Joseph Kony and George Clooney, seemingly disparate, occupy a common space in our imagination: wanted criminal and vaunted celebrity, both are human rights spectacles of our times.  Kony, leader of the Lord’s Resistance Army messianic cult, is wanted by the International Criminal Court.  He stands accused of crimes against humanity for the horrific abuse of child soldiers and terrorization of civilians in northern Uganda.  He became globally infamous by the efforts of Invisible Children, a hitherto obscure organization that made the appealing but simplistic Kony 2012 short film calling for his arrest.  They succeeded in spreading the film virally on an unprecedented scale: within a few days of its release, it registered 100 million views on the YouTube video-sharing website and raised millions of dollars.  Clooney, a Hollywood actor of great renown and wealth, has starred in numerous best-selling films and is the subject of much idle gossip in the tabloids.  Among his many accomplishments, he has received the Academy Award – the so-called “Oscar” – the pinnacle of success in the film industry.  He is also famous for his human rights activism and celebrity diplomacy concerning mass-atrocities in the Darfur and South Sudan.  There is an obvious contrast between Kony and Clooney.  But there is also an intriguing similarity: they are both personalities that the average person “on the street” can probably identify with global human rights issues.  Both public figures owe this distinction to successful engagement with the hyper-culture of cyber-compassion: amidst myriad distractions just a click away, worthy causes must assume an air of glamour to compete for our fleeting attention.  In short, in affluent consumer societies that privilege superficial sentimentality over profound commitment, mass-mobilization and public awareness usually depends on making human rights sexy.  What should we make of this reality?

Whether it is the Kony 2012 video or the star power of Clooney, the contemporary discourse surrounding human rights activism is seemingly a struggle between utilitarianism and authenticity.  Consider Nigerian-American writer Teju Cole decrying the “White Saviour Industrial Complex” and disparaging Kony 2012 as “a big emotional experience that validates privilege” rather than justice:  “The banality of evil transmutes into the banality of sentimentality.”  By contrast, New York Times columnist Nicholas Kristof praised the video “for galvanizing young Americans to look up from their iPhones and seek to make a difference”, retorting that “if I were a Congolese villager, I would welcome these uncertain efforts over the sneering scorn of do-nothing armchair cynics.”[2]  Amidst public apathy, the question seems to be whether “slacktivism” – substituting “feel good” activism for meaningful engagement – is better than doing nothing at all.  This meagre utilitarian discourse and its contrary polemics are hardly sufficient to address the enormity of the moral challenges facing us in the struggle for justice.  What then is the appropriate context for addressing the glamourization of human rights and its implications on our self-definition?  Exploring this query requires a brief deviation from the topic at hand into the historical journey that has resulted in the fusion of the superficial with the sacred.

The etymology of “glamour” is itself an instructive illustration and starting point.  The Oxford Dictionary traces the word to the early 18^th century – originally a variant of the Scottish gramarye – meaning “enchantment” or “magic”.  It was an alteration of the English word grammar with a medieval meaning of “scholarship” or “learning”.  Grammar was about the proper form of words and sentences as it is today.  But since only a few religious clerics could read and write in the European Dark Ages, and much of scholarship related to knowledge of occult practices, the learned grammarian’s craft was perceived as mysterious and magical.  Use of the word “glamour” was popularized in English by Sir Walter Scott’s Letters on Demonology and Witchcraft, published in 1830.  It referred to a magic spell likened to a “delusive or alluring charm”.  With the decline of religious thought, “glamour” assumed a non-magical meaning, referring to the impression of attraction or fascination; an impression that is better than reality, but ultimately deceptive.  In its archaic use, glamour is still defined by the Oxford Dictionary as “enchantment” or “magic”.  Its contemporary meaning however is “an attractive or exciting quality that makes certain people or things seem appealing”.  Its usage in American English – in the Merriam-Webster Dictionary – is also variously “a magic spell” or “an exciting and often illusory and romantic attractiveness” (the example offered is “the glamour of Hollywood”).  The American cultural critic Virginia Postrel defines glamour in contemporary usage as a “calculated, carefully polished image designed to impress and persuade.”  In other words, glamour invites us to transcend the mediocrity of everyday life to enter into an idealized world; a world of glitter that is ultimately an illusion.

The linguistic evolution of “glamour” is thus situated in the broader historical context of the European Enlightenment which the 19^th century German sociologist Max Weber described as a process of “rationalization and intellectualization and … the disenchantment of the world.”  In his worldview, modernity, progress, and secularization were synonymous.  Belief in the mystical world was gradually extinguished as the rationalism of scientific inquiry and separation of state from church triumphed.  In brief, the magic was gone.  In its stead, materialistic ideologies emerged to offer new utopias, not unlike substitute religions.  Hitler and Stalin appropriated modern-day prophets like Nietzsche and Marx, in pursuit of modern visions of glory and transcendence. Others worshipped the creed of racial superiority and colonial domination in the name of civilization.  Millions of lives were sacrificed at the altar of these modern ideologies, each with an illusory better world.  The unprecedented magnitude of this violence shattered modernity’s promise of progress. 

The monstrous atrocities of the 20^th century were scarcely imaginable during the Dark Ages.  The incantations and rituals of modern ideologies had cast a magic spell of such destructive force that it rendered medieval ignorance and superstition comparatively benign.  In 1948, in the shadow of the Holocaust, in a ceremonial exorcism of Nazi excesses, the UN adopted the Universal Declaration of Human Rights.  Redolent with the promise of a better future, its preamble proclaimed “recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family” as “the foundation of freedom, justice and peace in the world”.  Bemoaning the horrors of the war, it recognized that “disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind”.  In a testament to its universality, the Declaration was enshrined as “a common standard of achievement for all peoples and all nations”.  Conceived as a transcendent and unimpeachable axiom at the core of a new global ethos, human rights discourse assumed the role of the sacred.  Even if it was clothed in secular terminology, it defined an inviolable space from which all things good flowed.  As Émile Durkheim maintained [in The Elementary Forms of Religious Life], “the distinctive trait of religious thought” was the division of the world between the domain of the sacred and the profane; not between the sacred and the secular.  Thus, amidst a disenchanted Western civilization in desperate search of a moral compass, enchantment with inalienable human rights fell manifestly within the socially constructed domain of the sacred.  Beyond reproach, these fundamental norms became the magic incantation of both state and society; a cosmopolitan faith complete with its own deity, temples, and rituals.

With decolonization, globalization, and the collapse of communism, Western liberalism and human rights ideals spread.  But the market economy’s consumerist culture spread even more rapidly.  In place of spent totalitarian ideologies, hedonism and self-indulgence increasingly define the pursuit of happiness.  The seduction of the American dream, the relentless propaganda of mass-culture, has cast a magic spell on people from all corners of the world.  Consumption and greed have become a pervasive belief system, the seeming purpose of existence, the true opiate of the masses.  This materialistic ideology is not without its competitors.  This is captured in Benjamin Barber’s juxtaposition of Jihad vs. McWorld, symbolizing the struggle between economic globalization and religious fundamentalism.  But it seems both that McWorld is winning the contest, and that Jihad manifestly fails to provide an appealing alternative.

It is telling that in American English, the archetypal image of the “glamour of Hollywood” is so integral to cultural self-definition.  In the virtual pantheon of consumerism, star power and entertainment are the pillars of escapism and instant gratification. As Neil Gabler puts it, “Hollywood has always been an irresistible, prefabricated metaphor for the crass, the materialistic, the shallow, and the craven.”  In this realm of kitsch, authenticity is worthless.  Why pay a steep price for the original when the imitation is readily available?  Why fill in the emptiness with depth and sacrifice when escape is but a click away?  And why heartfelt empathy when exaggerated sentimentality can provide effortless meaning?  It is here that glamour intersects with human rights, to cast a magic spell likened to a “delusive or alluring charm”; an “exciting” and “romantic attractiveness” that appropriates the discourse and imagery of the secular sacred to create the illusion of authenticity.  In this exercise, the reality of the victims is lost as people marvel at the beautiful spectacle of the saviour.  Adventures, adrenaline, and awards become tantamount to action.  The suffering of others becomes a platform for demonstrating virtue.  Vanity and justice embrace.

But why should authenticity matter?  If glamour can persuade young Americans to momentarily look up from their iPhones and learn that there is a place called Africa where people suffer, is that not praiseworthy?  The utilitarian argument it seems accepts this superficial culture far too casually, especially when it implicates the human rights industry itself.  It abruptly dismisses deeper contemplation in the name of sensational activism, without consideration to how the voices of the dispossessed constantly fail to penetrate the self-contained world of the saviours.  The scale of injustice and despair, the nobility of the human spirit, our capacity for profound compassion, the extraordinary means at our disposal, these demand something far greater than fame-seeking and righteous platitudes. Authenticity matters because only true seeking and genuine empathy allows us to penetrate the veils that delude us into believing that we are doing good when we are not doing nearly enough.  By being true to our self, by connecting with others in a communion of oneness, we begin to conceive the world in a different perspective, to imagine other possibilities.  The greatest acts of heroism, the daily struggles of those that suffer, are not headline news; they do not entail prestigious awards or chasing the latest mass-atrocity.  They are not entertaining.  The tortured prisoner of conscience whose youth wastes away in prison; the mother mourning her activist daughter’s execution; a child struggling to survive in the streets amidst crushing poverty; a father’s despair for his starving family in a corrupt world of plenty; these images call for humble contemplation so the depth of reality and the moral challenge in its wake can fully sink into our conscience.  These are felt experiences that cannot be reduced to “feel-good” sound bites and tweets in a consumer culture that has emptied itself of all depth and meaning.  Without being touched in this profound way, we are not wont to make any profound changes.

Sentimentality is not spirituality.  Self-indulgence is not sacrifice.  The learned grammarians of the Dark Ages dabbled in occult practices.  They confused magical incantations with mystical experience.  In seeking the divine, they mistook the illusion of rituals for the reality of love that is at the essence of our humanity.  The learned grammarian – magical and enchanting – the glamorous activist – superficial spectacle – both represent our capacity for self-deception, our propensity to avoid the hard work by portraying hypocrisy as righteousness.

I left Iran for Canada as a child because my family belonged to the persecuted Báhá’í religious minority.   After the establishment of the Islamic Republic following the 1979 revolution, life in exile gave way to unbearable anguish.  On 14 June 1981, my uncle Dr. Firouz Naimi – a physician of great renown and friend of the poor – was executed in the city of Hamadan after enduring horrific torture.  His sole crime was that his religious belief was deemed a “heresy” by fanatical clerics.  Two years later, on 18 June 1983, my contemporary, Mona Mahmudnizhad, was hanged in the city of Shiraz at the age of 17, also because of her religious belief.  The infinite courage and dignity of these souls in the face of the unthinkable, and the many others whose suffering is beyond words, profoundly shaped my understanding of human rights.  Suspended somewhere between Jihad and McWorld, between the violence of religious fanaticism and the vulgarity of fanatic consumerism, I have since grappled with the human condition in our world of extremes.  As a young lawyer, I spent my early career as a UN war crimes prosecutor in The Hague, served in Bosnia during the war, and subsequently in Rwanda, Cambodia, Guatemala, and other battered, bleeding countries torn apart by hatred and cruelty.  In 2003, I advised the Ugandan Government to refer the Lord’s Resistance Army case to the International Criminal Court.  By 2006, this strategy to isolate Joseph Kony succeeded in bringing an end to nearly two decades of terror in Acholiland.  I watched with interest Kony 2012’s rendition of events and the critical reactions of my Ugandan friends.  I watched Hotel Rwanda and In the Land of Blood and Honey (about the Bosnian war) and other films depicting events that transpired many years ago, but which seemingly never transpired until Hollywood took notice of it.  Yes, it is good that people who are oblivious to the world become somewhat less oblivious.  But it is grossly inadequate.

I have had no shortage of exposure to grim realities.  Nor am I unaware of the urgency with which we must come to the help of those in distress.  But I am of the view that the knowledge we fundamentally lack is not how to find practical solutions, or to achieve mass-mobilization through attractive awareness campaigns.  Making human rights sexy may be better than nothing.  But it will bring meagre results.  It will rationalize our sentimental self-delusion and justify our manifest lack of sustained and profound commitment.  The knowledge that we lack in a culture of crass materialism is the magic of painful struggle, the enchantment of genuine empathy, and the transforming power of mystical experience that awakens us to our extraordinary potential for good.  If we are to move beyond the narrow confines of glamour to the vast expanse of authenticity, then we must first learn to distinguish between illusion and reality:

“The story is told of a mystic knower, who went on a journey with a learned grammarian as his companion.  They came to the shore of the Sea of Grandeur.  The knower straightway flung himself into the waves, but the grammarian stood lost in his reasonings, which were as words that are written on water.”[3]

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(a)   Introduction

 Invisible Children’s Kony 2012 drew both praise and criticism in its efforts to call attention to one of the most brutal war criminals the world has seen. Many critics assailed the documentary for things it did not claim to do.  It did not claim to offer a panacea for the problems of Northern Uganda. Neither did it assert that the arrest of Kony would decisively end the violence and upheaval.  The documentary’s main import was to advocate for the capture of Kony so that he be held accountable for the numerous abuses and atrocities he has inflicted on the people of Northern Uganda.  This is a noble objective on which there should be no disagreement.

There should also be no disagreement that the Kony-led atrocities are a scar on our collective conscience and that it is partly through international activism and awareness efforts (of which the Kony 2012 video is but one example) that these atrocities have been unearthed and publicized. There is thus inherent value in investigative documentaries that seek to expose the mammoth suffering created by perpetrators of gross human rights violations.

The locus of debate following the release of the video centered not on whether Joseph Kony is an unconscionable criminal—of that there can be no serious debate, but on whether the paradigm offered by the documentary is an appropriate lens through which this tragedy of vast proportions should be viewed. The video reignited an old debate on the savage/savior mentality that has, for centuries, bedeviled North/South discussion on human rights and democracy.  Those who criticized the video perceived it as a sensational bid to “stir up” western outrage so as to rally the archetypical “savior” to convene on this savage space in some kind of messianic intervention.

In this paper we do not comment on the intent of the documentary, but rather on its effect on the broader humanitarian discourse surrounding Kony and the Lord Resistance Army (LRA).  We argue that the North/South relationship will always be problematic because of the historical context in which it developed, and that the stereotypes that are prevalent in Northern societies about Southern societies have often led western researchers to extrapolate anecdotal acts as evidence of general practice.

So for example, despite the fact that Idi Amin is an odd figure even to Africans themselves, he continues to be a continuing reference point as to African presidential behavior.  The caricature of African leadership is immortalized in the figures of the excessive leadership of the Mobuto Seseseko’s and Bokassa’s of a bygone era.  Far too little has been made of the exceptional statesmanship of the Massire’s, Chissano’s and the Mogae’s, and while unconstitutional changes of government have become the touchstone of African politics, too little is made of the many successful constitutional changes of government that characterize many African democracies today. These successes are very real, and are often overlooked in favor of sensationalist stories that reinforce the quintessential stereotype of an Africa “run amok”.

It should be accepted that neither the North nor the South have clean hands when it comes to the protection of human rights—they all have a chequered past. Following its own atrocities of slave trading, colonialism, environmental degradation, the North has not really earned the moral right to lecture countries of the South on human rights.  Indeed, many protracted humanitarian crisis in Africa have been inflamed and prolonged by outside interests and influences. External interests continue to play a large and sometimes decisive role in suppressing and sustaining conflicts in the competition for oil, diamonds and other natural resources[1].

There is a however a grave danger in letting these uncomfortable realities  undermine the promotion of human rights and the campaign to end impunity for human rights violations. That there is a crisis of governance in several African states is undeniable. And the gross abuses, violations and excesses of the Bashir and Mugabe regimes, among others, can certainly not be condoned. Despite the compelling evidence of human rights violations in their respective countries, these African leaders make the preposterous claim that the vehement criticism levelled against their regimes are western projects.  To this there is clearly no merit.

We take the view that the promotion of human rights calls for the broadening of global consensus supporting democratic ideals and respect for human dignity. We argue that despite the tensions that have arisen between the North and the South due to the sullied historical context, collaboration –if properly structured– is possible and has happened successfully in the past.  Indeed, in view of the numerous grave human rights violations that are occurring virtually unchecked around the world, there is little alternative to continued cooperation in the promotion of human rights between the North and the South.  However the real focus should be on the victims of these atrocities and not on ideological battles that serve only to benefit the perpetrators of human rights violations.

In the section that follows, we discuss the need for meaningful North/South collaboration in the promotion of human rights. Before we do that however we first examine the historical context in which North/South relations are embedded and affect the way in which criticism from the north is contextualized.

