Modern Law Review

Human Rights and Root Causes
Susan Marksn
The human rights movement has traditionally focused on documenting abuses, rather than attempting to explain them. In recent years, however, the question of the root causes of violations has emerged as a key issue in human rights work. The present article examines this new (or newly insistent) discourse of root causes. While valuable, it is shown to have signicant limitations. It foreshortens the investigation of causes; it treats eects as though they were causes; and it identies causes only to put them aside. With these points in mind, the article counterposes an alternative approach in which the orienting concept is not root causes, but planned misery.
Most histories of the international protection of human rights begin in the mid-20th century, with the Universal Declaration of Human Rights and the various treaties, institutions and procedures that then followed. Some histories begin earlier, sometimes centuries earlier, highlighting the emergence of the idea of universal and inalienable rights. But few begin later. For the political analyst Naomi Klein, however, the really important starting-point for the international protection of human rights is in fact more recent, and it corresponds to the time when what we now recognise as the human rights movement began to take shape.1 As she tells the story, an especially formative context was the eort during the 1970s to stop torture and disappearance in Chile and Argentina. Ruled by military juntas engaged in violent repression on a massive scale, these countries served as a laboratory for a relatively new activist model: the grassroots human rights movement.2 The characteristic of this emergent movement that most interests Klein is its commitment to neutrality and impartiality. That commitment arose in well-known circumstances, which saw the enmeshment of human rights in Cold War divisions and rivalries. West and East loudly trumpeted abuses by the other, at the same time dismissing allegations about shortcomings of their own. This was not just a matter of inter-governmental mud-slinging. In 1967 it was revealed that the Geneva-based non-governmental organisation, the International Commission of Jurists, received its initial funding from the CIA.3 Against that background, the idea took root that the new activist model which was to provide the front line of international human rights protection could enjoy credibility only if it remained strictly neutral, impartial and non-political. The International Commission of Jurists itself reorganised, while Amnesty International famously constituted itself in a manner that precluded funding from
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Professor of International Law, London School of Economics. 1 N. Klein,The Shock Doctrine (London: Penguin, 2007) esp 118^128. 2 ibid 118. 3 See H. Tolley,The International Commission of Jurists: Global Advocates for Human Rights (Philadelphia: University of Pennsylvania Press, 1994).
r 2011 The Author. The Modern Law Review r 2011 The Modern Law Review Limited.
(2011) 74(1) 57^78
Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
governments and political parties, and made the organisation accountable solely to its worldwide membership.4 When it came to the abuses being committed in the Southern Cone, this helped the victims and their allies insofar as it facilitated the investigation and denunciation of what was happening. But it also had an important limitation. The determination to steer clear of all political engagement meant that international human rights work was restricted to documenting violations, and did not extend to considering why those violations were occurring. For Klein, Amnesty Internationals 1976 report on Argentina illustrates why this is a problem.5 After setting out the evidence of state-sponsored violence, the report considers the governments claims that the dirty war was necessary to maintain order and counteract the threat posed by left-wing guerrillas. The reports conclusion is that these claims cannot be accepted; the repressive measures were grossly disproportionate to any threat posed. But if the measures were unjustiable, presumably they were nonetheless explicable. On what basis? Klein observes that the report makes no mention of the fact that at the same time as it was engaging in systematic torture and disappearance, the junta was in the process of restructuring the countrys economy along radically neo-liberal lines. The report contains long lists of decrees that violated civil liberties, but makes no reference to the laws that led wages to be lowered and prices increased, no reference to the abrupt abrogation of social protection and redistributive schemes, or to the deepening poverty of ordinaryArgentinians that was the result of these measures. Had the economic dimensions of the regime been taken even minimally into account, Klein contends that it would have been clear why such extraordinary repression was necessary, just as it would have explained why so many of Amnestys prisoners of conscience were peaceful trade unionists and social workers.6 In this connection, she points up another limitation of the report. The conict is presented as one between the military and left-wing subversives. There is no mention of the US ocials and others who encouraged, supported and guided the juntas policies, nor any mention of the transnational corporations and local landowners who stood to gain from them. Yet, again, Klein maintains that [w]ithout an examination of the larger plan to impose pure capitalism on Latin America, and the powerful interests behind that project, the acts of sadism documented in the report made no sense at all. They were just random, free-oating bad events, drifting in the political ether, to be condemned by all people of conscience but impossible to understand.7 Much of Kleins analysis in the book from which these passages are taken is devoted to showing the inuence of Chicago School economists on economic trends since the 1970s, and her account begins in the Southern Cone of Latin America. If during that decade the region was a laboratory for a new activist model, she recalls that it was also a laboratory for a new economic model, the free
4 See S. Hopgood, Keepers of the Flame: Understanding Amnesty International (Ithaca: Cornell University Press, 2006). 5 See Report of an Amnesty International Mission to Argentina, 6^15 November 1976 (London: Amnesty International Publications, 1977). 6 n 1 above 119^120. 7 ibid 120.
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r 2011 The Author. The Modern Law Review r 2011 The Modern Law Review Limited. (2011) 74(1) 57^78
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market libertarianismpromoted by Milton Friedman and his associates.8 But just as the economists remained largely silent on the human rights abuses, so too the activists had almost nothing to say about the economic transformations. According to her, the idea that the repression and the economics were in fact a single unied project is reected in only one major human rights report from this period, the Brazilian truth commission report Brasil: Nunca Mais.9 Posing the question of how the atrocities perpetrated in the country in the preceding years were to be explained, the truth commission was clear in its answer: Since the economic policy was extremely unpopular among the most numerous sectors of the population, it had to be implemented by force.10 Klein considers that Amnesty Internationals report on Argentina was rightly applauded as a breakthrough exposure of a brutal dictatorship. She has no doubts that the organisations work played a signicant role in putting an end to the terror. However, she argues that this came at a cost: by focusing purely on the crimes and not on the reasons behind them, the human rights movement . . . helped the Chicago School ideology to escape from its rst bloody laboratory virtually unscathed.11 At the same time, the new activist model was set on a course that detached violations of human rights from the political, economic and social contexts which make them possible and even rational. Borrowing a phrase from Argentine journalist Rodolfo Walsh (himself a victim of disappearance in 1977), she proposes that what got lost in the process was any sense that we may be confronted not with random, free-oating bad events, but instead planned misery.12 Human rights emerged as a set of blinders that narrow our eld of vision and prevent us from seeing (and hence from challenging) the wider scene.13 Whatever the cogency of Kleins analysis of these events in the 1970s, developments since then mean that at least one aspect of her account requires qualication. Today the human rights movement does focus on the reasons behind violations. The question of the causes, indeed the root causes, of human rights violations has become a central and very conspicuous element of discussions within global civil society and, perhaps most strikingly, the United Nations. The UN High Commissioner for Human Rights regularly refers in her speeches to the root causes of whatever abuse she is discussing, and certain of the special procedures mandated by the UN Human Rights Council have developed a particular attentiveness to the issue. It cannot now be said that the human rights movement only documents violations, and fails to consider why they are occurring. But if Kleins premises no longer hold, this article is concerned with her conclusion. Does it follow from the current preoccupation with root causes
8 On the Southern Cone during this period as a laboratory (and on a number of the other themes touched in the section ofThe Shock Doctrine I outline here), see furtherY. Dezalay and B. Garth,The Internationalization of PalaceWars: Lawyers, Economists, and the Contest toT ransform Latin American States (Chicago: Chicago University Press, 2002). 9 n 1 above 124. A summary of the report is published in J. Dassin (ed), Torture in Brazil: A Shocking Report on the Pervasive Use ofTorture by Brazilian Military Governments 1964^1979, Secretly Prepared by the Archdiocese of Sao Paolo (Austin: University of Texas Press, J.Wright trans, 1998). 10 n 1 above 125. 11 ibid 118. 12 ibid 95. Regarding the implications of this phrase, see further below. 13 ibid 118.
