Defining Impartial Activism: Differences in Time and Space

Customs and laws of war have prohibited actions such as the poisoning of wells and killing of prisoners since ancient times. Modern international humanitarian law was greatly influenced by the 1859 Battle of Solferino and by the businessman, Henry Dunant, who wrote of the suffering he saw on the battlefield and launched an effort to develop relief societies for those wounded in the field.⁴

His work contributed to the founding of the International Committee for the Red Cross (ICRC) and the 1864 “Geneva Convention on the Amelioration of the Condition of the Wounded in Armies in the Field.”⁵ As international humanitarian law developed, it has been concerned with two primary themes: the protection of non-combatants, known as Geneva law, and limitations on the means and methods of warfare, known as Hague law.⁶ Humanitarian law does not set out to end war or eradicate civilian casualties but rather to tame war by minimizing death and suffering.

This pragmatic aspiration is, in theory, facilitated by abandoning the claim to judge the cause of war, jus ad bellum, and limiting the legal focus to conduct in war, jus in bello. The elaboration of the laws of war occurred only after what Hedley Bull characterizes as a historic shift from the natural law conception of international society associated with Grotius and Pufendorf towards the positive law formulations favored by eighteenth and nineteenth century thinkers.⁷

The laws of war insist on the avoidance of “unnecessary suffering” by outlining a framework for evaluating the proportional relationship between suffering and military objectives.⁸ By recognizing humanitarian norms, state leaders accept the principle that external limitations may be placed on what is a central aspect of state power—the use of force.⁹ It may seem strange, then, that the Hague conventions were established in the early twentieth century, along with the rise of European nationalisms and the extension of claims for state sovereignty.¹⁰ Yet until recently, humanitarian law abstained from judgments regarding cause of war and internal governance, which meant that it did not pose a fundamental challenge to Westphalian sovereignty, the principle of non-intervention in the affairs of states.

Human rights law also arguably has a pragmatic basis insofar as the framers of the Universal Declaration of Human Rights agreed to disagree about the moral foundations of the document.¹¹

Many of the provisions outlined in the International Convention on Civil and Political Rights may even be set aside in a time of “public emergency which threatens the life of the nation.”¹² In contrast with humanitarian law, however, the much newer body of human rights law, framed and codified after the Second World War, is premised on the idea that outsiders must judge the way that states treat their own citizens. For some, human rights outline a set of exceptions to the general principle of non-intervention in domestic political affairs.¹³ Others maintain that human rights transform the very meaning of sovereignty to reflect the will of a people rather the state hierarchy.¹⁴ Either way, the aspiration to enforce human rights provisions is in tension with Westphalian sovereignty and the United Nations (UN) Charter, which allows the use of force only in cases of self defense or to maintain “international peace and security.”

Whereas humanitarian law traditionally governs the relationship between states, which are granted equal status under the law, human rights law was designed to protect the individual from abuse at the hands of the state.¹⁵

That is not to say that the Universal Declaration of Human Rights (UDHR) privileges civil and political rights. The defining human rights document, drafted following the affirmation of human rights in the text of the UN Charter and signed in 1948, outlines a set of political, economic, and social rights. The UDHR, along with the 1966 International Convention on Civil and Political Rights and International Convention on Economic Social and Cultural Rights (both of which entered into force in 1976), are known as the “International Bill of Rights.” These are supplemented by a long list of bilateral and multilateral human rights treaties, which address specific forms of abuse. The different conceptions of impartial activism traditionally associated with pioneering human rights and humanitarian organizations follow a logic that closely parallels these legal differences.