(b) The Historical Context of North/ South Relations

A recurring diatribe against western human rights activists is that they adhere to a double standard.  Colonial rule, support for dictators during the cold war by both blocks, failure to condemn violations in countries of strategic important to the West (South Arabia and Equatorial Guinea for instance) are but some examples. The failure to lead by example on detentions and torture during the war on terror[2] is another. And although there have been vigorous debates about the legality of the extraordinary rendition and secrete detention program, there has not been an equally, vigorous and sustained campaign against the governments involved in the program.  Keyan Tomaseli observed for example that: “my seminar students, many of them mature activists, astonished me by directing their activism towards Palestine, Nicaragua, anti-apartheid movement, and so on.  None was engaged in challenging repression at home[3]”.

Another source of conflict is the perception that cultural differences are not respected.  Northern NGOs are often accused of lacking an appropriate understanding of cultural contexts.  Take the discourse on genital mutilation as an example. The fact that African governments have passed legislation prohibiting the practice, and the fact that many of these governments are grappling with the issue of how to change societal attitudes on the practice is all too often ignored. Instead, the debate focuses on emphasizing the primitiveness and inhumanity of the custom, thereby unnecessarily driving African societies into defensive postures about the legitimacy of African culture.

We believe that it is possible to criticize a society without dehumanizing it. Constructive criticism is one which recognizes and understands the economic and social conditions that underpin societal ills, instead of invariably resorting to simplistic backend condemnation of, for example, African customary law as the root of all evils with respect to women’s rights[4].

Similarly in the particular discourse at hand, a humanitarian discourse which begins and ends with the capture of Kony and ignores the causes of the proliferation of rebel movements is inchoate. After Kony is captured (which indeed he should be), then what? The more pertinent issue is why a movement like Kony’s was able to flourish and multiply. What fuels extremism and how can it be contained and suppressed? And while it can credibly be argued that these broader, normative questions are beyond the scope of Kony 2012, we advocate that the humanitarian discourse on Kony should shift from a fixation with his capture, to a deeper and more meaningful conversation on what it is that allows offenders like Kony to thrive.

(c)   The context for a successful international collaboration on the Promotion of Human Rights

Many view Global human rights campaigns as emanating from the North without proper engagement with local NGOs in the South. The thematic schemes of such campaigns are defined in the North and Southern NGOs are enlisted after the fact. What is in fact needed is meaningful collaboration between Northern and Southern NGOs.  Northern Ngo’s can help promote human rights and ensure that human rights standards are being articulated, provide requisite expertise and resources for the promotion of human rights and help in capacity building,  knowledge networking and the sharing of best practices.  This includes developing ways and means to contribute to the shaping of a policy framework for democracy assistance and promotion of human rights at the inter-governmental level.[5]  As Phil Harris observes: NGOs have five major roles to play: (a) they are organizations working directly in the field with the problems of “grassroots” communities and their development prospects; (b) they can act as go-betweens, transforming official government policies into concrete action at the local levels; (c) they can often act as surrogates for government in areas where either the government is inert or the local community is reluctant to recognize the authority of government; (d) they are catalysts for action, putting new issues on the public agenda and pressuring governments to take action; they can be instruments for identifying common issues and strategies that cut across South-North divisions, and creating mechanisms for joint action[6].  But what they do and how they do it is crucial as to how their action will be perceived and subsequently received.

The international community should however, remain mindful of the need for inter-regional cultural dialogues that provides an ethical underpinning for an ever more inter-dependent, and increasingly vulnerable world community.  In its support for the promotion of human rights, the North should refrain from being solely prescriptive, and imposing solutions without due regard to local conditions.  International NGO discourse in the south has for far too long  been characterized by the simplistic “savior/savage” dichotomy which ignores many of the complex realities that pervade North/South relations and all too often presents African countries as failed states, with the latest upheaval constituting yet another round in the ever continuing series of the “rumble in the jungle”. The portrayal of Africa as a monolithic unit in which there are no divergences or nuances is inaccurate and out of touch with prevailing realities.

Northern Activists must make every effort to acquire local knowledge and demonstrate the capacity to operate with cross-cultural awareness in order to manage the dynamics of difference and adapt to diversity and the cultural context of the communities they serve. It should not be forgotten that local communities have the best understanding of the culture, history and conditions of their communities and as such they are in the best position to create solutions to address the root cause of injustice and inequality in their own communities.

Cooperation between the North/South should be based on constructive dialogue and mutual respect, not on acrimonious confrontation.  When violations are identified, they must be presented in a dispassionate, objective, principled manner that is more likely to win support from the local community.

To aid legitimacy, the North must be mindful that they must lead this fight by example.  Condemnation of the excesses of the war on terror must be as loud as the condemnations of Kony and Bashir. Only to the extent that the northern countries set a positive example for the construction of human rights within the framework of a world community united in the promotion of human rights regardless of the identity of the violator, will human rights campaigns garner universal appeal. And although it is important that the promotion of human rights should essentially be driven by local stakeholders, international actors can and do play an important role in the process.[7]  Often, local stakeholders lack capacity and space to operate in highly authoritarian regimes. In such cases, international collaboration empowers local NGOs by  offering protection from harassment.

In their work, international activists should also be mindful of the work of local experts.  The value of the expert’s comparative experience is widely acknowledged in other contexts.[8]  Access to comparative experience is particularly useful as it provides a wide range of information on possible options and lessons on what works and what does not work in terms of strategies for the promotion of human rights.

Conclusions

To have meaningful collaboration, both the north and the South while vigorously promoting human rights and fighting to end impunity, must understand, engage and critique the assumptions on culture, conditions and programs of movements in the South. The engagement should address the stereotypes each has of the other that tend to undermine collaboration.  The North should set aside patronizing attitudes of the South, and the South must seek to urgently address their complete financial dependency on the North for funding as this external dependency is often used by authoritarian regimes to delegitimize their work.  There is a need to develop global solidarity in which sympathetic western activists take more seriously the ideas and arguments of progressive South activists.

It is evident that North/South interactions have been dysfunctional, and if any lessons have been learned from this dysfunctional interface, it is that Africa cannot be “saved” by the west; indeed this idea of a “savior” is self-defeating and immobilizing. Africa must create its own culture of accountability, and the idea that Africa needs to be jolted into self-awareness by the better educated conscience of its western counterpart is flawed and discredited.

B.S. Chimni is Professor and Chairperson, Centre for International Legal Studies, Jawaharlal Nehru University, New Delhi. He has been a Visiting Professor at Brown and Tokyo Universities. He has also held visiting positions at Harvard, Cambridge, and York Universities. He is a Vice-President of the Asian Society of International Law. He is also an associate member of the Institut De Droit International. His central research interest is to elaborate in association with a group of likeminded scholars a critical third world approach to international law (TWAIL).

Introduction

The Harvard Human Rights Journal (HHRJ) has posed three significant questions for consideration at a time when social and political movements in several countries called for democratic reforms and were met with brutal repression by authoritarian regimes, leading to the intervention of the international community. The latest instance is Syria. The three specific questions that HHRJ has posed from the standpoint of internationalism are: Is there a necessary trade-off between capturing the complexities of a situation involving human rights in a specific country or region, and raising public international support for a proposed remedy? If so, where should that trade-off be located? How can one build an activist movement that is both adequately informed as to the issues, and broad-based? How do we build an international constituency against heinous crimes without falling into the trap of a Savage-Victim-Savior (SVS) mentality?[2]

These questions are posed on the supposition that the “global civil society” and “international community” should, in a spirit of internationalism, express active solidarity with opposition movements that are protesting serious human rights violations or seeking democratic reforms, including free and fair elections, or regime change, but without being tainted with the charge of humanitarian imperialism[3]. The latter apprehension can be traced to the fact that it is anticipated—as is clear from the reference to SVS mentality—that the mobilization of broad based public international support against serious human rights violations or pro-democratic reforms is to be organized primarily by western civil society and States for intervention, including possible military action, in non-western States. The underlying assumption is that without such expressions of solidarity, including through the extensive documentation of human rights violations by western international non-governmental organizations (INGOs), and the “international community” getting into the frame, local movements will find it hard to achieve their mission. This understanding raises a number of complex issues that need to be addressed. Since non-western peoples and States are particularly concerned about military action and other coercive measures for promoting human rights and democracy, including regime change, whether undertaken unilaterally or with the approval of empowered multilateral forums, these remedies are the reference point for the remarks to follow.

My endeavor will be to make out a case for epistemological and prudent internationalism. By “epistemological internationalism” I mean the need to correct the Eurocentric bias that characterizes information and knowledge produced by agencies of western civil society and States of cultures, societies and histories of non-western nations by taking into account their self-understandings as a basis for expression of international solidarity, including suggesting different modes of intervention to the international community[4]. The essential plea is for drawing on diverse sources of local knowledge as the foundation for arriving at an objective assessment of a particular social and political situation or an ongoing conflict. By “prudent internationalism” I mean the refusal to be ensnared by options for action framed by hegemonic States at times of crisis and the exercise of caution in recommending coercive international measures, especially military action, to the international community of States.[5]

The return of liberal paternalism

The need to plead the case for epistemological and prudent internationalism has arisen because of the return of the ideology of liberal paternalism in its late eighteenth and nineteenth century variant in the post-Cold War era. In this view, “the West has a duty or a burden to remake (or civilize) the uncivilized non-Western world in the West’s image for the betterment of ‘global humanity.’”[6] The doctrines of humanitarian intervention and responsibility to protect (R2P) are manifestations of that conviction. It appears to a vast majority of third-world peoples that the West will not rest until the entire world is reconfigured to resemble western liberal democracies.[7] The desire of the West to transform the non-West goes beyond, as it always did, simple commercial and geo-strategic interests. But while the past resonates in the present, the attempt to civilize the non-West is being undertaken today in new circumstances. At a time when western dominance is being challenged by rising non-Western powers, the ideology of liberal paternalism represents an attempt to reassert that all that is good in human civilization is the contribution of the West; that it is the guardian of all laudable human values. What is perceived as being at stake is no less than the future of western (and therefore apparently human) civilization itself. The West believes that it is imperative to act before it is too late to construct a democratic and humane “empire of uniformity.”[8] The idea of cultural and political monism that informs such desire reflects the anxiety of a civilization that is slowly being rendered provincial. In contrast, non-western civilizations are more self-assured today. The non-West knows that it can deal with new forms of imperialism as it did with colonialism. It thus displays a quiet strength that is also rooted in the genuine belief that all civilizations, including western civilization, can promote the global common good.

The issue of trade-off

It is in the matrix of the return of the liberal paternalism paradigm that there is a need to consider the key issue of trade-off between capturing the complexities of a political or human rights situation in a specific country or region and raising broad-based public international support for those struggling for democracy and human rights. In my view, the key variables here are the timing of seeking broad based international support, the knowledge base on which it rests, and the nature of remedy proposed. In this section I undertake to explore in a preliminary way each of these factors. I elaborate these factors in the later sections devoted to further reflections on the ideas of epistemological and prudent internationalism.

The question of trade-off is crucially related to the timing of raising international support. When the aim of raising international support is to get the “international community” to act urgently, the trade-off is seen as unavoidable. It leads to placing in temporary abeyance the practice of epistemological and prudent internationalism. The “complexities” of the situation arguably involve such an array of social, economic and political variables that any attempt to predicate international support upon thorough and nuanced understanding and thinking through possible modes of intervention may lead to crucial delays and the resulting inaction of the international community at a critical time, with possibly terrible consequences. Therefore at times of crisis there is a tendency to go with the flow, especially when the print, electronic, and social media is full of horror stories of human rights violations. It is not seen as an opportune moment to question the lack of sophisticated understanding of ground realities to seek broad-based support. The priority is to stop serious human rights violations. But it could be argued that it is precisely in times of crisis that there is a need to be alert to diversity of local voices, for it is at such times that information and knowledge is selectively produced, disseminated, and used by social forces and States that hope to benefit through eliciting particular responses from the “international community.”

A one-dimensional portrayal of events, social processes, and movements at these moments can lead to international action that may do more harm than good. By rushing into supporting the agenda of liberal paternalism, forces of “global civil society” can become complicit with the politics of empire. It may therefore often be prudent to suggest a delayed response, unless there is an overwhelming consensus in the international community that genocide is imminent or ongoing, and therefore there is no time or need to undertake a careful assessment of the both the political and human rights situation. A good example is Rwanda, in which instance the international community did not act. Prudent internationalism essentially means leaving non-western societies to deal with their own social and political problems. It calls for a degree of empathy to be shown towards internal explanations of the social and political crisis. After all, non-western peoples are not without history, including a history of resistance to local elites and foreign occupations. The strength and spirit of ordinary people in opposing vicious regimes in non-western societies should not be underestimated.

Of course there must be efforts at informing the world about ongoing human rights violations and expressing solidarity with pro-democracy movements. There must be no hesitation in condemning brutal crackdowns by those in power. But the “global civil society” should not go with the view that “only the ‘international community’—rather than the people . . . may legitimately stage a revolution in the decolonized world.”[9] Such thinking only strengthens hegemonic forces in the international system. For in the final analysis democracy and human rights cannot be effectively promoted from the outside. Indeed, to act hastily is often to undermine the efforts of local movements in this direction as these are readily accused of being aided by international forces seeking to destabilize the country.

The extent of trade-off is also crucially related to the remedy proposed. Where the remedy in issue is military action, there is a heavy burden of proof on those proposing it, to show that the complexities of the situation and the necessity and consequences of military action have been the subject of careful consideration. Apart from the human toll military action may take, it can sharpen the social, religious, and ethnic divides between different groups in society making reconciliation difficult for coming decades.[10] International support may also encourage secessionist forces leading to the breakup of States, only to reproduce renewed cycle of oppression of minorities. The consequent outflow of refugees leads to great suffering and also placing a burden on neighboring States.

Where military action is proposed the factors that need to be taken into account in determining the extent of trade-off include: the identity and interests of actors that are to undertake military action, the likelihood that the regime in question may have received material support in the past from the same actors, and finally the possibility that the oppositional movement is being encouraged from the outside (e.g., through material assistance and supply of arms and other equipment) to precipitate a situation in which military action will be seen as a legitimate response. To be sure, the situation is not always a straightforward one. For instance, it is not easy to know whether local movements represent authentic protest or are being manipulated by external forces. The modes of external manipulation are so varied and sophisticated that only a careful sifting of fact from fiction can help capture the reality of the situation. In the absence of such analysis progressive forces of internationalism may play into the hands of hegemonic States that systematically calibrate their moves: both Libya and Syria are good examples. Through portraying a facile picture of the situation they may come to legitimize the coercive actions of these States as the belief grows that only such action can help protect human rights.

From the perspective of not embracing an SVS mentality it is important not to be trapped by options framed by dominant States. The choice often assumes the form of either supporting robust forms of intervention or backing an authoritarian regime committing gross human rights violations.[11] It is important to appreciate that ordinary peoples will inevitably end up as victims if the options are framed in a binary fashion. Thus, for instance, once an authoritarian regime is threatened with military action or through the supply of arms and money to an opposition movement, its paranoid leaders will come down with a heavy hand on the ongoing structures of resistance. In the case the military option is exercised, recent history reveals that non-combatants or civilians tend to become collateral damage. Finally, we also know that low intensity democracies can heave misery on peoples. Iraq is a case in point. Therefore “free and fair elections” is not an end that should be pursued at any cost.

It is crucial that alternative options are explored by global civil society. The aim of garnering broad international support should be (i) in the short term to (a) express solidarity with opposition movements through sensitizing global public opinion; and (b) show the problematic ways in which the options are framed by powerful actors and in this respect provide objective information to people and decision makers to assess their validity, and (ii) from a medium and long term perspective support those internal social forces that have a program for pursuing the objective of “development as freedom” as opposed to a neo-liberal agenda. The “third way” does not entirely rule out military action but in general advises restraint by reference to an audit of past experience which shows that the use of force rarely produces a truly democratic society (e.g., Iraq). The best way to help establish and sustain democratic societies is to essentially leave it to local movements to achieve these goals (e.g., Egypt).