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that the grounds of her conclusion also fall away? If human rights were once a set of blinders, to what extent do they now enable us to see?
ROOT CAUSES
Although root causes are currently a prominent feature of the discourse of international human rights, this was not always so. Let us therefore begin with a brief review of the concept and its history as an aspect of the international protection of human rights. The concept of root causes belongs, quite obviously, with the practice of explanation in the natural and social sciences. Root causes are the initiating phenomena in a chain of causation. They may initiate that chain in a manner which is intended or unintended, manifest or hidden, recent or longstanding, but, whatever their precise dynamics, they are to be understood as the basis on which a given circumstance rests.They are often considered also to mark the level at which an intervention would be eective. If you dont address root causes, we hear, you cannot hope to bring about signicant and lasting change. The Oxford English Dictionary cites as the earliest usage of the phrase a passage in a book published in 1915; writing under the title The Healing of Nations and the Hidden Sources of their Strife, the author expresses the need to get at the root-causes of this war.14 More recently, root cause analysis has become associated with a particular method or approach to problem-solving in business, administration and management ^ one that recursively asks why?, so as to identify which causes would, if removed, eliminate a problem or prevent it from escalating further.15 The issue of causation has always had a place in discussions of internationally protected human rights. As in all legal contexts, it is relevant to the determination of responsibility ^ in this case, state responsibility ^ for failure to comply with obligations. It is also central to the determination of liability for the commission of crimes ^ in this case, international crimes. Clearly, however, that bears primarily on the question of whether a particular actor can be held answerable for a legal wrong. It does not address the question of why that wrong occurred, how it relates to other wrongs, or what its enabling conditions were. As distinct, then, from causation, the issue of root causes is for the most part a recent theme of human rights work. Certainly, its visibility in the documentation published by the United Nations and leading human rights organisations rose exponentially during the rst decade of the new millennium.16 Linked to this, its range of reference also mushroomed.Today there is talk of the root causes of human tracking, violence against women, forced migration, hunger and malnutrition, child abuse, worker abuse, maternal mortality, infection with HIV-AIDs, arbitrary detention, summary execution, and the persecution of religious minorities. In contrast to the
14 E. Carpenter,The Healing of Nations and the Hidden Sources of their Strife (London: George Allen and Unwin, 1915) 12. 15 See eg, D. Oakes, Root Cause Analysis:The Core of Problem Solving and Corrective Action (Milwaukee: ASQ Quality Press, 2009). 16 To refer to one indication of this, in a search of root causes, the website of the Oce of the High Commissioner for Human Rights registers 2380 hits, of which roughly two-thirds relate to the period 2006 to early 2010, and the overwhelming majority relate to the period since 2000.
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situation described by Naomi Klein, there is also talk of the root causes of torture and disappearance. Indeed, there is talk of the root causes of violations of virtually every internationally recognised human right. An initial preoccupation was with the violation of human rights as itself a root cause of violent conict, even as violent conict is seen to set the stage for the violation of human rights. The theme of root causes appears to have entered the human rights lexicon at least partly in conjunction with debates about conict prevention, and much discussion in this context continues to revolve around the relation between human rights abuse and armed conict. In 1999 Mary Robinson made the rst speech by a UN High Commissioner for Human Rights in the UN Security Council. Reporting this, a representative of Human Rights Watch commented: Most of the conicts the Council deals with these days have human rights violations as their root cause, so Mary Robinson should be a regular visitor there.17 Around the same time, investigation by a Dutch research team into the causes of human rights violations led for some years to the annual publication of a map showing the shifting global connections between human rights abuse and armed conict.18 In areas of violent conict, human rights organisations routinely emphasise the need to strengthen the national protection of human rights in order to address the root causes of conict and tensions.19 As indicated, however, the theme of root causes is not just about what human rights abuse causes; it is also about what causes human rights abuse. Intertwined with that latter issue is a further preoccupation with violence, but not as a phenomenon to be set in opposition to the protection or violation of human rights. Instead the focus is on the interrelation of dierent human rights, including different categories of human rights. Renewing the longstanding question of how civil and political rights aect and are aected by economic, social and cultural rights, attention is called to the links between violence, on the one hand, and poverty, discrimination, marginalisation and social exclusion, on the other. A wideranging study on this topic was published in 2006 by the non-governmental World Organisation against Torture.20 Entitled Attacking the Root Causes ofT orture: Poverty, Inequality andViolence, the study outlines evidence of correlations between socio-economic inequality and (state and non-state) violence, and presents case studies illustrating the correlations. It then examines to what extent the existence of a link between poverty and violence is reected in human rights work at the UN and other international organisations.
17 Human Rights Watch, Robinson Addresses Security Council: Its About Time 15 September 1999, at http://www.hrw.org/en/news/1999/09/15/robinson-addresses-security-council-its-abouttime (last visited 15 September 2010). 18 PIOOM (Programma voor Interdisciplinair Onderzoek naar Oorzaken van Mensenrechtenschendingen), based at Leiden University. The project has been discontinued; the nal map related to 2001/2. 19 See eg, report of the Oce of the High Commissioner for Human Rights on Guyana (2006^2007) at http://www.ohchr.org/EN/Countries/LACRegion/Pages/GYSummary.aspx (last visited 15 September 2010). 20 World Organisation against Torture, Attacking the Root Causes ofTorture: Poverty, Inequality andViolence (Geneva: World Organisation against Torture, 2006) at http://escr.omct.org/interdisciplinarystudy/ (last visited 15 September 2010). This is one of many illuminating reports by the World Organisation against Torture around this general theme.
