994); ‘‘AIDS and Human Rights,’’
University (1996–1998), and Human Rights Quarterly, May 1998;
Aoyama Gakuin University (2002– ‘‘Transitional Justice: A Decade of
2003). He was the 2001–2002 Debate and Experience,’’ Human
President of the International Rights Quarterly, May 1998; and
Association of Peacekeeping ‘‘The Right to Work: Core
Training Centres and currently Minimum Obligations,’’ in Audrey
serves as trainer for the UN Chapman and Sage Russell, eds,
CONTRIBUTORS 439
Core Obligations: Building a Books on French political and social

Framework for Economic, Social theory, entitled Human Rights in
and Cultural Rights (Intersentia Crisis: Contestation and Reform in
Publishers, 2002). Siegel has also Contemporary French Social and
been a leader of the American Political Thought.
Civil Liberties Union, serving on
Jenab Tutunji has been an Assistant
its National Board of Directors
Professorial Lecturer in Political
from 1975 to 1988 and as President
Science at George Washington
of its Nevada affiliate since 2000.
University since 1995. He earned
Geneviève Souillac is a Lecturer in an MA in Philosophy from the
French Studies at the University of American University of Beirut in
Sydney. Previously, she was an 1968, and a PhD in Political Science
Assistant Professor in European from George Washington University
Studies in the Government and in 1995. He has worked as a
International Studies Department of journalist and freelance writer for
the Hong Kong Baptist University, many years. He was managing
and an Academic Programme editor of The Jordan Times,
Associate in the Peace and Amman, Jordan (1977–1980), and
Governance Programme at the assistant editor, Journal of Palestine
United Nations University. Studies, Beirut, Lebanon (1975–
Educated in France, Australia, and 1976). Tutunji has written on the
Hong Kong, where she studied with Lebanese civil war, the Arab–Israeli
Daniel A. Bell on the subject of conflict, Jordan, the United Arab
universal human rights, Souillac has Emirates, and the political economy
a forthcoming book with Lexington of the Middle East.
Index
Activists beyond Borders (Keck and Barre, Muhammed Siad, 294, 295, 297, 299,
Sikkink), 87–88 300
Aghajari, Hashem, 227 Basic Principles for the Treatment of
Agreement on the OSCE Verification Prisoners (1990), 136
Mission for Kosovo, 274 Beijing Women’s Conference (1995), 57
AHRC (Asian Human Rights Commission), BiH (Bosnia and Herzegovina)
357 exercise of human rights/freedoms in,
Aideed, Hussein Mohammed, 300 281–286
Albright, Madeleine, 169 human rights violations in, causes and
Alfonsı́n, Raúl, 393, 403, 404–405 consequences of, 279–281
al-Qaida, 169 Black, David, 303
Alterman, Jon b., 224 Body of Principles for the Protection of
Anfal campaign (Iraqi), 207–208 All Persons under Any Form of
An-Na‘im, Abdullahi, 94 Detention or Imprisonment (1988),
Argentina 136
democratization Boraine, Alex, 68
causes of human rights abuses and, Bosnia
398–399 exercise of human rights/freedoms in,
consequences of human rights abuses 281–286
and, 403–405 human rights violations in, causes and
military rule and, 390–393 consequences of, 279–281
Aristide, Bertrand, 175, 178 UN intervention in (1992), 142
armed conflicts. See war Bush, George, 206
Asian Preparatory Meeting (1993), 64 Bush, George W., 169, 178, 237
‘‘Asian values’’ debate, 9–10
Attorney-General (West), Lakanmi and CAHR (Chinese Association for Human
Anor v. [Nigeria], 320 Rights), 343–344
440
INDEX 441
Cairo Conference on Population and cultural rights, UDHR inclusion of, 38–42
Development (1994), 57, 64 culture
Cámpora, Héctor José, 391 as source of democratization, 255t
Cassese, Antonio, 122 as source of human rights practices, 254t
Cassin, Rene, 34, 39 West African human rights violations
caste violence (India), 374–375t and, 323–325
Chang, Chung, 41 See also political culture
Chang Myon, 400 Cumings, Bruce, 394
Charter of Fundamental Freedoms of the Czech Republic, 178
European Union, 60
Charter of Fundamental Rights of the Dayton Accords (1995), 133–134, 267, 268,
European Union, 58 272, 280
Chen Shui-bian, 343 Dehousse, Fernand, 44
Chiang Ching-kuo, 342 Delmas-Marty, Mireille, 81, 82
child labour (India), 366–367 democracy
children civil society as aspect of, 165
comparing treatment in former human rights promoted in liberal,
Yugoslavia of, 285 166–167
India human rights variation linked to, 257–258
government and child labour, 366–367 transformation of illiberal to liberal, 165
legal system and child labour, 367 US foreign policy and promotion of,
sex ratio and population of, 371t 176–180
See also women Democratic Governance and International
Chopra, Jarat, 297, 298 Law, 42
Chun Doo Hwan, 395–396, 401, 402, 405, 406 democratization
Churchill, Winston, 136 Argentina
CIA World Factbook, 212 consequences of human rights abuses
civil society during transition to, 403–405
as democracy aspect, 165 human rights abuses during transition
in Iraq, 198–200 to, 398–399
See also NGOs (non-governmental military rule and transition to, 390–393
organizations) cultural, economic, conflict-related
CLI (Civil Liberties Index) [Freedom sources of, 255t
House], 249 human rights challenges of, 165–166
Clinton, Bill, 164, 175 human rights protections built-in, 6
collective bargaining rights, 166 human rights violations/protection and,
conflicts. See war 420–424
Confucianism, 401–402 limited process of Iran, Pakistan and
Convention Against Torture (1987), 60 Turkey, 219
Corruption Perception Index, 345 post-communist human rights practices
Cović, Nebojš, 275 and variation in, 249, 253t
Cranston, Maurice, 39 South Korea
Croatia. See Republic of Croatia consequences of human rights abuses
cultural relativism during transition to, 405–406
challenge to universalism by, 63–65 human rights abuses during transition
examining US universalism vs., 62–63 to, 400–402
experience with critical issues and lessons military rule and transition to, 394–397
on, 67–69 UDHR inclusion of human right to
human rights practices limited by, 52–55 participation in, 42–48
transitional societies and intercultural of West Africa and transformation of
dialogue on, 65–67 human rights, 327–330
442 INDEX
Development as Freedom (Sen), 57 hate speech used during confict and,