More on epistemological internationalism

I have argued that a key variable that shapes the response to a situation of human rights violation is the set of facts on the ground, especially where military action or other coercive measures are proposed. In a plural society such as the international society a sovereign state tends to be moved by “national interests” rather than the global common good. Therefore the facts, values, and norms in issue inevitably yield multiple interpretations[12]. The interpretations advanced are a function of many factors, the humanitarian impulse being only one of them. There are equally economic, cultural and strategic factors at work. The resulting state of global indeterminacy is accentuated by the reality that there are no institutions that can provide authoritative interpretations of facts, values and norms, albeit admittedly in the sphere of human rights there are treaty bodies, offices and mechanisms that claim a privileged position. But these agencies or their apparatus are not often in a position to offer an authoritative view given constraints of time and the inability of those assigned the task of providing objective information to visit the places where human rights violations have taken place. In the circumstances the “global civil society” has to be wary of accepting the information purveyed by dominant States and the INGOs they fund or support. “Epistemological internationalism” calls for the decolonization and democratization of information and knowledge networks.

It is worth considering here the twofold response of Louise Arbour to the skepticism that is being expressed with regard to the information and knowledge used for international decision-making. First, she notes that “without overlooking the notion of presumption of innocence, and staying within the context of preventive action, it is fair to say that perpetrators always seek to obfuscate reality, to discredit both the information that points to their culpability and those who provide it, routinely demanding further proof.”[13] In the context of credible information being made available she mentions the historical instances of the Holocaust and Rwandan Genocide. She is entirely correct in these two cases. But there are other cases that have invited military action where there was insufficient evidence of gross violation of human rights. Thus, for instance, in the case of NATO intervention in Kosovo the accuracy of the information purveyed with respect to the extent of human rights violation has been questioned[14]. The scale of human rights violation appears to have been somewhat exaggerated to justify unilateral military action. In such cases the identity of the agencies that provide and analyze the information can be crucial.

With respect to international institutional infrastructure available to report on human rights violations, Arbour writes that “since impending genocide is almost invariably preceded by patterns of gross and systematic human rights violations, the UN Human Rights Council (UNHRC) is—or should be—the pre-eminent forum for early warning and prevention.”[15] But there is no reason to believe that an international commission of inquiry or investigating teams sent by UNHRC will be able to tap into diversified sources of information in a short period at a time of ongoing conflict and often without being able to visit the country concerned.[16] The faith placed in them often reflects an unwarranted epistemological confidence that is a function of relying on particular sources of information, albeit admittedly this is not always the case. These sources are sometimes simply interviews with those who have left the country or individuals living in the region. The information gathered through this process, supplemented by accounts produced by west-based INGOs, who in many cases receive funding from western government agencies (such as USAID), provide a particular view of the situation.[17] It generates the understandable suspicion that the reports produced, especially at critical moments (i.e., when the “international community” is to take key decisions) tend to lend support to the political agenda of western governments.[18] The cultural capital of established INGOs is used at such times to legitimize the decisions of hegemonic states. The money-power-knowledge constellation therefore calls for close scrutiny. It will have to be determined whether diverse local voices are adequately respected by the reports of INGOs[19]. In its absence the constant flow of reports from INGOs or even local NGOs funded by INGOs can lead to the accumulation of evidence that creates the climate in which coercive acts of intervention are perceived as necessary.

The information and knowledge produced by Euro-American think tanks, that at times are funded by government agencies or the corporate world with stakes in particular forms of intervention, likewise need to be scrutinized. Such information and knowledge is often aligned to the strategic objectives of western States and corporations. The role of the diaspora in portraying a particular understanding of the social situation at home also needs to be closely examined, as it does not face the consequences of its hyper-activism. Its understanding of the social and political situation is often frozen in time. Its activism can also come to be encouraged by state intelligence agencies seeking to justify a particular response of governments. Finally, the role of the powerful western media also calls for careful assessment. The endless beaming by the electronic media of selective and disturbing images can produce a vision of human rights violations that represents a grossly exaggerated picture of ground realities.

In short, there is a need to take into account diverse sources of information, in particular different local voices, in determining the human rights situation in any country. But it is not diversity of sources of information per se that is to be the aim of the exercise but to arrive at an objective understanding of the situation. The overall idea should be to ensure that information and knowledge is not produced either to serve hegemonic states or authoritarian governments, but to protect the interests of the people concerned. Epistemological internationalism therefore demands among other things that the violence of both the government and opposition forces be equally reported and condemned[20]. In other words, international support has to be mobilized with a sense of responsibility. But greater caution should be exercised to see that the voices of progressive civil society do not fuse with that of ideologues of empire and views of few expatriate dissidents with sectarian and vested interests. This is where the information and knowledge produced through the practice of epistemological internationalism allows western civil society to overcome biases in perception and thinking arising from particular historical experiences.

More on prudent internationalism

Epistemological internationalism facilitates the practice of prudent internationalism as “global civil society” can avoid joining the chorus for sanctions or military action by the very social forces and States that deliberately implement policy measures to precipitate events that justify such a response. Prudent internationalists take cognizance of the wider consequences of advocating particular actions to the “international community.” They have an eye on the future.

Thus, for instance, prudent internationalists do not endorse actions that destabilize the normative consensus in the international system against the use of military action. They take into account the serious consequences of undermining the existing regime relating to the non-use of force, which has over decades served the international community well. The carving out of ready exceptions in the name of protection of human rights can become “a part of an array of political weapons inimical to the Rule of Law, to the principle of equality of States, and to the practice of genuine democracy.”[21] The contention that military action can be “illegal but legitimate” is extremely problematic. Any attempt by a nation or a set of nations to impose its own moral standards on others through the use of force reflects a SVS mentality and undermines the stability of the international system.[22] In the view of prudent internationalists the promotion and protection of human rights should be pursued through agreed international mechanisms. As the International Court of Justice (ICJ) observed in the Nicaragua case, “[W]here human rights are protected by international conventions that protection takes the form of such arrangements for monitoring or ensuring respect for human rights as are provided for in the conventions themselves . . . .”[23]

But lest the hitherto critique be understood as suggesting that the international community should not permit military action under any circumstances it needs to be emphasized that it is legally permissible to do so to prevent imminent or ongoing genocide. However, such collective armed intervention must be authorized by the United Nations Security Council (UNSC) and only when certain pre-conditions are met: (i) there must be an overwhelming consensus within the international community of states to intervene; and (ii) peaceful modes of resolving the situation must have been exhausted. In allowing the use of force UNSC must also ensure that (i) there is proportionate use of force; and (ii) the rules of international humanitarian law are strictly respected[24].

Prudent internationalists should however not merely be concerned with the permissibility and consequences of unilateral military action. They should also work against the frequent use of unilateral coercive measures for the protection of human rights. In fact the United Nations General Assembly (UNGA) has urged all States to cease adopting or implementing any unilateral coercive measures that impede ‘the full realization of the rights set forth in the Universal Declaration of Human Rights and other international human rights instruments, in particular the right of individuals and peoples to development.”[25] The rationale behind the UNGA resolution is the negative impact of such measures on the subaltern and marginal sections of the populations of States targeted, especially on children and women, as was the case in Iraq in the past and today in Iran[26]. Prudent internationalism keeps the interests of the vast majority of peoples in view.

In the context of prudent internationalism being firmly anchored in people’s interests, it is crucial to note that liberal paternalism is today not merely arguing the case for coercive international measures but also extended intervention over time, including building post-conflict societies.[27] Humanitarian intervention is no longer about the “international community” going in, remedying a situation, and leaving. Explaining the temporal dimension of the new concept of responsibility to protect (R2P), Arbour writes that “[T]he protection duty encompasses a continuum of prevention, reaction, and commitment to rebuild, spanning from early warning, to diplomatic pressure, to coercive measures, to accountability for perpetrators and international aid.”[28] What is more she argues that “[P]owerful States may be reasonably expected to play a leading role in bolstering appropriate measures of prevention, dissuasion and remedy across a geographic spectrum commensurate with their weight, wealth, reach, and advanced capabilities.”[29] But in an unequal world order she is privileging precisely the actors that have imperial aspirations. It is true that with greater power comes increased responsibility and powerful states cannot disregard it. But in that case there must be ways to ensure (i) that relevant decisions are taken in democratic international forums; (ii) that the responsibility is exercised in accordance with the rule of law; and (iii) that the concerned States are accountable for any violations of the relevant rules of law. However, today the decisions are taken in the UNSC: a body that is far from being democratic; the demand for expanding its permanent membership is yet to be accepted. On the other hand, the International Court of Justice (ICJ), the principal judicial organ of the UN, does not have the authority of judicial review over UNSC decisions to see if these are in conformity with the UN Charter. The result often is that powerful States exercise power without accountability.

Turning to the proposal of the international community assisting in rebuilding post-conflict States, this may become the cause of other forms of oppression. Thus, for instance, the institutional actors that constitute saviors at this stage include the international financial institutions that are well known to impose a neo-liberal economic agenda on the State concerned.[30] This agenda is more aligned to the interests of the powerful States that fund these institutions than to the interests of the people of post-conflict States. In countries that have been able to avoid an internal war to establish democracy it is important to support a self reliant and independent path of development. For as Fakhri rightly cautions, “international institutions may ‘steal’ the revolution in order to implement their own socio-economic programs.”[31]

This possibility raises the question of the larger goals of the social forces mobilizing international support for those struggling for the cause of human rights and democracy in the non-western world. There is the unfortunate tendency of western civil society to represent the domain of human rights violations as simply a relationship between predator post-colonial states, and its weird leaders, and the suffering populations. Removed from the scene is the role of dominant global social forces, international institutions and powerful States in embedding and sustaining economic and political structures that lead to the gross violation of human rights. This absence allows precisely those social forces, institutions, and States that are complicit in human right violations to turn up on the scene as saviors. Therefore it is important that the voices gathering broad based international support simultaneously challenge their policies. The internationalism of progressive social forces and organizations must be “based on a critical, informed, reading” of the “past record” of liberal internationalism.[32] The broad-based international support should therefore exclude, and indeed oppose, those social forces and States that support the economics and politics of imperialism. These social forces and States are in many instances non-western, as is the case in the Arab world today. There are countries such as Saudi Arabia that support the cause of liberal paternalism if only to claim an exceptional status for itself. Thus, for instance, Saudi Arabia along with Qatar moved the UNGA resolution of 3 October, 2012 supporting pro-democratic forces in Syria.

Conclusion

For those raising international support for pro-human rights and pro-democracy movements, and proposing the remedy of military action or other coercive measures to prevent violations of human rights, it is crucial to ask the question as to why large segments of the global civil society and most non-western governments oppose such forms of intervention.[33] Of course a possible answer is that these social forces and governments have vested interests in sustaining an unjust status quo; democratization of other societies is a threat to authoritarian regimes and their supporters everywhere. But there may be legitimate reasons for counseling prudence that emanate from the practice of epistemological internationalism. These include: the assessment that the facts in issue are exaggerated (for instance, the extent of human rights violations); the possibility that the opposition activity, including violence, is being encouraged from the outside through the provision of material assistance and arms to legitimize particular responses; the recognition that given the complex social composition of societies, ethnic or religious divides will sharpen if force is used on the behalf of one or other group; the considered view that the use of force cannot promote human rights in the long run as violence only produces a cycle of violence; the belief that the forces of intervention are pursuing economic and geo-strategic interests; the historical lesson that institutions of liberal democracy cannot suddenly take roots; and the conviction that the weakening of the norm of non-use of force will undermine the stability of the international order.

In addition to these reasons there is the recognition that the principal site of struggle for democracy and human rights is the nation-state, and that concepts such as R2P represent a form of revolutionary imperialism. It is therefore important not to be trapped into engaging with options framed by powerful States and the ideologues of empire (e.g., military action versus supporting an authoritarian regime). It is critical in times of crisis to provide an independent analysis of situations and options, especially keeping in view the future of the concerned society. From “epistemological internationalism” follows “prudent internationalism.” Keeping in view the interests of the vast majority of people in concerned States, especially its subaltern sections, caring social forces and States should advise against coercive measures unless absolutely necessary. For these do more harm than good.

******

Shortly after I graduated from law school, I was commissioned by Human Rights Watch to do a report on Ugandan children abducted by the Lord’s Resistance Army.

In spring 1997, few people outside Uganda had heard of the Lord’s Resistance Army (LRA). The LRA arose in the late 1980s out of the ashes of Alice Lakwena’s Holy Spirit Movement, and over the next decade, LRA raids killed thousands of villagers in Northern Uganda. Hundreds of thousands were displaced, and an estimated 10,000 children were forcibly abducted by the LRA and brutally coerced into becoming killers, sex slaves or both. But in the spring of 1997, the LRA had yet to make CNN.

Even at Human Rights Watch, an organization institutionally committed to championing the forgotten, most people knew nothing about the conflict: it was a low-intensity, low tech war of filth and grief and blood, and it was all happening in a distant and obscure corner of distant and strategically insignificant country. It didn’t map onto anything familiar. When a Human Rights Watch colleague and I arrived in the Ugandan town of Gulu in May 1997, we had only the vaguest understanding of the what we were getting into. We knew that “Christian fundamentalist” rebels were abducting children, but we had no notion of what this meant. We had received no special training on operating in a conflict zone, and no special training on working with severely traumatized children. We were about as unprepared as it is possible to be.

Nevertheless, I found myself, in May 1997, dropped off in a grass airfield in what turned out to be a war zone. The tiny, rattling plane that had delivered us promptly flew off again with its remaining cargo: one motorcycle, one nun, and several chickens.. A solitary cow, grazing at the airfield’s edge, didn’t even look up as it wheezed overhead.

The town of Gulu is little more than a bleak, sprawling mess of thatch-roofed huts and crumbling cinderblock, huddled near Uganda’s northernmost tip. Everything in Gulu spoke of catastrophe: half the huts we saw had their roofs burned off, and the dingy hotel we were staying in had been burnt half to the ground a few days earlier. Our questions about how the fire had started (rebels? arson? a kitchen mishap?) met with indifferent shrugs from the remaining staff. Small bugs swam through the beans and rice offered up by the hotel kitchen. Just outside the courtyard where we ate, a ragged woman nursed a baby with a painfully distended belly, occasionally holding the baby up in silent display.

Even with all these prognostications of misery, we were unprepared for what we encountered over the following days. And even fifteen years later, it’s difficult to write about it: any description seems hopelessly inadequate. So I won’t summarize – instead, I’ll quote one of the children we interviewed:

Me and my brothers and cousins were playing football. Five rebels came and took all six of us, my three brothers, two cousins and myself. They tied us with ropes around our waists and gave us heavy loads to carry. [They led us to a larger group.] There were about eighty rebels and fifty abductees in the group. At night, we stopped to rest, and they beat us–they used a bicycle chain to beat us. The next morning we came to the government soldiers when we were walking. They were firing at us. We ran with the luggage.

My eldest brother escaped but the rebels caught him and they killed him. They beat him on the back of the head with a club. I watched him being killed. His tipu (spirit) came to me and covered me and told me, “Today, I am dead.”

. . . . My other two brothers and I were allowed to stay together but we were told that if any of us escaped, one of us would be killed. [1]

Here’s another child’s account:

On the third day [after our abduction] a little girl tried to escape, and they made us kill her… they kicked her and jumped on her, and they made us each beat her at least once with the big pieces of wood. They said, “You must beat and beat and beat her.” She was bleeding from the mouth. Then she died.

And here’s one more:

One boy tried to escape, but he was caught…. then they made us, the other new captives, kill him with a stick.… They pointed a gun at me, so I had to do it. The boy was asking me, “Why are you doing this?” I said I had no choice. After we killed him, they made us smear his blood on our arms.

Today, these stories from LRA victims are familiar—we’ve heard a lot of such stories lately. But for me– an idealistic young American lawyer in 1997 –Gulu was a terrible shock. I had never had an up-close and personal view of brutality or war. My foreign travel had been largely limited to prosperous Western Europe. Like every American, I had learned about the Holocaust as a child, and in my early twenties, I had been shaken by headlines about Bosnia and Rwanda. But these places were far away, and the news touched me only superficially.

Gulu was different. It was one thing to scan grim black and white headlines over morning coffee; it was another thing altogether to watch a child weeping over the atrocities she had been forced to commit.

Back in the US after our field research in Uganda, my Human Rights Watch colleague and I hardly slept. How could we sleep, when in Uganda children were being forced to hack other children to death? I drafted our report in a mad rush, and could hardly bear the delay while it went through the internal editing process. We wrote press releases and lined up meetings with reporters, State department officials and congressional aides. We even did the unthinkable: we collaborated with a team of equally stunned Amnesty researchers – we had run into them over drinks in Kampala– and agreed to jointly release both organizations’ reports. Professional rivalries, we all agreed, were trivial, All that mattered was getting the word out. People needed to know what was happening in Uganda. The LRA had to be stopped.