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The UN special proceduressystem is one sphere in which frequent reference has been made to such a link. Reviewing the activities of elevenspecial rapporteurs and other expertsunder this system during the period 1999 to 2005, the study shows that all highlighted poverty, discrimination, marginalisation and exclusion as structural causes of human rights violations.21 Some also emphasised the impact in that connection of privatisation, deregulation and other processes of economic restructuring, and of macro-economic policies adopted at international level. In a few cases, aholistic approach became established in which there is systematic investigation of the linkages between denial of civil, cultural, economic, political and social rights. The study additionally demonstrates the way discussion of root causes brings with it an emphasis on the issue of vulnerable groups. To elucidate what is causing abuses is at the same time to shed light on who is most at risk of suering those abuses. The study observes that many vulnerable groups were identied, and that the need to empower such groups was a recurrent theme of experts reports. On the other hand, the study also reveals considerable variation among the special procedures.This was in part a function of the nature of particular mandates. In the case of mandates focused on the rights of a particular group or on the causes and consequences of a particular problem ^ for example, the Special Rapporteur on indigenous peoples and the Special Rapporteur on violence against women ^ the interplay between violations of civil and political rights and the denial of economic, social and cultural rights was systematically described. In the case of mandates mainly focused on economic, social and cultural rights ^ for example, the Special Rapporteur on the right to health and the Special Rapporteur on adequate housing ^ cases of violence relating to the rights protected and to poverty generally were often reported. Some of these mandates, though not all, had become associated with the holistic approach mentioned above. But in the case of mandates mainly focused on civil and political rights ^ for example, the Special Rapporteur on extrajudicial executions and the Special Rapporteur on torture ^ the socio-economic context of violations was only sporadically noted. Equally, approaches varied among individual mandate-holders. Having pointed to the link between poverty and violence, some mandate-holders put the issue to one side for reasons to do with time and information, or because they considered that it was appropriately addressed in other settings. Among those who did take it up, few took it into account in formulating their specic recommendations. Reporting as Special Rapporteur on torture, for example, Sir Nigel Rodley wrote that poverty is all too relevant to issues falling within his mandate, but, after registering some of the ways in which this was so, he remarked that he had neither the competence nor the expertise to oer solutions to change these bleak realities.22 Reporting as Special Rapporteur on extrajudicial executions, Asma Jahangir was more sanguine, though not necessarily more encouraging.Poverty has a cure, she wrote,which requires patience, sincerity and sound planning. Above all,it requires the political will and courage to eradicate poverty through an eective programme built on justice for all.23 What
21 ibid 244. 22 Interim report of the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment, UN Doc A/55/290 11 August 2000, paras 35^36. 23 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Honduras, UN Doc E/CN.4/2003/3/Add.2 14 June 2002, para 40.
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Jahangir did not say was how that political will and courage might arise, where they might come from, and ^ perhaps most relevantly in a discussion of root causes ^ why they appeared to be missing in current conditions.
THREE EXAMPLES
We have seen something of what is involved in the explanatory turn in international human rights. It will be instructive now to consider in more detail some examples of it. The succeeding paragraphs present three examples, designed to illustrate the scope and variety of the human rights movements engagement with the question of why abuses occur.
Example 1: arbitrary detention
An initial example relates to arbitrary detention. In 2009 the Human Rights Unit of the UN Assistance Mission in Afghanistan (UNAMA) published a report on the problem of arbitrary detention in Afghanistan.24 People were routinely being held for acts that did not constitute crimes, after trials that were manifestly unfair, and beyond the dates on which their sentences had been served, and the Human Rights Unit wished to help the Afghan Government by proposing eective measures for dealing with the problem. A substantial section of the report was devoted to an examination of theroot causes of the patterns identied. Five root causes were highlighted. First, the formal system of justice was in competition with informal systems and customary and religious practice that lacked the same conceptions of procedural and substantive justice. In particular, the presumption of innocence, the right of defence and the principle of equality before the law were not well understood. Secondly, the legal framework had signicant gaps and inconsistencies.The right of habeas corpus was not recognised or, insofar as it was recognised, it was not respected. The criminal law was also insuciently clear on certain key matters, including the intersection with religious law. Thirdly, the formal system of law was still developing. Police, prosecutors and judges often had limited technical knowledge. An eective bail system did not yet exist, and administrative arrangements were too inecient to permit timely case-management. Fourthly, there was corruption within the criminal justice system. Most of those who languished in detention were poor, since they lacked the nancial resources or inuence to gain their freedom.Weak oversight meant that corrupt practices continued with impunity. Finally, training and capacity-building programmes remained incomplete. The duties and responsibilities associated with the administration of justice had not been eectively communicated to the authorities. Insucient attention had also been paid to the need to raise awareness among ordinary people of their rights. Alongside each root cause, the report had a section entitled nding solutions. Solutions proposed include better training and capacity-building programmes,
24 Arbitrary Detention in Afghanistan: A Call for Action, Vol 1 ^ Overview and Recommendations (Kabul: UNAMA, Human Rights, 2009).
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law reform, an awareness-raising campaign, and the provision of enhanced oversight with eective enforcement, and these points were amplied in a section setting out concrete recommendations. The report added that rm and unyielding political support from both national leaders and the international community also is a pre-requisite to combating impunity and corruption and improving accountability.25 This is plainly a compelling and well thought-out analysis, and it yields an agenda for action that is both practicable and reasonable. To what extent, however, does it help us to understand why arbitrary detention is occurring in Afghanistan and what it will take to change the situation? The report tells us about competing conceptions of justice under religious and customary law, gaps and inconsistencies in the legal system, weaknesses in the administration of justice, corruption, impunity and lack of accountability on the part of those in charge, and incomplete training and capacity-building. But it says nothing about the context in which those problems arise. Why, for example, are there competing conceptions of justice of the particular sort identied? Is this simply a fact of Afghan culture, or must it be understood with reference to a wider array of national and transnational circumstances? Either way, can the competition be surmounted or circumvented through better training in the concepts and practices of modern law? The report highlights a perception among judges that those accused of crimes relating to subversion or anti-government activities should not have access to defence counsel. Is that because the judges do not suciently grasp the implications of due process, or does it remind us that arbitrary detention, while reprehensible, is often rational, in the sense that it has a purpose within a contested political order? The report also observes that the principle of equality before the law is not applied to women, who are frequently detained for moral crimes, such as running away from home. Again, is that because the principle of equality before the law is not well understood? Would the situation be transformed if the authorities had improved knowledge of their responsibilities for the administration of justice? Are the gaps and inconsistencies in the legal system that permit detention for running away from home causes of such gendered justice, or instead symptoms of a deeper problem with its roots in socio-economic inequalities? The report informs us that there is a preponderance of poor people in arbitrary detention, inasmuch as those better o are able to buy their freedom. If the problem of arbitrary detention is so manifestly bound up with social class, is it likely to be remedied by the introduction of a new system of bail or a more ecient system of judicial administration? Might not procedural and administrative reforms, however desirable, simply alter the context, leaving the problem itself to persist? The thread that runs through the report is that more robust measures are required on the part of both national authorities and international stakeholders. Firm and unyielding political support, we are told, is a prerequisite to combating impunity and corruption and improving accountability.This raises the question of how, and by whom, mobilisation can be expected for change in this sphere. Who gains ^ and who loses ^ if arbitrary detention is put to a stop in Afghanistan? Finally, there is the reports
25 ibid 20.
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emphasis on public education. A much stressed aspect of the recommendations is the need to improve rights-awareness among ordinaryAfghans. But what if those latter already know that it is wrong for people to be detained for acts that are not crimes, after unfair trials, and beyond the end of their sentences? What if their need is not for legal experts to tell them that, but instead for support in directing their already acute sense of injustice into organised political action?
