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Note of the Meeting on 11 November 2003
Professor Connor Gearty on ‘Dying for Human Rights’
Professor Gearty is Professor of Human Rights Law and Director at the Study Centre for Human Rights at the London School of Economics.
Professor Gearty began his talk by expressing his concern with the way the phrase ‘Human Rights’ was used in present-day society. He himself had not been a fervent advocate of the concept in the past; he believed the best approach was from a critical or quizzical perspective. It has become a powerful phrase attractive to those who wish to rationalise their behaviour, as shown in the recent speeches in the run-up to the War in Iraq. Generally, he was concerned that language about abuse of human rights might be used to deflect critics of Intervention overseas (when there are other motives); or to justify repression at home.
Professor Gearty then outlined the history of the concept, beginning with the Declaration of the Rights of Man and the French Revolution. It fell out of favour in the following century (J Bentham: “nonsense on stilts”), but re-emerged dramatically again after World War II with the UN Universal Declaration on HR and the European Convention on HR (1950/3). The former contained many (unenforceable) absolutes and reads like a manifesto: the latter is a more practical document, picking out specific political and civil rights, but recognising the need for Governments to defend against attacks from within. Thus absolute rights (eg free speech, assembly) are qualified by the right of a Government to override – a kind of Benthamite utilitarianism – in an emergency. This latter clause (Art. XV) was carefully drafted as ‘a threat to the life of the nation’. There are some absolutes eg the right to life, and torture is outlawed. The Convention is now incorporated in the domestic law of 40 countries (including UK).
Professor Gearty then went rapidly through a number of cases where this right of Governments to invoke an emergency had been tested eg the treatment of communists in Germany during and after the Cold War and the actions of the UK Government in Northern Ireland. The 2001 Act in UK in response to international terrorism permits detention without charge and the recent court case testing this was interesting in its admission of intelligence material and apparent acceptance of torture. There is a danger in all this: courts naturally tend to respect the judgements of the executive, and parliaments tend to defer to the courts. Ministers can therefore sometimes justify their actions as being both right and legitimate, which is turning the language of human rights ‘inside out’.
The lively discussion which followed included the following:
· The Iraq War had been justified ex post facto with reference to HR.
· The conflict between absolutists and pragmatists had been with us since the C17th: extension of rights to unenforceables was empty rhetoric.
· The Bill of Rights incorporated in the US Constitution has often been ignored in practice by the executive, particularly during wars (eg Lincoln defying the Supreme Court). It was noted that the jurisdiction over Guantanamo Bay was now sub judice.
· The Human Rights Act does not supersede Parliament; judicial behaviour tends to be liberal in quiet times, but conservative when the going gets rough. The US Supreme Court is highly politicised, unlike in UK.
· Rights can be expressed positively or negatively: the ancient law of habeas corpus is arguably more effective than more recent formulations.
· The Government was often reluctant to provide any reasons for invoking the notorious Regulation 18b in WW II, although the Regulation was quickly rescinded at the war’s end and Churchill famously intervened on behalf of individuals. Casement and Joyce were unsettling cases.
· Executions for cowardice in WW I: there is an understandable aversion from retrospective law.
· Civilian incursions in US military bases in UK were commonly regarded as ‘breaches of the peace’.