And we did get the word out. The Washington Post and the Los Angeles Times ran long stories,[2] and the New York Times published an editorial,[3] all citing our report. CNN sent Christianne Amanpour to Uganda to interview children who had escaped from the LRA. On a follow-up advocacy trip to Uganda, we met with the American Ambassador, who cried as she read our report. In Washington, we met with John Prendergast—then a White House aide on the NSC staff. He seemed visibly moved, and vowed to do everything he could. Hillary Clinton, then the First Lady, wrote an op-ed about the LRA, and Secretary of State Madeline Albright travelled to Gulu,[4] where she was photographed with tears on her cheeks, hugging a Ugandan child. Pretty much everyone who read our report cried.

It was all very gratifying. Remember, in those days the internet was still in its infancy. There was no facebook, no blogs and no twitter: even email was a relatively new-fangled innovation. By the standards of 1997, our advocacy campaign was a triumphant success.

There was only one problem. Nothing changed – nothing at all.

****

I thought about all this last year, when “Kony 2012” made its rip-roaring way across the internet. The moral of both our 1997 efforts and Kony 2012, I suppose, is that even if you can get the Secretary of State to shed tears—or even if you can make a video go viral until every college student in America has watched it—you may not have accomplished much. Everyone will have a good cry, and then everyone will go onto something else. The Secretary of State will move along to the next crisis; the college kids will go out for a beer or decide to take a yoga class.

Over the course of my adult life, I’ve walked on picket lines and protest marches, written press releases and lobbied bureaucrats. I’ve written books, law review articles, and op-eds by the score. I’ve been a consultant for “elite” advocacy NGOs like Human Rights Watch and worked with membership organizations like Amnesty International. I’ve worked for foundations and given away rich people’s money, and I’ve been a fellow at think tanks and taken rich people’s money (both are actually pretty fun). I’ve been a government insider, with stints at both the State Department (1999-2000) and the Defense Department (2009-2011). In each job, I worked on atrocity prevention issues in one way or another. And at the end of it all, I still don’t know very much about what works and what doesn’t.

Every approach and every role presents its problems.

Social movements? Easily dismissed as a bunch of scruffy kids, noisy, sloppy, and careless with the facts. Idealism is cheap, and can be fit in between yoga class and parties. Nuances get lost. There’s no context. Sound and fury, signifying nothing.

Membership organizations like Amnesty? Same problems as above. Membership organizations can be hijacked by small groups of ill-informed members with too much time on their hands, often to the detriment of their professionalism (and sometimes their integrity). Lots of time screaming and doing the internet equivalent thereof; not much time building constructive solutions.

Elite NGOs and think tanks? You knock yourself out writing long, detailed and meticulously documented reports and then you hand them to your friends at the State Department, who won’t read them, because they’re too busy going to meetings and clearing memos.

Law review articles? Worse. Only about fifteen people are going to read this, and most of them are on the Journal’s staff. Okay, sixteen people: my mother will read this too. (Hi, Mom!) Maybe I exaggerate, but you understand the problem. In specialized academic journals, a small group of specialists speaks to each other, too often in language no non-specialist could hope to comprehend.

Op-eds? Flimsy bits of ephemera, here today, irrelevant tomorrow. They get more readers than think tank reports or law review articles, but most of those readers are skimming and will have forgotten what you said by lunchtime. If you write op eds and you get lucky and you don’t mind making yourself available at a moment’s notice, you can go on TV, too, and get to make a twenty second statement.

Government work? Unless you’re at cabinet level—and sometimes even then—it’s hard to make big changes to US policy. Working the bureaucracy is like swimming in molasses. Everything takes forever, and policy is sticky. Oh, yes, and you don’t have time to read those long reports your think tank and NGO friends keep giving you.

All the same. When I’m feeling cynical, I often think of two people I met in Uganda, fifteen years ago: a Ugandan physician and an Italian nun. Let me tell you their stories.

******

Matthew Lukwena

Matthew Lukwena was a doctor who spent virtually all of his professional life at St. Mary’s Hospital in Gulu. He grew up poor in the neighboring district of Kitgum, went to school and studied hard. Against all the odds, he made it to medical school at Makerere University in Kampala. Then he returned to Gulu, a few miles from his boyhood home. In 1989, when LRA rebels tried to kidnap some nuns from the hospital, Matthew insisted they take him away instead. They did. They walked him through the bush for days, but eventually—inexplicably– they let him go.

Most people with Matthew’s credentials and skills would have abandoned Gulu after that, but Matthew stayed on. He struggled to provide medical care to a population suffering from both poverty and war, and he turned St. Mary’s Hospital into a safe haven for “night commuters”: rural villagers who left their homes each evening to spend the night in the relative safety of Gulu, where LRA raids were less frequent. Each night, thousands of people would trudge quietly into the walled courtyard at St. Mary’s, hauling sleeping mats and food. Each night, Matthew would make the rounds of the courtyard, offering water and medical care.

To the villagers, Matthew Lukwena was a hero, a man of courage and goodness. As he walked through the camp of the night commuters, people would reach out their arms to touch him, as if his presence could keep them safe.

When I visited St. Mary’s in 1997, Matthew walked me around the overcrowded hospital, pointing out the patients sleeping on the floor and in the hallways, the nearly empty medicine stockrooms, the bodies waiting in the morgue. Finally, he offered me a chair in his bleak, cinderblock office—nothing in it but a desk, and a bookshelf, and a few folding chairs. He sat down, rested his elbows on his desk, and then slumped down with his head in his hands.

“The problem,” he said tiredly, “is that we don’t see an end to the problem. When you have a problem and you think it’s coming to an end, then you say, let’s persevere. But I really don’t see how this is going to end. I foresee unlimited suffering.”

His eyes were wet. (I told you: Everyone cried. Whether you were a doctor in Gulu or the US Secretary of State, it seemed impossible to think about the LRA and not cry).

“The last two years have been the worst in ten years. We cannot do anything, we cannot go outside in the community, we cannot do our work. It has to stop, it must stop…. “ His voice trailed off. When he continued, he was almost angry. “When you are in the medical field, you are trained always to look for solutions. But I cannot see one here. There is no point to my work. I can do nothing.”

I listened and scribbled in my notebook, embarrassed to witness so much raw emotion from a stranger. It was late afternoon, and outside in the courtyard, the night commuters were lighting their cooking fires, preparing for darkness. Matthew kept talking, in a low monotone: He did not know how to keep his own children safe; he had to shuttle them from relative to relative to protect them from rebel abduction. There was no truly safe place in Northern Uganda. He wrung his hands, massaged his temples, fidgeted miserably with his pen. From time to time he blinked the tears from his eyes and looked up at me blankly.

Finally, a little ashamed, I asked him what seemed like the obvious question to ask an educated professional living in Gulu in 1997: “Have you ever thought of leaving?”

He looked startled. “Leave? Where would I go?”

The Lord’s Resistance Army made life in Gulu so hard that when Ebola broke out there a few years after my first visit, many locals counted it as a lucky break. True, Ebola took the lives of thirty-six people– but the Ebola outbreak also brought the outside world to Gulu, in the form of an influx of unusually well-behaved Ugandan government troops, international aid organizations, journalists, and cable news crews. For a few weeks in the fall of 2000, Gulu made CNN nearly every day. During those same few weeks, there were no attacks on Gulu by LRA rebels.

For a short time—until the mobile medical units were packed up, the cable crews went home, and the rebels returned– farmers could harvest crops, people could walk around at night, and children could sleep in their homes rather than in school and hospital compounds. Death by hemorrhagic fever was a risk— but to many, it was no worse than the risk of being hacked to pieces by machetes or clubbed to death with heavy sticks.

When Ebola came to Gulu in 2000, it was Matthew Lukwena who first identified the disease and reported it to national and then international authorities. Twelve of his nurses died helping Ebola patients, and others quit for fear of contracting the disease themselves, but Matthew Lukwena stayed and continued to tend his patients. The outbreak was slowly brought under control, thanks in large part to his efforts. In late November, he fell ill himself. On December 5, he died, the Ebola outbreak’s last victim.

*****

Sister Rachelle

On the night of October 9, 1996, Sister Rachelle Fassera was fast asleep when she heard the screaming. As a teacher at a Catholic girls’ boarding school in the Ugandan town of Aboke, she had eaten with “her girls,” presided over their evening study period, and seen them safely off to bed. Now, hearing screams, she jumped up and ran for the door.

But the door had been blocked from the outside, and it took Sister Rachelle and several other nuns over an hour to escape. When they made it out, they ran to the dormitories, where some hysterical younger girls told them that the LRA rebels had come and taken away scores of girls in a mass abduction. The girls who remained were the fortunate ones: they had hidden in cupboards and under beds, avoiding the rebels’ notice.

At this point, Sister Rachelle’s fellow nuns proposed radioing the nearest Ugandan army post to ask for instructions, but Sister Rachelle would hear none of this: the Army, she feared (probably rightly, given its record) would either do nothing or, worse, would send out a unit that would end up killing the hostages alongside the rebels. “I’ll go get our girls myself,” she told her incredulous colleagues.

And she did. Along with John, the school handyman, she set out into the bush. The trail wasn’t hard to follow: like modern-day Hansels and Gretels, the girls had left a trail of discarded items: scraps of paper, candy wrappers, the contents of their pockets. She and John tramped through the bush, and finally, around sun-up, they caught up with the rebel party.

Sister Rachelle walked right up to the rebel commander, a young man in his twenties, and demanded that he release her girls immediately..

The commander was used to terrified, cringing villagers. Sister Rachelle was a birdlike little woman with thick glasses, her hair pulled severely back, and she seemed completely unafraid. Who was this nun?

Flummoxed, he said, “Sister, I cannot let these girls go. I must bring these girls back with me.”

But Sister Rachelle wouldn’t take no for an answer. Ignoring the dozens of armed rebels, she told the commander he should be ashamed of himself. A big strong man, kidnapping young girls who only wanted to go to school and get an education so they could make their country better!

The rebel commander could have killed her, but instead, he proposed a compromise.

“Sister, I will pick the prettiest, strongest girls and take them with me. You may take the others back.”

Sister Rachelle refused the deal, but by now the commander was growing irritated by the delay. “Sister, you can take back one hundred girls, but I will take the others with me. If you do not want to leave with a hundred girls, I will kill you, and take them all with me.”

Was there really a choice? The commander walked through the terrified ranks of schoolgirls, picking those he wanted to take back with him and pulling them aside. Then, shrugging magnanimously, he said, “Sister, you go now and take these girls back to their school.”

When Sister Rachelle told me about her trek into the bush to retrieve her kidnapped charges, she was animated, re-enacting the scene with Italian flair (like all the nuns at the school, she was from Italy.) But when she started to describe the moment she began to lead the hundred freed girls away from the rebels, something in her voice shifted. She still gesticulated dramatically, but all the energy was gone.

“Ah! So I kissed each of my girls who were going with the rebels, and they were crying.” Her voice cracked. “The commander was saying, ‘Sister, you must leave us now!’ and my girls, they were saying, ‘Sister, don’t leave me!’ ‘Sister, what about my asthma?’ ‘Sister, please stay with us, I am frightened!’ ‘Sister, my father will not survive this!’ ‘Sister, please, please take me with you!’”

By the end of her story, Sister Rachelle was sobbing. She looked up at me. “I dream each night of those girls, their voices begging me not to leave them. But I left them. I do not see how God can ever forgive me for this.”

I’m an atheist, the child and grandchild and great grandchild of atheists. My ancestors turned their backs on Catholicism, Judaism and Protestantism. If they had been Hindus or Muslims I’m sure they would have managed to reject those faiths, too. So I was probably about the worst person in the world to comfort a weeping nun.

I tried anyway, patting Sister Rachelle’s shoulder awkwardly. “Sister,” I said, “God knows no one could have done more than you did.”

****

I don’t know why some things work and some things don’t, why mass movements sometimes leave lasting impressions and sometimes simply fade away. But whenever I’m tempted to just declare the lost causes lost for good, to buy a nice car and take a nice vacation and leave all the crying people behind, I think of Matthew Lukwena and Sister Rachelle. And a dozen other people, too: Angelina Atyam, whose daughter was abducted by the LRA but who turned her grief into activist energy, becoming a globally respected spokeswoman for the LRA’s victims. Ponsiano Ochero, the unfailingly gentle Ugandan UNICEF worker who drove us everywhere and absorbed everyone else’s pain without complaint. (He later died of AIDS). And of course, I think of all those children who shared their stories with us, many of whom, against all the odds, retained the ability to laugh and to hope.

In the end, I don’t think there is any simple recipe for preventing or stopping atrocities. Atrocities don’t arise out of a vacuum; they are products of particular places and people with particular histories, particular motives, and particular incentives.[5] The LRA is a paradigmatic example. It’s impossible to understand the LRA without knowing something about British colonial policy in Uganda and the role of the Acholi people in the bloody Ugandan civil wars of Milton Abote and Idi Amin, and without knowing something of indigenous Acholi religious beliefs and the Christian millenarian overlay given them by Alice Lakwena’s Holy Spirit Movement. You also need to understand Yoweri Museveni’s regional ambitions and his relationship with the late South Sudanese rebel leader John Garang, and you need to understand Omar al Bashir’s government in Khartoum and its determination to bring the South Sudanese to heel.

Of course, even if you understand all these things, and a whole lot more, the atrocities of the Lord’s Resistance Army still won’t really make sense.

I’ve come to believe, however, that this is not so terrible. The producers of Kony 2012 undoubtedly oversimplified a complex problem, but everyone oversimplifies the LRA, government and NGOs alike, right along with the Kony 2012 producers. We oversimplify because otherwise we can make no sense of the conflict. If we didn’t oversimplify, we’d be paralyzed by confusion, and we wouldn’t do anything or demand that governments do anything.

And that would be unconscionable. The roots and long-term solutions to atrocity situations are complex, and every mental model we make to understand them inevitably comes up short, but atrocities themselves are simple. What could be simpler than slashing someone with a machete? — and what could be simpler than demanding that the atrocities end?

I don’t know what works and what doesn’t, which set of oversimplifications leads to which responses. But in the case of the LRA, there has been some small progress over the years. It has been agonizingly, shamefully slow. Nonetheless, fifteen years of many different kinds of efforts from many different kinds of people has left LRA leaders fearful and on the run. Some experts believe that as few as thirty or forty active LRA fighters remain. They are hunted wherever they go: US Special Forces soldiers are working with the Ugandan military to capture or kill Kony and his remaining adherents. If they’re captured, senior LRA fighters will go on trial at the Hague.

The LRA can still bring terror to isolated villagers, but it’s nothing like what it was fifteen years or even three years ago. Some of that is surely due to the combined efforts of all those thousands of people who have, over the years, been moved and horrified by what they’ve read and seen.

I’d like to think that even our failures sometimes lead us forward. The atrocities of the LRA are so egregious, and our collective failure to stop them so shaming, that they helped spark an unprecedented US government-wide effort to improve national atrocity prevention efforts. At the Defense Department, I helped launch an effort to integrate atrocity prevention into long-term military planning.[6] At State and USAID, other colleagues launched similar efforts, and last spring they came together in the presidentially-mandated creation of an Atrocities Prevention Board.[7] This won’t be anything close to a panacea, but it’s another small step.

I can’t think of any better way to close than by citing the words of another Ugandan child. Back in 1997, my Human Rights Watch colleague and I asked dozens of schoolchildren at St Mary’s School to write down anything they wanted to tell us—anything they wanted Human Rights Watch to know. Here’s a passage from one of those letters:

“From my experience since I was ten years old, I have a lot to tell about these rebels… [T]his is what I see with my own eyes… This is what the rebels have done:

• they burnt houses or whole villages
• abduct young children from 8 years onwards
• they killed people using the panga
• they cut your mouth with a knife or lock it with a padlock
• they destroyed people’s crops and burnt them
• they cut people’s ears
• they cut off your legs when they find you walking
• they killed the headmaster of a school and cooked him and made the pupils eat him
• they can pluck out your eyes
• they cut people’s hands off. My uncle was found hiding and he was cut to pieces so much that you cannot think he is a person anymore.

My village was completely destroyed and we stay in the town now. This kind of thing has been going on for over seven years… There are thousands of young children the rebels have taken from their parents … There are many people without a place to sleep [or] anything to eat, but there is nothing being done for them. Many thousands of people die in the camps because of sorrow and anger.

I have failed to understand what the government has done to stop these things. I have failed to understand why innocent people like our girls and all the other captives should suffer so much….

So to anyone who [will] read this. My question is: what can we say and do for the thousands and thousands of young people, our 21 girls who are still suffering in the bush with Kony Joseph, and the hundreds of people who die there day and night?

My question remains to the one who reads this and meditates over it.