Example 2: disaster relief
A second example takes us to a dierent part of the world and to a dierent issue. On 12 January 2010 an earthquake struck Haiti, with its epicentre near the capital, Port-au-Prince. More than a million people were killed, injured or left without homes and essential services. Two weeks later, the UN Human Rights Council held an emergency meeting (or special session) to discuss the Haitian recovery process and underline the importance of a human rights approach.26 In a statement to the session, UN High Commissioner for Human Rights Navanethem Pillay paid tribute to the bravery, resilience and mutual solidarity that had been displayed in the face of immense adversity.27 This was the worst tragedy experienced in the Western hemisphere for many decades. Its eects had been exacerbated by pre-existing inhuman conditions of poverty, instability and feeble institutions, and if these were to be overcome, initiatives had to be anchored in human rights. human rights approach helps ensure that the root causes of vulA nerabilities, in this case poverty and discrimination, are addressed, she said. Government and civil society delegates likewise spoke of the tragedy that had befallen Haiti, of its roots in persistent poverty and discrimination, and of the need not to let human rights be eclipsed by the immediate demands of humanitarian assistance. For it was crucial to be aware that natural disasters and the way in which international organizations responded to them had clear human rights implications.28 In what sense, however, was this anatural disaster? At the same time as that discussion was unfolding in the Human Rights Council, another debate was underway on the historical context in which poverty and discrimination had caused so many people to be killed, injured and made homeless. Contributors recalled the course of Haitian history since the slave revolt that ended French colonial rule in 1803.29 Beginning with a punishing blockade and the imposition by France of
26 See Report of the Human Rights Council on its Thirteenth Special Session 2 February 2010, UN Doc A/HRC/S-13/2. 27 Statement of Ms Navanethem Pillay, United Nations High Commissioner for Human Rights to the Human Rights Council Special Session, Geneva, 27 January 2010 at http://www.ohchr.org/ EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9778&LangID=e (last visited 15 September 2010). 28 Human Rights Council Opens Special Session on Support to Recovery Process in Haiti: A Human Rights Approach, Statement of Walter Kaelin, Representative of the Secretary-General on the Human Rights of Internally Displaced Persons at http://www.ohchr.org/en/NewsEvents/ Pages/DisplayNews.aspx?NewsID=9780&LangID (last visited 15 September 2010). 29 See eg, P. Hallward,The land that wouldnt lie New Statesman 28 January 2010 (and, for analysis of more recent Haitian history, P. Hallward, Damming the Flood: Haiti, Aristide and the Politics of Containment (London:Verso, 2007)).
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massive reparations for the loss of slaves and other colonial property, it is a litany of interventions in the country to support foreign commercial interests and the tiny local elite, the successors to the earlier colonial plantation owners. The viciousness of Duvalier pe' re et ls, the US-backed despots who ruled Haiti from the 1950s to the 1980s, is well known, and it was during the younger Duvaliers reign of terror that economic modernisation came to Haiti. Peter Hallward reports that Haitians referred to the scheme of privatisation, scal austerity and de-agrarianisation as thedeath plan.30 Decades later, that certainly appears to have been, and in January 2010 to have remained, its signicance for many.When the earthquake hit, hundreds of thousands of Haitians were living in and around Port-au-Prince in imsy slum dwellings pushed to the precarious edge of deforested and eroding ravines. These considerations make it clear that, if nature brought the earthquake to Haiti, the catastrophe it caused was decidedly manmade.31 The Human Rights Council was plainly aware of this; as we have seen, poverty and discrimination were repeatedly held up as the root causes of what had happened. But what caused them? According to one commentator, Haitis poverty was treated [in public debates] as some baing quirk of history or culture.32 Was it treated the same way in the UN human rights system? When evoking the pre-existing inhuman conditions of poverty, instability and feeble institutions which she said had exacerbated the earthquakes eects, Pillay observed that these conditions resulted from policies such as that of the Duvalier regime which forced people from rural areas and farmers from rice elds to the capital to provide cheap labour for Haitis elite.33 But she did not ^ indeed, she could not ^ mention the relation of that regime to the United States, and nor did she say anything about the role of the international community, the international nancial institutions and the UN itself in carrying the policies forward through structural adjustment, peacekeeping,technical assistance, and international law.34 Delegates to the Human Rights Council special session highlighted the urgent need in Haiti for food, water, medical supplies and shelter, and the inability of the Haitian government to provide these itself. But they too remained silent on the lending and aid conditions that had forced successive Haitian governments to cut public infrastructure, scale back the already limited health service, and drastically reduce the protection given to local industries. Although dependent on food imports in 2010, Haiti had been self-sucient in its staple of rice until import taris were lifted and subsidised US rice began ooding in, but the delegates did not refer to that either. In the UNAMA Human Rights Units analysis of arbitrary detention in Afghanistan, the focus was on problems of a legal, institutional and cultural char-
30 Hallward,The land that wouldnt lie ibid. 31 On 27 February 2010 an earthquake of signicantly greater magnitude (8.8 on the moment magnitude scale, as opposed to the Haitian earthquakes 7.0) struck Chile, also near urban centres.While comparisons are, of course, dicult, the disparity in fatalities is striking, to say the least. Estimates of those killed in Chile range from 500 to 800, while estimates of those killed in Haiti range from 100,000 to 300,000. 32 S. Milne,Haitis suering is a result of calculated impoverishment The Guardian 20 January 2010. 33 n 27 above. 34 On the international legal dimensions, see C. Mieville, Multilateralism as Terror: International Law, Haiti and Imperialism (2008) 19 FinnishYearbook of International Law 63.
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acter, and I raised the question of whether these were root causes of arbitrary detention, or instead symptoms of a deeper problem with its roots in socioeconomic inequalities. Here, in the Human Rights Council debate on the Haitian recovery process, the focus is on socio-economic inequalities ^ the poverty and discrimination that placed those killed in mortal danger, and rendered the government helpless to provide relief to the survivors. Yet that poverty and that discrimination are themselves depicted not as the outcome of determinate forces and relations, including forces and relations that stretch across the world, but as local dysfunctions and accidents of history. Above all, they are made to seem the work of a cruel dictatorship that suddenly arrived one fearful day and wreaked havoc, almost as though it were . . . an earthquake.When the real earthquake struck, the talk was, accordingly, of tragedy, with all the mystery, fatality and nobility of suering that implies.35 The Human Rights Council signalled that the Haitian earthquake was not simply a natural disaster, but it left us to imagine that the vulnerability of those aected was.
Example 3: food crisis
A third and nal example concerns another crisis, the surge in world food prices that began in 2007, and brought sharp increases in hunger and malnutrition in many countries. In a series of documents, the UN Special Rapporteur on the Right to Food, Olivier De Schutter, examined the crisis from the perspective of the human right to adequate food.36 Pertinently to our previous discussion, he began an initial note on the subject by arming that the crisis was not a natural disaster. The disaster which results from the increase of international prices of food commodities . . . is a man-made disaster, he wrote.The causes are identiable. Both immediate and medium-term solutions can be agreed upon.37 In a later report, he outlined four problems.38 The rst was under-investment in agriculture. Subsidies and marketing boards had been dismantled under structural adjustment programmes, but they had not been replaced by sucient new investment. Insofar as money was being spent, it was allocated according to policies that favoured large-scale agro-industrial production, to the detriment of small producers whose contribution to food security was often greater, especially in remote areas where transport and marketing costs were high. Secondly, recent years had seen an accelerating trend towards the acquisition or long-term lease by governments and private investors of large tracts of farmland in the global South. In part, this was linked to incentives in the global North for the production of biofuels, and to anticipated revenues from carbon storage
35 On these common associations of tragedy and their relation to the terms wider range of meanings, see T. Eagleton, SweetViolence:The Idea of theT ragic (Oxford: Blackwell, 2003). 36 For a list of relevant reports, see www2.ohchr.org/english/issues/food/index.htm (last visited 15 September 2010). 37 Background Note: Analysis of theWorld Food Crisis by the UN Special Rapporteur on the Right to Food, Olivier De Schutter 2 May 2008, 1, at http://www2.ohchr.org/english/issues/food/ index.htm (last visited 15 September 2010). 38 Report of the Special Rapporteur on the right to food, O. De Schutter, Crisis into opportunity: reinforcing multilateralism UN Doc A/HRC/12/31, 21 July 2009.
