75 Years On: A time to reaffirm the fundamentals of international human rights
Remarks delivered by Alex Neve
Senior Fellow, Graduate School of Public and International Affairs, University of Ottawa
at Northern Justice Watch’s International Conference on Genocide and Crimes against Humanity
University of Toronto Scarborough, December 3, 2023
I appreciate this opportunity to share thoughts about the importance of international human rights at a time when those norms feel both more vital than ever and under unrelenting assault. Any of us who believe in that international framework, painstakingly built up over the past 75 years, fueled by the determination of activists and communities at the frontline of human rights abuse, as a means of creating the world we all crave and deserve, cannot help but feel a sense of considerable despair.
Be it these past seven devastating weeks in Israel and Palestine, and the resumption of the bombardment in Gaza on Friday, after a week’s reprieve; be it the terrifying spikes in Islamophobia and antisemitism within Canada; be it the unrelenting toll of Russia’s invasion of Ukraine; or be it Sudan, where staggering human rights abuse is unfolding with very little global reaction.
These are not easy times. That is why coming together to reaffirm, redouble and renew our commitment to human rights is so very important. Let us look at this conference as precisely that. Coming together in shared belief in the power and necessity of universal human rights.
A ‘semisequicentennial’ human rights look back…
As I believe many of us are aware, we come together on the eve of two consequential international human rights anniversaries, as both the UN’s Genocide Convention and UDHR will soon mark 75 years since their adoption; next weekend in fact. Out of curiosity, for another event I spoke at recently, focused in the UDHR’s anniversary, I looked into whether there is a specific word for a 75th anniversary, and there is: semisesquicentennial. Doesn’t perhaps trip off the tongue, but here we are – about to mark the semisesquicentennial of two vitally important international human rights instruments.
With that in mind, I want to begin with some history. History that takes us back more than 75 years ago and renews our acquaintance with a remarkable array of charters, declarations and treaties that were drafted, negotiated and adopted in what we would these days consider to be impossibly short order, one after another over the span of only six years. Let me start with a trio of three international documents that spoke with remarkable conviction to the challenges the world faced at the time; challenges which certainly still resonate in 2023.
It begins in June 1945, when the world was rising out of the carnage and destruction of WWII and the horrors of the Holocaust, governments assembled to establish the United Nations and in the opening article of that important new body’s Charter, recognized that “to achieve international cooperation… in promoting and encouraging respect for human rights and for fundamental freedoms for all, without distinction as to race, sex, language or religion”, was to be one of the UN’s four primary purposes.
Three years later, on December 9, 1948, at that newly established United Nations, governments adopted a bold and groundbreaking new treaty that recognized a newly defined crime under international law, genocide, and in the preamble to the Convention on the Prevention and Punishment of the Crime of Genocide, declared that: “in order to liberate mankind from such an odious scourge, international co-operation is required”. While we have with time come to refer to this crucial treaty as the Genocide Convention, let us not overlook its full title and the fact that what comes first is prevention.
The following day, December 10th 1948, a day now marked as International Human Rights Day, one week from today in fact, governments convened at the UN again and adopted the Universal Declaration of Human Rights, declaring in the Declaration’s preamble that: “recognition of the inherent dignity and of the equal and inalienable rights of members of the human family is the foundation of freedom, justice and peace in the world. And in the Declaration’s first two articles, committed to that very notion of universality: “(1) All human beings are born free and equal in dignity and rights; and (2) Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind.”
It was a remarkably heady time of rapidly crafting a new global order, catalyzed by the horrors that had torn the world apart for six blood-filled years. The ground-breaking developments were by no means limited to those three unprecedented instruments.
Also in 1945, only six weeks after the UN Charter had been adopted, the US, UK, French and Soviet governments agreed to the Nuremberg Charter, which bestowed jurisdiction on the international military tribunal established to prosecute Nazi war criminals for ‘crimes against humanity’, the first time that had been used as the basis for international criminal trials.