Dunant's collaborator in founding the ICRC, Gustave Moynier, believed that the organization could contribute to abolishing war through the development of international law. However, ending war was not part of Dunant's original idea. Rather, he proposed that volunteer relief societies be organized to care for those wounded on the battlefield. “The work itself,” he proposed, “would consist in bringing aid and relief … whenever battle was joined.”¹⁶

In his study of the ICRC, David Forsythe writes that the organization adopted a characteristically Swiss approach to war, “more a matter of adjusting to the war-prone state than radically trying to change it.”¹⁷ Historically, the work of national Red Cross societies was viewed as part of the war effort in a number of countries. A World War I-era poster depicts the American flag alongside a Red Cross flag with the caption, “Loyalty to One Means Loyalty to Both.”¹⁸ During World War I the ICRC became more involved in efforts to stop reprisals against prisoners of war.¹⁹ In the aftermath of the First World War, the ICRC was reorganized and its mission widened to address not only war, but also illness and misfortune more generally. The ICRC proclaimed three principles to be essential for this new approach: political and religious neutrality, independence from governments, and international coordination.²⁰

In 1965, a list of seven “fundamental principles of the Red Cross” proclaimed in Vienna distinguished between the organization's commitment to principles of “impartiality” and “neutrality.” Whereas neutrality was characterized as a refusal to take part in hostilities, impartiality would mean that “for the Movement, the only priority that can be set in dealing with those who require help must be based on need, and the order in which aid is shared out must correspond to the urgency of the distress it is intended to relieve.”²¹

The ability to respond swiftly and without discriminating among those in need is closely linked with the concept of “humanitarian space,” characterized as a zone of independence from political conflict that facilitates access to needy populations.²² Although envisioned as a space apart from politics, “humanitarian space” must nevertheless be established and protected through political negotiation needed to gain access to populations in need.²³ A recent ICRC publication identifies dialogue and persuasion as the primary tools used to engage with belligerents.²⁴ A confrontational approach may directly endanger the lives or operations of humanitarians.²⁵

Avoiding confrontational judgment was not only a strategic stance for humanitarians, but also related to a philosophical position on the relationship between ethics and politics. In his classic commentary on humanitarian principles, Jean Pictet directed humanitarians to “reckon with politics without becoming a part of it.”²⁶

Although Pictet characterized the humanitarian philosophy as optimistic regarding human potential, he rejected the idea that humanitarian goals could be achieved through political struggle. He likened politics to water and the ICRC to a swimmer, who “advances in the water but drowns if he swallows it.” In other writings, Pictet characterized politics as a “poison” to beware of, and an arena filled with “struggles which reach the pitch of savagery.”²⁷ He made no distinction between the clash of views in parliament and the clash of swords on the battlefield.

A number of organizations are now involved in providing humanitarian assistance. Several United Nations agencies have humanitarian mandates.²⁸

Regional organizations, such as the European Union, and numerous nongovernmental organizations, including Doctors Without Borders (known by its French initials, MSF), as well as CARE, Catholic Relief Services, and Oxfam, are also involved in the delivery of humanitarian aid. In 1991, the UN Office for the Coordination of Humanitarian Affairs was established with the goal of strengthening the humanitarian activities of the UN and aligning UN humanitarian efforts with those of regional and non-governmental organizations. The ICRC is a hybrid organization. It was formed as a private association under the Swiss Civil Code , yet it is recognized as having an “international legal personality.” The ICRC has a unique relationship to humanitarianism as the designated “custodian” of humanitarian law.²⁹ As discussed in the following section, the ICRC no longer represents the range of contemporary humanitarian organizations, but it is likely the most influential in having shaped the laws and conceptual categories that continue to frame the movement.

In contrast with the pragmatism of the ICRC, the early human rights movement explicitly aimed to promote dramatic political transformation. The Universal Declaration of Human Rights of 1948 demanded impartial treatment under law and claimed the universal status of “inalienable rights.” Yet this language did not lead inexorably to a stance of political impartiality for the human rights movement.³⁰

Human rights documents were drafted as part of a struggle against European fascism and Nazism.³¹ The development of human rights was furthered by the struggle against colonialism and contributed to its demise.³² UN scrutiny of human rights advanced in response to South African apartheid.³³ The Universal Declaration of Human Rights also inspired numerous activists engaged in collective struggle for political change. Before the UDHR was drafted, W.E.B. Du Bois had submitted a petition to the United Nations Commission on Human Rights on behalf of the National Association for the Advancement of Colored People, which hoped that the petition would inspire “submerged and underprivileged groups” around the world “to carry their cases directly to the world body in the hope of redress.”³⁴

