Human rights: where are we heading?

It is easy to feel that this talk of international human rights standards is all a bit pointless.

At home, we look at a grand theoretical construct maintained by mainstream politicians and mainstream media: The threat of the asylum seeker. And we follow a non-debate between our major political parties about how best to punish this small group of people who come by boat seeking the refuge promised in international treaties signed and adopted by Australia under those same political parties.

In Sri Lanka, we see a government continuing to tighten its control over the organs of society in Sinhalese areas and erasing non-Sinhalese areas by militarisation and trans-migration. In Africa, wave after wave of dictators have murdered civilian populations. In the Middle East, colonialism and violent and deadly suppression of dissent live side by side.

Perhaps, the best evidence for such a worldview comes from the United States, "The Land of the Free." The American Civil Liberties Union recently published a 36 page analysis of the changes to American society, wrought by actions taken after the attacks on the World Trade Centre and Washington called A Call to Courage: Reclaiming our Liberties, 10 Years After 9/11.

Just as in Australia, it is easy to forget the ways in which laws have been changed and security apparatus are used to affect the lives of many. In the US context, A Call to Courage helps us recall.

In detailing the danger for democratic values of current developments in the United States, A Call to Courage makes reference to a famous quote of late Supreme Court Justice, William J. Brennan who had noted that, just as fundamental liberties were eroded during times of threat and conflict, the nation showed remorse in realising at the end of the conflict that the abrogation of liberties had been unnecessary.

The present situation, however, an engineered concept of war with terrorists everywhere and for all time, prevents the cycle from ever turning back to a more balanced view of the needs of the state and the citizen.

A Call to Couragelists the products of this everywhere war as including indefinite detention, targeted killings and the torture that occurred at Guantanamo, Abu Ghraib and various other black sites around the world. A Call to Courage points out that even the weak version of habeas corpus available for Guantanamo detainees has revealed that people condemned by the military as terrorists were wrongly detained and were ordered to be released.

This has frightening ramifications for the many detained at Bagram Air Base (which remains a legal black hole) and those subjected to the extrajudicial execution by the targeted killing program where, because of the lack of judicial oversight, errors are even more likely to have been made.

A Call to Couragepoints out the contradictory narratives that have been pursued in defence of the systematic use of torture under the Bush administration's march of America to the dark side.

On the one hand, it is said that the US does not torture and that the Abu Ghraib pictures were the results of a few bad apples that have been sacrificed to a process of legal accountability. At the same time, almost in the same breath, torture is defended, using ridiculous scenarios like the known ticking bomb (which never occur in practice) to defend torture as a lesser evil to which resort must be had.

A Call to Couragealso points out a version of "divided responsibility is no responsibility," by which torture practices were put in place. Decision makers acted on advice; implementers acted on orders and the dodgy legal advisers (my words) who made it all possible were simply advising objectively on the law. Because the Obama administration has chosen to make no one responsible (apart from the sacrificial bad apples), the dual narrative is being pushed by those responsible for the system of torture defending themselves and the practice and claiming vindication with more lies when opportunity presents.

The third layer of shame concerns America's judicial system and its buck passing with the executive and between its constituent courts, to deny vindication to victims of illegal conduct including torture.

A Call to Couragechronicles three examples. The first is Khaled El-Masri, a completely innocent victim of a CIA kidnapping in Macedonia who was rendered to Afghanistan, tortured for several months and then released without explanation. The Executive said the courts were the proper place for compensation. The courts said, at the behest of the Executive, that they had no jurisdiction and the remedy lay with the Executive. And, of course, the Executive has since remained aloof.

Five other victims of the CIA's extraordinary rendition program were denied jurisdiction to sue the government contractor who had knowingly profited from arranging their flights to torture. The courts again said look to the executive.

The third example is Jose Padilla, a US citizen, who was kidnapped by the military from a New York jail and declared an enemy combatant by the President. He was held in a naval brig in Charleston, South Carolina and subjected to three years of sensory deprivation and total isolation. After three years, he was returned to the civilian justice system and prosecuted for crimes unconnected with his dubious status as an enemy combatant.

Padilla's action for one dollar in damages and a declaration that his rights had been violated was refused, inter alia, on the basis that he should have raised it in his criminal proceedings. Except that he had, and the judge in the criminal proceedings had said that there was ample opportunity to raise the issues in a civil claim for damages.

This buck-passing of the highest order, that leads to impunity for wrongdoing.

These are but a few of the matters chronicled by A Call to Courage. The ACLU slim report is but the merest of sampling of the resort to illegal conduct by the US government since 11 September 2001 and the impunity that has been extended by the courts, the Executive and the Congress to the perpetrators. These few examples are typical.

It is a depressing read for one who would like to think the international instruments that purport to protect human rights, are making progress against those base human instincts that would seek to obliterate them.

And yet there is, even in A Call to Courage, signs that the values of the rule of law; the prohibition of torture; and the right without discrimination to the protections laid down in such instruments, still have life and an inability even to defy the might of the US military and political establishment.

At page 13, A Call to Courage points out that the NATO allies of the United States, themselves aware of the international norms being breached by the US, were unprepared to pass captured prisoners to the US for fear that they would be tortured and detained indefinitely without trial.

Australia, of course, has been duplicitous, pretending that every prisoner that fell into the hands of Australian defence teams had been captured by the sole US soldier that the Australians kept in their back pocket for that very purpose.

And at page 19, A Call to Courage refers to the US as an island of impunity while foreign courts attempt to clean up the legal mess. International jurisdiction for war crimes and crimes against humanity is increasingly becoming a characteristic of a number of legal systems in Europe and elsewhere.

The lawyers who wrote the torture memos and the politicians who approved the torture might well find accountability in the type of holiday that Augusto Pinochet failed to enjoy in Britain in the latter years of the twentieth century when he was arrested and held for extradition to Spain for murders of Spanish nationals in his native Chile. Ill health saved Pinochet on that occasion, but the events changed politics in his native land and, at the time of his death, he was under house arrest for many of the crimes committed during his time in office. The US perpetrators may not be so lucky.

There is another factor that, despite the evidence in A Call to Courage gives me optimism. I am also reading at the moment Mary Ann Glendon's A World Made New, Eleanor Roosevelt and the Universal Declaration of Human Rights.

It is a fascinating story of the negotiation and adoption of the Universal Declaration by the General Assembly of the United Nations on 10 December 1948even as the shadows of the Cold War loomed closer and longer. Reading A World Made New, however, reminds me that it is just 63 years since the UDHR was adopted. Its offspring, theInternational Covenant on Civil and Political Rights and the International Covenant on Economic Social and Cultural Rights were only opened for signature in 1966 and only came into force in 1977, a mere 34 years ago.

In those years, the language of human rights protection has become familiar to us all. Non-government organisations around the world and, through them, the citizens of the world call on countries to honour the commitments they have made. The countries, in response, even when they commit heinous breaches defend themselves in language that acknowledges the validity of the human rights norms of which they are accused of breaching.

Meanwhile, the International Criminal Court is recognised for its validity and fairness of its procedures even by countries like the United States who refuses to be a party and thus will not allow its own citizens to come under its jurisdiction. It has plenty of work to do as perpetrators of serious international crimes face the accountability they thought they would never face.

Human rights values and the international instruments that enshrine those values are a force to be reckoned with in the world, even by those who, for the moment, defy them. As the UDHR proclaims, in its Preamble, they remain a common standard of achievement for all peoples and all nations.

As a human rights advocate, I am saddened by many things that happen in the world around me. But I am not discouraged.