2007

Pragmatic fundamentalism: Michael Ignatieff and human rights

Luca Baccelli

The United States is an empire. It is a new kind of empire - a "new invention in the annals of political science" - that is inspired by the principles of the free market, human rights and democracy. Yet however meaningful the innovations and specificities of the United States' global hegemony may be, the country bears, like all the empires of the past, a "burden" of commitments and responsibilities, amongst which the need to guarantee "peace, stability, democratization and oil supplies in a combustible region of Islamic peoples stretching from Egypt to Afghanistan". In short, the United States finds itself playing the role that was once carried out by the Ottoman Empire, and later by France and Great Britain. This is why the country must intervene militarily in Iraq: to stop the proliferation of weapons of mass destruction, to prevent actions by terrorist networks, and to topple a tyrannical and terrorist regime.

These theories, contained in an article with the telling title "The Burden" (1), are expressed not by one of the fundamentalist Christian or neo-con intellectuals that crowd the Bush administration's think-tanks. Their author is a renowned "progressive" intellectual, a critic in the past of the Vietnam War and today of current Republican social policy. He is the director of the Carr Center of Human Rights Policy at Harvard, Michael Ignatieff. With his committed support of the Anglo-American intervention in Iraq, Ignatieff differs, too, from persons like Michael Walzer, who theorized the "supreme emergency" as a prerequisite for a "just" war and supported the U.S.-led interventions against Iraq in 1991 and against the Yugoslav Republic in 1999. Even Walzer, who immediately following 9/11 signed a document in support of "American values" and the global war against terrorism (2), kept his distance, although with a good deal of ambivalence, from the aggression to Iraq wanted by the Bush administration(3).

Ignatieff reminds us that the United States is a republic born of a rebellion against an empire, and touches on the risks for freedom and the rule of law posed by imperial policy, although he demonstrates a certain tendency to euphemism when defining the condition of the Guantánamo prisoners as a "legal limbo". Nevertheless, he firmly asserts that no matter how reluctant it may be, the republic must commit itself to the imperial operation in Iraq, September 11^th having demonstrated that domestic peace cannot be guaranteed without an imperial foreign policy. Along this line, Ignatieff refers without qualms to the document issued by the White House after 9/11 entitled The National Security Strategy of the United States (4), which theorizes the sovereign supremacy of the United States and the "counter-proliferation" doctrine; and does not hesitate to support the claim regarding the risk that Iraq might possess weapons of mass destruction. But this argument then slips into the question of the liberalization and democratization of Iraq and the safeguarding of human rights: when dealing with rogue states, containment policies and threats of retaliation are insufficient. To avert the threat posed by Iraq, a regime change will be necessary. On the other hand, states have the "right" to use force to defend human rights: however unpleasant "for those who believe in human rights", in certain situations "war is the only real remedy for regimes that live by terror " (5).

Given its imperial role, then, America has no choice but to take enormous, imperial risks. But in taking on this "burden" it also has the power to divide up the tasks ("America does the fighting, the French, British and Germans do the police patrols in the border zones and the Dutch, Swiss and Scandinavians provide the humanitarian aid") and to be exempted from further "burdens" such as the International Criminal Court and the Kyoto Protocol: "America's allies want a multilateral order" to counterbalance its power, but "the empire will not be tied down like Gulliver with a thousand legal strings" (6).

Ignatieff's justification of United States imperial policy thus makes direct reference to his theories on human rights, in particular his 2000 Tanner Lectures on Human Values. As is well known, the language of rights - in particular human rights - has become increasingly widespread and pervasive in recent decades: many consider it as the only universal normative code in an age of pluralism with regard to morals, cultures, religions and legal systems. Ignatieff quotes Elie Wiesel, who on the fiftieth anniversary of the Universal Declaration of Human Rights defined these rights as a "world-wide secular religion", and Kofi Annan, who spoke of a "yardstick by which we measure human progress" (p. 53). Ignatieff pinpoints the spread of the language of rights within the context of what he defines as "the juridical revolution" (the acknowledgement of individuals, with their rights, as subjects within the international legal system); "the advocacy revolution" (the establishment and spread of non-governmental organizations that report violations of human rights); and "the enforcement revolution" (the creation of legal tools with which to punish those who violate international conventions on human rights, foremost of which the Hague and Arusha tribunals).

