Books: Whose licence to kill?

The new age of human-rights laws and wars is dawning not in clarity, but fog.

Crimes against Humanity: the struggle for

global justice

by Geoffrey Robertson

Allen Lane/ Penguin Press, pounds 20, 374pp

Geoffrey Robertson is a good writer, and is widely regarded as an excellent advocate. He is devoted to the cause of human rights and has, in the past, been an excellent propagandist and advocate on its behalf. His publishers say that this volume "is the first book to explain properly how human rights has suddenly come to dominate international affairs" and that it "examines and feeds the human rights debate from every point of view: history, politics, law and international affairs, as well as political philosophy".

These are grand claims which the book does not entirely justify. In fact, given the reputation and abilities of the author, it is a somewhat disappointing work. True, it gets through a great deal of material at a high speed, but there are few pauses for reflection and even fewer attempts to reach any of the layers of complexity that pervade the subject and about which the reader is surely entitled - in a book of this ambition - to be informed.

Robertson's moral confidence and his professional habit of adversarial argument means that there is little room left for doubt or for the depth that flows from honest uncertainty. Take the front cover, Picasso's Guernica. The text makes clear the author's willingness to contemplate new Guernicas (taking Baghdad during the Gulf War; bombing the Bosnian Serbs in 1995) to achieve what he sees as moral ends. So why Guernica: is it only certain arbitrary killing of civilians that we must unequivocally condemn?

Can it ever be right to kill for human rights? If so, whom should we trust to do the killing? These are difficult and important ideas, but despite the provocation provided by the front cover, they are not discussed here. Then there is the title. "Crimes against humanity" and "global justice" are not the same thing, and neither is other than distantly related to what very nearly the first half of the book is in fact about: human rights in general, and the relatively recent development of an international law of human rights in particular.

The overall effect is of a second part covering topical issues related to war crimes (Kosovo, the Pinochet case, the international criminal court) tagged on to an earlier set of chapters prepared for something that looks as though it began life as a quite different project. Even in its own terms, this first section disappoints. No serious effort is made to unpick the difference between human rights and civil liberties or to locate the place of either in a representative democracy.

There is no reference to any of the immensely stimulating efforts by contemporary philosophers and jurists such as Feinberg, Habermas, or even the well-known Ronald Dworkin, to come to terms with what rights are or might mean. Many of the endnotes are frustratingly incomplete in that they give no page references to the works relied upon.

Grand claims of an unhistorical or ahistorical nature creep disconcertingly into the text. What does it mean to say that in 1803 "human rights in the US" were provided "with a set of teeth by endorsing courts rather than legislatures as their enforcement machinery"? In fact, the US bill of rights did not reach properly into state practice for another 150 years and the best-known of the few "human rights" cases in the 19th century asserted that the Negro was property rather than a person (thereby helping to precipitate a civil war).

If human rights were so well entrenched in the US how did school desegregation and McCarthyism happen? (Each was in fact upheld by Supreme Court rulings on the alleged meaning of the bill of rights, but Robertson mentions neither case, much less discusses what they might imply for what we mean by "human rights".)

To describe as "one of the great mysteries of the twentieth century" the fact that there was "for its first 40 years... virtual silence on the subject of human rights from European intellectuals, politicians and public figures" misses the obvious point. Moral activism took a different form. In the UK, the National Council for Civil Liberties was founded in 1934 to protect demonstrators from the police. Two years later, trade unionist activists and political radicals defeated Mosley's fascists in the Battle of Cable Street. None of these were "human rights" groups, but are they for that reason to be obliterated from the face of history?

The best introduction to the development of human rights law, well-organised, readable and coherent, remains the late Paul Sieghart's The Lawful Rights of Mankind. It is nowhere mentioned in this text.

The second half of the book is less unsuccessful than the first since it is more limited in scope, amounting to a solid summary of politico- legal developments in the field of war crimes and crimes against humanity from Nuremberg to the litigation arising out of the arrest of General Pinochet. Here Robertson is on safer ground, writing readably about leading law cases and international conventions. He is particularly good on the international criminal court, on which there is a most helpful appendix. His final thoughts, in a 13-page epilogue entitled "After Kosovo" are intelligent and provocative. They would have made a first-class piece of journalism had they been published in that form.

Geoffrey Robertson may or may not be right to attack "the many over-optimistic international lawyers" whose "wishful thinking... has made international human rights law such a fatuous academic exercise". To avoid fatuity, and to deserve its place at the high table of international law in the next century, the subject needs to probe what it is and what are its limits. It must even-handedly connect itself to other not inherently disgraceful ideas, such as national sovereignty, democracy, the use of force and the right to rebel.

Now that it is close to centre stage, human rights law needs less rhetoric, less righteous certainty, less moral exclusivity and more of a sense of intellectual responsibility. The subject has - fortunately - many enthusiastic advocates on its side. It needs more than their polemical skills if it is to triumph.

Conor Gearty is professsor of law at King's College, London