In 1948, beating the UN to the finish line, the Organization of American States adopted the Inter-American Declaration on the Rights and Duties of Man (gender inclusive language being one bridge too far for the Americas at the time). Leaders from across the Americas aspirationally declared that (and here I will bring some gender inclusivity into the wording): “All human beings are born free and equal, in dignity and in rights, and, being endowed by nature with reason land conscience, they should conduct themselves as brothers and sisters, one to another.” Worth noting that did not include Canada at the time, as we didn’t finally acknowledge that this is our hemisphere, and join the OAS, for another 42 years, in 1990.
The next year, 1949, under the supervision of the International Committee of the Red Cross, the Four Geneva Conventions, dealing with the wounded and sick, the shipwrecked, prisoners of war, and civilians in time of war, foundational treaties in the area of international humanitarian law, were adopted, with its crucial article 3, common to all four conventions, establishing that “persons taking no part in the hostilities… shall in all circumstances be treated humanely.”
The following year, within the Council of Europe, it was the Convention for the Protection of Human Rights and Fundamental Freedoms, more commonly known as the European Convention on Human Rights, which, not to be outdone, opens with its own stirring vision: “Reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend;”
And the last in this quick overview came the following year, 1951, when states adopted the Convention relating to the status of refugees, the Refugee Convention, in which they recognized that the challenges inherent in refugee protection were of international scope and nature and “cannot therefore be achieved without international co-operation”. They also recognized the “social and humanitarian nature of the problem of refugees” and committed to “do everything within their power to prevent this problem from becoming a cause of tension between States.”
1948 - 2023: Five fundamental principles remain true
It is truly dizzying when you stop to think of it, and those examples are not by any means an exhaustive catalogue of the significant international human rights and humanitarian instruments adopted in that remarkably short period of time.
Setting up the UN, outlawing genocide and crimes against humanity, committing to universal human rights and international and regional level, reaffirming and strengthening rules around civilian protection during war, and the launch of the global refugee protection regime.
If only our governments were capable of adopting such grand vision, giving life to core principles of humanity, and making similarly bold commitments, 75 years later. If only they were capable or more to the point, if only they were genuinely attempting to live up what they have already forged. More on that in a moment.
I didn’t take us back in time simply to have a history lesson. Nor did I go back in time just to marvel at so many accomplishments over such a short period of time.
Rather I have looked back because there are 5 fundamental principles that emerge from that quick overview, that guided and inspired governments and diplomats 75 years ago and are absolutely of crucial importance today. Reminders that the vision elaborated through those ground-breaking human rights instruments remains relevant and still speaks to the world we all crave and deserve.
First, human rights are foundational to all that humanity aspires.
Second, human rights are universal, meaning all people, all rights, all times.
Third, human rights violations can and must be prevented.
Fourth, human rights protection necessitates international cooperation.
And finally, without justice and accountability, human rights will remain precarious.
Human rights are foundational
Something very elemental was clear to world leaders 75 years ago. Everything starts with human rights. Human rights are the foundation to all else, made expressly clear in both the UDHR and the European Convention. The foundation to freedom, to justice, to peace. As human rights advocates we often call on governments to put human rights first, put human rights at the core, put human rights at the heart of how they govern. That is not rhetorical naivety. It echoes what leaders themselves recognized to be true.
They knew that human rights are the foundation, not the roof. It is where we are meant to start. But we rarely do. When human rights are asserted, we are far too often told: not now, not yet, we will come to that later; once the trade agreement is signed, once the peace deal is finalized, once the budget is set, the policy framework negotiated or the security arrangements put in place. Then we will turn to human rights.