In the decades following the Second World War, however, transnational political human rights alliances were threatened by Cold War ideological struggle. International human rights organizations that developed and became prominent during this era adopted a stance of political impartiality as a strategy to generate consensus in protesting specific forms of political violence. Just as the ICRC pioneered early international humanitarian strategies, Amnesty International is widely viewed as having pioneered influential strategies in international human rights advocacy. Founded in 1961 by Peter Benenson, Amnesty initially focused on confronting governments that held “prisoners of conscience,” individuals imprisoned for their beliefs. Over time, Amnesty expanded its mandate to protest a wide range of human rights abuses. In order to demonstrate that they were not bound up in Cold War ideological struggles, Amnesty adopted the “rule of threes,” condemning the situation of political prisoners and later a broad array of abuses from the “first,” “second,” and “third” worlds. The organization also developed a rule that prevented members from working on behalf of fellow citizens, which was designed not only to protect its members, but also to enhance their impartiality.³⁵

Like the ICRC, Amnesty International developed new strategies to influence the development and enforcement of international law. Amnesty's “Campaign Against Torture” was one such effort, which resulted in the International Convention Against Torture in 1984.³⁶

More recently, human rights organizations successfully contributed to the development of institutions to facilitate human rights investigation and enforcement, including truth commissions and international criminal tribunals. However, given that human rights norms require internal political transformation, the expansion and promotion of human rights law became associated with more confrontational strategies. Whereas the ICRC championed persuasion and quiet diplomacy, Amnesty International pioneered tactics designed to publicize information about abuses and confront state hypocrisy with moral condemnation. According to Kenneth Roth, head of Human Rights Watch, “the core of our methodology is the ability to investigate, expose and shame.”³⁷

Amnesty International's current website claims that the organization “is independent of any government, political ideology, economic interest or religion” and that it “does not support or oppose any government or political system.”³⁸

However, as Jack Donnelly has observed, “the International Bill of Human Rights rests on an implicit model of a liberal democratic (or social democratic) welfare state.”³⁹ Amnesty's claim to political impartiality reflects the premise that the expansion of international human rights law is transforming human rights norms from a set of political aspirations into a body of impartial legal norms. Thomas Buergenthal has described this as an evolutionary process and refers to it as the “internationalization of human rights.”⁴⁰ In this view, the widespread ratification of human rights norms is evidence that they represent an international legal consensus rather than a particular political agenda.⁴¹ When human rights norms clash with traditions, practices, or ideologies, such conflicts are reformulated in the reports of dominant human rights organizations as problems of enforcement and compliance.⁴² Human rights reports not only provide information and a compelling narrative, but also aim to narrow the range of legitimate debate. In this way, legalism has become a prominent strategy for depoliticizing human rights claims.

A number of scholars have demonstrated the limitations of legalism, particularly as a strategy for addressing economic exploitation, racism, and gender-based violence.⁴³

At the same time, numerous human rights organizations, particularly those working to advance social, economic, or cultural rights, have allied themselves with explicit political goals. Nevertheless, Amnesty International is still widely viewed as the most influential human rights organization.⁴⁴ Like Amnesty, many of the most prominent international human rights organizations, including Human Rights Watch, Physicians for Human Rights, Fédération Internationale des Ligues des Droits de l'Homme (FIDH), Global Rights, Rights International, and Human Rights First, have made the prosecution of violations and the dissemination of human rights reports the major focus of their work. As legal enforcement and the expansion of legal norms became a central focus of the human rights movement, ideal conceptions of international justice were closely identified with procedural impartiality.