direct human rights protection, 110 268
Djindjic, Zoran, 271 historic and political issues of, 266–270
Donnelly, Jack, 31, 64, 84, 85 See also ICTY (International Criminal
dowry deaths (India), 368, 370 Tribunal for former Yugoslavia);
duty to assist, 150–151 post-communist human rights
practices
economic development Formosa incident (1979), 341
human rights and, 258 Forsythe, David P., 17–18, 54, 164
human rights violations/protection and, Fox, Gregory, 42, 43, 45
420–424 Franck, Thomas, 42, 43, 45
of West Africa and transformation of Freedom House’s Civil Liberties Index
human rights, 330–332 (CLI), 249
economic realities FRY (Federal Republic of Yugoslavia)
as democratization source, 255t causes and consequences of human rights
of FRY and human rights violations, violations
272–273 civic unrest and fall of regime, 275–277
of Iran affecting human rights, 225–226 constitution and human rights, 271–272
promotion of democracy and, 178–179 economic situation, 272–273
as source of human rights practices, 254t Milosević regime, 273
West African human rights violations minority relations, 273–274
and, 320–323 NATO’s bombing campaign, 274–275
See also poverty comparison of exercise of human rights/
economic rights freedoms in, 281–286
as aspect of democracy, 165 Fukuyama, Francis, 181
comparison in former Yugoslavia of,
285–286 Galtieri, Leopoldo, 399
UDHR inclusion of, 38–42 GATT (General Agreement on Tariffs and
ECOSOC (Economic and Social Council), Trade), establishment of, 38
40, 55, 104, 105, 109 Gellner, Ernest, 195
ECOWAS (Economic Community of West General Federation of Iraqi Women, 208
African States), 315 General Framework Agreement for Peace
Elster, Jon, 91 in Bosnia and Herzegovina (1995),
environmental issues/human rights (India), 133–134
379–380 Geneva Conventions (1949), 60, 123, 124,
EU (European Union) 128, 307
on Turkish aid and Kurdish conditions, Genocide Convention (1948), 56, 60, 123,
222–223 124
two-track approach toward Iran by, 238 Gewirth, Alan, 38
European Convention on Human Rights Ghazi, Mahmood, 238
and Fundamental Freedoms, 60 global terrorism, 169
European Court of Human Rights, 231, 232 global village myth, 93
European Prison Rules (1987), 136 Goldstone, Richard, 127
Evans, Tony, 54 Greater China
Hong Kong, 352–357
female infanticide/foeticide (India), 370 PRC (People’s Republic of China),
former Yugoslavia 346–352
differences in exercise of individual rights/ prospects for human rights
freedoms in, 281–286 implementation in, 357–359
human rights violations Republic of China, 340–346
causes and consquences of, 270–281 Grotius, Hugo, 154
INDEX 443
Gul, Abdullah, 230, 231 Humanitarian Law Fund (Belgrade), 274