Interviewer: Julia Mas-Guindal*

* V.R. 2012 Harvard Law School. Lecturer of Law, Suffolk University College of Law. Research Assistant/Temporary employee at Harvard University. Corporate lawyer. Ph.D. candidate Complutense University in Madrid. B.A. Law & Business/LL.B 2009 Complutense University in Madrid. Master’s in Business Development 2008 ESCP-EAP (Paris).

Getting back to the second power, to the influence of the sending countries. [As stated] in your paper, International Adoption: The Human Rights Position, “the expenses of international adoption are paid by adoptive parents.” So it’s not costly, either for the sending or receiving country. But the thing is, in a world in which everything is about the money, my question is why did some of these countries adopt policies and restrictions on adoption, because, in a way from a financial view, they are getting funding?

Yes, it’s an important question. I do think these policies are seriously irrational from the point of view of these poor countries, but countries make all sorts of irrational decisions. They go to war, and there are different pressures that compel them for different reasons. I like to think that long-term, the rationality that underlies adoption might prevail, and I think at certain points in history for certain countries it does. They realize this is a good solution for the kids and that it’s a good solution for other people in the country too and for the government and that they are being relieved of kids that are just a burden on the country. So people like to talk about these in-country kids as “precious resources,” but in poor countries poor kids growing up institutions are not likely to do well or to prove a benefit to the country. I think these countries are just ignoring that economic rationality because of all these other political pressures swirling around.

You can see, for example, how this played out in South Korea. South Korea, I think for a while acted eminently rationally and had a really terrific international adoption system, and people in Korea didn’t want to adopt either because the kids were mixed-race kids or because of the blood bias in the culture. And so on a regular basis they facilitated international adoption. But at the time of the 1988 Olympics, some forces within the country opposed to the government criticized the government for such adoption, equating it as selling Korea’s children. And so, the South Korean government had two pressures. They had the economic pressure of kids in institutions, so why not let people adopt them, but then they had this other pressure – do they want to stay in office, here are these other people saying that our leaders are selling our children. So I think there are a lot of pressures swirling about other than the pure economic.

Another of the main problems facing international adoption that you pointed out earlier is that often sending countries are corrupted. So, for example, in a country with much corruption, like Guatemala or Colombia, it is not surprising to find public servants breaking the law and making a business of this, because they treat children like another commodity to trade with. My question is how can receiving and sending countries struggle against this corruption and how efficient is the prosecution of these people breaking the law?

Corruption is a problem. I think one of the issues is – and I just read an interesting article which correlated the level of corruption with the level of poverty – poor countries tend to be more corrupt, according to at least some people who study these things. And corruption does get focused on as a reason to shut down international adoption. I think my first response would be a little indirect, which is that just in the face of corruption we should not shut down international adoption. I think that’s the wrong solution. And of course it’s the popular solution because organizations like UNICEF don’t like international adoption anyway, and they don’t want to admit that, so for them corruption is the perfect excuse. It’s like, “Oh, we can just say we don’t like corruption, then we shut down international adoption until we solve corruption.” Well it’s hard to solve corruption. There is corruption in poor countries. And I think the hypocrisy here is that there is corruption in poor countries but there’s also corruption in rich countries – just maybe not as much of it.

But when there is corruption, it’s very rare that the response to it is to shut down the system altogether. We have corrupt people on Wall Street in this country and we don’t shut down the stock market. We don’t shut down the banks, forever at least. We might shut down one or two banks, but we don’t shut down all the banks. It’s only, I think, in international adoption that the response is “let’s shut it down.” Well because it’s very convenient, if you don’t like international adoption then that is a convenient response. I think the response to corruption instead has to be to focus more narrowly on ending corruption by punishing the people who deserve punishment, those who are violating the law. Now, that may not entirely stop corruption, since it’s hard to stop all corruption, and I think then one has to say, all right, corruption is bad, some level of illegality is bad, but how bad is it compared to the bad that flows from shutting down international adoption?

I think that is pretty easy to say that corruption is the lesser evil if you look at Guatemala for example, where there used to be almost 5000 kids per year getting homes early in life through international adoption, not suffering significant damage because they’re getting released at four months, six months, eight months from institutions. And often they had been in foster care and therefore suffered even less damage. So now with the shut down of international adoption because of corruption, 5000 kids a year are now not getting homes, and instead are living, or dying, in institutions or on the street. Basically [these kids are] getting systematically destroyed. [There are] huge violations of the Convention on the Rights of the Child every day in the conditions in institutions and on the streets that nobody is worrying about at all. So those are going on for all those kids on a daily basis. Of course some children are being saved from their mothers getting a thousand dollars in connection with their adoption.  But how evil is that kind of corruption and illegality compared to the evil of the 5000 kids having their lives destroyed?  I think there is just enormous hypocrisy among U.S. officials, among Guatemalan and other sending countries’ officials, and among the UNICEFs of the world in terms of refusing to look at the balance of benefits and costs. All they want to look at is “do we think corruption is bad?” Do we think baby buying is bad?”  Of course these things are bad, but it is also terribly wrong to deny infants and children what they most need in life – the chance for parenting.

We should respond to corruption in international adoption the way we respond to corruption in other areas, which is by focusing on the corruption and how to stop it by finding and punishing the people who break the laws, rather than by stopping the underlying institution from accomplishing all its legitimate goals.  It seems to me the US could do a lot to offer resources to countries like Guatemala to try to help them identify and prosecute the people who are breaking the law. Money would help, and maybe advice, and services in terms of that kind of prosecution would help. I think it could be done; but, there is no magic solution, and I think the most important thing is that policymakers keep in mind the overall [balance of] costs and benefits if they actually care about children.

So the problem again is that the focus is not on the children?

It’s not on the children, even though “the best interests of the child” is what everyone is always mouthing in this area.

In a regular adoption process, what you have are people who want to adopt children. And then, you have these private intermediaries who want to get paid. We would like to know, who are these intermediaries and if you think that all of these are necessary for the completion of an adoption, and maybe these intermediaries make too much money with these arrangements?

I would like it if international adoption was less expensive because then more people could do it, and more kids could get homes. So yes, I think the intermediaries are overpaid in that sense, but I totally believe that we need private intermediaries and I think that it’s a very bad reform direction when people say that we need to eliminate private intermediaries as a way of eliminating corruption. The problem is that effectively puts everything in the hands of bureaucrats. Now, what [solution] is that if bureaucrats are just as susceptible to corruption – usually the word corruption is associated with bureaucrats, not with private people. There is no way you’re going to eliminate, or no reason to think you’re going to be successful in eliminating baby buying or kidnapping by simply eliminating private intermediaries. You can regulate private intermediaries, and make it so that they will go to jail if they violate the law, and that’s what we do in this country.  We have lots of private intermediaries that arrange adoption. The reason we want to keep private intermediaries, and you want to keep, if you will, business in this area, is that these are the people who see themselves as having an interest, even if it’s largely a financial interest, in putting kids who need homes together with parents who want to give those homes. That self-interest is healthy, because they are serving the interest of the kids as well as the prospective parents.

When you put it all in the hands of bureaucrats, (1) you still have the corruption risk, and (2) governments and government bureaucrats often see their goal as to avoid risk, and you take risks if you take action, and it’s always the government that seems to see the symbolic value of holding onto kids, keeping kids in their ethnic groups, and all that kind of thing. Whether within this country or in other countries the barriers to adoption usually come from the government and it has been the government, not individual birthparents, who have thought black kids belong with black parents. It was never the black birth mothers in this country who thought that, it was the government who didn’t want to place those kids across racial lines. For the most part, birth mothers who can’t raise their kids want them to get a home and they are going to make that deal if they have a chance to. So when the government gets in the middle, it’s the government that ends up for whatever crazy reasons often feeling motivated to hold on to kids and deny them homes.

Do you think that international adoption is a business today? Or that there is a possibility that this will become a business?

Well, I just don’t think that [business] should be used as an evil word. I think we need private intermediaries to make adoption happen. And, if you look at the world of, for example childbirth, everybody thinks childbirth is wonderful. Well, it’s a business – hospitals and doctors get paid and nobody says, “Oh my God we have to eliminate business, let’s make it so that the government bureaucrats do childbirth or do other things that we think are good and wonderful things.” Adoption is a good and wonderful thing. Why does it make it evil that lawyers might get paid to finalize the surrender of parental rights or the adoption in court? It’s to me no different than lawyers getting paid to draw up the sale of a house or marriage documents, and doctors facilitating heart operations or childbirth.

What do you think is the biggest legislative reform to foster and promote adoption today?

Let’s just say there isn’t hardly anything that fits that category. First imagining the Hague Convention on International Adoption, it was thought for a period that the goal was to coordinate and facilitate adoptions between countries. But it turned into something very different. Again, because the forces hostile to international adoption got involved and started saying that “facilitate” was just a dirty word and we couldn’t even think of that, we had to think of it as a new way to place restrictions against bad things happening. So that is what The Hague became. The Hague, as it turns out, isn’t in itself a terrible document, and it’s in my view a small step but a significant step forward from the Convention on the Rights of the Child in principle, because it seems to make clear that international adoption should be seen as a better option than in-country foster care for children. So that’s a good thing, but it’s being used by organizations like UNICEF, and even by the US government, to shut down lots of countries. So it’s turned out to be, so far, a net negative force for international adoption. And there’s just nothing very good, sadly, that one could give as an answer to your question.

I would like to know – what would be the key points of international adoption law reform?

Well that’s an excellent question, and I have thought about that some. I think that the starting point of international adoption law reform should be thinking “How can we better serve children?” Millions of children who need homes – if we had a law that truly took their needs seriously, what would it say? I think it would say we have to organize things to facilitate as many of those children as possible getting homes as early as possible without violating birthparents’ rights. That, for me, would mean for example, that we should have what largely doesn’t exist in the world: a law that would say, look at and identify the children who are in institutions and on the streets who don’t have parents in any meaningful sense. And if they don’t have parents that either are nurturing parents now or could be very soon, free those children up for adoption and focus on trying to find homes for them. So that doesn’t exist.

Within this country, we have something of a model in the Adoption and Safe Families Act of 1997, which says that if children have been in foster care for 15 months, the state must move to get them out of foster care. They either must go back to the family of origin or they must move on to adoption if they shouldn’t go back to the family of origin. There’s nothing like that in the rest of the world. And in most institutions, including one that one of my children was in as a baby, in that institution I looked at the other kids there ranging from 0 to 5 years old and said “Oh, what about all these kids?” “And are any of them also available for adoption?” And I was told, “No, none of them are available, they all have parents.” They don’t see the parents – maybe sometimes one of the parents might come once a year. But nobody is freeing those kids up for adoption. For the most part there is absolutely no system to free the kids up. And if you say there should be such a system, UNICEF and other such organizations and people are outraged – that would be a violation of parental rights.

So their idea of parental rights is that even if parents can’t raise the kids it doesn’t matter, in an ideal world we should be making it so that parents can afford to raise their children. And in the meantime, when that won’t happen, the kids should sit and rot. That’s their idea of human rights.

Well my idea of human rights is that kids should have them also. And anybody who thought that kid rights were even vaguely equivalent to adult rights would say “Of course if the parents can’t raise the child in the pretty immediate future you should free that child so it can find some other parent.” So I think we need that law; we need a law that would say to bureaucrats “You are at risk if you don’t place children.” Right now bureaucrats are at risk if they do place children because it might violate parent rights. They should be at risk if they hold children too long, if they deny the child’s basic human right to a home. Translating that general idea of the law to specifics would take some time. But that needs to be the starting point. We could do it – it’s not that it’s hard to think what the law would look like in the specifics; it’s that the starting point has to be 100% different from where it is now.

This concludes the Journal’s conversation with Professor Elizabeth Bartholet. Part I of the interview is available HERE.

Interviewer: Julia Mas-Guindal*

* V.R. 2012 Harvard Law School. Lecturer of Law, Suffolk University College of Law. Research Assistant/Temporary employee at Harvard University. Corporate lawyer. Ph.D. candidate Complutense University in Madrid. B.A. Law & Business/LL.B 2009 Complutense University in Madrid. Master’s in Business Development 2008 ESCP-EAP (Paris).

The first question I would like to ask you is about your vocation. Why did you decide to devote your professional life to research and advocate for children’s welfare and international adoption?

Since I went to law school I’ve always been interested in using my career to promote social change and social reform; that’s why I went to law school.  Initially I focused on more traditional civil rights issues, [such as] race relations in this country and various discrimination issues particularly in the context of employment, and my real focus on children and youth and adoption came because 27 years ago I adopted a child internationally. And that’s what led to my specific interest in this area.  Once I got interested in the area I felt immediately that there was an enormous need for change in the policies because they seemed to me to make – the policies surrounding adoption and international adoption, in particular – no sense from the point of view of children.

To begin with, what do you think the standard should be for allowing international adoption?

Well I think the starting point ought to be children and their needs for a home, and if there are as there are today lots of children, millions and millions worldwide who need homes, I think the priority ought to be figuring out how to provide those homes.  International adoption is one of the best ways to provide them, in part because there is a lot of discrepancy between poor countries and rich countries.  There are richer and poorer countries in this world and in the poorer countries you tend to have lots of children who need homes, and relatively few adults who can provide them. That’s the very basic reason that international adoption from my point of view makes a lot of sense for children.

And then, given that kids need homes, adoption turns out to be a very successful institution for providing good homes for children.  If you look at the social science on adoption, whether it’s same-race or transracial, whether it’s domestic adoption or international adoption, all the studies show adoption working really really well for children.  It works best, or the children do best, when the kids are placed very young. If you look at studies of kids who are placed older, of course many of those kids are going to be troubled, but it’s not because adoption doesn’t work well, it’s because it took so long before the kids were placed in adoption that they suffered lots of damage. So adoption works really well.

Why does it work well? I think it’s pretty clear that motivation is what makes for good parents. And what you have in adoption is people who have chosen to be parents. They haven’t fallen into it by mistake, they deliberately sought it out, virtually all of them are seeking it out for good reasons, not for bad reasons, and that means they are highly motivated. I don’t think the kind of screening that goes into deciding which parents get approved does any particular good. I think it is the self-selection that has to do with people wanting to be parents.

In terms of your question, I think the standards, given the need that kids have for homes, ought to be ones that facilitate placing as many kids as possible as early in life as possible in homes. Therefore, we should have standards that allow adoption. Don’t make it too difficult; don’t make it too expensive. And standards that focus on making sure that kids get homes early, that they get freed up for adoption early – now that’s the complete opposite of current international adoption standards. Virtually all the laws and policies surrounding international adoption focus on the bad things that might happen in connection with adoption, and virtually none focus on the good things, and also, current standards never focus on the bad things that happen to kids when they don’t get adopted. Kids sit and rot in institutions and there is no focus on that. We really need to flip the assumptions around and change the standards quite radically to make them standards that are really designed to serve children.

Wouldn’t you agree that some of the biggest problems in international adoption are the legal restrictions that limit the ability to provide homes to children in need, and who is to blame for that?

I completely agree that the major problem with international adoption regulations today is that it’s almost entirely focused on restricting this institution, and making it difficult. The claim is that it’s all in the best interest of the child, but that is not true in my view because what it does is make it hard for kids to get what they most need in life, which are homes. The blame, sadly and ironically, is really to be put primarily on the organizations that call themselves the friends of children. It is organizations that have names indicating that they are the human rights/children’s rights organizations.  UNICEF is at the top of my enemies list, [along with] Save the Children, and there are other names like that out there, of organizations that quite adamantly oppose international adoption. They tend to claim that they don’t entirely oppose it.

UNICEF, which is very political and tries to be careful about its reputation, likes to say that it is not entirely opposed to international adoption. It quite clearly limits international adoption, even in its official policies, to a last resort option. So they clearly take the position that in-country foster care should be preferred over out-of-country adoption. I think their actual on-the-ground policies – and I think most people who know what’s going on with international adoption would agree with this – are much more adamantly anti-international adoption than they admit. For example, they say that they don’t think children should be held in institutions, but the net of their policies, I believe, ends up relegating millions of children to spend their growing up years in institutions.

Why is that? It is because UNICEF will say the better options are in-country adoption and foster care. Well, in poor countries, for the most part, in-country adoption is not happening and there are a lot of reasons for that: partly the relative poverty of the country, partly that the children available for adoption tend to be the children of the underclass, which is often a racial minority group and the rich people in those countries often have no interest whatsoever in parenting [those] children. Often there is a strong bias, [such as] in Africa and Asia, against adoption anyway. They are very heavily into the idea of bloodlines in terms of family. So it’s unlikely that, in any near future, there will be many adopted homes in these countries. They can promote the idea that that’s better for children all they want. If they know that it’s not going to happen for children, the net is that children will end up in institutions.