After 1991 - following the first Gulf War for Kuwait and the subsequent Anglo-American intervention in Iraq, which was presented as a "humanitarian action" in favour of the Kurds and Shiites - the debate on the grounds of human rights, their universality and the possibility of protecting and guaranteeing them became intertwined with others relating to the transformation of international relations following the Cold War and to the political, cultural and legal consequences of economic globalization. Some authoritative intellectuals, including Norberto Bobbio and Jürgen Habermas, saw in these interventions a first, incomplete demonstration of how the international community can mobilize to punish violations of international law and protect human rights, moving beyond the principle of non-intervention in the domestic affairs of nations that is enshrined in the Charter of the United Nations. Habermas, in particular, maintained that only by going beyond the pre-juridical "state of nature" among sovereign states and creating a cosmo-political system would it be possible to confer on human rights the same status enjoyed by basic rights in domestic systems, and to use the guarantees of the rule of law to prosecute those who infringe them. According to Habermas, human rights are universal because they refer to a moral basis upon which all the great religions converge; yet by considering them straight off as moral rights, we would be paving the way to a "fundamentalism of human rights" (7).

Arguments of this kind, which hark back to the theoretical basis of rights and democracy as developed in Faktizität und Geltung, did not prevent Habermas from supporting the 1999 NATO intervention against the Yugoslav Republic. He justified this clear infringement of international law - with respect both to the ius ad bellum and to the ius in bello - with reference to the need to prevent the violation of the human rights of the Kosovo Albanians. In the same period, Antonio Cassese preferred to refer to a process of customary modification of international law then underway ("ex iniuria oritur ius"), while Norberto Bobbio went so far as to cast the United States in the Hegelian role of "carrier" [Träger] of the spirit of the world [Weltgeist]. (8). If the best theoretical-legal minds in the West were taking such positions, it is no wonder that references to human rights and their protection have become more and more widespread in the official documents of the various administrations of the United States: In the (sadly) well-known and previously cited document, The National Security Strategy of the United States, the first objective of foreign policy is defined as "champion(ing) aspirations for human dignity", while principles such as the rule of law, freedom of speech, equality of rights, ethnic-religious tolerance and respect for private property are declared to be "right and true for every person, in every society " (9).

Ignatieff resolutely criticizes the "idolatry" of human rights and attempts to "ground" them theoretically: foundational claims make reference to non-indisputable metaphysical assumptions and end up by being divisive. What is necessary is rather to question what human rights 'do'. History teaches "that human beings are at risk of their lives if they lack a basic measure of free agency; that agency itself requires protection through internationally agreed standards; that these standards should entitle individuals to oppose and resist unjust laws and orders within their own states; and, finally, that when all other remedies have been exhausted, these individuals have the right to appeal to other peoples, nations and international organizations for assistance in defending their rights" (p. 55).

A historical and prudential justification need not make an appeal to a notion of human nature or the good, and is therefore compatible with moral pluralism. In other words, you don't have to agree on what is good in order to agree with human rights, but rather on what is indisputably wrong: Ignatieff advocates a consciously minimalist universalism that makes reference to a "thin" theory of what is right. Starting from this minimalist standpoint makes it possible, in his view, to stand up to critics who oppose the language of rights on a variety of fronts: the "external" ones of Islamic fundamentalism (starting with Saudi Arabia's position during the drafting of the 1948 Declaration) and of "Asian values", as well as the "internal" one of post-modernist relativism. In Ignatieff's view, we must not exaggerate in negatively describing the Western character of the Declaration. In the context it which it was drafted, following World War II and the Holocaust, on the verge of the Cold War, "the human rights instruments [...] were not a triumphant expression of European imperial self-confidence but a war-weary generation's reflection on European nihilism and its consequences" (p. 4). For Ignatieff, on the other hand, it is precisely due to the individualism of rights that "they have proven attractive to millions of people raised in non-Western traditions. Rights are meaningful only if they confer entitlements and immunities on individuals" (p. 66).

In critiquing the "idolatry" of human rights, Ignatieff very effectively challenges many of the features attributed to basic rights in the contemporary theoretical debate. In particular, contrary to Ronald Dworkin's well-known theories, he rejects the notion that human rights can be regarded as trumps, as "winning cards" that prevail over any social end or political programme, since they express values and principles that are in contrast with one another (10). Nor can human rights be considered as a normative expression of human nature. They are rather somehow unnatural: "human morality in general and human rights in particular represent a systematic attempt to correct and counteract the natural tendencies we discovered in ourselves as human beings. [...] Historically, human rights doctrines emerged to counteract this tendency toward particularist and exclusivist ethical circles of concern and care". (p. 79)

Rejecting the rhetoric of the doctrine of natural law, Ignatieff states that "there is nothing sacred about human beings, nothing entitled to worship or ultimate respect" (p. 83). He insists on the political character of human rights, and invites NGOs themselves to take responsibility for their protection (pp. 9-10). It is necessary "to stop thinking of human rights as trumps", above politics, or "the universal credo of a global society [....], a secular religion", and rather consider them as a basis for decision-making, "the shared vocabulary from which our arguments can begin" (ivi, p. 95).