Gulf War (1991), 153 human rights
Guzetti, Cesar, 399 ‘‘Asian values’’ debate and, 9–10
built-in democratization, 6
Habermas, J., 80, 91 democratization and challenges of,
Hague Conventions, 68–69, 123 165–166
Hassan II, King, 91 Donnelly’s ‘‘Universal Declaration (UD)
hate speech (former Yugoslavia), 268 model’’ of, 31–32
Hayden, Patrick, 294 examining impact of ICC on, 119
Helsinki Final Act (1975), 60 Greater China prospects for, 357–359
Hersi, Mohammed ‘‘Morgan’’, 300 ICC contributions to promotion of,
Herzegovina 131–137
exercise of human rights/freedoms in, India
281–286 Indian constitution and, 380–381
human rights violations in, causes and judiciary and, 381–382
consequences of, 279–281 See also international human rights
HIV/AIDS pandemic, lessons on regime
universalism and relativism from, human rights norms
67–68 dynamics of international, 81–85
HKHRC (Hong Kong Human Rights examining UDHR, 29–37
Commission), 353 human rights as architectural norms,
HKHRM (Hong Kong Human Rights 79–81
Monitor), 354 local change leading to global, 77–96
Ho Hei-wah, 353 transition process of
Hong Kong, 352–357 constructivism and identification stages
‘‘honour killings’’, 222 of, 86–89
Horowitz, Shale, 3, 19–20, 23, 242, 415 norm communication and socialization
Howard, Rhoda, 84 stages of, 89–94
‘‘Human Dignity, Human Rights, and universalism of core, 60–61
Political Regimes’’ (Donnelly and human rights practices
Howard), 84–85 effort to declare universal standards for,
humanitarian intervention 56–60
duty and right to engage in establishing common ground advancing
assistance and support activities, global, 52–55
149–150 in Iran, Pakistan, and Turkey
current activities and, 151–152 comparison of, 221–234
dilemma of law and morality, 154–155 consequences of variation in, 234–236
duty to assist, 150–151 local change leading to global norms of,
enforcement operations, 152 77–96
examining, 148–149 post-communist
history and legality of, 152–154 causes of variation in, 244–256,
future challenges facing, 157–160 260–263
humanitarian intervention and, 110–111 consequences of variation in, 257–259
literature of, 142 examining, 242–244
need for proactive reasoning/action September 11th (2001) and impact on,
approach to, 155–157 14–15
transition societies and need for sources of transitional, 6–8
government incapacity/neglect, tentative findings/implications of
143–144 transitional, 8–15
international responses, 144–146 United Nations
towards a principled approach, 146–148 causes and consequences of, 111–112
444 INDEX
human rights practices (cont.) Human Rights Watch, 91

human rights standards development Humphrey, John Peters, 36–37, 39, 40
and, 105 Huntington, Samuel, 389, 407
improving access/capacity of human Hurrell, Andrew, 54
rights, 112–113 Hussein, Saddam, 191, 193, 195, 196, 198
universalism core rights approach to, Hutu population, 126, 135
60–61
human rights standards ICAC (Independent Commission Against
current status of international, 105–108 Corruption), 353
developed through UN practice, 105 ICC (International Criminal Court)
effort to declare universal, 56–60 contributions to promotion of human
of UN Charter, 104 rights
human rights violations achieving justice, 132–133
examined in transition societies, 3–4 contributing to cessation of ongoing
former Yugoslavia hostilities, 132
causes and consequences of, 270–281 contributing to reconciliation of parties,
hate speech used during confict and, 133–134
268 deterring future humanitarian law
historic and political issues of, 266–270 violations, 134–135
government incapacity/neglect indicated listed, 131–132
by, 143–144 promoting human rights by example,
Greater China 135–137
Hong Kong, 352–357 securing compensation for victims, 135
PRC (People’s Republic of China), examining impact on human rights by, 119
346–352 function/jurisdiction of, 129–131
prospects for improvement in, 357–359 international support of, 60, 119, 129
Republic of China, 340–346 potential of, 137
India, 365–380, 382–386 Rome Statute (1998) on, 60, 129–131, 137
by Iraqi regime US opposition to, 62
impact of war/ethnic conflict on, See also tribunals
202–209 ICCPR (International Covenant on Civil
overview of, 200–202 and Political Rights), 32, 34, 42, 60,
UNICEF study (1999) on, 194, 210, 211 125, 129, 339, 352, 354, 357
UN sanctions due to, 209–212 ICESCR (International Covenant on
protecting in transition societies Economic, Social and Cultural
impact on conflict management, Rights), 32, 59, 60, 62, 109, 339, 352
economic development, ICISS (International Commission on
democratization, 420–424 Intervention and State Sovereignty),
recommendations for national 146–147
governments, 424–425 ICTR (International Criminal Tribunal for
recommendations for NGOs, 427–428 Rwanda), 126–129
recommendations for regional/ ICTY (International Criminal Tribunal for
sub-regional organizations and former Yugoslavia)
UN, 425–427 concurrent jurisdiction and tribunal
understanding violations and primacy of, 124
protections, 416–420 outline of proceedings, 125–126
Somalia overview of, 121–124
examining, 291–297 rules of procedure, 125
international response to, 301–303 See also former Yugoslavia
understanding, 297–301 IGAD (Intergovernmental Authority on
West African sources of, 316–327 Development), 301
INDEX 445
Ignatieff, Michael, 54 International Bill of Rights, 31, 166