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through plantation and avoided deforestation.While these arrangements brought potential benets to host states, they were not being controlled so as to protect local communities. Thirdly, social safety nets were inadequate. As with famines generally, the world food crisis was primarily the result, not of too little food being available, but of food prices that were too high relative to the incomes of those aected. The resulting inability to command food would have been less consequential if better social protection had been in place. Finally, there was a lack of eective safeguards against market volatility. This left countries that depended on internationally traded grains perilously exposed. Inasmuch as nancial speculation played a signicant role in producing that volatility, it also brought into relief the lack of restraints on speculative activity on global commodity markets, including futures markets for agricultural commodities. In outlining each of these problems, De Schutter put forward proposals for overcoming or alleviating it. For example, with regard to under-investment in agriculture, governments should reinvest in rural development, and should do so in a manner that has regard to the right of all to adequate food.With regard to large-scale land acquisitions and leases, legislative and other measures should be adopted to protect local communitiessubsisting rights to land.With regard to social safety nets, programmes of social protection should be strengthened, perhaps underwritten by wealthier countries. And with regard to market volatility, states should cooperate to stabilise markets in agricultural commodities, and should regulate the activities of speculative commodity index funds. He also proposed a new framework for global governance in the area of food security. If hunger and malnutrition had not been eradicated, he considered that that was in part because approaches to food emergencies had been uncoordinated, knowledge of the bases of food security remained incomplete, and governments had persistently failed to follow up on commitments they had made, due to the lack of any accountability.Thus, the new framework would be designed to improve coordination, enhance knowledge, and monitor progress. Like the UNAMA Human Rights Units report, this is clearly an impressive and convincing analysis. And like the Human Rights Councils special session, it takes account not only of abuses, but also of vulnerabilities. Indeed, it goes beyond the special session in pointing to the historical and global context in which those vulnerabilities arise or are sustained. Structural adjustment, aid conditionalities, trade rules, climate change, carbon trading, peak oil, nancial speculation, land speculation, and international ineciency or indierence are all there, in the background or mostly the foreground, informing the account of how a surge in the price of food commodities caused certain people in certain countries to be deprived of adequate food. Once again, however, we need to ask to what extent this helps us to understand why such a violation of human rights has occurred, and what it will take to prevent a recurrence. In De Schutters account, vulnerability to hunger and malnutrition is due to bad national and international policies. Governments should invest more in agriculture.They should introduce legislation to protect local communities from predatory investors. They should strengthen programmes of social protection. They should underwrite poorer countries programmes of social protection. They should act together to stabilise food commodities markets and regulate nancial speculation in the global public interest. They should do all those things, yes. But why dont they?
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De Schutters answer is primarily twofold. On the one hand, insucient attention is paid to the human right to adequate food. In the specic circumstances of the world food crisis, he suggests that that right may have been assumed to express long-term objectives which were out of reach for the present and thus of little immediate relevance. But such an attitude would . . . betray a fundamental misunderstanding of what the right to food is about.39 That right becomes more central, not less, in times of crisis; it requires that patterns of vulnerability be mapped, and that governments develop national strategies for ensuring food security and accord it priority in public policy generally. On the other hand, there has also been insucient monitoring of governmental action and hence insucient accountability. This too is an aspect of the right to adequate food, he observes, insofar as one of the correlative obligations of states is to put in place mechanisms whereby victims can challenge the choices made by decision-makers. At the same time, it points to a failure of global governance. In another document he is particularly forthright on this theme: Hunger is not a fatality, he writes.It is the result of policies that could have been dierent, and would not have been have allowed to stand if their impacts had been monitored more carefully in the past.40 There can be little doubt that the right to adequate food can provide valuable orientations for institutional and legal reform, and that improved monitoring and accountability would help in challenging policy decisions relevant to food security. But is the problem really misunderstanding or inadvertence? Is it that national strategies have not been adequately monitored, and decision-making processes have been permitted to remain opaque? Is it indeed a matter of decisions, in the sense of individual policies and the methods chosen to implement them? To answer those questions armatively is to suppose that there is no systemic or material basis for hunger and malnutrition, nothing about the organisation of the global economy that generates food crises, and does so not just contingently but necessarily, as part of its logic. It is also to suppose that the conditions which create vulnerability to hunger and malnutrition do not exist at least in part because they benet some groups of people, even as they massively disadvantage others. De Schutter highlights the role of investors and speculators, but he does not mention the members of pension funds, holders of insurance policies, customers of banks, and all the others in both the global North and the global South who live o the arrangements that he identies as reasons for the world food crisis. For him, the key issue is popular participation: participation [must be] at the heart of the design and implementation of public policies.41 Clearly, however, if the problems are systemic, the solutions must equally be systemic; even if (for example) poor people living in areas subject to large-scale land acquisition or lease could take part in every decision involved, the circumstances that link
39 ibid, para 7. 40 O. De Schutter,The Role of the Right to Food in achieving Sustainable Food Security Statement to the World Summit on Food Security 18 November 2009, 2 at http://www2.ohchr.org/english/ issues/food/index.htm (last visited 16 September 2010). 41 O. De Schutter,The Right to Food and the Political Economy of Hunger Twenty-sixth McDougall Memorial Lecture, Opening of the thirty-sixth Session of the FAO Conference, 18 November 2009, 7 at http://www2.ohchr.org/english/issues/food/index.htm (last visited 16 September 2010).
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their poverty with others auence would remain unaected. In an earlier report, he proposed a series of principles and measures with regard to large-scale land acquisitions and leases, to guide investors and host governments in negotiating terms that are balanced, work for the benet of the population in the host country and are conducive to sustainable development.42 Were our imagined hyper-participatory scenario to be realised, the circumstances would likewise remain unaffected that lead ^ indeed, that require ^ foreign investors, when buying up or leasing land, to give priority not to the benet of the population in the host country, but rather to the generation of prot. De Schutter does not want to treat the world food crisis as a natural disaster. But if the only things he can invite us to work for are improved understanding of human rights, better global governance and accountability, and wider participation in the design and implementation of public policies, then the question arises whether, in fact, he does treat it that way.