But that approach not only sells human rights short, it undermines freedom, justice and peace in our world. Russia/Ukraine and Israel/Gaza are such stark and clear examples. Years of appeasing Vladimir Putin, overlooking the egregious human rights violations he was committing and keeping Russian gas flowing to market rather than taking those egregious violations seriously; or decades of impunity for the wrenching catalogue of war crimes and crimes against humanity committed by Israeli forces and by Palestinian armed groups, and a willingness to let unlawful occupation of Palestinian lands extend for months, years, and now decades, alongside existential threats to Israel’s security and very existence.
And we somehow expect that we can overlook human rights at the outset, that nonetheless peace will prevail, and freedom and justice will soar, and then subsequently we might turn to human rights?
No it all begins with human rights. No matter the challenge. Peace begins with human rights. Security begins with human rights. Prosperity and well-being begins with human rights. A sustainable planet with a safe and healthy environment begins with human rights. That lies on all our shoulders and within all our hands. And we should never back away from being that uncompromising champion of human rights. And expecting and demanding our leaders to consistently make that clarion call.
2. Human rights are universal
In many respects the greatest promise governments made in 1948, and an unforgivable shortcoming 75 years later, lies in the utter failure to live up to the stirring assertion in the first article of the UDHR: All human beings are born free and equal in dignity and rights.
Universality means all human beings. But that is not our world. Not even close. The rights of some, a few, are privileged. The rights of far too many, the overwhelming majority of the world’s people, are dismissed, overlooked or ignored.
All human beings means all Palestinians, certainly including the 2.2 million Palestinians trapped in the open air prison and bombing fields of Gaza. All human beings means the people of Yemen and the people of Sudan, whose struggles and plight seem forgotten and disregarded. All human beings means the Ugyhur, Rohingya, Hazaras and the Tigrayan people, whose struggles against genocide attract compassion but very little action. All human beings means refugees and migrants compelled to take dangerous journeys across the Mediterranean, across the Rio Grande, out into the Bay of Bengal and, until earlier this year, across the Canada/US border, to seek safety and protection of their rights, but increasingly turned away and turned back. All human beings means Indigenous women who continue to be disproportionately killed across Canada and yet are met with callous politics when family members plead for their discarded bodies to be retrieved from landfill sites. And all human beings means trans youth, whose rights and safety are being erased by dog whistle assertions of parental rights.
All human beings means just that, all: regardless of race, sex, gender identity, religion, social class, disability or immigration status, and certainly regardless of the country where you were born or where you live.
Universality also means all rights. Yet many governments, including regrettably many governments in Canada, federal and provincial, explicitly insist that some rights, namely those enshrined in the International Covenant on Civil and Political Rights, are real rights, while others, those laid out in the International Covenant on Economic, Social and Cultural Rights, are of a lesser standing and status. CP rights – to be protected from torture, to have a fair trial, to enjoy freedom of expression or religion – belong in court, are the domain of judges and should be enforced with legal sanction and penalty. ESC rights – to healthcare, to adequate housing, to food security and clean water – are goals to aspire to and should be left to government policy debates and budget exercises rather than courtrooms and legal briefs.
As governments gather once again, as they do every year at COP 28 in Dubai, surely it is clearer than ever before, with the very survival of our planet at stake, that all rights absolutely do matter.
And universality means at all times. Protecting human rights is not just when it is easy to do so, when it is convenient, when it isn’t overly expensive, or when it is popular. And the obligation to protect human rights does not go out the window when society faces threats and challenges, such as in times of war or when national security is imperiled. Yet that is precisely the world we live in, particularly when national security is in the frame. We saw that during the devastating years of the professed war on terror, which more accurately was a war on human rights, launched after the 9/11 terrorist attacks. Justifying torture, secret detention, disappearances, discrimination and unfair trials in the name of security was, of course, a full out disaster for rights and justice. Neither did it forge a safer and more secure world.
That is certainly the backdrop to the devastation raining down destruction and suffering on the people of Gaza. The Hamas terrorist attacks and abduction of hostages in southern Israel on October 7th were heinous and abhorrent and there must be a response, but not at the expense of some of the most fundamental international legal norms around civilian protection and human rights, and a military campaign that has led UN experts and legal scholars to talk of the obligation to prevent genocide.