IGOs (intergovernmental organizations) International Covenant on Civil and
effort to declare universal human rights Political Rights, 307
standards by, 56–60 International Criminal Court. See ICC
as part of human rights regime, 3, 4 (International Criminal Court)
recognition of core rights by, 61 International Decade for the World’s
tentative findings/implications of Indigenous People, 107
transitional human rights and, 13–14 international human rights regime
US foreign policy IGOs and NGOs as part of, 3, 4, 5
enforcing democracy using IGOs, overview of, 4–5
174–176 See also human rights
supporting operations of, 173–174 International Labour Conference (1998), 61
illiberal democracies, 165, 166 IOs (international organizations), 78
ILO (International Labour Organization), IPC (Indian Penal Code), 370–371
40, 62 Iran
IMF (International Monetary Fund) human rights practices
establishment of, 38 comparison of Pakistan, Turkey and,
loans to Pakistan allowed by, 228 221–234
policy regarding democracy and human consequences of, 234–236
rights by, 172, 173 limited process of democratization in,
PRGF (Poverty Relief and Growth 219
Facility), 237–238 Second Development Plan (1995–2000)
US foreign policy regarding, 182 of, 225
IMT (International Military Tribunal) Iran-Iraq war (1980–1988), 202–204,
[Nuremberg], 120–121 208–209, 220, 223–224, 225
India Iraq
human rights civil society of, 198–200
Indian constitution and, 380–381 examining human rights violations in,
judiciary and, 381–382 191–194
human rights violations human rights violations
caste violence, 374–375 impact of war and ethnic conflict on,
child labour, 366–367 202–209
civilians killed by terrorism, 373t by regime, 200–202
environmental issues and, 379–380 UNICEF study (1999) on, 194, 210, 211
estimates on, 365–366 UN sanctions due to, 209–212
fighting, 382–386 as an ideocratic rentier state, 192–193,
minorities and, 375–376 194–197
political violence: terrorism, 371–374 impact of war on women of, 208–209
prisons, rights of prisoners, duration of Kurdish rebellions in, 193–194
trials, 377–379 origins of modern state, 191–192
state violence, 376–377 political and civil rights violations by
violence against women, 367–371 regime of, 200–202
indirect human rights protection, 108–109 recommendations for facing future
INGOs (international non-governmental challenges by, 212–215
organizations) Shi’ite unress (1977), 204–205
norm communication and socialization transition to sultanism, 197–198
by, 89–94 See also Kurds
self-aware human rights assistance by, 78 Iraqi Autonomy Laws (1974), 206
Inter-American Commission on Human Iraqi Ba’th Party, 192, 193, 195–196, 199
Rights, 90 Iraqi KDP (Kurdish Democratic Party),
interim years tribunals, 121 199, 200, 206, 207
446 INDEX
Iraqi PUK (Patriotic Union of Kurds), 200, See also Iraq; minorities; Turkey
207 Kuwait invasion (1990), 202–203
Iraqi RCC (Revolutionary Command Kwangju massacre (South Korea), 402, 405
Council), 192, 193, 195
Iraq Petroleum Company nationalization Lakanmi and Anor v. Attorney-General
(1972), 196 (West) [Nigeria], 320
IRP (Islamic Renaissance Party), 256 League of Arab States, 64
Islamic Conference (1981), 64 Lee Teng-hui, 343
Izetbegović, Alija, 259, 270, 279 legal pluralism, 93
Lenin, V.I., 169
Jan, Ameer, 303 Leung, Man-To, 22, 339
Japan, 167 liberal democracies
al-Jazairi, Zuhair, 198 human rights promoted in, 166–167
John Paul II, Pope, 55 transformation from illiberal to, 165, 166
See also United States
Kaarthikeyan, D. R., 22 liberalization rights, 165, 166
Kahin, Dahir Riyale, 300 Linklater, Andrew, 147
Kambanda, Jean, 133 Lu Ping, 355
Kant, I., 81
Kaohsiung incident (1979), 341 MacArthur, Douglas, 121
Karadzic, Radovan, 133 Magnarella, Paul J., 16–17, 119
Karadžić, Radovan, 280 Makiya, Kanan (Samir al-Khalil), 196
Karadzic, Radovan, 133 Malik, Charles, 37, 47
Karadžić, Radovan, 280 Mandela, Nelson, 177, 304
KCIA (Korean Central Intelligence Masani, Minocheher, 36
Agency), 395 Mayor, Federico, 294
Keck, Margaret, 87, 88–89, 90 Mbeki, Thabo, 306
Kellogg-Briand Pact (1928), 153 Méndez, Juan E., 408
Khamenei, Ayatollah Sayed Ali, 223, 227 Menem, Carlos Saúl, 393
Kim Dae Jung, 394, 405 Milošević, Slobodan, 132, 135, 259, 270,
Kim Young Sam, 394, 397, 406 272
KLA (Kosovo Liberation Army), 273 minorities
Klerk, F.W. de, 304, 306 comparing treatment in former
Klotz, Audie, 90–91 Yugoslavia of, 284
KMT. See Republic of China FRY human rights violations and
Koretsky, Vladimir, 36 relations between, 273–274
Kosovo, 142, 144, 154, 156, 273–274, 276 hate speech (former Yugoslavia) against,
Kotze, H.J., 293 268
Krstic, Radislav, 132 India, human rights violations against,
Kurds 375–376
Anfal campaign (1980–1988) against, UDHR protection of, 34–37
207–208 See also Kurds
attack on civilians in Halabja, 206 Mladic, Ratko, 133
Autonomy Laws (1974) and, 206 Mofid, Kamran, 203
cultural and political rights (1970) granted Mohamad, Mahathir Bin, 64
to, 205–206 Mohammed, I., 297
political parties of, 199, 200, 206, 207, 234 Moi, Daniel Arap, 127
rebellions against Iraqi state by, 193–194, Monshipouri, Mahmood, 18–19, 218
208 Montazeri, Ayatollah Hossein Ali, 224
Turkish political situation regarding, Montenegro. See FRY (Federal Republic of
222–223, 233–234, 237 Yugoslavia)
INDEX 447
Morsink, Johannes, 15, 29 norms. See human rights norms