Furthermore, Ignatieff does not link the defence of human rights to the cosmo-political perspective. Instead he holds that the sovereignty of states, and their stability, are the best guarantee of human rights. The very right of a people to self-determination should not be deemed absolute, since in some cases it proves not to be an advantage for individual human rights; more specifically, it is not appropriate for all demands for self-determination to be satisfied, to the point of enabling secession and national independence. However, we must acknowledge a tension between human rights and democracy. Constitutionalism is the fundamental instrument with which to ease this tension and to prevent democracy from becoming a tyranny of the ethical majority. On the other hand, in the age of globalization, the sovereignty of states is growing increasingly weak. Quite rightly, Ignatieff avoids establishing direct links between globalization and the assertion of the language of rights, and asserts "the insurgent nature of the relation between human rights activism and the global corporation" (p. 71). One should not simplistically advocate an "elective affinity" between human rights as "a style of moral individualism" and "the economic individualism of the global market".

As a matter of fact, the relationship between human rights and money, between economic and moral globalization, is rather of an antagonistic nature, as can be seen, for example, in the campaigns led by human-rights activists against the environmental and labour policies of large multinationals. "Human rights has gone global not because it serves the interests of the powerful but primarily because it has advanced the interests of the powerless. Human rights has gone global by going local, embedding itself in the soil of cultures and worldviews independent of the West, in order to sustain ordinary people's struggles against unjust states and oppressive social practices". (p. 7)

Equally opportunely, Ignatieff augurs that a certain sobriety will be exercised when defining the catalogues of rights, in light of the idea that "rights inflation - the tendency to define anything desirable as a right - ends up eroding the legitimacy of a defensible core of rights" (p. 90).

This does not mean that he has abandoned the universalistic perspective or will not commit himself to a solid definition of the normative grounds for human rights. According to Ignatieff, the substance of rights expresses the conflicts between individuals and groups. The language of rights "is the only vernacular that enables dependent persons to perceive themselves as moral agents and to act against practices [...] that are ratified by the weight and authority of their cultures" (ivi, p.68); and it is this that explains their powerful attraction outside of the West. Their universality does not lie in a universal consensus, but rather in the fact that they define the universal interests of those who are without power: they ensure "that power be exercised over them in ways that respect their autonomy as agents" (ivi, p. 68). "Human rights is universal not as a vernacular of cultural prescription but as a language of moral empowerment." (ivi, p. 73). Hence even as he criticizes the foundational claims and makes use of historical-pragmatic arguments, Ignatieff does not refrain from clearly defining the function, if not the nature, of rights - a definition that leads to prescriptive indications regarding their contents and extent. As we have seen, Ignatieff insists on the importance of avoiding "inflating" the language of rights. His theory on this subject is that it is from rights, intended as empowering principles, that their limits originate - limits that do not go beyond 'negative freedom': "Human rights matter because they help people to help themselves. They protect their agency. By agency, I mean more or less what Isaiah Berlin meant by 'negative liberty,' the capacity of each individual to achieve rational intentions without let or hindrance". The issue of human rights is related to individual empowerment, which is "desirable because when individuals have agency they can protect themselves against injustice". (ivi, p. 57)

Once rights are brought back to this key idea and sort of hard core (which curiously coincides with the most traditional catalogue of individual civil rights, those typical of the liberal tradition), it is possible to make them universal. Ignatieff's "consciously minimalist universalism" and the "thin theory of what is right" are presented as a solid basis for the global protection of human rights. It is as if it were possible, through this reduction to a common denominator, to identify the keystone supporting the whole project of universalization.

Universalism, however minimalist, takes upon itself the burden of legitimating military interventions to protect human rights. In the Tanner Lectures, Ignatieff fills several pages reminding us that the decision to intervene militarily is acceptable only when human rights abuses are "gross, systematic, and pervasive" and a threat to peace, both locally and internationally. He also stresses that "military intervention has to stand a real chance of putting a stop to the abuses" (p. 40), and recommends caution. To intervene militarily means to risk supporting parties that are anything but innocent and end up delegitimizing human rights. Ignatieff also admits that "the juridical status of a right of intervention is exceedingly unclear": he maintains that there is a kind of antinomy in the Charter of the United Nations that encourages the protection of human rights but forbids intervening in the domestic affairs of sovereign states, and augurs that the right to humanitarian interference will be formalized. According to Ignatieff, however, when a state comes apart or vice versa exerts severe violence upon its own citizens or those of other countries, military intervention is the only effective means for protecting human rights. From this perspective, "Human rights is nothing other than a politics, one that must reconcile moral ends to concrete situations and must be prepared to make painful compromises not only between means and ends, but between ends themselves. But politics is not just about deliberation. Human rights language is also there to remind us that there are some abuses that are genuinely intolerable, and some excuses for these abuses that are intolerable. [...] Hence, human rights talk is sometimes used to assemble the reasons and the constituencies necessary for the use of force" (ivi, pp. 21-22).