As some of you heard yesterday, I travelled to NE Syria at the end of August with a civil society delegation that sought and was able to access camps and prisons in which over 50,000 foreign nationals, more than half of them children, have been locked away without charge, trial or any means of challenging their detention for 5 years and longer. Swept up because they were in NE Syria at the time when ISIS was, thankfully, defeated by Syrian Kurdish forces with backing from the US and allies. In NE Syria for a whole host of reasons – ranging from being a seven-year-old child who was born there, a woman who was trafficked there, a young man who had gone there to join in the struggle against the Assad regime and, yes, militants and radicals responsible for unspeakable ISIS atrocities. Yet we forego a strong justice-based response that holds those responsible for crimes accountable and ensures that those who were themselves victims of those abuses or played no role in carrying them out, are protected and freed. Around two dozen Canadians, half of them under the age of 14, remain there trapped, imprisoned and abandoned. Women have been told that while their children can return to Canada, the women cannot, an unspeakably cruel policy that would countenance ripping families apart.
Surely it is time to recognize that justifying human rights violations in the name of security protects neither. We are not insecure because we have been too lenient when it comes to human rights. Quite the opposite, at the heart of insecurity in our world, lies the failures of universality, and the failure to uphold all rights equally. Meaningful and durable security lies down the road of embracing the universality of human rights like never before.
3. Human rights violations can and must be prevented
It often feels that we spend most of our time and resources as advocates responding to human rights violations after they have occurred. And if feels that we live in a world in which governments don’t take human rights, and the humanitarian catastrophes that generally accompany situations of widescale violations, seriously until we are in the midst of a full-fledged human rights crisis, marked by war crimes, crimes against humanity and even genocide. And of course that is the point in time when it is more expensive, often more politically contentious and certainly more logistically challenging to take the action that is needed.
We have lost sight of the fact that our primary imperative when it comes to upholding and respecting human rights is to prevent abuses and violations in the first place. For instance, as I just reminded us, the Genocide Convention prioritizes the need to prevent genocide, in its very title. Other speakers have offered thoughtful analysis of the world’s failings to rise to the crucial challenge of addressing genocide, arguably the most important of all human rights challenges. I am struck by the very difficult and at time contentious debates in recent years, arguments about whether or not the “label” genocide does or does not legally apply to various situations of widespread, mass human rights atrocities around the world. Hazaras? The Rohingya? The Uyghurs? Tigray? Yazidis. Ukraine. And now, of course Gaza.
Each time I am struck by the degree to which for many people, even within the human rights community, the focus seems primarily to lie in assessing whether a genocide has occurred or is undeniably underway. And that unless we are at that conclusive, irrefutable legal and evidentiary point along the continuum of genocide, we should not use the term. It is a loaded term after all. We must be absolutely sure of our analysis and conclusions. We must confine its use to the most exceptional, the gravest of situations.
Of course that is true. But where does that leave us when it comes to preventing genocide? Genocide does not begin once the last body has been thrown into a mass grave, or when the final village has been emptied and razed to the ground, or when the bombs finally stop falling because there is no one and nowhere left to attack. That in fact is when genocide ends. That is when we are too late. That is when we hang our heads in collective global shame.
The prospect of genocide begins when the first body is buried, the first village destroyed or the first bombs unleashed. That is why, in the very first article of the Genocide Convention, even before laying out the definition of genocide, states, “confirm that genocide, whether committed in time of peace or in time of war, is a crime under international law which they undertake to prevent and to punish.”
If there is clear and cogent reason to believe that actions are underway which point to the human rights violations that are enumerated in the Genocide Convention. And if there is reason to believe that the required intent -- namely of intent to destroy, in whole or in part, a national, ethnical, racial or religious group – may be present. If there is reason to believe we pointed in that direction, we must act. Now, not after the fact. And we must not shy away from naming the possibility of approaching genocide as being the specific and urgent concern that compels us to act.