Multiculturalism (‘‘The Politics of NSD (National Security Doctrine) ideology,
Recognition’’), 35 399
Muslim states, 55 Nuremberg Charter, 128, 135
Nuremberg tribunal, 120–121, 123, 124
national identity Nussbaum, Martha, 38
tentative findings/implications of
transitional human rights and, 9 Obendencia Debida (Due Obedience)
as transitional human rights practices [Argentina], 404
source, 6–8 OCHA (Office for the Coordination of
national origin concept, 36 Humanitarian Affairs), 152
NATO Kosovo intervention (1999), 142, OECD (Organization for Economic
144, 154, 156, 274–275 Co-operation and Development),
NATO SFOR (Stabilization Force), 134 166, 167
Nazism/Nazi groups, 46, 47 Ofuatey-Kodjoe, W., 16, 103
NCM (National Commission for Minorities) Okumu, F. Wafula, 20–21, 291
[India], 385 On Perpetual Peace (Kant), 81
NCRB (Indian National Crime Records OPEC (Organization of Petroleum-
Bureau), 368 Exporting Countries), 203
NCW (National Commission for Women) Open Door Policy (PCR), 346
[India], 384–385 Ordonneau, Pierre, 47
NED (National Endowment for Orentlicher, Diane F., 69
Democracy) [US], 171 Organization for African Unity, 64
‘‘neighbourhood effect’’, 180 Osaghae, Eghosa E., 21–22, 315
Netherlands, 166–167 OSCE (Organization for Security and
NGOs (non-governmental organizations) Cooperation in Europe), 43
criticism of PRC by international,
347–348 Pakistan
diversity represented by, 165 human rights practices
human rights promoted by Republic of comparison by Turkey, Iran and,
China, 343–345 221–234
improving access/capacity of human consequences of variation in, 234–236
rights, 112–113 impact of US foreign policy on
Indian human rights promoted by, democratization in, 183
385–386 Indo-Pakistan conflict in, 229
norm communication and socialization Kashmiri Muslims issue in, 230
by, 90–94 limited process of democratization in, 219
as part of human rights regime, 3, 4, 5 PCO (Provisional Constitutional Order)
prospects for human rights implemen- of, 227
tation in Greater China and, Simla Agreement (1972) of, 229
357–359 Park Chung Hee, 394, 395, 401, 402
recommendations for protecting human Pavlov, Mr., 47
rights for, 427–428 Pelletiere, Stephen, 208
tentative findings/implications of Perón, Isabel, 391
transitional human rights and, Perón, Juan Domingo, 391
13–14 Pinochet, Augusto, 60
See also civil society Pion-Berlin, David, 393
NHRC (National Human Rights PKK (Kurdish Workers’ Party) [Turkey],
Commission) [India], 383–384 234
non-discrimination protections, 34–37 Plaza, Eduardo, 44
Norden, Deborah, 403 Pogge, Thomas, 38
448 INDEX
political culture private property rights, 166

as democracy promotion factor, 176–178 Protocol II (1989), 125, 128
tentative findings/implications of PUCL (People’s Union for Civil Liberties)
transitional human rights and, 9–10 [India], 385–386
as transitional human rights practices PUDR (People’s Union for Democratic
source, 6–8 Rights) [India], 386
See also culture Pupovac, Milorad, 278
political leadership
tentative findings/implications of Qassem, Abdel Karim, 192
transitional human rights and, 9
as transitional human rights practices rape crime (India), 370
source, 6–8 religious identity
political regime as source of post-communist human rights
tentative findings/implications of practices, 250
transitional human rights and, 8–9 tentative findings/implications of
as transitional human rights practices transitional human rights and, 10–11
source, 6–8fig Renteln, Alison, 93
‘‘The Politics of Recognition’’ (Taylor), 35 rentier state, 197
post-communist human rights practices Republic of China, 340–346
causes of variation in Republic of Croatia
agriculture’s share of workforce, 250 exercise of human rights/freedoms in,
democratization as predictor of, 249, 281–286
253t human rights violations, causes and
frustrated national ideals, 250, 251t, consequences of, 277–279
260–263 Resanovic, Aleksandar, 20, 266
method, measurement, and data ‘‘The Responsibility to Protect’’ (ICISS
sources, 248–249 report, 2001), 146–147
model results and discussion on, 252, Rieffer, Barbara Ann J., 17–18, 164
256 Risse-Kappen, Thomas, 87
practices measured using CLI index, Risse, Thomas, 29, 91, 92
249 Roberts, Adam, 152
predominant religion, 250 Robertson, Geoffrey, 69
share of time at war, 250, 251 Roehrig, Terence, 22–23, 389
theory and hypotheses, 244–248 Roh Tae Woo, 396, 397, 405, 406
consequences of human rights variation Rome Statute (1998), 60, 129–131, 137
economic development, 258 Roosevelt, Franklin D., 175
human rights and conflict resolution, Ropp, Stephen C., 29
258–259 Rouleau, Eric, 233
human rights and democracy Rwanda criminal tribunal, 126–129
development, 257–258
examining, 242–244 Samatar, Abdi Ismail, 298
See also former Yugoslavia San Man Po (Hong Kong newspaper), 352
post-World War II tribunals, 120–121, 123, Santa Cruz, Hernan, 39, 44
124 SAPs (structural adjustment programmes),
poverty, 7, 11–12 321
See also economic realities Schnabel, Albrecht, 3, 17, 23, 141, 415
PRC (People’s Republic of China), 346–352 SC/STs (National Commission for
preservation rights, 165 Scheduled Castes and Scheduled
PRGF (Poverty Relief and Growth Facility) Tribes), 385
[IMF], 237–238 Second Optional Protocol to ICCPR (1989),
prison conditions (India), 377–379 125, 128
INDEX 449
self-determination right, 107–108, 109 Truth and Reconciliation Commission,