CAUSES AND EFFECTS
These examples testify to the substantial and wide-ranging engagement of the human rights movement with explanatory analysis.We have reviewed discussion of why arbitrary detention occurs, why people become vulnerable to the eects of earthquakes, and why the world food crisis is a world food crisis. In two cases there has been an emphasis on poverty, discrimination, marginalisation and exclusion as structural bases of human rights violations, and poverty was also touched on as a mediating factor in the third. Aholistic approach has generally been favoured that connects the right to adequate food with the right to social security; the right to clean water with the right to adequate housing; and the right to personal liberty and security with the right to non-discrimination and equality before the law.We have seen how the study of root causes is held to belong with the distinctiveness of a human rights approach to global problems, and also to form part of what is demanded by particular human rights. Thus, for instance, [a]n approach grounded in the right to food requires that we address the root causes of hunger and malnutrition.43 And we have noted the attention that comes with this to the identication and empowerment of vulnerable groups. But if some pertinent enquiries have been undertaken, we have also observed that other pertinent enquiries have not. In discussion of root causes, human rights institutions and ocials have grappled only partially and rather problematically with the question of why abuses occur, how vulnerabilities arise, and what it will take to bring about change. In analytical terms, our examples have brought into focus three principal problems. In the rst place, the investigation of causes is halted too soon. Secondly, eects are treated as though they were causes. And thirdly, causes are identied, only to be set aside. It is worth emphasising at this point, though more will be
42 n 38 above, para 22. For the report that was presented earlier (though published later) on large-scale land acquisitions and leases, see Report of the Special Rapporteur on the right to food, Olivier De Schutter, Addendum: Large-scale land acquisitions and leases: A set of minimum principles and measures to address the human rights challenge UN Doc A/HRC/13/33/Add.2, 28 December 2009. 43 ibid, para 8.
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said on this in the succeeding paragraphs, that, for the most part, these problems do not express shortcomings or failings of particular institutions or ocials. Rather, they are limitations in the extent to which those institutions and ocials are able to elucidate the root causes of whatever it is that concerns them, given the arrangements within which they operate.That is to say, the issue is how the international system of human rights protection, at least as currently congured, may itself limit the possibilities for revealing the reasons behind violations, and what that tells us about the signicance and prospects of root causes as a theme of human rights work. Let us consider the three problems more fully. By halting the investigation of causes too soon is meant that the analysis of causes is not taken far enough back. So, for example, attention is directed at abuses, but not at the vulnerabilities that expose people to those abuses. Or there is discussion of vulnerabilities, but not of the conditions that engender and sustain those vulnerabilities. Or the focus is turned to the conditions that engender and sustain vulnerabilities, but not to the larger framework within which those conditions are systematically reproduced. Speaking more concretely, this often manifests itself in an emphasis on technical problems and solutions.The implicit message is that, if only bad procedures, rules and ideas were replaced and good ones adhered to, the miseries with which human rights are concerned would go away. In a study of human rights monitoring with respect to torture,Tobias Kelly highlights the assumption that violence can be eradicated so long as states have the correct technical policies, which they strictly follow.44 Torture is assumed to be some kind of accidental aberration or product of a failed [or incomplete] modernity, the result of a cultural void to be remedied through institutional and legal reforms.45 Yet, he observes, this obscures the political nature of violence within modernity; it depoliticises the causes (and consequences) of torture.46 Kelly stresses that this is not adeliberate strategy or philosophy on the part of monitoring bodies; it is simply a function of the nature of the tasks allocated to them and of the conditions in which they work.47 At the same time, the problem of halting the investigation of causes too soon manifests itself in a privileging of the state as the primary agent of change. For all the constant talk of grassroots movements and bottom-up strategies, governments and their political will seem to hold the key.Writing about political violence in Sri Lanka, Vasuki Nesiah and Alan Keenan observe that a preoccupation with stateoriented remedies [has the consequence that] all claims have to be channelled through the state. This domesticates more complex (and potentially more radical) demands on the social structure, and, in the process, brings about thedemobilization of social movements and other forms of emancipatory struggle.48 To refer to one nal aspect, the problem of halting the investigation of causes too soon manifests itself in a tendency to concentrate on causes that can be translated into remedial
44 T. Kelly,The UN Committee Against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty (2009) 77 Human Rights Quarterly 777, 798^799. 45 ibid, 799. 46 ibid, 800. 47 ibid. 48 V Nesiah and A. Keenan, Human Rights and Sacred Cows: Framing Violence, Disappearing . Struggles in N. Gordon (ed), From the Margins of Globalization: Critical Perspectives on Human Rights (Lanham: Lexington Books, 2004) 261, 280.
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proposals, themselves capable of being translated into bullet-point conclusions at the end of reports. Of course, it is the job of those preparing human rights reports to produce such proposals; we are again talking about people and organisations doing what they can and must. Nonetheless, we need to be clear about what gets elided when an analysis of the root causes of human rights abuse is framed in this manner. For the various aspects that have just been mentioned are interlinked. The need to produce remedial proposals in reports addressed to governments and intergovernmental organisations fosters an emphasis on technical problems and state actions. Conversely, it discourages engagement with the systemic character of abuses and with the contributions and further possibilities of action by ordinary citizens. The second limitation to be gleaned from our examples is a consequence of the rst: eects are treated as though they were causes.Take the case of arbitrary detention in Afghanistan. We have already observed how legal lacunae may be treated as the causes of inequalities when they might equally be understood as eects of them, in the sense of existing in part to help in stabilising a social structure that includes those inequalities. Alongside legal lacunae, another set of issues agged up in the UNAMA Human Rights Units report is corruption, impunity and lack of accountability. For the Human Rights Unit these are brute facts of the Afghan situation, and, as such, starting-points for an explanatory analysis. But are corruption, impunity and lack of accountability causes of arbitrary detention, or does the chain of causation again move in the opposite direction? That is to say, do the authorities detain people arbitrarily because they are corrupt, exempt from punishment and otherwise unaccountable, or are they corrupt, exempt from punishment and otherwise unaccountable so that they can (among other things) detain people arbitrarily? As noted earlier, the possibility needs to be contemplated that arbitrary detention is not simply an anomaly or dysfunction, allowed to continue through a failure of political leadership in the country and by the international community, but is in some sense functional to, and hence rational within, subsisting conditions. Is this way of thinking about corruption, impunity and lack of accountability conspiracy theory? That is, quite plainly, a familiar charge against explanatory analyses that are conducted at the level of background conditions, enabling frameworks and overarching systems. From the perspective of those analyses, however, such attempts to keep the focus xed on individual decisions, policies and behaviours are themselves bound up with the processes of systemic self-reproduction.We shall return to that point later. For the moment, one further illustration of this reversal of cause and eect will help to make clear the concern.This example relates not to corruption and the other phenomena we have just considered, but to racism. In remarks on the category of migrant workers, Slavoj %i&ek points to the displacement that occurs when we speak of migrant workers and immigrants, rather than simply workers or the working class.49 [T]he problematic of power exploitation . . . is silently. . . retranslated into the multi-culturalist problematic of tolerance. And so it comes to appear as if we exploit these workers because we are racist, rather than that we are racist in order to exploit
49 S. %i&ek,Human Rights and its Discontents lecture at Bard College, 16 November 1999 at http:// www.egs.edu/faculty/slavoj-zizek/articles/human-rights-and-its-discontents/ (last visited 16 September 2010).