This is nothing new. Canada ratified the Genocide Convention 71 years ago, in 1952. But I would be hard pressed to think of a situation involving grave concerns about potential genocide in which Canada has adopted measures and, even better, taken a lead in coalescing effective international action, precisely because of concerns about possible genocide. When some limited steps have been taken they have certainly not been speedy and decisive.
In November 2019 the West African nation of Gambia initiated proceedings at the International Court of Justice under the Genocide Convention against Myanmar, regarding genocide against the Rohingya. It took several years of advocacy pressure, but at long last, four years later Canada and a handful of other countries, filed interventions at the ICJ in support of Gambia. Four years?
Canada is not, by any means, alone. That same criticism could be leveled at almost any county. But that can and should change. What better way for Canada to mark the 75th anniversary of the Genocide Convention than to develop clear policy and institutional frameworks to support more effective genocide prevention interventions.
4. Protecting human rights requires international cooperation
There are two obvious reasons why adopting international norms, at the UN and within regional bodies like the OAS and Council of Europe, matter a great deal. First, international protection is required because of national failure to uphold human rights. There needs to be a higher order of law and a higher authority to step in and fill the void. And second, international legal obligations belong to the community of nations, and they have both the opportunity but also the responsibility to come together and cooperate in efforts to advance greater global respect for those principles.
We see that embrace of the importance of cooperation in article 1 of the UN Charter: “to achieve international cooperation in promoting and encouraging respect for human rights.”
And we see it in the preamble of the Refugee Convention, which recognizes in fact that when it comes to refugee protection, it is not only an aspiration, solutions are dependent on international cooperation.
How often, though, do we see genuine international cooperation with respect to human rights protection, even with respect to something as egregious preventing and responding to genocide? How often do we see states work together to protect refugees because they realize that effective solutions necessitate international cooperation.
Not so much. Sadly, sessions of the UN Human Rights Council are increasingly polarized, with states spending the bulk of their diplomatic capital successfully convincing other states to join them in avoiding or weakening human rights scrutiny. And the use of the veto at the UN Security Council has become more entrenched than ever. Russia, China and the United States all use it or threaten to use it, regularly and without consequence, to block action by the only UN body that has binding powers, even in the face of genocide and other atrocity crimes. In fact, anticipation that such efforts will be vetoed is now simply so anticipated that SC action is no longer even sought in the first place.
Refugee protection is perhaps one of the most glaring examples of where the need for cooperation is so evident; but the conduct of states lies in completely the opposite direction. The world of refugee protection is instead dominated by unilateral state action or perhaps even more egregiously, groups of states cooperatively coming together not to protect refugees but to completely avoid protecting refugees.
I expect that many of you know of the Canada/US Safe Third Country Agreement, which completely disingenuously is described as an agreement that is, “for cooperation in the examination of refugee status claims from nationals of third countries.” What has that cooperation meant for Canada? Since it came into force in 2004 it has meant that refugee claimants trying to reach Canada to seek protection, and who have traveled through the United States to get here, have been turned back when they have come forward at official land border posts. And let’s take a moment to think about geography. Any refugee claimant coming overland from Latin America cannot avoid coming through the United States on their way to Canada. And many claimants coming by air from other parts of the world will be able to get as far as the United States by air, as there are more flights to the US and it is often easier to get visas for the US than for Canada, and then come overland to the Canadian border.
With official border posts shut down, refugee claimants turned instead to cross the Canada/US border irregularly. Many of you will have heard of Roxham Road on the Quebec/NY border, which had become an unofficial border crossing for a number of years. But that ended earlier this year, when Joe Biden and Justin Trudeau announced an agreement shut down the entirety of the Canada/US border to refugee claimants. All further to an agreement that espouses itself to be devoted to “cooperation”. It is an approach to refugee protection that has to this point in time, been found by our Supreme Court to be consistent with our Charter of Rights, though a challenge under the Charter’s section 15 equality provisions is still pending.