Sen, Amartya, 56–57 68, 96, 292, 308
Senas (caste militias) [India], 375t South Korea
September 11th (2001) democratization
human rights principles under siege causes of human rights abuses and,
following, 14–15 400–402
US foreign policy following, 169, 179, 183 consequences of human rights abuses
Serbia. See FRY (Federal Republic of and, 405–406
Yugoslavia) military rule and, 394–397
Sezer, Ahmed Needet, 230 Stalin, Josef, 136
SFOR (Stabilization Force) [NATO], 134 states
Sharif, Nawaz, 222 rentier, 197
Shari’ia (Islamic penal code), 65, 66, 296 self-determination right of, 107–108, 109
Shevardnadze, Eduard, 259 UN human rights implementation and
Shir (informal councils) [Somalia], 298 direct protection, 110
SHRC (State Human Rights Commissions) humanitarian intervention, 110–111
[India], 384 indirect protection, 108–109
Siegel, Richard Lewis, 15–16, 52 technical assistance, 110
Sikkink, Kathryn, 83, 84, 87, 88–89, 90 velayat-e faqih (rule of the jurisprudent)
Sino-British Joint Declaration (1984), 353 concept and, 212–213, 224
SLORC (State Law and Order Restoration See also transition societies
Council) [Burma], 167, 172 state sovereignty
social rights Article 14 on, 33
as aspect of democracy, 165 conflict between humanitarian
comparison in former Yugoslavia of, intervention and, 110–111
285–286 ICISS report on, 146–147
UDHR inclusion of, 38–42 state violence (India), 376–377
Somalia Summit of the Americas (Quebec, 2001), 173
human rights Syngman Rhee, 394, 400
examining, 291–293
international response to violations, TAHR (Taiwan Association for Human
301–303 Rights), 343–344
practices in, 294–297 Taiwan. See Republic of China
understanding failures of, 297–301 Taylor, Charles, 35, 94, 326
human rights practices, analytical technical human rights assistance, 110
framework of, 293–294 terrorism
TNG (Transitional National India
Government) of, 300 civilians/security forces killed in Assam,
Souillac, Geneviève, 16, 77 373t, 374t
South Africa loss of life in Jammu and Kashmir, 372t
ANC (African National Congress), 303, political violence and, 371–374
304, 306 rising global, 169
apartheid practice in, 177, 304–305 September 11th (2001), 14–15, 169, 179,
human rights 183
analytical framework of, 293–294 Thakur, Ramesh, 81
examining, 291–293 Thatcher, Margaret, 392
lessons learned from, 303–310 ‘‘theme mechanisms’’, 108, 109
Public Procter office, 308 The Third Wave (Huntington), 407
Human Rights Commission, 307–308 Tiananmen Square incident (1989),
PAC (Pan Africanist Congress), 303, 342–343, 346–347
304 transitional justice models, 68–69, 96
450 INDEX
transition societies sources of human rights practices in, 6–8