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them.50 Racism, in %i&eks account, is an eect of the deeper problem of exploitative class relations. To treat it as instead the cause is to depoliticise that problem by representing it as one that can be overcome through greater tolerance. The third limitation involves the identication of causes, only to set them aside. Specically, it involves the disconnection of explanatory analysis from practical proposals, and of strategies for change from the investigation of material conditions. In an article published in 2000, Neve Gordon, Jacinda Swanson and Joseph Buttigieg review two reports by Human Rights Watch.51 One concerns tracking of women and girls in Nepal; the other, bonded child labour in India. Gordon and his co-authors note that the reports give considerable attention to the economic context of these violations of human rights. In the case of tracking, for instance, there is discussion of how unequal distribution of agricultural land contributes to poverty, and poverty sets the scene for tracking into prostitution. In the case of bonded child labour, there is reference to the combined eect of factors that include alternative credit sources, adult employment opportunities, social welfare provision and sub-living wages. But while the connection between human rights violations and their socio-economic context is vivid in Human Rights Watchs analysis of the two situations, it is almost totally absent from the recommendations ultimately put forward.52 These revolve primarily around measures to improve the position of victims. The organisation does not pursue the implications of its explanatory analysis into its programmatic agenda.53 The consequences of this third limitation are twofold. On the one hand, root causes are discussed, but not in a way that suggests the possibility of actually doing anything about them. On the other hand, since they nevertheless remain root causes, we are left to wonder whether the action that is proposed points to real, historically eective conditions of emancipation or instead to fantastic ones and, to that extent,false promises.54 The irony here is that all this happens in the name of practicality. Perhaps we need to rethink what it means to be practical in this context. If one answer is in terms of remedial proposals and bullet-point conclusions, another is suggested by Chidi Odinkalu in an article entitled Why More Africans Dont Use Human Rights Language.55 Odinkalu argues that more Africans dont use human rights language because the human rights movement fails to provide them with what they need.They dont need someone to inform them that the injustices inicted upon them must stop, that their government should be
50 ibid. 51 N. Gordon, J. Swanson and J. Buttigieg,Is the Struggle for Human Rights a Struggle for Emancipation? (2000) 12 Rethinking Marxism 1. See also the follow-up report of a discussion between the authors and sta-members of Human RightsWatch,Human RightsWatch and Global Capitalism: A Roundtable Discussion with Human Rights Watch (2001) 13 Rethinking Marxism 52. 52 Gordon, Swanson and Buttigieg, ibid, 7 (emphasis added). 53 For replies to this charge by Human Rights Watch, see Human Rights Watch and Global Capitalism: A Roundtable Discussion with Human Rights Watch n 51 above. 54 Gordon, Swanson and Buttigieg, n 51 above, 9, quoting K. Marx and F. Engels, The Communist Manifesto: Historical action is to yield to their personal inventive action, historically created conditions of emancipation to fantastic ones (criticising the utopian socialists). See (with a slightly different translation) T. Carver (ed and trans), Marx: Later Political Writings (Cambridge: Cambridge University Press, 1996) 27. 55 C. Odinkalu, Why More Africans Dont Use Human Rights Language (Winter 1999) Human Rights Dialogue 2.1.
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doing better, and that the global system is working against them; they are all too aware of those things.What they do need is amovement that channels these frustrations into articulate demands and political strategies. Yet the depoliticising practicality of the human rights movement ensures that that is the one thing it cannot provide.The result, he writes, is that the real life struggles for social justice are waged despite human rights groups ^ not by or because of them.56
PLANNED MISERY
If the current discourse of root causes is problematic in ways we have seen, in this nal part of the discussion I want to consider what a dierent kind of explanatory discourse might look like. But rst, let us stay for a moment with the current discourse. How are we to understand the limitations just described? If we put the various points together, what general picture emerges? In recent work I have written of the phenomenon of false contingency.57 This phrase is inspired by Roberto Ungers concept of false necessity.58 As is well known, Unger developed that concept as a critical tool to help in searching out and exposing the necessitarian modes of thought that produce, and are reproduced by, social scientic enquiry. By necessitarian modes of thought are meant those which make it seem as though the world has to be as it is. False necessity brings into focus the fatalistic myths which mask the historicity of existing arrangements and prevent us from grasping their contingency, provisionality and hence, most importantly, their mutability.59 Underpinning this is plainly the long recognised, but still crucial, insight that history is a social product, not given but made. And if it has been made, then it can be remade dierently. That is surely a cardinal principle of all progressive thought. On the other hand, another cardinal principle of progressive thought is that possibilities are framed by circumstances.While current arrangements can indeed be changed, change unfolds within a context that includes systematic constraints and pressures. That is the point of departure for the concept of false contingency. It reminds us that things can be, and quite frequently are, contingent without being random, accidental or arbitrary. Put dierently, there is a kind of necessity which must be reckoned into, rather than always contrasted with, our sense of what it is to be an artefact of history. And since social scientic enquiry is entangled not just with false necessity but also with false contingency, we are only doing half the job we need to do as critics if we attend solely to false necessity.We certainly do need to search out and expose necessitarian modes of thought. But we also need to search out and expose voluntarist modes of thought, which mask the systematicity, and in that sense necessity, of existing congurations of forces and relations. Note well that the necessity referred to here is not natural necessity ^ the ineluctable destiny
56 ibid. 57 See S. Marks,False Contingency (2009) 62 Current Legal Problems 1; and, for brief references,Introduction and Exploitation as a Legal Concept in S. Marks (ed), International Law on the Left: Reexamining Marxist Legacies (Cambridge: Cambridge University Press, 2008) 15^16 and 299^302. 58 R. Unger, False Necessity (Cambridge: Cambridge University Press, 1987). 59 ibid 30.
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that is falsied in false necessity; it is historical necessity ^ the inherited logics, tendencies and rationalities of social systems and the momentum associated with them.60 As such, it is itself subject to change if and when those systems are changed. Note also that the concept of false contingency is proposed not as a substitute for investigation into false necessity, but rather as a corrective or complement to it. It attempts to renew the prominence of a dimension that has been relatively under-emphasised in critical writing in recent years.61 Against this background, the limitations of the root causes discourse we have reviewed appear as a form of false contingency. The systemic context of abuses and vulnerabilities is largely removed from view. Despite ^ or rather, because of ^ attempts to explain them, human rights violations are made to seem random, accidental or arbitrary. And if human rights violations are random, accidental or arbitrary, then the prospects of putting them to an end become as remote as though they belonged to the order of nature. They come to appear necessary, not just in the (false contingency) sense of historical necessity, but in the (false necessity) sense of natural necessity. False contingency, then, brings false necessity in its train. One further aspect is worth highlighting before moving on. It has to do with the falsity involved here. False contingency is not a matter of what people know or dont know; it is a matter of how they act. It seems a safe assumption that those engaged in human rights work at the UN and elsewhere are aware that there is a systemic context to the violation of human rights.They know that what is involved is not simply a collection of free-oating bad events, to use Naomi Kleins phrase.62 Yet, in their work, they act ^ and, as we have seen, often have no choice but to act ^ as if it is. So the point is not to clear up delusions, but to bring out the eects of action, including actionagainst better knowledge.63 An explanatory discourse informed by the concept of false contingency could be fashioned in many dierent ways, but one is suggested by a phrase evoked at the beginning of this article: planned misery.64 Viewed from the perspective of false contingency, planned misery does not denote intended or deliberately inicted misery, though that is sometimes what is involved. Rather, it denotes misery that belongs with the logic of particular socio-economic arrangements. In a discussion of the history of the prohibition on torture,Talal Asad refers to a distinction drawn in that context between necessary suering and gratuitous, wasteful or unnecessarysuering.65 He shows how, during the late 19th century, this distinction was deployed by colonial authorities to discipline colonised peoples in a double manner. On the one hand, it was used to outlaw traditional, local practices of punishment as gratuitously cruel. On the other hand, it was also used to justify colonial punishments as necessary to the process of becoming civilised.