To summarize, pioneering humanitarian and human rights organizations conceived of impartial activism in different ways that correspond to distinct goals and assumptions regarding the relationship between politics and ethics. For the ICRC, impartiality was grounded in a commitment to non-discrimination that would facilitate proximity to suffering populations and an immediate response to need. The humanitarian idea of impartiality as a basis for delineating a space for ethical action apart from the political realm was influenced by the view, expressed by Pictet, that political struggle is invariably futile. In humanitarian law and activism, this meant that the immediate effort to minimize human suffering was developed at the expense of a critical response to the causes of conflict or poverty, as well the use and abuse of aid. The human rights movement challenged humanitarian pragmatism, calling for moral judgment of the internal affairs of states as the basis for ambitious political transformation. The effort to transform human rights from a set of political ideas to a set of impartial legal norms became a primary advocacy strategy in the Cold War era. In the human rights movement, impartiality was conceptualized as distance or disinterest needed to discriminate between victim and perpetrator. The focus on developing and enforcing human rights law would provide the movement with an authoritative critical framework, but a strategy for addressing injustice that was often viewed as too abstract and incremental, based on the premise that the accumulation of legal victories would fuel historical progress over the long term.

As activists struggled to address dilemmas and limitations associated with impartial activism, the idea of uniting human rights and humanitarianism became appealing. However, their distinct approaches to impartial activism are associated with different and even conflicting strategies. As Boltanski has argued, the urgency of the humanitarian response to suffering is in tension with the goal of establishing criminal accountability, which requires time to sort through evidence regarding the guilt of the accused.⁴⁵

Although human rights organizations often aim at urgent actions, such as the immediate release of prisoners, former Secretary-General of Amnesty International, Pierre Sané, observes that such urgency is in tension with their methodology: “We always deal with reliable sources and do exhaustive cross-checking… If we want to check everything, we can be too late to be effective.”⁴⁶ The diplomatic humanitarian pragmatism associated with the ICRC is also at odds with the confrontational shaming associated with human rights advocacy. As the two movements borrowed strategies from one another they would also move away from their own defining aspirations.

The Limits of Humanitarian Space

Jean Pictet maintained that humanitarianism was charity work and he insisted that “one cannot at the same time be a champion of justice and charity. One must choose.”⁴⁷

He viewed charity as a form of altruistic and disinterested love born of pity, “the stirring of the soul which makes me responsive to the distress of others.”⁴⁸ The idea of humanitarian space championed by Doctors without Borders (MSF) is based on a self-conscious effort to locate an alternative to pity as the basis of humanitarian action. MSF was founded in 1969 by a group of doctors within the ICRC, led by Bernard Kouchner, who wanted to protest what they saw as the genocidal refusal of the Nigerian government to consent to an airlift that would enable supplies to reach famine victims of Biafra. As Kouchner put it, “by keeping silent, we doctors were accomplices in the systematic massacre of a population.”⁴⁹ MSF initiated the incorporation of a rights orientation into humanitarian assistance and called themselves “doctors without borders” to underscore their refusal to be silenced in deference to state sovereignty. MSF leaders would later rescind their charge that the Nigerian famine was genocide, yet genocide and other atrocities would continue to pose a series of challenges for the very concept of humanitarian space.

The idea of negotiating with leaders for access to civilian populations makes little sense when the primary goal of those leaders is to murder civilians. In such a context, humanitarian aid can even fuel atrocities by gathering people together for the provision of food and shelter, making them easy targets for attack, as illustrated dramatically by the atrocities that followed the collapse of the “safe areas” in Bosnia. This problem is exacerbated by the way that camps for refugees and displaced persons may be exploited as launching pads for armed incursions.⁵⁰

The ICRC acknowledged that cooperation with belligerents in the former Yugoslavia risked endorsing “ethnic cleansing” operations.⁵¹ Some argued further that state leaders were investing in relief efforts as a cynical way to avoid a commitment to prevent or stop atrocities. Commentators and practitioners became increasingly concerned that resources siphoned from humanitarian aid were prolonging and exacerbating conflicts or reinforcing violent hierarchies, such as power structures that facilitate violence against women in refugee camps.⁵²