Argentina South African human rights
causes of human rights abuses and, analytical framework of, 293–294
398–399 apartheid practice in, 177, 304–305
consequences of human rights abuses examining, 291–293
and, 403–405 lessons learned from, 303–310
military rule and, 390–393 Public Proctor office, 308
examining human rights violations in, 3–4 Truth and Reconciliation Commission
external human rights protection in of, 68, 96, 292, 308
debate over duty/right for, 148–155 South Korea
future challenges/directions of, 157–160 causes of human rights abuses and,
need for, 143–148 400–402
need for proactive reasoning/action, consequences of human rights abuses
155–157 and, 405–406
former Yugoslavia military rule and, 394–397
differences in exercise of individual tentative findings/implications of human
rights/freedoms in, 281–286 rights in, 8–15
historic and political issues of human US foreign policy and promotion of
rights in, 266–270 democracy in, 176–180
human rights violations causes/ Western Africa
consequences, 270–281 context and challenges in, 315–316
Greater China current state of affairs in, 334–337
Hong Kong, 352–357 sources of human rights violations in,
PRC (People’s Republic of China), 316–327
346–352 transition consequences in, 327–334
prospects for human rights See also states
implementation in, 357–359 Transparency International, 345
Republic of China, 340–346 tribunals
intercultural dialogue on universalism/ for former Yugoslavia, 121–126
relativism and, 65–67 during interim years, 121
moving from local change to global post-World War II, 120–121, 123, 124
human rights norms, 77–96 for Rwanda, 126–129
protecting human rights in South Africa’s Truth and Reconciliation
impact on conflict management, Commission, 68, 96, 292, 308
economic development, victim compensation established by, 135
democratization, 420–424 See also ICC (International Criminal
recommendations for national Court)
governments, 424–425 Tudjman, Franjo, 270, 272, 277, 278
recommendations for NGOs, 427–428 Turkey
recommendations for regional/ economic liberalization policies in,
sub-regional organizations and UN, 232–233
425–427 human rights practices
understanding reasons for violations/ comparison of Pakistan, Iran and,
protections, 416–420 221–234
Somalia human rights consequences in variation of, 234–236
analytical framework of, 293–294 Kurdish problem in, 222–223, 233–234,
examining, 291–293 237
international response to violations, limited process of democratization in,
301–303 219
practices in, 294–297 See also Kurds
understanding human right failures in, Tutsi population, 126, 135
297–301 Tutunji, Jenab, 18, 191
INDEX 451
ubuntu (restorative justice), 309 humanitarian intervention, 110–111

UDHR (Universal Declaration of Human indirect protection, 108–109
Rights) [1948] technical assistance, 110
Donnelly’s Universal Declaration (UD) human rights practices
model on, 31–32 causes and consequences of, 111–112
examining the norms of, 29–30 human rights standards established by,
as the foundation of human rights regime, 104–105
4 improving access/capacity of, 112–113
as a freely floating moral norm, 30–34 international standards on human rights
human rights standards developed by, 105 and, 105–108
inclusion of human right to democratic protecting human rights in transition
participation by, 42–48 societies recommendations for,
inclusion of social, economic, and cultural 425–427
rights in, 38–42 sanctions against Iraqi by, 209–212
protection of women/minorities through United Nations Development Programme,
non-discrimination norm of, 34–37 38
UNAIDS (Joint United Nations Programme United Nations Standard Minimum Rules
on HIV/AIDS), 68 for the Treatment of Prisoners
UN Charter (1977), 136
Bill of International Rights included in, United States
39 examining universalism vs. relativism of,
human rights standards of, 104 62–63
ICTY established under exercise of, 122 foreign policy
UN Charter of Economic Rights and Duties bilateral, 170–172
of States (1975), 62 factors affecting promotion of
UN Commission on the Status of Women, democracy, 176–180
34 multilateral, 172–176
UN Covenant on Civil and Political Rights, understanding, 168–170
106 liberal democracy of, 167–168
UN Covenant on Political and Civil Rights, See also liberal democracies; US foreign
107 policies
UN Declaration on Friendly Relations, 106 Universal Declaration of Human Rights, 317
UNDP Position Paper on Child Labor, 366 universalism
UNDP (UN Development Programme), challenge of cultural relativism to,
152, 302 63–65
UN General Assembly Session on Children core rights approach to, 60–61
(2002), 64 effort to declare human rights standards,
UNHCHR (UN’s Office of the Higher 56–60
Commissioner of Humanitarian established to advance global human
Affairs), 152 rights, 52–55
UN Human Rights Centre, 174 examining US relativism vs., 62–63
UN Human Rights Commission, 36, 55, 62, experience with critical issues and lessons
105 on, 67–69
UNICEF study (1999), 194, 210, 211 transitional societies and intercultural
UN International Convention on the dialogue on, 65–67
Protection of National or Ethnic UN Millennium Declaration (2000), 58, 146
Groups and Minorities, 106 UNOSOM (United Nations Operation in
UNITAF (United Task Force), 302 Somalia), 302
United Nations UN peacekeeping, 153
human rights implementation UN Resolution 688 (1992), 111
mechanisms UN Security Council Resolution 1244, 267,
direct protection, 110 274
452 INDEX
UN Sub-Commission on the Prevention of Western Africa