If only this was an anomaly. Quite the contrary it has become the norm. Borders are closing down everywhere. Boats are pushed back to the point that the dangerous seas of the Mediterranean and the Bay of Bengal have become graveyards for refugees. The US/Mexico border has been militarized and fortified by successive Republican and Democratic administrations, so as to keep refugees and migrants out. And the United Kingdom is so determined to keep refugees away that it has negotiated an unconscionable agreement to send claimants who make it across the English Channel to Rwanda rather than live up to their protection obligations, and is intent on finding a way to proceed with that arrangement even though it has been ruled unlawful by the courts.
We must press our leaders to embrace solidarity and cooperation in protecting human rights, not in undermining and eviscerating human rights. Canada is presently standing for election for membership at the UN Human Rights Council in 2028-2030. The candidacy revolves around six important human rights priorities. A clarion commitment to true international cooperation and meaningful solidarity would be the thread to unite those priorities.
5. There must be justice and accountability
Rights without compliance. Rights without accountability. Rights without remedies. If that is what is on offer, we might as well admit that rights are illusory. It has been a particularly notable shortcoming of these 75 years. The mountain of treaties, declarations, resolutions and principles is impressive and grows, almost daily. Concrete commitments to live up to what is promised, less so. Meaningful measures that ensure justice and accountability for violations almost nonexistent.
I say almost because there are of course exceptions to that pessimistic view. While we do not have a world-level UN human rights court, there are regional human rights courts for the Americas, Europe and Africa. That should, theoretically, include Canada, but think again. Having joined the Organization of American States over 30 years ago, in 1990, Canada has not yet ratified any of this hemisphere’s human rights treaties and has not accepted the jurisdiction of the Inter-American Court of Human Rights.
There has also been the notable, groundbreaking establishment of the International Criminal Court, which has begun to hold individuals responsible for the worst international crimes – genocide, war crimes, crimes against humanity – accountable. Canada has been a champion, particularly in early days. More recently, that has become uneven – enthusiastically cheerleading the ICC’s investigations into Russian abuses in Ukraine, but strongly opposed to the ICC’s investigation of abuses by Israeli forces and Palestinian armed groups in Palestine. All the while, the Court itself has lurched and struggled to make its mark and live up to the potential we know it holds to be a key global human rights institution.
Worth noting that Canada itself has not set a particularly strong example when it comes to justice and accountability. Despite having adopted universal jurisdiction laws for crimes against humanity, war crimes and genocide over 20 years ago, and for torture over 35 years ago, those laws – which allow and in fact oblige Canada to prosecute domestically, when individuals who have committed crimes under international law in other countries are present here – have been dramatically underutilized. Despite having adopted that legal framework, there have only been two such prosecutions initiated in Canada over those two decades, both against individuals charged in connection with the Rwandan genocide.
Only two, not because only two such cases have come to light. Far from it. There have been many others. But rather than turn to criminal law proceedings those cases have been ignored or they have been dealt with through the immigration system instead of the justice system. That needs to change.
In our hands
I should wrap up here. Perhaps with a recap of the five imperatives that I believe guided world leaders and rights advocates 75 years ago when the Genocide Convention, the Universal Declaration of Human Rights and so many other vital new instruments were adopted, bringing to life what we commonly refer to as the international rules-based order. Five imperatives, however, that have been largely forgotten and too frequently deliberately and callously disregarded over the decades since.
Human rights are foundational to all else. They are universal in all respects. Human rights violations can and must be prevented. Effective human rights protection depends on meaningful international cooperation. And there must be justice and accountability to back up and enforce human rights promises.
Easy as that.
It lies in our hands friends. Let that be your semisesquicentennial pledge.