Now they also promote the idea that poor people shouldn’t have to give up their kids; I agree with that. But it’s also true that we are not going to solve world poverty overnight, and that many poor people aren’t going to be able to take care of their kids. Reunification – which sounds good to everybody, let’s put kids back with their parents, they only gave them up because they were poor – that may sound good. [But] it isn’t necessarily good for kids to go find desperately poor people who might have given up their kids five years ago, who may have several other kids, who are struggling to survive, so you can say to those people “here’s your kid back.” Well they gave up the child for a reason. You can say to those people we will give you money to take your kid back, but it doesn’t mean that the child will live well. The child may be sold; the child may become effectively an indentured servant. It is easy to say that we should feel sorry for those poor parents, they shouldn’t have had to give up their kids, but putting kids back in those families is not necessarily a good solution for anybody.

Certainly, [I would like us to] solve world poverty so that poor people didn’t have to give birth having to give up their kids.  But it’s not going to happen right away. And I don’t think that locking poor kids in institutions, and insisting that they grow up in institutions is going to in any way further the goal of eliminating world poverty. It’s just a symbolic gesture, easy to make because the kids can’t do anything about it. I think it’s outrageous that UNICEF and other organizations promote foster care. I mean, again, in the first place it doesn’t exist; it won’t be created overnight. But second, and even more important, there is no reason to believe that foster care in poor countries is going to work better than foster care in the United States. In the United States, we have roughly half a million kids in foster care and everybody in child welfare wants to get most kids out of foster care. They don’t think it’s a good solution. Kids in foster care typically bounce around from one foster family to another. Foster care is paid parenting. It may be better than paying staff in an institution to take care of kids but you are paying people to be parents, and most people on a commonsense basis – and if you look at the social science, it also supports this – believe that kids are better off with parents who are parenting because they want to be parents, not because they’re getting a wage to do it. Think of the risks that would be involved, in creating paid parenting foster care in poor countries, desperately poor countries where people are starving – of course if we say “we will pay you a stipend to parent,” people are going to come forward and agree to do it. And there is even more risk than there is in this country that they won’t be doing it for the right motives.

And the studies all show, that if you compare how kids do in foster care to how they do in adoption, they do better in adoption. So there’s no excuse in my view for UNICEF to be taking this position. Now they claim that foster care will be different, it will be permanent foster care in these poor countries, but they don’t come up with any reason to make anyone else believe that it’s going to be a sort of magically better form of foster care than what we have in this country.

And I think that there is no good reason for the world to look at international adoption as if it is a suspect institution. The only reason is [the] very retrograde view that children are essentially who they were born in race and geographic terms. The view that if they were born with brown skin then they are inherently brown skinned people who can only live, and should only live, with other brown skinned people. Or, if you happened to be born on this side of the border rather than the other side, you are inherently this kind of person. Well, to me it is even crazier to think that national lines have that kind of power to determine who human beings are intrinsically as compared to color lines. I don’t think either makes much sense, but national lines were mostly drawn on the most arbitrary of bases. You get civil war, and then people sit at a table and they have to decide how to carve up the map this time.

I think the only reason national lines have power is that there are sovereign nations, and sometimes sovereign nations want to hold on to their children put them in armies, [to] make their sovereign nation stronger. And I think that organizations like UNICEF that were founded in the wake of World War II were founded through negotiations by sovereign powers. It’s somewhat understandable as a matter of history why an organization like UNICEF would see itself as responsive to what it might think are nation states’ sovereign claims on their children. What is interesting here [is that] I think the major pressure for kids to stay where they are born is coming more from UNICEF, and the international NGOs like UNICEF, than it is from the sovereign powers. But UNICEF and other such organizations do sometimes appeal to sovereign pride and they do tell these sovereign nations that they can and should hold onto their children. Should as a matter of children’s human rights; can as a matter of sovereign power. I think that they encourage this attitude of governments feeling that they have an ownership right in their children and that it’s a matter of pride to assert that ownership right. UNICEF makes a country like Brazil, or Peru, or an African nation feel like they ought to hold on to their children because this is what the Convention on the Rights of the Child requires.

I also think some of the pressure to keep children in their country of origin comes from governments of various poor countries in the world at different points in time. So I’m not saying none of it comes from there. I think that there are basically three major problems in terms of the pressures that create negativity surrounding international adoption. One is UNICEF and other such international NGOs. And a second is the sovereign governments of various poor nations of the world. The third is the governments of various more privileged nations of the world. In terms of the second, I think that for poor countries governments often need to appeal to their own people to stay in power, they need to say they’re doing a good job, and one of the easy ways to make this claim is to say they are taking care of our children. “Look – we just shut down international adoption.”

So you see that at play with, for example, Haiti, when the government was in massive disarray and appeared to be doing not much of anything and appeared to be really helpless. Then came those church workers and did something that violated laws, and that’s bad, and were taking children out of the country – although I don’t think there was any evidence they were stealing them from parents or even deceiving parents. But they were getting them out of the earthquake zone, temporarily probably, and violated some paperwork laws. And what did the government do? Well, they shut it down. And I remember seeing I think the second-in-charge of the government proudly proclaiming on television, to an international audience, that we’ve shut down international adoption; we are protecting our children. Well they weren’t doing anything else to show they were in charge of Haiti, but they could do this, and maybe they felt it made them look good.

[Another example is] Russia, when the one child was put on the plane and sent back. I can remember a handful of other incidents where a Russian child was abused by an adoptive parent. Abuse of any kind, or the form of abandonment represented by putting the child on the plane, is extremely rare in international adoption – much rarer than it is in biological families in Russia or the United States. Much rarer. But when it happens, the Russian government as a matter of pride, as a matter of, I think, thinking it looks good to its own people and maybe abroad, can say things like, “Those terrible Americans, we can take better care of our children, we should not let them have our children in international adoption.”

Or take China, which is sort of in a moment in its history in the last few years where it wants to be and is a world power. It feels embarrassed about, probably, its one child policy which is part of why so many of its baby girls are in institutions. International adoption is embarrassing, so I think that’s probably why China several years ago imposed stricter regulations that said “Oh these people who are single or obese or otherwise less in our view than ideal can’t adopt.” “We are a strong nation and we can take care of our own children.” It doesn’t mean they can, or do, or that there aren’t lots of baby girls languishing in their institutions. It’s a statement about national pride.

And in my view, part of why that statement gets made in the context of international adoption as often it does, is that it’s an easy national pride statement. So it’s hard for poor nations to stand up to the United States if it involves oil or other things rich countries want, but if it’s poor children in institutions, the United States is not going to go to war or even put any pressure on a poor country. “If they really want to hold onto their poor children, we don’t really want these children.” There are some parents who want them, but the United States government is not going to fight for them in any way. If a poor country says, “Stop! We will take care of our own children,” it’s an easy [statement] to make and the government leaders feel it makes them look good in the world and to their own people.

[Now] to get to the third power that causes negativity, governments like the United States. We have over our history done a lot to keep immigrants out, and adopted kids are baby immigrants and there was a period they couldn’t come in at all. Then we amended the laws and let some of them in but it’s never been a complete-easy-open-arms thing. We do let some of them in, but if a country says they don’t want us to take their kids, or if we the U.S. feel there are some ethical corruption issues we could be accused of – [such as] allowing our parents to buy kids, or to kidnap them – it’s easy for the United States to shut down adoption in that situation because it might make us look bad as a country and it’s not doing us any good. I think that’s why we typically give in immediately if any country says they don’t want to send us their kids, and why we often put pressure on countries to shut down [international adoption] entirely if we think that there is evidence of corruption and illegalities that will make us look bad.

The Journal continues its conversation with Professor Elizabeth Bartholet in Part II of the interview, available HERE.

 The Harvard Human Rights Journal is proud to feature its interview with Simeon Koroma, the Co-Founder and Director of Timap for Justice, an organization that provides legal services to indigents in Sierra Leone through a community-based, mediation-focused model. In this interview, Koroma discusses the origin of Timap and the challenges of operating a legal aid organization within the dynamics of Sierra Leone’s society.

Interviewer: Lynnette Miner, J.D. ‘14

Tell us about the work that Timap for Justice does.

Timap provides basic justice services to indigents and people in rural communities through a frontline of community-based paralegals who are backed up by lawyers. It’s an experimental effort. Everything we do is experimental because we believe that there is so much to do in Sierra Leone. [We are] generalists, so the kind of problems that come to our offices shape the kinds of solutions we find.

Paralegals are flexible, so they employ a wide range of tools, including mediation, advocacy, providing information, and organizing community members to provide collective action. They use these different tools to solve a wide range of justice issues. For example, a woman comes to the office and complains that her husband is refusing to pay maintenance allowances for her child. The paralegals will provide information on rights and procedures and, if necessary, conduct a mediation between the parties to have an agreement. Or a community comes in and says their kids can’t go to school because the teachers are engaging in mining. The paralegals will do a lot of things, including engaging the different parties (like Ministry officials, parents, teachers, etc.) to have a community dialogue meeting – some kind of a dialogue where all parties will come to discuss where the problems are. At every stage paralegals act as facilitators, and they are able to facilitate some sort of dialogue in the community to find a solution which is local, which is practical, and which is flexible.

Can you tell us what inspired you to start this organization and where the vision for it came from?

In the beginning, most of [the problems] we have now were probably still present then. We were just from a civil war. There was injustice, as we still have in Sierra Leone. After the war and soon after the war, we had so much destruction of not just life but also property. State institutions were dysfunctional and many people were struggling for everything.

I was just from law school and I was working for a huge law firm. Most of my work was corporate practice. Most of our clients in this law firm were employers and big companies. Even though there was good pay, the work wasn’t that satisfying. I wanted to do something different, something for people who were disadvantaged.

In 2003, I started volunteering for an NGO that worked with children. I provided pro bono legal services to more than 100 street kids. After the war, we had so many street kids because they had no parents at all. They were sleeping on the streets and then picked on by police officers and others, so there were so many abuses. I represented them in court for free, and it was then that I started realizing what I wanted to do.

That same year I got a call from one of my senior lawyer colleagues who mentioned to me that he was thinking about some sort of a program to provide services. With this American colleague, Vivek Maru, who was then an Open Society Justice Initiative Fellow in Sierra Leone, I sat down and we started thinking through all the different problems. We started thinking through questions like: What kind of services would suit a country like Sierra Leone? What can you possibly do to make a difference? Sierra Leone has very few lawyers, we have dysfunctional institutions, and many things were not working well. Then we came up with this idea of training non-lawyers to provide some kinds of services.

The inspiration for this work came from South Africa, a place I’m so interested in, especially the apartheid struggle and all the injustices during that time. So there was one choice we really had to make: to go to South Africa and stay there for a while to understand their programs and see whether we could replicate them here. We spent some time there and spoke to some good friends, including David McQuoid-Mason, who is probably the champion of paralegal services in Africa. We visited different paralegal programs, organizations, and clinics, and that was really where the inspiration for work like this came from. We came back from South Africa, and we understood clearly at that stage that South Africa was different from Sierra Leone, and that we would need to come up with something that was different from what you’d find anywhere else. So that’s really how this service started.

How do different groups such as the police, local chiefs, and community members respond to Timap’s presence?

I would say it’s mixed. Timap is experimental – it’s a story. That means no matter how sweet it is we have those very difficult situations and some of those situations are dealing with external parties, including formal authorities or customary authorities. Because Sierra Leone has a dualist system, this means both the formal authorities (including the police, justice officials, and prison officers) are important but so too are customary institutions (like chiefs, headmen, and secret society leaders). Our approach has been incremental and certainly engaging.

An important structure we’ve built over the years has been the institution of Community Oversight Boards (COBs). From the very beginning, we realized that if Timap was to make any impact on the community, we needed to make the organization itself community-based and community-owned. These are very important components of our work, so we ensure that people view Timap as their organization and [feel that] their input is really valued. The COB members are members of the community and leaders of the community. They consist of a representative from the Chiefdom Council, a representative from a women’s organization like the secret society, a representative from the youths, and then somebody who is respectable in the community. Having these four people per chiefdom playing this role of intermediaries between the organization and the community is so important for us.

The COBs play a dual role. On the one hand they act as a cushion between the organization and the community. Whenever we have issues, especially with the leaders [of a community], we go to the COBs to play this intermediary role. But then they are also the eyes and ears of the organization in the sense that they are able to direct the organization’s focus in a particular community. They are able to answer questions like: Are we giving services in a proper way? Are paralegals treating clients professionally?

It’s mixed in terms of how these institutions – formal and informal – view Timap, but to a very large extent we have found cooperation and engaging them to be so rewarding. In almost all the offices we have a very good working relationship not just with formal authorities but also with informal authorities because of our continued engagement either by inviting them to trainings or inviting them to our offices or inviting them to give speeches or statements whenever we have community dialogue meetings.

How does Timap manage to succeed in tricky situations where paralegals essentially have to tell authorities how to do their job (for example, when a corrupt police officer tries to charge bail when bail is free)?

In addition to using COB members, one key area of our work is straddling the formal and informal justice systems. We engage both regularly because we understand both are problematic. So the example you gave of police officers asking for money for bail or bribes – this example is very common to most of our offices.

What do we do when we engage them? We know that we can use the formal system to trump the informal system. So we can go to a chief and say, “You fined these parties this amount and you shouldn’t have done that, so we’re asking you to stop this practice or to rescind the fine.” He can decide to say “Yes” or “No,” but we always can say, “If you say no, there is a law that says you shouldn’t do this, and we can take that up [as a case]. But for now we don’t want to, and we don’t want you to appear small in your community, so can you rescind this? So it’s with you, not with us. You can fix this.” That approach has been good because chiefs have felt that we are not humiliating them and that in fact we’re giving them a second chance to right those wrongs they’re doing every day.

For formal authorities, in the same way, there are these mechanisms for complaints. They’re not very effective though, which is why Timap’s litigation comes in. Timap uses litigation sparingly and strategically, so for those situations where say a paralegal cannot get a solution on her own because the particular police officer is continuing to ask for bribes for bail, we can bring that matter to court. That is if we choose to. We always have litigation to add teeth to our paralegals’ efforts. Where they fail, we the lawyers can come in. That’s how we get formal and informal authorities to somehow comply and cooperate with what Timap does.

What are the biggest obstacles for Timap’s work?

The lack of structure. . . . Paralegals aren’t really recognized in Sierra Leone. If you’re not recognized as such or if there is no law that allows you to operate, it means what we do is based on the good faith of the formal authorities. You could have police officers who could refuse paralegals access to the cells and [the paralegal] would have to go around and talk to the Head of Police and try to get him to understand. That’s a huge concern.

The good news is we have this Legal Aid Act which has just been passed. We know implementation will be a problem. But if implementation is successful, or just [by] having the Act itself, which for the very first time has recognized paralegals, our hope is that our work and our paralegals’ work will be even more recognized by the state and that there will be some sort of legitimacy. There would be an institutional framework and definitely some legal framework to operate under.

The lack of that before now was a serious impediment but again there are other restrictions. Those restrictions are external so mostly you’d like to do a lot more but you have funding limitations and funding limitations particularly inhibit the kinds of activities you undertake. Despite the obstacles, there is [a] drive by Timap to become more visible in many of these communities, which is why we have steadily been expanding to other parts of the country, considering we started in 2004 with just five offices and now we have 19 offices. It’s been a long road but we’ve used our little successes in different places to build on the confidence of those communities and go to other communities and that’s been a very good approach.

What are the most pressing justice-related issues affecting people across the country?

I would divide these into two. You have those individual-level problems, which in many of the places include sexual- and gender-based violence (these are really common), and then you have [child and wife] maintenance issues. These are all on the individual level. Then you have community-level problems – just the failure of the State to provide basic amenities. In many places people don’t go to school, or there are no oversight mechanisms for state institutions like the police, the prisons, the courts. It’s a lot. It’s so hard to pinpoint a particular problem in Sierra Leone.

There are many cases that are on the rise. In Timap the most common are simple thefts . . . . On an average month you have at least 300 people arrested in the four large police stations we work with just for larceny or simple theft. Most of them are less than 25 years old. That’s a huge issue, but most of these offenses are also linked with the war. You have many people living in big cities where they have no families and things are difficult and they think the only way to survive is to steal. You have the history of violence, especially violence against women and violence against girls, so in many communities these are [still] serious issues as well.