Additional post-Cold War developments raised further questions for the concept of humanitarian space. As state spending on humanitarian aid increased dramatically, states began to show a greater interest in utilizing aid in connection with political goals and stipulations. At the same time, humanitarian workers began to interact with a range of other international actors in contexts referred to as “complex humanitarian emergencies.”⁵³

In Afghanistan and Iraq, humanitarian organizations were widely seen as being in alignment with intervening forces. This is due in part to the fact that aid organizations are predominantly situated in the West.⁵⁴ President Bush also invoked humanitarian aid as a rationale for regime change in both countries and MSF attributed attacks on their workers in Afghanistan to coalition leaflets that tied a call for information on the Taliban to the promise of humanitarian aid.⁵⁵

Aid organizations have adopted a range of views on the changing context of humanitarianism. The ICRC has continued to insist on the importance of distinguishing between humanitarian and political spheres. Some humanitarian groups, such as the Mennonites, have championed explicit solidarity with the poor and oppressed.⁵⁶

Others have embraced what is referred to as the “new humanitarianism,” which aims to connect relief aid to longer term projects designed to address the underlying political causes of violence through involvement in development, conflict resolution, and human rights.⁵⁷ The United Nations has called for an “integrated approach” to connecting humanitarian aid with political and military responses to the root causes of conflict.⁵⁸

As humanitarian organizations have struggled to overcome the limitations of impartiality, many have looked to the human rights movement for guidance. Hugo Slim, a British relief expert who has worked for Save the Children, Oxfam, and the British Red Cross, argues that a rights-based framework for humanitarianism provides a “consistent and still impartial political philosophy grounded in basic goods, natural rights and justice which can … challenge, mitigate, and even transform the particular politics of violence and war.”⁵⁹

As Jean-Francois Vidal, of Action Contre La Faim, explained to David Rieff: “What I support is the victims' access to their rights—that is a construction that makes them subjects, not objects.”⁶⁰ These comments reveal an aspiration to use the human rights framework as a basis for remaining impartial, while uniting the urgent, short-term humanitarian response to suffering with the broader pursuit of justice and democracy.

The 1993 World Conference on Human Rights in Vienna helped to pave the way for human rights principles to inform humanitarian efforts in the field. In 2000, CARE International received a major grant from the Ford Foundation to develop ways to integrate human rights into humanitarian work.⁶¹

The “Providence Principles for Humanitarian Aid” specify that aid workers should address the underlying causes of conflict by encouraging respect for human rights.⁶² Even the ICRC now argues that, “the relationship between humanitarian law and human rights law must be strengthened, as this would be conducive to the production of instruments geared to realities in the field.”⁶³ Codes of humanitarian “best practice,” the Mohonk Criteria, the Sphere Project, and the Humanitarian Charter have also called for a human rights orientation to be integrated into coordinated efforts to regulate humanitarian assistance.⁶⁴

Given the tensions between the impartial activism of humanitarian and human rights movements, the incorporation of human rights suggests a number of changes in the agenda of the humanitarian movement, each with its own attendant difficulties. First, a human rights framework suggests that more humanitarian organizations would adopt MSF's practice of speaking out against human rights abuses that they encounter in the field. Yet to do so may lead to the expulsion of humanitarian workers from areas under the control of leaders that they criticize, thus undermining their mission of delivering aid. For example, MSF was expelled from Ethiopia in the early 1970s after criticizing the Mengistu regime.⁶⁵

If this dilemma derives from the powerlessness of the humanitarian activist, an alternative is to connect aid to more interventionist strategies, such as the establishment of “humanitarian corridors” to provide aid without the consent of government leaders, the imposition of human rights-based conditionality on aid provisions, or military intervention to stop massive human rights abuses.