60 Regarding the quite dierent sense of natural necessity in the philosophy of critical realism, see A. Norrie, Dialectic and Dierence (London: Routledge, 2010) esp 7^11. 61 For speculation as to the reasons for this (and also for a fuller discussion of the concept of false contingency), see S. Marks,False Contingency n 57 above. 62 n 7 above. 63 P. Sloterdijk,The Critique of Cynical Reason (Minneapolis: University of Minnesota Press, 1988) 5. 64 See n 12 above. 65 T. Asad,On Torture, or Cruel, Inhuman, and Degrading Treatment (1996) 63 Social Research 1081, 1092.
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In this regard, Asad cites Lord Cromer, British Consul-General to Egypt from 1883 to 1907: if cruelties were imposed in the course of colonial administration, this was because civilisation must, unfortunately, have its victims.66 Planned misery denotes the necessary suering of those dispossessed, exploited and oppressed today. How then might the concept of planned misery orient the analysis of why human rights abuses occur? At this stage I can provide only a brief, initial sketch, in terms of ve interlinked elements. To begin with, it would encourage a perspective that is anti-moralistic. In place of the question of what governments and others should do, the central issue would be why governments and others are doing what they are doing, and not doing what they are not. Having determined that abuses are occurring, we would stay with the indicative mood of actuality, rather than shifting into the subjunctive mood of unreality and wish-fullment. Beyond that, such an approach would also foster greater reliance on transitive concepts ^ that is to say, concepts that express direct actions on people and things.The concept of discrimination looms very large in discussions of human rights abuse, but it expresses an indirect relation. If I discriminate against you, the action does not pass over to you, and we are less tightly entwined with one another than if, for example, I exploit you. Transitive concepts such as exploitation, marginalisation, dispossession and displacement are generally more telling, because more basic to the understanding of social systems, than intransitive concepts, and thinking about planned misery would prompt us to explore their signicance for human rights more fully than at present. At the same time, thinking in these terms would promote attention to the relational character of social phenomena. The human rights movement is structurally predisposed to focus on victims ^ they are the ones to whom the rights violated belong. In recent decades, with the development and institutionalisation of international criminal law, there has also been scrutiny of perpetrators, at least in the case of abuses that constitute international crimes. But very little mention is ever made of beneciaries. Those who (directly or indirectly) live o the practices and processes that victimise others have been allowed to remain comfortably out of sight. Challenging that invisibility, the concept of planned misery would insist on the question of how deprivation and privilege interrelate. A further concomitant would be an emphasis on materialist explanations ^ that is to say, explanations that account for phenomena not only in terms of the ideas informing them, but also in terms of their connection to processes of social production. To be sure, it is important to uncover problems at the level of ideas. But if we are fully to understand a situation, it is also important to delve deeper and ask about the socioeconomic conditions within which those ideas were able to develop and gain inuence. So where abuses are currently explained with reference to bad policies, laws and interpretations, the concept of planned misery would urge enquiry into the material context of such harmful thinking. Finally, an approach oriented to the concept of planned misery would have a repoliticising thrust. Explanatory analysis would be geared less to problem-solving and the elaboration of remedial proposals (the style of root cause analysispursued
66 E. Baring, Earl of Cromer, Political and Literary Essays, 1908^1913 (London: Macmillan, 1913) 44.
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in business, administration and management) than to the strategic task of channelling grievances into organised and coherent action. Of course, explanatory analysis cannot itself specify the forms of that action, but it can be undertaken in ways that contribute more and less to eective political mobilisation. For instance, as we have already observed, a preoccupation with state-oriented remedies tends to domesticate potentially radical demands on the social structure and bring with it the demobilisation of oppositional activity. Likewise, the representation of abuses as products of a local dysfunction, historical accident or cultural gap tends to reduce the salience of political struggle.The idea that human rights implicate questions that are not simply technical, but political, is today quite widely acknowledged.67 But, most commonly, that puts the accent on particular practices and their distributional consequences, rather than on a collective project and its goals. In critical reections on the international human rights movement, David Kennedy calls for a more pragmatic attitude to human rights that [weighs] the costs and benets of various alternative forms of engagement ^ political, legal, ethical, philosophical, and so on.68 The concept of planned misery would invite us to consider the conditions under which all such calculations are made. It would take us beyond pragmatism and practicality to praxis, beyond distributional consequences to the organisation of productive processes, and beyond fantastic possibilities to real, historically created ones.
CONCLUSION
We began with Naomi Kleins claim that the commitment of the human rights movement in the 1970s to neutrality and impartiality, while understandable and in some ways helpful, had signicant negative eects. The determination only to document abuses and not to try to explain them meant that human rights became a set of blinders. And if those blinders prevented us from seeing what was causing abuses, then they also prevented us from seeing what it would take to make the abuses cease. Since the 1970s, however, and especially in recent years, things have changed. The human rights movement has not renounced its commitment to neutrality and impartiality, but, at least as far as the UN and leading international non-governmental organisations are concerned, this is not now understood as barring the question of why abuses occur. On the contrary, a human rights approach is held to demand attention to the root causes of violations. Are we to infer from that that the problem Klein identies has gone away? Our investigation suggests reasons for doubt. If the root causes discourse that has emerged within human rights circles reveals some aspects of the explanation for human rights abuse, the examples we have reviewed provide evidence that it can also conceal other aspects. In particular, we have observed how aws have been illuminated at the level of law, procedure and policy. Yet these aws have been
67 See eg, O. De Schutter, n 41 above (arguing that the human right to adequate food asks questions that are political and not merely technical). 68 D. Kennedy,The International Human Rights Movement: Part of the Problem? (2001) European Human Rights Law Review 245, 246.
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made to seem like simple misunderstandings or oversights, deciencies of leadership or accountability, or quirks of local history or culture. The idea that they may themselves be explicable with reference to some wider systemic context has been mostly removed from view. For all the insistence that human rights abuses and the vulnerabilities which expose people to them are man-made disasters, the drift of our analysis is that natural disaster is the model on which the explanatory eort is imaginatively constructed. In theoretical terms, I have characterised this situation using the twin concepts of false contingency and false necessity. Insofar as abuses are made to seem random, accidental or arbitrary, false contingency is involved. But insofar as that then leads us to resign ourselves to their persistence, false necessity follows. They become, as we have just seen, man-made disasters modelled on natural ones. As one possible alternative, I have described an approach in which the orienting concept is not root causes, but instead planned misery. Is this impractical? Does planning imply conspiracy? Part of the distinctiveness of planned misery is that it prompts a reconsideration of what constitutes practicality in this context and how charges of conspiracy theory are to be understood.Whether or not that line of enquiry proves fruitful, Klein provides an excellent vignette of what may be at stake.In a way, she writes,what happened in the Southern Cone of Latin America in the seventies is that it was treated as a murder scene when it was, in fact, the site of an extraordinarily violent armed robbery.69
69 N. Klein, n 1 above 125.
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Human Rights and Root Causes

(2011) 74(1) 57^78

Human Rights and Root Causes

Human Rights and Root Causes

Human Rights and Root Causes

Human Rights and Root Causes

Example 2: disaster relief

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CAUSES AND EFFECTS

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69 N. Klein, n 1 above 125.

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