Wednesday, October 29, 2003

As our manifesto declares, this blog is principally concerned with South African and British issues, with occasional deviations elsewhere. It is therefore with some reluctance that I respond to one Unlearned Hand of En Banc, who takes exception to my discussion of his remarks on the detainees held at Guantanomo Bay.

In essence, Unlearned Hand disagrees with my view that rights are intrinsic, and are owed to individuals regardless of whether we think they deserve them or not. For Unlearned Hand, rights only have meaning if they can be derived from binding documents, wherein they are clearly defined. Talk of 'intrinsic' rights is mere mumbo-jumbo, and is likely to lead only to abuse of power.

The difficulties with Unlearned Hand's position are well-illustrated by the experience of my own country -- South Africa -- under apartheid. Apartheid was perfectly legal under South African law, and South Africa had also not ratified any international conventions dealing with human rights. In this sense, black South Africans, like the detainees in Guantanomo Bay, had no legally binding rights.

Does this mean, however, that apartheid didn't constitute a violation of human rights, or that it shouldn't have been criticised on this basis? Does it also mean that apartheid could have been defended on the grounds that black South Africans had no legally binding rights? These would be odd positions to hold, and should put things in perspective. I agree with Learned Hand that the Guantanomo Bay detainees don't have enforceable rights, but that rather misses the point; the point is that they should.

Learned Hand also thinks that the rights that I invoke are incapable of definition. But I think that this overstates the case. As Learned Hand correctly concedes, the detainees have a right, under the Geneva Conventions, to a preliminary hearing within a reasonable time to determine their status. Those who are found to be POWs would then be entitled to the full range of rights guaranteed under the remainder of the Conventions. As for those detainees who are not POWs, the due process rights to which they should be entitled are well-defined under documents such as the International Covenant on Civil and Political Rights.

On reflection, it might seem that Unlearned Hand and I are talking at cross-purposes. After all, in his original post he concluded that access to legal process should be granted to the Guantanomo Bay detainees because 'it speaks to our morals.' But, fundamentally, I was making a point about the correct attitude to hold if we want to sign on the human rights agenda -- as a powerful moral ideal -- in good faith. My point was this: if we want to take human rights seriously, then whether or not we think people 'deserve' rights should be irrelevant. This leaves open the possibility that certain people don't deserve rights, which would make nonsense of the very concept of human rights.

Of course, it might be that Unlearned Hand doesn't want to sign on to the idea of human rights. But then he would either have to be indifferent to political systems such as apartheid, or find some way to criticise them that doesn't turn on the notion that humans, everywhere, are owed certain standards of treatment -- regardless of what we think of them personally.

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