As we have seen, this selective apology for humanitarian intervention "develops" into unconditional support for the so-called global war against terrorism and for interventions of "pre-emptive legitimate defence" by the current U.S. administration, using arguments in which references to international law are completely lost.

So the "reasonable defence of human rights" at which the Italian title of Ignatieff's book hints consists of pinpointing a minimal (but exactly for this reason very solid) core of rights and then making them universal, thus linking them to the protection of rights also by means of military force. The "reasonableness" of this theoretical proposition has been challenged from many quarters. One could ask, for example, whether the empowerment of individuals coincides with, and is limited to, "negative" liberty rights; or whether it instead requires the actual fulfilment of a number of political and social guarantees. On the other hand, one could ask - as Danilo Zolo did in a piece contained in the appendix of the Italian edition of the Tanner Lectures - whether having "condensed the Western quintessence of human rights theory" (11) is the right step in the direction of its universalization and of intercultural debate. As we have seen, Ignatieff holds that the individualism of the Western liberal tradition, far from hindering this intercultural debate, is exactly what non-Western partners in the debate seek, appreciate and make the most of in the language of rights.

One could ask whether this is really the case - whether individualism is what is being appreciated first and foremost, or rather another feature of rights, i.e. their usefulness for the activity of claiming, the defence of freedoms against oppressive powers, and thus their allowing a point of view "from below", ex parte populi. From this perspective, if it is true that rights take the defence of single individuals as their top priority, it is also true that they are generally asserted by collective entities that demand recognition. And what "other" cultures (i.e. those that do not belong to the Western legal tradition) - or better yet, the subordinated and oppressed individuals and groups within these "other" cultures - find attractive in rights language is probably the fact that it enables them to participate on a normative basis in social and political processes of claiming and mobilization against various forms of oppression and domination, rather than defending individuals against the community as such. At the same time, they probably see rights language as a flexible instrument with which to "transform" values, issues and claims into legal principles and rules, that in turn refer to legal techniques for their protection and sanction. From this viewpoint, losing sight of the legal aspect of rights language means, as Habermas has pointed out, to open the way to a fundamentalism of rights.

In conclusion, in addressing the issue of the intercultural debate of rights language, we need to be more radical than Ignatieff in rejecting the foundational claims and critiquing universalism. We need to acknowledge the historical and cultural bias of human rights and finally accept that not even a minimal foundation, a "hard core" reduced to a minimum, exists. Thus the dismissal of the idea of human rights as "trumps", i.e. absolutely non-negotiable foundational principles, would be more clear and consistent than it is in Ignatieff's perspective. If the issue is the universalization of human rights, then we must undertake a patient and responsible task of intercultural translation; and a position like fiant iura, pereat mundus is unsustainable. By acknowledging the genetic and conceptual link between rights and the activity of claiming them, we also exclude the possibility of imposing these rights. The exportation of socialism on the Red Army's tanks led to a massive failure. Today, as far as we can see, the "liberation" from tyranny and exportation of human rights in Iraq on the warheads of Tomahawk missiles also does not seem to be producing very encouraging results.

(Translated by Maria Carla Bellucci and Sara Benjamin)

Notes

1. See M. Ignatieff, "The Burden", The New York Times Magazine, 5 January 2003,

2. See "What We Are Fighting For", The Washington Post, 12 February 2002

3. See M. Walzer, "So, Is This a Just War?", Dissent Magazine, Spring 2003. Recently Ignatieff published a partial self-critique; see. M. Ignatieff, "Getting Iraq Wrong", The New York Times, August 5^th, 2007.

4. See The National Security Strategy of the United States of America.

5. M. Ignatieff, "The Burden", cit.

6. Ibidem.

7. See J. Habermas, Die Einbeziehung des Anderen, Suhrkamp, Frankfurt a. M., 1996..

8. See G. Bosetti (ed.), L'ultima crociata, Reset, Roma, 1999.

9. The National Security Strategy, cit.

10. "Human rights might become less imperial, if it became more political, that is, if it were understood as a language, not for the proclamation and enactment of eternal verities, but as a discourse for the adjudication of conflict. But thinking of human rights in this way means accepting that human rights principles themselves conflict. [...] If rights conflict and there is no unarguable order of moral priority in rights claims, we cannot speak of rights as trumps. [...] At best, rights create a common framework, a common set of reference points that can assist parties in conflict to deliberate together. Common language, however, dos not necessarily facilitate agreement" (Ignatieff 2001, p. 20).

11. D. Zolo, Humanitarian fundamentalism.