The US Established a New Category of Human Being Without Rights: "the Terrorist"
Toward a Universal Declaration of Human Wrongs
By C. DOUGLAS LUMMIS
A talk given at the symposium, "The World Today", sponsored by Forum Barcelona 2004 12 May, 2004
Let me begin by saying that as an American citizen I want to express my congratulations and my gratitude to the people of Spain for instructing their government to withdraw from the illegal and unjustified catastrophe called the occupation of Iraq. This not only a great gift to the people of Iraq, it is also (whether they know it or not) a great gift to the people of the United States. I admire you, and I envy you.
The sponsors of this forum have put to us the following question. "For globalization not to mean hegemony it requires diversity; and for difference and localization not to mean exclusion common values and areas must be built up. What are those areas that need common efforts? . . . On which values should we cooperate?"
Half a century ago the United Nations produced a document that was an attempt to answer this question: The Universal Declaration of Human Rights. This was by no means a perfect answer, but it was pretty good, and holds up well today. It has, however, been criticized for not being genuinely universal. Much of what is in the Declaration, it is alleged, grows out of the Western experience and represents Western values. Moreover, in recent years "universal human rights" has been transformed into an ideology justifying "humanitarian intervention". For centuries the West has justified its domination over the rest of the world by claiming to be acting in the name of "universal" values; "universal human rights" is its latest excuse for hegemony.
On the whole, these accusations are true. If you read through the Declaration, it is easy enough to see that most of it–especially those parts that set out concrete rights rather than abstract values–is not universal, if universal means applying equally in any possible type of society. "No one shall be subjected to arbitrary arrest, detention, or exile" (Art. 9) applies only in a society that has a police force and a prison system. "Everyone has a right to a nationality"(Art. 15) would have little meaning in a society that has no concept of "nationality". Such rights as the right to freedom of thought (Art. 18) and freedom of assembly (Art. 20) would be of little use in a society in which it had never occurred to anyone to interfere with these things. "[T]he right to take part in the government" and the right to "periodic and genuine elections" (Art. 21) apply only where there is an organized "government" that is to some degree alienated from "the people". Again, "the right to work", the right to "equal pay for equal work" and the right to organize trade unions (Art. 23) have meaning only in a society where the system of wage labor, with its potential for exploitation of the worker, has been introduced. The stipulation that "elementary education shall be compulsory" would sound strange in a society where the state had not replaced the family as the principal educator. And so on.
These rights are not universal, they are situational. And the "situation" to which they apply is a situation that originally developed in the West. But let us look at this more closely. Human rights were not invented by the ruling powers in the West. Rather they were built up by the people, as a way of defending themselves against the two monsters that those ruling powers invented: the modern nation state, with its "monopoly of legitimate violence", and industrial capitalism, with its genius for extracting surplus value from people’s work. Neither of these is universal, both are historical: they replaced other forms of life, mostly violently, and they in turn will surely pass away someday. Thus while human rights are not universal in the sense that they apply in any possible human society, in a situation where the modern nation state has been founded and industrial capitalism introduced, they are very, very useful. And if we take the word "universal" in its softer sense, meaning "applicable just about everywhere", we can say that, for better or for worse, this situation is universal today: most of the people in the world live under the power of a nation state and are directly or indirectly under the influence of industrial capitalism.
Thus when we hear accusations that "human rights" are biased toward the West, we need to look carefully at who, in what situation, is making this accusation. Is it a person who is pleased to call himself or herself prime minister of a state that is equipped with a Western–style bureaucracy, a criminal code, a police force, a prison system, and an Internal Security Law that allows the government to arrest people at will? Is it a factory owner who is pleased to be managing a factory equipped with a Taylorist assembly line manufacturing computer parts? It is, to say the least, cheating to import a Western–invented apparatus of dominance, and then oppose the ideas and methods that have been developed to defend people against that apparatus (political rights, union organizations) by claiming that they are alien to your non–Western culture. You accept the one, you get the other.
But perhaps we need a whole new way of looking at the matter. Perhaps if we can’t agree on a universal declaration of human rights, maybe we can agree on a universal declaration of human wrongs. By "universal" here I don’t mean some set of absolute principles that should be self–evident to all human beings. The search for that Holy Grail is terribly important, but must be left up to the philosophers. I mean rather, universally agreed upon, not through a process of philosophical discourse but through a political process of dialogue: talking to each other with the aim of gradually coming to agreement.
Perhaps one way of approaching such agreement is to start at the other end, listing not rights but wrongs: behavior that no one should engage whatever the circumstances, experiences that no human being should have to bear, no matter what.
Of course, this is not a new idea. In the past, the human community has come to, or come close to, universal agreement on some very important wrongs.
For example, it is fairly generally agreed that slavery is ruled out. In the south of my country, and probably in some other countries as well, some nostalgia remains for the old days of slavery, but there are no serious proposals that the institution should be reestablished. When we say we should understand and accept all sorts of cultural variation, we do not mean that we should once again accept the culture of slavery.
