On Human Rights Abuse and the Abuse of Human Rights
H. David Baer

In a recent conversation about human rights law, I found myself defending a crucial distinction, that between a human rights abuse and an abuse of human rights. A human rights abuse, I said, violates human dignity in a fundamental way and, when committed on a large scale, offends the moral conscience of humankind. An abuse of human rights, on the other hand, offends common sense, and actually undermines respect for human rights. An abuse of human rights occurs when the idea of human rights is misappropriated and used for illegitimate ends.

Sometimes abuse of human rights is little more than cultural imperialism clothed in the garment of moral righteousness. Consider growing criticism of male circumcision in morally superior Western Europe. A couple of years ago, a court in Germany found that the rite of circumcision infringed upon a child’s right to bodily integrity. The startling decision caused the Germans some discomfort, since circumcision is a Jewish practice. Eventually, Germany’s Parliament passed a law permitting the circumcision of children when medically supervised, but even so, European outrage over this ancient practice, almost as barbaric as piecing the ears of small girls, continues to grow. A former Danish health minister declared not long ago that circumcision “goes against the UN Convention on the Rights of the Child,” and a recent poll revealed a majority of Danes would support banning the practice (JTA, October 22, 2014). Meanwhile, in Norway, concerned nurses have urged the government to outlaw circumcision, and Swedes have also taken up the issue.

Champions of progress always encounter resistance, and this time the children of light are being opposed by critics who claim the proposed circumcision bans are a discriminatory measure directed against Europe’s Muslim minorities, which, if implemented, would infringe upon religious freedom. In addition, the moral crusaders of Europe, by invoking human rights to oppose a cultural practice they don’t respect, are unintentionally undermining the stature human rights hold in establishing international norms. Circumcision, after all, is common throughout much of the world. It is practiced by Muslims and Jews, and also widely in the United States. Insofar as objections to circumcision rest on appeals to human rights law, the vanguard of European Enlightenment ought to consider the fact that very few nations outside Europe see things the way they do. The previously invoked Convention on the Rights of the Child addresses problems like child exploitation, capital punishment for minors, and separation of children from their parents. Those who want to add circumcision to this list of grave evils are pressing for a significant innovation in international law, one that goes well beyond the global consensus. And when human rights are expanded to the point that they no longer represent global consensus or international norms, they are no longer able to function to bring pressure to bear on oppressive political regimes.

But bringing pressure to bear on oppressive regimes is exactly what human rights are supposed to do. The human rights provisions of the Helsinki Final Act, for example, provided protection for political dissidents behind the Iron Curtain, a factor which contributed over time to the collapse of Communism in Europe. The effectiveness of the Helsinki process depended on the fact that everyone acknowledged (even if only hypocritically) fundamental rights such as the freedoms of speech, association, and religion. When, by contrast, human rights claims don’t reflect global consensus, their legitimacy becomes disputed. Human rights inflation reduces the value of this important currency, rendering human rights law ineffective.

The Universal Declaration of Human Rights, adopted back in 1948, managed to set forth its provisions in only thirty articles. Today the number of human rights provisions to be found in various covenants, conventions, and charters exceeds well over six hundred. Indeed, just about anything and everything that can improve the human condition, from Internet access to extra bedrooms, has been declared a human right by somebody. (Pizano, February 26, 2014). This is hardly a positive development. As human rights proliferate, they become controversial and controverted. The result is a disputed, and hence ineffective, regimen of ­international law.

Problems of this sort have already negatively impacted the law of armed conflict. The First Additional Protocol of 1977, for example, is an international treaty that extends the protections afforded by the Geneva Conventions to insurgents or revolutionaries “fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of ­self-determination.” It also loosens the requirements irregular combatants need to meet to be accorded POW status when captured. Consequently, the United States never ratified the treaty, a fact which has contributed to competing legal regimes for armed combat. Disputes over the content of international law diminish its effectiveness. Lack of clarity about the legal status of irregulars, for example, contributed to problems at Guantanamo Bay.

The International Criminal Court, established in 1988 by the Rome Statute, claims jurisdiction over “crimes of aggression.” To punish aggression, however, one must first identify an aggressor, that is, an “unjust” party who starts the war. Yet the laws of war are premised on the legal equality of belligerents. This is a crucial premise of the Geneva Conventions. After all, if soldiers on one side of a conflict are fighting to advance the crime of aggression, why should they be treated as lawful rather than unlawful combatants? As professor Yoram Dinstein has pointed out: “once war of aggression became proscribed and criminalized, voices were raised in support of a policy of applying the jus in bello in a discriminatory fashion, adversely affecting the aggressor state” (156). But a discriminatory application of jus in bello would completely undermine the laws of war. In order for soldiers to be treated equally, belligerents must also be legally equal, and they can be legally equal only if international law is murky about identifying the aggressor. Consequently, the United States, China, Russia, and India have, with good reason, all refused to ratify the Rome Statute.

Fortunately, the law of armed conflict is well enough established that it can, for the most part, withstand the stress placed on it in recent decades by the development of conflicting legal regimes. This is in good part because the laws of war have developed substantially over the last few centuries in a way that enjoys broad and deep assent. The same cannot be said about human rights law, a very modern development that in some respects has been controversial from the start. The proliferation of human rights claims thus poses a serious threat to the viability of human rights over the long run. Should, however, the concept of human rights become ineffective, we would lose an important tool in the battle against authoritarian regimes. Perhaps the enlightened leaders of Europe, instead of attacking ancient religious practices, should think more deeply about what human rights are really for.


H. David Baer is Associate Professor of Theology and Philosophy at Texas Lutheran University.


Works Cited

Dinstein, Yoram. War, Aggression and Self-Defense, fourth edition. Cambridge: Cambridge University Press, 2005.

“Majority of Denmark Citizens Want Circumcision Banned” JTA Jewish Telegraphic Agency, October 22, 2014. http://www.jta.org/2014/10/22/news-opinion/world/poll-majority-of-denmark-citizens-want-circumcision-banned.

Pizano, Pedro. “The Human Rights that Dictators Love.” Foreign Policy, February 26, 2014. http://www.foreignpolicy.com/articles/2014/02/26/the_human_rights_that_dictators_love.

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