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Overview: Conditions for an International Humanitarian Regime
There is nothing inevitable about an international human rights regime.
Conditions for Developing an International Humanitarian Regime
One can imagine an international human rights regime supported by a single superpower which could force its version of human rights on other nations through sheer coercion. In this case, if a state, group or individual violated the law, the superpower could step in and simply punish the offending party without the hassle of courts, evidence or rule of law.
However, that is not how the history of human rights law played out. The history of human rights law in the 20th century is tied up with the expansion of legal liberalism within the international arena. So, to understand how international human rights law developed, we have to understand how legal liberalism developed in the 20th century.
What Is Legal Liberalism?
First, legal liberalism is all about procedure. Rather than impose values with the strength of power alone, legal liberalism rests on the rule of law. Justice is reached only when the right procedures have been followed. Judges should be independent of political interests and decide based on law. Accusations must be backed up by evidence. The party accused must have the ability to defend himself or herself. Procedure remains constant across cases—the rules that apply to one case apply to all cases.
The rule of law helps to ensure that justice is more than just show. Legal liberalism aims above state interests. And, importantly, for legal liberalism to be genuine, there must be the possibility of acquittal. This means that the rule of law involves the risk that a guilty party may go free.
Second, the international rule of law rests on universal principles and values—or at least values for which there is a high degree of consensus. After all, if legal procedures are used to determine that an action took place, but there was no consensus about whether the action was right or wrong, moral or immoral, what would be the point? Justice depends upon a moral standard and if there is no standard (for instance, if genocide is not wrong), then the most rigorous legal procedures are pointless.
What Are the Conditions for Legal Liberalism?
Keytexts used to create this overview:
Victors' Justice Versus War Crimes Tribunals
When Do Liberal Nations Support War Crime Tribunals?
War Crimes Legalism Is More than an Ideal
Politics and Justice in Creating the International Criminal Court
How Rape Became a Crime against Humanity
Laying the Groundwork for International Humanitarian Law
Creating Living Law from Legal Theory
From Vengeance to Justice at Nuremberg
International Law to Cosmopolitan Law
Universal Culture Is in Tension with Local Culture
The Role of NGOs in Making UN Law
What Can Anthropology Contribute to the Study of International Law?
The Politics of Culture in International Law
How One Man Put Genocide on the World's Conscience
Why the U.S. Has Failed to Stop Genocide
Human Rights Fail During the Cold War