We have ruled out colonialism–at least in its classic form (though it keeps changing its costume and reasserting itself in unexpected ways).
We have ruled out genocide–or we thought we had. For a time it seemed that horror at the Holocaust had united world opinion as it had never been united before. But sadly this does mean that genocidal behavior has actually disappeared.
We have ruled out apartheid. The disappearance of this legal structure from South Africa was brought about not only by the struggle of the people there, but also by the extraordinary unity of world opinion in condemning it.
In 2001 the United States government tried to add another item to this list, and to unite the world under its own leadership in a War Against Terrorism.
It has failed in this and, ironically, seems on the verge of uniting world opinion in condemnation of its own negative example.
I am speaking particular about the recent news of torture and sexual humiliation perpetrated against prisoners by American military jailors in Iraq. I have no direct evidence, but I suspect that this may have generated more worldwide revulsion than even the September 11 attacks on the World Trade Center in New York. We all knew that people can be killed and we knew that they can be tortured. But for many, what was done to the prisoners at Abu Graib Prison was beyond imagination.
One must understand that what happened there happened within a context established by U.S. government policy. U.S. President George W. Bush has said, "Such practices do not reflect our values." Of course this is true. What they reflect is some very widespread American vices. More importantly, they reflect very directly the policies of the Bush Administration.
Many people have pointed out the connection between the treatment of prisoners in the Al Graib Prison and the treatment of those being held in the U.S. base at Guantanamo Bay, Cuba. As you know, the U.S. has imprisoned hundreds of people captured during and after the invasion of Afghanistan, at its base in Cuba. The U.S. Government has insisted repeatedly that those prisoners do not have the status, and therefore the rights, of prisoners of war. Neither the customary laws of war on the treatment of prisoners, nor the Geneva Convention of 1949 entitled Treatment of Prisoners, applies to them. This means that, unlike POWs, they can be tried and punished for their participation in battle. But if they don’t have the status of POWs, does this mean that they have the status of criminal suspects? If they did, that would mean that under the U.S. Constitution and U.S. criminal law, they would also have very detailed rights. But no, they do not have that status either.
On 13 November, 2001, just two months after the September 11 attacks, the U.S. President issued a Presidential Decree stating that people determined to be "illegal combatants" (i.e. "terrorists") could be tried by special military tribunals, which do not have to follow ordinary legal procedures. Of course, there is no basis in the U.S. Constitution or in U.S. law for such tribunals. This was never debated in the Congress; the President simply announced it. His authority for doing so seems to have been conjured out of thin air.
So these people have neither the rights of POWs nor the rights of criminal suspects. They have no right to meet lawyers, no right so see what evidence the U.S. government may have against them, no right to know who are the witnesses (if there are any witnesses) who have testified against them, no right (if a trial should be held) to an open trial, no right of appeal. More frightening still, they are deprived of what is perhaps the most fundamental of all fundamental human rights–the right to know what, if anything, they are alleged to be guilty of. They are in the position of Joseph K in Kafka’s The Trial. They are told, "You are charged with being guilty. Defend yourself as best you can."
The newspapers reported that a human rights lawyer in the U.S. went to court seeking a writ of habeas corpus: an order from the judge stating that the authorities holding these men (and it seems they are all men) must either show what crime they are charged with or let them go. The judge refused to give the order, for the reason that the prisoners are in Cuba, where U.S. law, and the judge’s authority, do not apply. From this we could understand why Cuba was chosen. U.S. law does not apply there. Of course Cuban law cannot be enforced on the U.S. base there. And international law does not apply either, as they are not held as POWs. So they have been placed in a space where there is no law at all. It is as if they had been thrust back in time to some ancient age before human rights had been invented. They are a new category of rightless persons.
They are trapped in a kind of nightmare tautology:
Q: Why are we being held here without rights?
A: Because you are "illegal combatants" (="terrorists").
Q: On the basis of what evidence, and through what legal procedure, was it determined that we are "illegal combatants"?
A: In your case, such evidence and procedure is unnecessary.
Q: Why are they unnecessary?
A: Because you are "illegal combatants"
Thus U.S. government policy has established a new category of human–The Terrorist–who can be placed in a separate legal category from other humans, a category in which there are no rights at all. Suspected Terrorists can be assassinated using missiles fired from robot airplanes, they can be imprisoned without charges, they can be given trials where U.S. military officers are the judges, or they can be held for years without being tried at all. It is permitted to do such things not because of what these people did, but because of what they are: they are Terrorists.
It is only a few steps from there to the conclusion that they can be used by playful, sadistic American kids as sex toys.
I propose as a candidate for Item #1 on the Universal Declaration of Human Wrongs: It is wrong to establish a category of human beings who have no rights.
Slavery, colonialism, the Holocaust, and apartheid were all founded on the establishment of such a category. And when we rejected them, we were saying that such a category should never be allowed. It seems strange that we need to affirm this once again, but evidently we must. Let us hope that this time the affirmation will be universal.
Doug Lummis is a political scientist living in Okinawa and the author of Radical Democracy. Lummis can be reached at: firstname.lastname@example.org