In Sierra Leone there are these different justice issues, but there is a lack of some sort of comprehensive approach towards getting these issues resolved. There is a lack of some sort of umbrella body to coordinate all these different efforts across the country. So you find Timap doing a good job somewhere, but Timap can’t cover the entire country. Almost every day I get a request from a Paramount Chief to start operating in their community. I can’t just say “Alright.” I would love to go everywhere in Sierra Leone but there are many considerations. It shows that people yearn for services like these but they just don’t have them. We would love to provide them but there needs to be more coordination and Timap would love to [be a part of] that.

In fact since 2010 we’ve been working with other organizations, providing mentoring to them in places where we are not working. What we’re hoping to do is scale up our services in an incremental way without necessarily being [at every location]. Timap trains these organizations and sends our paralegals to them to provide mentoring and supervision to paralegals of those organizations, which then allows them to provide the kinds of services we do in places where we are not operating. We are hoping that something like this can continue so that somehow we will have these services everywhere.

Can you tell us more about your major goals for Timap’s future?

At a national level we would love to see, and we’ve started taking steps to achieve, recognition of paralegal services in Sierra Leone. That’s really one huge goal. In the future we want to see paralegals recognized in Sierra Leone as important service providers, and we want the model of Timap – a frontline of paralegals backed up by a small group of lawyers – to be scaled up as a [government] priority. At the moment it’s part of the government’s strategy, but we want government and other partners to make this a reality so Timap’s services can be scaled up. A future goal is having recognition for Timap and having our services expanded to other parts of the country where we are not.

We are expecting government to play a key role in recognizing the work of paralegals. That would be through A) legislation, and B) policies like providing access to people who are providing services like this, where you would have paralegals working for the State in the form of a Legal Aid Board, for example. So they would be employed by a Legal Aid Board [as] paralegals who are working in different communities. So the type of recognition we’re looking at is through legislation and then through the setting up of an umbrella organization like a Legal Aid Board which then coordinates all different legal aid services which would include legal advice, legal assistance, [and] legal representation . . . .

That support would not mean that paralegals would have to lose their independence. That’s something that we want to preserve. We believe that there can be government support through an institution like a Legal Aid Board that is independent so that there is no interference in the way paralegals carry out their functions. If government takes that over, we know clearly that then paralegals’ independence would be compromised . . . .

We think [this is] really important so that everywhere in Sierra Leone there is at least some effort to provide some sort of paralegal service so people have somewhere to go. In very rural areas in communities without Timap, for example, one would wonder where people would go if they had issues relating to justice. Going forward, we’re really hoping to get recognition for paralegals, and then to get government to scale up Timap-like services in the rest of the country. We don’t necessarily have to expand to the rest of the country. We don’t have those ambitions. We want to work with different partners, especially people already working in different parts of the country where we are not operating to be able to adapt to the extent possible our methodology.

 For more information about Timap for Justice, please visit their website: http://www.timapforjustice.org/.

Interviewer: James Tager, J.D. ’13

Tell us a bit about the Demand Dignity campaign’s analysis of the connection between poverty and human rights.

While we certainly wouldn’t say that respecting human rights solves poverty, what I think we can say is that human rights violations can keep people in poverty, or can keep them in the circumstances that are associated with poverty. These circumstances involve things like living in slums, things like experiencing greater-than-acceptable and greater-than-average rate of preventable maternal death, as well as risks other than those the Campaign focuses on. And I also think it’s true that government policies that respect, protect, and fulfill human rights will ameliorate some of the conditions that we are describing here, and certainly these policies will address the rights issues that are at stake.

I don’t think that any of us would try to make the case that we are seeing direct causality between respect for human rights and a solution to poverty, but I think that it is an important part of the process.

I’m sure that there are those who disagree with this approach.

The response of China for a long time, for example, was: “Don’t bring these human rights issues to us. We need to develop our country first, and then we’ll deal with human rights.” And that’s not an acceptable outcome, and it’s also not one that we think is productive. If you outcome is a very narrow one, such as increasing GDP or some other broad marker of economic development, then you may achieve your goal. But you are achieving it at the cost of, potentially, great inequality, and at the cost of perpetuating the kind of conditions, and the kind of conditions, such as those of people living in slums. Perpetuating the conditions that we’re trying to address. So it’s not a satisfactory solution to poverty, I think is the main point.

That sounds like an aspect of the “Asian Exception Debate,” or the “Asian Values Debate.” Are there other countries that you see as dissenting from this approach?

Well classically, the United States for many years has said: “we’re not going to worry about economic and social ‘issues.’” They refuse to call them rights. They say instead, “we respect civil and political rights. We respect the rights that are enumerated in the Constitution and the Bill of Rights.”

Again, I think we’ve seen the kinds of inequalities that such an approach leads to, and I think that more fundamentally for a human rights organization, the problematic allocation of resources like who can receive healthcare and who cannot, are just unacceptable. So another Amnesty report for the Demand Dignity campaign was around maternal mortality in the U.S. And this report highlighted some of the consequences of neglecting economic and social rights in favor of an exclusive civil and political rights approach.

Tell us a bit more about how you see the Demand Dignity campaign playing out in the United States.

I think the picture is probably less stark than we often picture it. For example, while it is true that there’s no explicit Constitutional right to education in America, this didn’t stop the Supreme Court from holding in 1982 that states can’t exclude immigrant children from public elementary and high school education, which they based on equal protection grounds. [Plyler v. Doe, 457 U.S. 202 (1982)]. And I think it is a generally accepted principle (although perhaps it has been questioned more recently) that you shouldn’t deprive certain classes of children of an education, because that violates core principles that are essentially what human rights law would call the right to freedom from discrimination.

Health rights issues have of course been playing out in the United States over the past several years. And I think what is interesting about the discussion, analyzing it from a human rights framework, is that a human rights analysis would not prescribe a particular form of delivering health services or securing the right to health. And so, in principle, and number of forms could be utilized to achieve this goal. Certainly the U.S. has this patchwork, a variety of government programs that provide health coverage for those who qualify for the program—the elderly, veterans. So you have some state-provided healthcare programs alongside a large number of people who are completely uninsured. And it’s this particular result, not the presence or absence of a specific form of delivering healthcare, that is unacceptable. It is the idea that people who need it cannot receive life-saving care, that is the problematic part from a human rights standpoint. The point is not to determine the appropriate form for delivering healthcare; the point is to make sure that people enjoy the right to health.

I think that there is a general sense in the United States, a general and an increasing recognition of the need to secure access to health, to education, and more recently to some sort of unemployment protection for people who are suffering the consequences of the recent economic downturn. I think that awareness is coming, but certainly there is a rhetoric on the part of many policymakers that rejects that growing awareness in a way that is framed politically rather than in terms of what people actually need. Which of course illustrates how there is still a lot more to be done, to raise awareness of economic, social, and cultural rights in the U.S. context.

One interesting aspect of the Demand Dignity campaign is that part of the work of the campaign is on the level of norm advancement: raising awareness of the relationship between human rights and poverty. Can you tell us a bit more about what this means for the campaign?

Some of the approach that we are taking at Demand Dignity is at the macro-level, a level of philosophy. This begins with the very idea that everyone has human rights, that they include the whole range of human rights that are set forth in the Universal Declaration, and that governments and even private actors bear a measure of responsibility: states to respect, protect, and fulfill, and private actors at least to respect those rights. And that is a very big idea, one that I think sixty years ago was certainly not widely accepted, and one that is still contested in various places around the world.

Then I think there are some macro-level policy recommendations that come out of the work we’re doing, and one of them is, in regards to situations where a state does not have the resources right now to realize these rights, that the state should do so within the context of international cooperation and assistance. And that implies both an obligation on the part of the state lacking resources to request assistance, and a measure of responsibility on the part of donor states, states that have the money, to share those resources. And to share these resources without the kind of conditions that have nothing to do with respecting human rights. To use humanitarian assistance as a geo-political lever of diplomacy would not be consistent with the concept that all states bear some measure of responsibility for realizing human rights around the world.

Then there is an even more detailed analysis, and I think it is always necessary for our work to look at the detail and to be very granular about how to realize rights in the specific context we’re examining. We are not looking for the easy solution of “government should spend more money on X.” That’s not realistic in most contexts, and it doesn’t adequately reflect the fact that governments are quite legitimately trying to balance a whole variety of concerns and spread limited resources around in the way that they think best from their perspective.

From there, we can try to make suggestions that can inform policymakers as they make decision, with an emphasis on remembering the needs of the people who are affected by these decisions. And that is really the approach of all of our reports, to start with the basis of the legal obligation, and then look at what sound practice suggests that states do in that particular context, with an emphasis on concrete recommendations. So you are looking at a constant engagement at the macro- and the micro-level.

You mentioned earlier that one of the focuses of the Demand Dignity campaign is on corporate accountability. What has yet to be done to develop the framework of corporate accountability?

So let’s start with the terms themselves: corporate accountability implies a structure that is different from a voluntary corporate responsibility approach, an approach that corporations often push. What a lot of corporate entities want to see is a set of voluntary principles that they can commit to following in some sort of spirit of good will, but that will not entail any consequences if they don’t happen to follow them. It’s a loose framework that isn’t really much more than aspirational. Instead, what we do need to see is effective oversight, and effective oversight that takes account of the nature of the kinds of corporations that are most of concern for the context that we’re speaking of.

By that, I refer to international corporate actors who are operating in a variety of jurisdictions, some of which may have weak oversight mechanisms and others of which have stronger ones. Think about the Trafigura dumping scenario: A British-Dutch company illegally exports hazardous waste, which then turns up in slum areas around Abidjan, Cote D’ivoire, and the oversight mechanisms in Cote D’ivoire are not as strong as they would ideally be. The risk in this situation is that the corporation could, either as a result of weak oversight mechanisms or in other contexts because its use of a supply-chain model, that the corporation will evade accountability for the actions that it directed or that it benefitted from and was responsible for in some way. And that is the kind of result that we would hope an effective corporate accountability framework would avoid.

So in order to develop the corporate accountability framework we need to ensure the possibility of oversight in the host country, the country in which direct operations are happening—direct operations such as the extraction of natural resources from the communities, or disposal of waste materials. As well, we would want the possibility of oversight in the home countries, the countries where the corporation has its corporate seat. And finally, if we are talking about serious corporate misbehavior and if neither of these jurisdictions are able or willing to act, then we would have the possibility of oversight in some third state. That, I think, would be the most controversial element of all these options. But certainly, if we are talking about things that amount to crimes under international law, then this is just a logical extension of the principle of universal jurisdiction. So I think that these possibilities can be incorporated into an effective corporate accountability framework.

This concludes HHRJ’s interview with Michael Bochenek. For more information on the Demand Dignity Campaign, visit the Campaign website, available here.

 Interviewer: James Tager, J.D. ‘13

Let’s start by talking about the genesis of the Demand Dignity campaign, and the reasons Amnesty decided to embark on such a campaign.

The Demand Dignity campaign was designed to address the violations that drive and deepen poverty. In other words, to address the kind of things that keep people poor and that make them poorer. The Campaign mainly has a three-part focus: slums, or the human rights violations that are associated with living in slums; preventable maternal mortality; and corporate accountability, with a specific focus on the extractive sector.  The Campaign also has a focus on enforcement—“making rights law”—as a common thread running through the other themes.

I see the impetus for the campaign as two-fold. The campaign aimed to draw together the work that Amnesty was doing on economic, social, and cultural rights, emphasize the indivisibility of all human rights, and to give an overarching focus to this work. The campaign also aimed to provide, in a prominent way, the message that these rights are human rights. Each of the Demand Dignity reports carries a slogan on the bottom, depending on the issue: Housing is a Human Right, Health is a Human Right. The slogan is meant to remind people, or to inform them if they don’t know, that these things that they associate with poverty—or with bad luck, or with poor circumstances—aren’t inevitable, and that they have a rights component and they require solutions that involve taking account of human rights issues.

Although the Demand Dignity campaign has been only recently founded, the campaign has been ongoing for a few years. Are there any success stories that come to mind, which for you demonstrate the success of the campaign?

It’s difficult to measure success, because although the Campaign has been going on for three years, it still does take time to make lasting change. But examples do come to mind.

I think the work that has been done in India, in corporate accountability, is one example. We’re seeing there, and in other places, a greater willingness on the part of corporations to take account of the views and the needs of people in the areas where they are developing their operations. There’s an example from India where our work on the activities of a mining company on an indigenous group’s traditional lands led to a real change in the approach the company took to consultation with the community.  The key was showing the company that there was a community that was able to engage in the consultation process and that nongovernmental organizations were there to support that community.  So the community was pushing back , and investors were starting to take notice as well.  The challenge here, as always, was to get beyond a “public relations” response and move the company toward actual, meaningful engagement with the communities affected by corporate operations.

Similarly in places like Paraguay and in Canada, what we’re seeing in the sphere of corporate relations with indigenous communities is greater awareness of the need to pay attention to what the communities are asking for. We are also seeing this in the sphere of government relations with these indigenous communities. And this approach is in contrast to the approach of effectively steamrollering the project through any objections on the part of the communities.

I think in the legal standard-setting and litigation realms there have been some good responses. In Paraguay, again with the issue of indigenous communities, the inter-American system has ordered measures that need to be taken to reflect free, prior and informed consent from the communities. That has been a principal issue: what achieving this consent means in practice, and what states and corporations need to do to comply with this principle and to ensure this right. And we have seen some good results from the inter-American system on this, with positive steps taken by Paraguayan authorities and companies in response.

In the area of our work on the slums issue, and maybe with maternal mortality as well, we have been at the very least getting greater awareness on the part of the governments. And I refer to awareness that these circumstances are not just . . . ‘bad luck, bad circumstances, isn’t it terrible’ kind of hand-wringing, but that there are actual steps that need to be taken.

For example, in the context of forced evictions, we’ve promoted awareness that governments need to take serious steps to make sure that people get notice, to make sure that they have the opportunity to contest their eviction, that alternatives are offered if it’s needed—if they would otherwise be made homeless—and that there’s a real process behind the evictive action that is protective of what’s really important: this fundamental right to have a roof over your head, that this right is protected.

And very concretely, our work has played a role in stopping some forced evictions, for example in Port Harcourt, Nigeria.

And you mentioned maternal mortality, as well?

For maternal mortality, some of the earlier reports that we did for the campaign were in places like Sierra Leone and Burkina Faso. These are hard places in which to work, because the context is so dire generally. But I think that we were able to make some really detailed recommendations to governments about how to reduce the kinds of delays that lead to maternal death that would otherwise be preventable. And we also were able to make detailed recommendations on how to provide the kind of information that families need, that decision-makers need, to make the right decision. And I should point out, in contexts such as Sierra Leone the decision-makers for the family are often the male heads of the household, and we might prefer that the decision-maker be the woman in this case. But at least the male decision-maker can be informed of the need for early medical attention, and will make that happen if possible.

I think the challenge has always been, and maternal mortality is probably the easiest illustration of this, that we’re talking about issues where there are so many variables in play. So, the inability to get medical care may be the result of health clinics being located very far away. Now, the state can be doing more in this regard, by making sure that medical facilities are located in places where people need them, or by providing some form of transportation to get there.

Now, that is easy to say in principle, but in practice in a place like Sierra Leone it’s incredibly hard. I think when we looked at the total health budget of Sierra Leone, it was some laughable number; it was completely impossible to conceive of how you could even equip the facilities they have, much less staff them and put new facilities in, and provide transport and so on. But at least with these recommendations you can start a process of making sure that people are thinking about these factors among others, particularly when working with international cooperation and assistance. Just isolating one issue, the transport issue of bringing expectant mothers to hospitals, this is very difficult, but there are things that can be done to make this happen.

And finally, to tie this all back to your question about Campaign successes, I think there has also been a greater willingness from national governments recently to look at good practices from other countries. There are some examples from the fight against maternal mortality. In Peru, there is the idea of residential facilities, so that women who are close to giving birth will travel the distance needed before they require medical attention, and then they are near a medical facility when they give birth, making the process a little easier. There are lots of creative solutions like this one that can be implemented by governments. And governments, with appropriate assistance, are in a position to do this, rather than throwing up their hands and saying, ‘People are poor, isn’t that terrible.’

That is an interesting process you have described, moving from diagnosis of the right violated to prescription of specific actions the government can undertake. Your work on slums is an example: the campaign mentions Article 25 of the Universal Declaration of Human Rights, which declares the human right to an adequate standard of living. Tell us about the work of moving from this diagnosis, to a prescription for action.

