Human Rights Discourse as a Contentious Reality

In the contemporary human rights discourse and practice, human rights are constructed as both a ‘sword’ and a ‘shield’. As Shivji puts it, human rights are a contentious discourse in which different, and often-contradictory, perspectives representing different interests in national and international society seek dominance or hegemony.³⁸ Just as dominant and dominating interests may employ the ideology of human rights to justify and rationalize their dominance, so also the forces that seek to resist dominance may deploy human rights to mobilize their resistance. With such divergent scholarly views within and about human rights, it becomes imperative for one to examine the very concept of human rights before one can justify its use as an appropriate approach to conflict resolution.

The most celebrated document in the history of human rights, the Universal Declaration of Human Rights,³⁹ was adopted in 1948 when the world had just emerged from one of the most devastating conflicts, the Second World War. It was a

38 Shivji, I. (Ed.) (2004) Constitutional and Legal System of Tanzania, Dar Es Salaam, Mkuki na Nyota Publishers, p. 104.

39 UN.G.A Res.217 (III) of December 10, 1948 (hereinafter referred to as “the UDHR”).

direct response to the barbarous acts, which outraged the conscience of mankind,⁴⁰ and, it was hoped, would therefore become a cornerstone for future conflict resolution processes. Whether this ambitious hope lived up to reality, remains to be seen.

Even today, when the declaration has just turned to its 60^th anniversary recently, there are still divergent views as to the validity of these so-called universal values, “human rights.” In one view, it is argued that there were only 56 out of the current 192 member states of the United Nations with only three from Africa, including the then apartheid South Africa, when the Universal Declaration of Human Rights was adopted.⁴¹ More than two-thirds of the world’s peoples were under colonial rule, and they were referred to as ‘natives.’ They were not thought to be human enough to have human rights! Many scholars and policy makers of multicultural heritage and orientation, though familiar and sometimes even comfortable with the West,⁴² see cross-cultural referencing as the most critical variable in the construction of human rights discourse.⁴³ They critique the existing human rights corpus as culturally exclusive in some aspect and therefore view parts of it as illegitimate or, at the very least, irrelevant in non-Western societies. These challenges have raised important questions about whether human rights norms deserve the authority they claim to have acquired: whether their claims to universality are justified, or whether they are just another cunning exercise in Western moral imperialism. That is, having no more ability to dominate the world through direct imperial rule, the West (led by the United States, the United Kingdom, and France) now masks its own will to the power in the impartial, universalizing language of human rights and seeks to impose this fake agenda on a plethora of world cultures that do not actually share the West’s conception of individuality and liberal democracies.⁴⁴ Some, including Makau Wa

40 Preamble, para 1 of the UDHR.

41 See Shivji, (2004), supra note 38; See further Avruch, K. (2006) ‘Culture, Relativism and Human Rights’ in Mertus & Helsing, supra note 6, p. 98.

42 “The term West” or “Western" is used here to refer to Western Europe and North America.

43 For views of this nature, see Mutua, M (1995) ‘The Banjul Charter and the African Cultural Fingerprint: An Evaluation of the Language of Duties’, Virginia Journal of International Law, vol. 35, No. 2, pp. 339-380, (arguing that the current human rights regime is Eurocentric and that the creation of a truly universal human rights jurisprudence can result only from the multicultural elaboration of norms).

44 Ignatieff, M. (2001), ‘The Attack on Human Rights’, Foreign Affairs 80/6, p. 102-116.

Mutua, have called for a multicultural approach to reform the human rights regime so as to make it more universal.⁴⁵

While Mutua repeatedly affirms his respect for the human rights movement’s noble goals and ideals, he contends that its eurocentric bias has led to the unwitting imposition of Western political, economic, and cultural norms on non-Western societies.⁴⁶

The “constitutionalists” are the academics of the movement—including Louis Henkin, Henry Steiner, Philip Alston, and Thomas Franck—who view the human rights corpus as a constitutional framework. The “cultural pluralists,” to which Mutua presumably belongs, are non-Western thinkers who accept the human rights ideology and its European genesis, but who criticize its political implications, and emphasis on the individual, and its prioritization of certain rights. “Political strategists” are governments, especially the United States, and institutions, including the IMF and World Bank, who champion human rights inconsistently, near-sightedly, and usually for political benefit.