The incorporation of human rights into humanitarian activism means that urgency of need is no longer the sole consideration in setting the agenda for aid distribution. If perpetrators of human rights abuses can be identified, they should not be recipients of aid. In practice, however, the urgency of relief work is at odds with the deliberations necessary to distinguish victim from perpetrator. Even when perpetrators of human rights abuses are easily identified, this does not mean that they are easily dislodged from positions of power within needy populations. MSF chose to withdraw its operations in the Rwandan refugee camps rather than support the génocidaires, but did so with the awareness that this action would also deprive their aid to those who were not responsible for the genocide. “As an aid organization, we had to choose between only two options,” writes Fiona Terry, who headed the French section of MSF in Tanzania at the time, “to participate or to refuse.”⁶⁶

Another response to this problem has been to use aid as an incentive for populations to promote human rights or to expel leaders associated with human rights abuses, yet this is also likely deprive those in need. The UN's “Open Cities Initiative” made aid to Bosnian cities conditional upon their willingness to accept the return of displaced persons.⁶⁷ European Union humanitarian aid programs provided fuel and provisions only to those to Serbian municipalities that opposed Slobodon Milosevic.⁶⁸

Others argue that cases of threatened genocide or massive atrocity should be met with military intervention. The concept of “humanitarian intervention” is not a new idea and has, historically, been invoked selectively by stronger states as a rationale for intervening in the affairs of weaker states.⁶⁹

In his now classic text, Just and Unjust Wars, Michael Walzer presents a moral justification of humanitarian intervention in cases where it serves as a response to acts that “shock the moral conscience of mankind.”⁷⁰ More recently, policy debates have centered on the legitimacy of humanitarian intervention as “the threat of armed force by a state, a belligerent community, or an international organization, with the object of protecting human rights.”⁷¹ Kouchner champions humanitarian intervention as the logical culmination of the struggles associated with humanitarian activism:

Kouchner, who served as the French Minister of Health and Humanitarian Action in 1988 and head of the UN Mission in Kosovo in 1999, became an influential voice for a “right to intervene.”⁷³

Activists are divided over the circumstances under which such interventions should occur, as well as the role of NGOs in the context of such interventions.⁷⁴ Although they too called for military intervention to stop the Rwandan genocide, Kouchner's former MSF colleagues argue that it is obfuscating to label military operations “humanitarian.”⁷⁵ Nevertheless, it is widely argued that the lobbying efforts of humanitarian and human rights organizations played an important role in legitimating contemporary formulations of humanitarian intervention.⁷⁶ Humanitarianism was never a pacifist movement, but rather committed to minimizing the effects of conflict and regulating the means of combat. Arguments for humanitarian intervention now draw on rights claims as a basis for utilizing cause of war analysis to justify a military response to atrocity.

These developments are associated with a trend whereby human rights principles have been incorporated into the laws of war in ways that contributed to the erosion of earlier prohibitions on intervention. Whereas humanitarian law historically addressed interstate conflicts, some parts of the 1949 Geneva Conventions addressed the relation between a state and its own citizens.⁷⁷

Human rights law was further incorporated into the laws of war in the postwar era, as the number and severity of internal conflicts superceded that of interstate conflicts.⁷⁸ During the 1990s, the UN Security Council also passed several resolutions that cited human rights and humanitarian crises as the basis for intervention without the consent of host states, including Iraq, Somalia, and Yugoslavia.⁷⁹ When NATO characterized its bombing of Serb targets as a humanitarian intervention to stop atrocities in Kosovo, it did so without UN approval. Nevertheless, the Security Council did ratify the settlement of the conflict, which has been interpreted as a concession that the intervention was legitimate, if not legal.⁸⁰ UN Secretary General Kofi Annan responded to the debate over Kosovo by calling for “unity behind the principle that massive and systematic violations of human rights—wherever they make take place—should not be allowed to stand.”⁸¹ More recently, the Security Council approved a resolution outlining a collective “responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity,” through Chapter VII provisions where diplomatic means prove inadequate.⁸²

