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Overview: Developing International Human Rights in the 20th Century

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There is nothing inevitable about an international human rights regime.

• International humanitarian law and the institutions that support it could have developed differently from how they did. But, as history would have it, international humanitarian law developed in the 20th century, hand-in-hand with the expansion of international legal liberalism. Why? What were the conditions for this development?
• Also, once human rights tribunals were created, why would states use them?
• Finally, even when states commit to international human rights law they sometimes shirk their commitments? Why? What justifications do they use?

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?

But legal liberalism in the international arena does not just happen. Several conditions must be in place.

Precipitating Event. Developing an international humanitarian regime requires a huge amount of work, which in turn presupposes that there is sufficient motivation to carry out this work. Universal moral outrage often (though not always) provides the motivation to muster the general political will to make an international human rights regime possible.

Political Opportunity. States must be willing to work together to create an international regime. Deep ideological splits (as was the case during the Cold War) or insufficient information or political power (as was the case with the pogroms under Stalin, Pol Pot and Mao) may prevent concerted state action to create an international human rights regime.

Regularized Patterns of Action. The notion of procedure assumes that actions carried out in one situation can be carried out in other similar situations. So, the rule of law requires that patterns of action be repeatable, become “regularized.” In order for this to happen, methods, organizations and expectations for behavior have to be stable.

Interpretive Framework. Actions and events do not have a meaning of their own. Humans have to be able to make sense of what is going on and what events and actions mean. The rule of law provided a different way of seeing or interpreting international relations and crimes from the previous sovereignty of states view. According to the idea of the rule of law, it was legal justice and not political vengeance that should guide our understanding of crimes and how to deal with those crimes.

“Conversion” Experiences. Changes in world views depend upon the actions of individuals. But how are the views and commitments of individuals changed? In other words, how do individuals “convert” from one way of seeing the world to another? Individuals may undergo something like a conversion experience that clarifies the nature of the situation to them as well as solidifies their emotional commitment to act. Conversion experiences can create the passion, drive and commitment necessary to pursue and champion new ideas. In fact, the experiences that give rise to conversions can imbue individuals with a sort of charisma that enables them to mobilize others.