Admittedly, Africa urgently needs to build a culture of respect for human rights if it is to resolve ongoing conflicts and achieve political stability and social and economic progress. But this culture cannot take hold if it is imposed paternalistically as a Western creation that non-Western societies must swallow uncritically -- especially if human rights are packaged with liberal democracy and market fundamentalism, now both widely associated with the hypocrisies of Western-driven globalization. The growth of a legitimate human rights culture in Africa depends on a reconstruction of the international human rights corpus to replace its Eurocentric bias ("runaway individualism") with a truly universal cross-fertilization of cultural, religious, and legal traditions.⁴⁷

This may partly explain the peculiarity of the present African Human Rights regime and its departure from the dominant or prevailing discourse of the concept. By dominant here, I mean the mainstream of the debate of the Western liberal conception, which depicts human rights as individualistic and universalistic. The

45 See Mutua (1995), supra note 43, at p. 345-346.

46 See generally Mutua M (2002) Human Rights: A Political and Cultural Critique, Philadelphia:

University of Pennsylvania Press, p. 256.

47 An-Naim, A & Deng, F. (1990) Human Rights in Africa: Cross-Cultural Perspectives, Washington, DC: The Brookings Institution, p. 290.

development of African human rights standards awarded a kind of priority to the community over the individual, which is characteristic of African societies in general and to the African perception of human rights in particular.⁴⁸ This is clearly reflected in the major African human rights instrument, the African Charter on Human and Peoples Rights (also called the Banjul Charter).⁴⁹ Compared to other regional human rights regimes, the Banjul Charter has taken a holistic approach in the rights to be protected in Africa. The Charter does not only contain the ordinary individual civil, political, economic, social and cultural rights, but it also contains a number of collective rights of the peoples such as the right to equality, self-determination, development, peace and satisfactory environment, or the so-called ‘solidarity rights.’

However, the prevailing rights discourse on Africa has been singularly deficient in contextualizing the human rights ideology within the neo-imperialist domination of Africa. Indeed, even the role of Western imperialism in the violation of human rights in Africa is hardly discussed in spite of the massive literature on the subject. To cite some few examples: in the dominantly western literature and media, one finds, again and again, references to such African leaders as Amin, Bokassa, Nguema, Mobutu, etc, as gruesome perpetrators of human rights violations, which indeed they were, but these citations go without mentioning the fact that Bokassa was France’s protege, that Nguema received support from Spain and the US,⁵⁰ that Amin was installed and supported by Britain, while the US closely supported Mobutu in exchange for its political, economic and strategic interests from the mineral rich DRC. Thus, in a way, most of the human rights violations in Africa are a result of a chain of endless civil wars, most of which are manufactured in the West.

Now if this is the true nature of human rights discourse as portrayed in the foregoing discussion, how possible is it that a human rights approach to conflict resolution is proposed in this study? Although some of these critiques are valid, and although there is some truth in the statement that the idea of human rights was first articulated in the West in modern times, it would appear to be an approach particularly suited to

48Nowak, M (2003), Introduction to the International Human Rights Regime, London: Martinus Nijhoff Publishers, p. 205.

49 Adopted on June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986.

50 Shivji, I. (1989) The Concept of Human Rights in Africa, Dakar: CODESRIA, p. 53.

contemporary social, political and economic conditions, and thus of widespread contemporary relevance to the resolution of conflicts, both in the West and the Third World. Again, if the idea of the concept of human rights as both a ‘sword’ and a

‘shield’ is plausible, then human rights can properly be employed in conflict resolution processes.

Thus, in this study, a relationship between human rights and conflicts is analyzed in efforts aimed at resolving the latter. Human rights are portrayed as both the source and solution to conflicts. When the George W. Bush administration invaded Iraq, it justified its actions partly, by appealing to the need to liberate the Iraqi people from the oppression of Saddam Hussein, making a normative argument based implicitly on universal human rights.⁵¹ This has been considered as a dramatic recent occasion when rights arguments have been used to legitimize the use of arms.

Human rights stand as an integral part of every armed conflict and are central concerns, even in cases in which the motive for a conflict has no connection to human rights, or in which human rights are not invoked as a rationale for a conflict. In the American Civil war, one of the Union’s objectives was to end Southern blacks’

slavery. Abuses of human rights also spawned many wars of liberation against colonial powers and wars waged by leftist guerrilla insurgents against corrupt or dictatorial governing regimes. In the wars in former Yugoslavia, Serbian political leaders incited Serbs to join them in their nationalist territorial claims by reminding them of the unredressed ancient and World War II-era human rights violations against Serbs, and blaming that suffering on other Yugoslav national groups.⁵²