Contemporary formulations of humanitarian intervention fuse the urgency and immediacy of humanitarian rescue with the justice claims associated with human rights. At the same time, this logic necessarily abandons the pragmatic modesty once associated with humanitarianism as well as the lengthy deliberations that human rights advocates have championed as the basis for establishing criminal accountability. Classic just war theory stipulates that war should be waged as a last resort, after the failure of diplomacy and negotiation.⁸³

Martha Finnemore has argued that “to be legitimate in contemporary politics, humanitarian intervention must be multilateral.”⁸⁴ In theory, this helps to ensure that such interventions are not exploitative or carried out in connection with ideological crusades.⁸⁵ Yet champions of humanitarian intervention turned away from multilateralism in response to the coordination difficulties of the 1990s, which undermined the humanitarian imperative to provide an immediate life-saving response—most notably in Rwanda and Bosnia.⁸⁶ As Walzer puts it, “it wouldn't make much sense to call a meeting of the block association, while the house is burning, and vote on whether or not to help.”⁸⁷

Michael Reisman has argued that the expansion of the international legal process to include a central role for non-state actors may check the abuse of the humanitarian rationale by interested states.⁸⁸

Yet the critical role of non-state actors is curtailed by a formulation of humanitarian intervention that draws on the imagery and emotion of rescue in ways that elide questions about the political context of violence and implications of intervention. This suggests that guilt and innocence will be as obvious as the fact of suffering, that there is one proper course of action, and that the contours of this course are quite plain, just as it is plain to see what must be done when a fire is raging.

The Role of Humanitarian Pragmatism in Human Rights Advocacy

Even as humanitarians have looked to the human rights framework as a basis for developing political sophistication, human rights advocates have increasingly incorporated humanitarian law, as well as humanitarian pragmatism, into their own activism. Alex de Waal's attack on the human rights response to Rwanda articulated a longstanding concern for the movement. Although human rights provide a framework for critical judgment that is lacking in humanitarianism, efforts to translate this into a meaningful response to systematic abuse and political violence have been controversial. In a response to de Waal, however, Kenneth Roth of Human Rights Watch defended human rights organizations, citing their role in promoting institutions to “deter and bring to justice those whose exceptional cruelty overwhelms local defenses.”⁸⁹

Indeed, temporary international criminal tribunals have convicted leaders for perpetrating atrocities in several countries including Rwanda, the former Yugoslavia, and Sierra Leone. The statute of the International Criminal Court entered into force in 2002. Although these institutions have been championed and influenced by human rights organizations, their mandates are to investigate violations of international humanitarian law. As humanitarian law has been incorporated into these institutions, it has been influenced by human rights principles. For example, the category of “crimes against humanity” under humanitarian law has, in the statutes for the International Criminal Tribunal for Rwanda and the International Criminal Court (ICC), been applied to internal conflict.⁹⁰

The ICC statute expands the definition of “crimes against humanity” to include crimes associated with human rights law when committed on a widespread or systematic basis, such as “disappearances,” torture, and rape.⁹¹ Thus, scholars have viewed these developments as more evidence of the role that the human rights movement has played in transforming the laws of war.⁹²

Humanitarian law has also been incorporated into the investigations of several truth commissions, which are generally designed to investigate systematic patterns of human rights violations committed under a prior regime.⁹³

Truth commissions in Sierra Leone, East Timor, El Salvador, and Peru have all integrated humanitarian law into their investigations.⁹⁴ Regular human rights reports compiled by organizations such as Human Rights Watch, Amnesty International, Physicians for Human Rights, Global Rights (formerly International Human Rights Law Group), and Rights International, also incorporate humanitarian law into their analyses. By incorporating humanitarian law, these organizations and institutions are able to expand the scope of their investigations to address abuses committed in the context of armed conflict and to strengthen calls for intervention. Humanitarian law has thus been adopted as a vehicle for the expansion of human rights claims.