I think that the Demand Dignity Campaign’s work on slums has followed a trajectory of starting with issues that are easier for policymakers to grasp, because they involve more of the civil-political, negative rights: You shall not forcibly evict someone, you shall not deprive someone of a home without adequate notice and opportunity to contest, and so on. Now, the trajectory of this work moves on to a new area for a lot of human rights work, and I refer to the work of international human rights organizations like Amnesty International as well as legal policymakers (as opposed to social development policymakers). So the trajectory includes moving from a focus on forced evictions to looking at adequacy of housing more generally, and looking at the conditions of housing including access to water and appropriate sanitation, looking at related safety and security and policing issues that arise from this focus. All of these aspects of the Campaign’s work fall along this trajectory, and each of the reports or final work-products of the Campaign build on the previous work of the campaign.

An example that comes to mind involves a rockslide in Egypt a couple years ago, where we looked at the responsibility of the state, which was really two-fold. One responsibility is that the state knew or should have known that these houses were built on areas that were unstable. In fact, we found that the state did know, because we were able to look at the records from the state authority that’s responsible for this kind of investigation. So they were clearly aware of it. And after the state failed to act on this information for months, suddenly there was a mudslide, people died, and there was an imminent threat to the other families in the area. So the government suddenly had to move people from the affected area on an emergency basis. And this is an example of a natural disaster where an evacuation is needed, and in fact the state’s duty to protect life requires these kinds of emergency measures. In the immediate aftermath, however, you have to find some way of ensuring a longer-term solution, one that takes into account the needs of the people, one that is realistic and also inclusive in terms of involving the affected people in the outcome. Ultimately, it is the people who are going to be affected by this decision, and not the policy-makers.

So in this example, it was interesting issue on which to engage with the Egyptian government, but it was also a critical issue for us to be engaging in, because we were able to provide the Egyptian government with some really specific guidance on what the government should be doing in the immediate term, and to provide them with guidance on what they should doing in the longer term, to make sure that the outcome was appropriate in terms of securing the rights that were at stake for the affected population.

Another example comes to mind from the context of Demand Dignity’s work on slums, and this to me is an example of focusing on specific recommendations that arise out of our research, rather than trying to address all aspects of adequate housing. The example involves our work on slums in Kenya, where the issue that we were focusing on was violence against women and the way that the structural set-up was increasing the risk of violence. It had to do with the number and placement of latrines in the communities, and this touches upon something that is quite personal and quite central to one’s own sense of dignity: whether you can relieve yourself in a way that gives the sense of privacy that you need, and complies with the cultural context.

So in the situation we were examining, women were having to not use the facilities until late in the evening or early in the morning, when of course it would be dark and they would be at risk of attack in a way that wasn’t the case during the daylight hours. Women were going far away from their homes in order to have some privacy, again increasing the risk of attack. In any event, this set-up was not one that was going to safeguard women; on the contrary, it was increasing their risk of violence. And so again, our research resulted in some very straightforward recommendations, getting down to very practical things. We weren’t being as prescriptive as saying, ‘this is how many latrines you need,’ but we did talk about how many latrines were placed, how many households were having to share latrines, and we recommended a better way of locating these public services so that women didn’t have to go through this. So I think that this was a very useful contribution from Amnesty, and I think that for the government the new perspective was to have it framed as a human rights issue rather than a social development approach.

The Journal continues its conversation with Bochenek in Part II of the interview. For more information on the Demand Dignity Campaign, visit the Campaign website, available here.

Critics have alleged that European courts have been neglecting international human rights laws, guidelines, and principles. Do you feel this is true?

If we take the European Convention on Human Rights (“European Convention”) as the center of international human rights law as it applies in Europe, well no, I don’t think European courts have been neglecting human rights law at all. In Britain in particular, because of the British Human Rights Act, they have been given legal authority to give certain forms of legal effect to the European Convention in English law and they have taken up that authorization from the British parliament with quite a bit of creativity and enthusiasm. They have not at all been slow to give effect to human rights law in the form of the European Convention. In British law the courts have been careful in some ways, and there are decisions in which they have held that they need to defer to the judgment of Parliament and the judgment other public authorities on certain issues that are relevant to international human rights law. But where they find a violation of the European Convention they don’t hesitate in using the power that they have been given by Parliament to strike down decisions of public authorities, and you can say the same fairly generally about courts across Europe. Of course, the European Convention has a different kind of legal effect in the laws of different countries. In quite a few European countries the courts of the state have power to give effect to the European Convention and I think they do so pretty readily. There are some exceptions; there are a huge number of cases challenging the judicial processes in Russia for example. So there are exceptions, but generally the courts in Europe I would say are quite enthusiastic in giving effect to the European Convention.

In giving effect to human rights principles and the European Convention, have the views of different courts in Europe been clashing with those of state governments?

Oh yes, quite clearly and definitely. For example, the British courts have consistently adopted a line on control of immigration decisions in Britain that is a direct and quite striking clash with the views of British politicians. Not just one or two politicians, but everyone in the British parliament who speaks out in public about immigration law today is criticizing the role of the courts in preventing deportation of illegal immigrants on the grounds of the right to privacy and family life under the European Convention. That’s just one example of a clash between British courts and the government.

Of course, there is also a clash between the governments of countries in Europe and the Strasbourg court. By ‘Strasbourg Court’, I am referring to the European Court of Human Rights, the court that’s responsible for deciding how to apply the European Convention across Europe.

In Britain the most dramatic example of this clash is over voting rights for prisoners. In British law prisoners cannot vote in general elections. According to the Strasbourg Court that rule is contrary to the guarantee of free and representative elections in the European Convention. This decision of the European Court of Human Rights is considered outrageous by British politicians, and not just by one or two of them, but by most of them. There are exceptions; some British politicians think that people in prison should have the right to vote, but most of the members of the House of Commons in Britain think two things. First of all, they think nobody who is in prison should have the right to vote in general elections; that if you have violated the laws of the land you have forfeited your right to participate in elections to Parliament. And secondly, they think this question should be decided by British politicians in a representative democracy deciding the matter in Parliament. They think that it should not be decided by judges, and especially that it should not be decided by European judges in Strasbourg in the European Court of Human Rights.

So yes, the views of the courts have been clashing quite dramatically with those of the state governments. But I don’t want to exaggerate it—the British government has made it unequivocally clear that Britain is not going to pull out of the European Convention; they are not going to abandon it because of these clashes and the tensions. But they don’t have a solution to the tensions and I think that tensions will be a permanent feature of human rights laws in Britain and other countries in Europe.

Considering that the views of courts have been clashing with those of the government, do you feel that courts have been creating their own law? Is the creation of such law reasonable?

Yes, the judges of the European Court of Human Rights have been creating law. In 1950, when the members of the Council of Europe signed up to the European Convention, they didn’t agree that prisoners would have the right to vote. When they agreed that there should be free and representative elections, that decision by the member states was not a decision that prisoners should have voting rights—it was a creative decision of the judges of the European Court of Human Rights that if there were to be free and representative elections then prisoners should have the right to vote in at least certain circumstances. So yes, they created that rule that prisoners cannot simply be banned from voting.

The very idea of judges creating law should not surprise us, especially in common law countries like England or India. Many of the pillars of English law and Indian law are created by judges. A great example, an ancient example, is habeas corpus—invented by judges to control government. Another example is the basic structure of contract law, which was created by English judges over centuries. A lot of contract law as we now understand it was created in the 19^th century, and there isn’t anything surprising about this or outrageous. And I think that all of us should understand that, especially in a common law country, judges need to invent some of the law. But even if we have a written constitution as India does, or an international convention on human rights like the European Convention, when judges are applying the very abstract principles in a constitution or in a convention on human rights, they need to answer questions that were not answered by the people who framed the convention. So especially in the common law but also in giving effect to a written constitution or a written bill of rights or a statute of parliament or written contract or will; judges often need to decide matters that were not decided by people who wrote the constitution or the statute or the contract or the will, so that should not surprise us at all.

But your second question is quite separate. In exercising that power to make new decisions that were not made by authorities whose decisions they are giving effect to, are they acting reasonably? That’s a very complicated matter. If we think of it in terms of human rights law in Europe today—there is no simple answer to that. I think that some of the things that the judges of the European Court of Human Rights have done are brilliant and wise and just exercises of the lawmaking power that judges have, and I will give you one example in England. It used to be up to a politician to decide how long a prisoner should stay in prison if he was imprisoned for life, typically for murder. Under the European Convention, judges decided that that is a breach of the right to an independent hearing, and took away that right from politicians. That was a creative bit of lawmaking by judges and I think it was reasonable as you say. The above example on voting rights for prisoners—I think this is more complicated. On the one hand, I think that it would be good policy to allow prisoners to vote for a variety of reasons, one of which is that it would be a way of communicating to them on behalf of the state that they are members of the community and they are expected to play a role in the community and to be integrated in the community and participate in the future when they won’t be in prison any longer. On the other hand, I don’t think that anyone who has committed armed robbery or rape or murder has a right to vote any more than they have a right to freedom from imprisonment. And in the act of punishment in Britain, as in India, we take their freedom and we lock them up in prison. And if we also take away their right to vote then I don’t think that’s an abuse of them as a human being any more than it’s an abuse of them as a human being to take away their freedom of movement. So I am of two minds about the decision on the right to vote and I think it might have been a better idea for the judges of the European courts to leave it to the member states of the Council of Europe to decide for themselves how to run their election systems. So it’s a complicated picture. There are other decisions where I think it’s not complicated. I think the European Court of Human Rights has got it wrong. But out of all this I think some very excellent decisions and some unreasonable decisions by the European Court have emerged.  I don’t think there’s a clear cut balance sheet you can draw up to decide whether on balance they have done right or done wrong. But I think that the British government, even the conservative attorney general, is right in committing itself to remain a part of the European Convention.

Given that European courts have been involved in creating laws, do you feel that courts are unnecessarily interfering with the lawmaking process?

Well, the courts actually are part of the lawmaking process in my view, but they are also interfering with the lawmaking process when they declare in Britain that a statute is incompatible with the European Convention. There are some lawyers who would disagree and would say they aren’t interfering because the lawmaking process itself includes the European Convention. In this view, if Parliament interferes with the European Convention, then judges aren’t interfering with the lawmaking process but are instead giving effect to the lawmaking process because the lawmaking process requires adherence to the rights in the European Convention.

This is not a point of view which limits itself to a European context; you could say the same thing in regard to the Indian Constitution. When the judges of the Indian Supreme Court hold that a statute is incompatible with the Constitution, are they interfering with the lawmaking process? You might say yes because they are stopping Parliament from doing what Parliament chose to do. Or you might say no because they are giving effect to the Constitution itself and the legislature has no power to act contrary to the Constitution. So there is an interesting kind of tension.

In my view the courts, whether in India or in Europe, are not interfering with the lawmaking process in a way that’s illegitimate when they interfere to uphold the principles of the Constitution in India or the principles of the European Convention.

Have we been seeing a shift in the attitude of courts around the world—a shift towards creating their own guidelines with respect to human rights law?

In India, there has been a shift over the history of the nation since the union, and the judges have become more creative. In the US, there was a shift starting in 1930s and 1940s but more so in the 1950s towards more judicial creativity. In Britain there has been more of a shift since 1998 when parliament passed the Human Rights Act authorizing British judges to give certain kinds of legal effect to the European Convention. In my country, Canada, there has been a major shift in the attitude of the courts towards creating law under the Canadian Charter of Rights, a bill of rights that was adopted in the 1980s, and judges have become more creative.

Every large common law country, except Australia, has some form of human rights jurisdiction in its top court. South Africa is a remarkable example, but you could even include New Zealand. What I am saying applies to all of the forty seven countries of the council of Europe. So not only in common law countries, but in all of these nations and others, there has been a shift over the past century towards a new, more creative judicial role in governance—but it’s not straightforward and it’s not simple. In all of those countries, judges in different ways have tried to act responsibly and tried to construct powers for themselves in giving effect to what the framers of their constitutions have authorized them to do, in ways that show respect for the role of the legislature and the role of the executive. They have had mixed success in those attempts to be responsible in developing their own powers, and this is an ongoing process. So it is a very complicated question; there has been a clear shift since the 1940s in all the countries I’ve mentioned and others, towards a greater, more creative role for judges in governance. But it’s complex and in each of those countries, it involves some degree of hesitance to interfere with the legislature and the executive.

Are there any cases which point towards a shift in the attitude of courts?

Yes, the ones I have mentioned about voting rights for prisoners and the decisions on the right to family life which have become a limitation on the immigration policy in all forty seven nations of the Council of Europe are examples. And finally, the extension of the European Convention to cover overseas military operations is another example of the judges of the European Court of Human Rights taking a new, more assertive, and more creative approach to the responsibility they have. And we have to remember that’s not a responsibility they invented; the governments and legislatures of all those forty seven countries decided to sign up to a human rights convention, the European Convention. But the judges have developed their role under that convention. You could say the same about India: the judges didn’t invent the Constitution of India, they didn’t draft it. It was a political decision of the nation to adopt a constitution. But the judges have been creative in developing the role the Constitution gave them.

Why do you feel courts have been acting in this manner discussed above, and why have they started to adopt a more creative approach? Is the current set of human rights law insufficient?

Courts have been acting in this manner because political decisions conferred on them a responsibility to apply human rights norms. This is true in the UK, its true in India, and you could say the same about the US—the  judges didn’t write the Bill of Rights—it was the decision of representatives, politicians, to write the Bill of Rights.  More than 200 years later, today the judges must carry out the responsibility given by political decisions. Mind you they are also carrying it out in a more creative way today than they were 50 years ago in the European Court of Human Rights, in the US Supreme Court, and I think in the Indian Supreme Court. And the reasons for a more creative approach today are partly, in my view, that they are talking to each other more and they are reading each other’s decisions more, and there is more of a tendency for judges to rely on what judges in other countries have done as a justification for creative decisions in human rights law. In the US this is very controversial and some judges say that it’s improper for US judges to pay attention to what has been done in other countries, but then some US judges think it’s a very good idea to learn from the experience of human rights adjudication in other countries. This true in most countries that I’ve mentioned, such as Canada, and I think this is true in India. In these countries it’s not so controversial and the judges are quite committed to learning from each other. And I think that process of judicial conversation between different countries is part of the explanation of the more creative approach.

You also asked if the current set of human rights law is insufficient. No, I don’t think it is insufficient. You might say that it is, because there are a lot of crucially important human rights in my view that are not part of the European Convention, that are not guaranteed by the Indian Constitution or the US Constitution, or the Canadian Charter of Rights, or the US Bill of Rights. To give you an example, I think there is a human right to welfare, in a certain sense. Any person, who is in desperate need, just because he or she is a human being has a right to assistance from someone who is well placed and is able to give assistance to them. If I am right about that, then every state, well at least every well functioning and healthy state, including the Union of India, Canada, the UK, and the US, has a duty to provide welfare to people in desperate need, and those people have a right to it. And yet the law doesn’t protect that right. The European Convention very carefully didn’t provide a right to welfare. The judges of the European Court of Human Rights have been invited by lawyers again and again to create a right to welfare and the judges have refused to do so.

So you might say that human rights law is insufficient because it doesn’t give effect to this right to welfare. But I think that would be a mistake. I think that judges should only be giving effect to human rights law where the judges are able to make the decisions on behalf of the state that need to be made in order to respect human rights, and the judges are very good at that in certain cases. One example is the control of detention—if the government of a country detains someone, judges are independent decision makers uniquely capable of listening to both sides and deciding whether the detention is reasonable under Indian law and under European human rights law. But it is very different in the case of welfare, and judges are not well placed to decide what any state should be doing to help people who are in desperate poverty in those states. So that’s an explanation of why I don’t think human rights law is insufficient even though human rights law doesn’t protect every human right.

What is the way forward? How would you deal with the current situation—the clash in views between the government and courts?

There is no general answer to these questions; I think they are questions that can be answered in respect of certain particular legal issues. And yet, there are certain general aspects to the question, and I will tell you what I think the way forward is and how I would deal with the current situation. First of all, as I’ve mentioned, I think that it’s right for Britain to be part of the European Convention on Human Rights, even though I don’t think the judges of the European Court of Human Rights always do the right thing. I think that the judicial responsibility for fundamental rights under the Indian constitution is a great and valuable part of Indian social life today, and will be in the future. I also think that these remarkable aspects of law, both of India and Britain, need to be developed in the future by the judges with respect for the appropriate role of the legislature and the executive. That’s a very difficult balance for judges to achieve, to carry out their responsibility for protection of human rights while also showing respect for the elected role of politicians. That’s the way forward; they have to continue trying to achieve that difficult balance—on one hand standing up against government and legislative action that abuses human rights, and on the other hand, refusing to interfere with the government and legislature when the judges are not able to make things better for the country.