Discrimination and Protection of context and challenges of transition in,
Minorities, 36, 37 315–316
UN Sub-Commission on the Prevention of current state of affairs in, 334–337
Discrimination and the Protection of human rights violation sources
Minorities, 109 civil and international conflict,
UN Sub-Commission on the Prevention of 325–327
Discrimination and Protection of cultures and identities, 323–325
Minorities, 36, 37 economic institutions, 320–323
UN Sub-Commission on the Prevention of issues of, 316–318
Discrimination and the Protection of political institutions, 318–320
Minorities, 109 transition consequences in
UN Trusteeship Council, 109 conflict resolution, 333–334
USAID (United States Agency for democratization and human rights
International Development), 171 transformation, 327–330
US Congressional Black Caucus, 175 economic development, 330–332
US foreign policies WFP (World Food Programme), 152
bilateral policy ‘‘White Terror’’ (Republic of China), 344
ad hoc (reactive) diplomacy, 171–172 WHO (World Health Organization), 152
programmatic diplomacy, 170–171 Wilson, Richard, 93
factors affecting promotion of democracy, Wink, Walter, 309
176–180 WMD (weapons of mass destruction), 142
multilateral policy, IGO standards, women
172–173 comparing treatment in former
September 11th (2001) impact on, 169, Yugoslavia of, 285
179, 183 ‘‘honour killings’’ of, 222
understanding, 168–170 impact of Iran-Iraq war on, 208–209
See also United States India
crime rate against women, 369t
velayat-e faqih (rule of the jurisprudent), sex ratio in, 371t
212–213, 224 violence against, 367–371, 368t
victim compensation, 135 violence by social status of, 369t
Videla, Jorge Videla, 398–399 UDHR protection of, 34–37
Vienna Conference on Human Rights See also children
(1993), 57, 107 Working Group of Indigenous People, 107
Viola, Roberto Eduardo, 403 Workman, W. Thom, 203
Vyshinksky, Andrrei, 32 World Bank
establishment of, 38
war US foreign policies regarding, 182
human rights and resolution of, 258–259 World Social Summit (1995), 61
human rights violations/protection and WTO (World Trade Organization)
managing, 420–424 China’s entrance into, 172
impact on human rights practices by, 7–8, relativism expressed within, 65
12 Wynia, Gary, 391
Iran-Iraq war (1980–1988), 202–204,
208–209, 220, 223–224, 225 Xi Yang incident (1994), 355
Iraqi human rights violations and, 202–209
post-communist human rights practices Yew, Lee Kuan, 64
and share of time at, 250, 251, 254t Yilmaz, Mesut, 231
West African human rights violations Yusuf, Abdullahi, 300
and, 325–327
Welsh, Jennifer, 147 Zalaquett, José, 398

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United Nations University Press is the publishing arm of the United Na-

tions University. UNU Press publishes scholarly and policy-oriented

United Nations University Press

United Nations University Ofﬁce at the United Nations, New York

Cover design by Sese-Paul Design

Printed in the United States of America

Library of Congress Cataloging-in-Publication Data

Human rights and societies in transition : causes, consequences, responses /

List of ﬁgures and tables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . x

Note on measurements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xii

1 Human rights and societies in transition: International context

Part One: Deﬁning, delimiting, and understanding human rights

2 The Universal Declaration of Human Rights as a norm for

3 Universalism and cultural relativism: Lessons for transitional

4 From global norms to local change: Theoretical perspectives

Part Two: Monitoring, promoting, and enforcing human rights . . . . 101

5 The United Nations and human rights . . . . . . . . . . . . . . . . . . . . . . . . . . . 103

6 The consequences of the war crimes tribunals and an

7 International efforts to protect human rights in transition

8 Democratic transitions and foreign policy: The United States . . 164

Part Three: Sources of human rights violations and their impact

9 Sources and consequences of human rights violations in Iraq . . 191

10 Exploring the dynamics of human rights and reform: Iran,

11 Causes and consequences of variation in post-communist

12 Human rights and conﬂict in the former Yugoslavia . . . . . . . . . . . . 266

13 Human rights in transition societies: The cases of Somalia and

14 Human rights and transition societies in Western Africa. . . . . . . . 315

15 Political development and democratic rights in Greater China . 339

16 Human rights in India . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 363

17 Human rights, the military, and the transition to democracy in

18 Protecting human rights in transition societies: Lessons and

Abbreviations and acronyms. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 430

1.1 Interactive effects of regime type and other factors on

11.1 Sources of frustrated national ideals in the post-communist

16.6 Loss of life in Jammu and Kashmir since 1988 . . . . . . . . . . . . . . 372

A number of individuals and organizations have provided invaluable as-

the readers of this volume. We hope that, as a team, we have produced a

Human rights violations are often particularly severe in transition soci-

transitional human rights should focus on building up the most promising

The international human rights regime

Today’s international human rights regime consists of an accumulating

affairs of states is given great prominence in the UN Charter. Most states

Sources of transitional human rights practices

doms proper: authoritarian regimes are more likely to try to monopolize

with maximum mobilization amidst a national emergency. Even if human

Tentative ﬁndings and basic implications

broadly improved economic opportunities and social services. However,

pre-communist experiences. This interpretation is supported by a closer

period is almost invariably associated with broad provision of public

Contents of the volume

The volume begins, in chapters 2–8, by summarizing and analysing the

positions on, as well as conﬂicts and tensions between, various human

Forsythe argue that limited resources for promoting human rights – as

tices. Turning to consequences, stronger human rights practices appear to

ternatives. Sustainable human rights improvements are themselves cen-

A recent study of how international human rights norms cause domestic

The Declaration as a freely ﬂoating moral norm

Initially, the UDHR was envisioned as a legal document similar to the

and cannot do to its citizens.15 However, the point of proclaiming the

Protecting women and minorities through