The question of state legitimacy 

Human right are not optional

By Lawrence Davidson

The traditional criterion for state legitimacy was very simple. If a state and its government could hold and govern territory, it was legitimate, at least in the eyes of other governments. The form of government and its behaviour did not matter in this definition – Stalin’s USSR, Mussolini‘s Italy, Hitler’s Germany – these regimes held territory and ruled as surely as did the ones in Britain, France and the United States. And, in each other’s official eyes, one state was as legitimate as the other.

State legitimacy and human rights

This outlook began to change in 1945. Just before and then during World War II, fascist behaviour in general and Nazi behaviour in particular was so shocking that many post-war governments became convinced that state legitimacy required well-defined codes of national behaviour enshrined in international law.

Therefore, right after the war, human rights became a recognised standard by which to judge states and their governments. This new standard, which was implied in the Nuremberg trials, was soon articulated in such documents as the International Declaration of Human Rights and endorsed by the United Nations. It was simultaneously reinforced by a worldwide process of decolonisation that focused the international community on issues of human rights, particularly as they touched on the practice of racism and apartheid.

Most importantly, this process led growing segments of civil society to support human rights law as a standard by which to judge state legitimacy. In one case, pressure from civil society worldwide was applied on apartheid South Africa throughout the 1970s and 1980s with sufficient force to help change not only the nature of that country’s government, but its national culture and therefore the character of the state itself. By 1994 South Africa was no longer an apartheid state.

The new attack on human rights

Recently, things have not gone so well. There has been a tendency for the lessons learned about the importance of human rights to fade with time, particularly from the institutional memories of state bureaucracies. The proclivity of all state apparatuses to behave in a Machiavellian way has reasserted itself, particularly in the foreign policies of Western democratic states and their subsequent alliances with all manner of horrid right-wing dictatorships the world over. This complicity with oppressive regimes produced inevitable anti-Western sentiment culminating in the 11 September 2001 attacks on New York and Washington, DC. Subsequently, the United States declared a “war on terror”, and this effort seems to excuse everything from indefinite detention and torture to assassination.

To accommodate this revival of amoral statecraft, there is now an effort to rewrite international law in a way that restricts or eliminates the human rights standard of behaviour for state legitimacy. The endgame here is to get the international community to recognise as “legal” actions by certain great powers and their allies that include the intrusion into the territory of other states and peoples in order to change governments, control populations, capture or kill wanted individuals, and destroy installations and other property. This is carried out by various means ranging from invasion, enforced apartheid regulations and assassination. At the forefront of this effort are the policies and actions of the United States and its prime ally, Israel.

Rationalisations

How is this effort to override international human rights law rationalised? Essentially, what the governments of the United States and Israel – as well as their neo-conservative and Zionist supporters – say is that all of their enemies can be classified as terrorists, and because terrorists do not adhere to the standards set by international law, they (the US and Israel) are forced to adopt wartime measures in combating these enemies. The cornerstone of this approach is the practice of “extraterritorial targeted killing”. Just listen to the well-known Zionist lawyer Alan M. Dershowitz, who has proclaimed that “at the moment our legal system is playing catch-up with military technology”. What he finds “imperative” is that drone attacks and the like be made legal by, for instance, allowing someone in the government to obtain a warrant that allows an assassination (and its “collateral damage”) to take place. Dershowitz is referring to the US government but, the precedent having been set, his scenario for “legal” murder could be adopted by any government – certainly the Israelis have elevated “targeted killing” to a high art.

There is nothing in international law that substantiates this position, and it certainly violates core tenets of international human rights law as well as aspects of the Geneva Conventions. Nor can this behaviour be passed off as part of a “just war,” for it fails to meet several accepted qualifications for such a venture as comparative justice and last resort. Nonetheless, an array of criminal practices have been put into practice under the assumption that “if you do something long enough, it becomes accepted standard practice”. In other words, in Washington and Tel Aviv, the hope is that what starts out as a corruption of the law eventually becomes the law.

Standing up for international law

There is now a struggle going on that will determine both the viability of international human rights law and the role of civil society in defining state legitimacy. Should states that adopt practices such as “extraterritorial targeted killing” or adhere to the racist practices of apartheid continue to be regarded as legitimate, or should they be seen as criminal “rogue states” by virtue of their violation of international human rights law? In this struggle those who stand in support of human rights should not be underestimated. They are serious, numerous, worldwide in scope and well organised. But, they are not governments, they are elements of the general population: they are civil society.

This contest may have still greater implications. It may really come down to the fate of the rule of law itself. If we allow international law, and particularly international human rights law, to be marginalised or even done away with, we will return to the same international conditions that destroyed the League of Nations, facilitated the rise of the fascists, Nazis and Stalinists, and allowed for the prolonged existence of apartheid South Africa. In each case the lack of effective international human rights law helped lead to a drastic deterioration in the domestic rule of law in countries like Italy, Germany, Russia and South Africa. And, today we can see signs of deterioration of the rule of law in countries such as Israel and, to a lesser but still real extent, the United States.

There is a lot at stake here and we can be thankful that even as the majority of people blithely go about their daily affairs, a growing minority has become aware of what their governments are doing and its implications for everyone’s future. We should be thankful and supportive – actively supportive.

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