At the same time, a closer look at truth commissions and international criminal tribunals illustrates how the incorporation of humanitarian principles has functioned to address challenges to their impartiality by framing a narrower focus for investigation and softening human rights judgments. These institutions are often referred to as forms of “transitional justice” because they are championed not only as the basis for promoting accountability for past abuses in the context of regime change.⁹⁵

Transitional justice institutions are also promoted by the United Nations and the United States as tools for peacebuilding and “national reconciliation.”⁹⁶ Transitional justice is only one of many areas in which human rights advocates are currently organizing. However, it is particularly relevant for this discussion, given that the proliferation of truth commissions and international criminal tribunals has been cited as evidence of the growing political influence of human rights advocacy networks.⁹⁷ In contrast with campaigns for ad hoc or incremental political goals, transitional justice institutions have involved human rights organizations directly in processes of fundamental political reform. However, this more extensive political engagement has generated new challenges for human rights claims to impartiality.

Most, if not all, transitional justice institutions are designed to develop an impartial investigation of past abuses. A central recurring problem for transitional justice institutions stems from the lack of local consensus regarding the basis for judging massive, systematic crimes. As Ruti Teitel has written, “transitions involve paradigm shifts in the conception of justice.”⁹⁸

Systematic abuse and government-sponsored repression generally involve the complicity or active participation of a large percentage of the population and also inflict suffering on a large percentage of the population. This means that the terms of an investigation that criminalizes prior policies will be the subject of profound, even violent, contestation. The idea of human rights as the values of an “international community” belies the intensity and persistence of such conflicts and widespread acceptance of human rights conventions has not translated into acceptance of the impartiality of human rights investigations.

This problem was dramatically illustrated in Argentina, where the frustration of efforts to investigate and prosecute human rights violations committed during the “Dirty War” would influence the development of the contemporary transitional justice movement. In 1983, Raul Alfonsín became the first democratically elected leader after the fall of the military dictatorship and launched a wide-ranging program to prosecute members of the military regime for human rights abuses, as well as a truth commission, known by its acronym as CONADEP (Comisión Nacional Para la Desaparicion de Personas). However, the military opposition to prosecution became increasingly powerful and threatening as time passed, ultimately contributing to Alfonsín's defeat in the 1987 elections.⁹⁹

Some human rights advocates hoped that the development of international justice institutions would alleviate such problems.¹⁰⁰ However, international criminal tribunals rely on state cooperation to gain custody of suspects, access witnesses, and secure evidence and volatile debates over the terms of that cooperation continue to undermine the goals of the ICTY in the Balkan region.¹⁰¹ In response to such challenges, transitional justice institutions and human rights organizations have invoked humanitarian law and logic as a way to establish their political impartiality.

First, human rights organizations and transitional justice institutions have abandoned the special concern with state-sponsored abuses once associated with human rights law in order to criminalize actions committed by all parties to a conflict. Although human rights activism had targeted systematic state-sponsored repression prior to the transitions in Chile, El Salvador, Guatemala, and South Africa, truth commissions in these countries were designed to condemn violence committed not only by the state, but also by armed opposition groups.¹⁰²

This focus on abuses committed by all parties to a conflict does not mean that transitional justice institutions are bound to blame all parties equally for the violence. The Guatemalan truth commission very clearly assigned responsibility to the state, whereas the Peruvian truth commission argued that the guerilla organization, Sendero Luminoso (Shining Path), was uniquely responsible for the abuses under investigation.¹⁰³ In the case of South Africa, however, the focus on crimes committed by all parties to the conflict functioned to divorce certain forms of extreme abuse from the broader political and historical context. The parliamentary decision to narrow the focus of the commission's mandate to “gross violations of human rights” meant that the commission would not investigate crimes committed in connection with apartheid, but only crimes committed in excess of apartheid policies.¹⁰⁴ This decision was made in order to address challenges to the impartiality of the Truth and Reconciliation Commission (TRC). The National Party of South Africa, which designed and presided over the apartheid government, insisted that if the TRC made any distinction between apartheid state crimes and crimes committed in the struggle against apartheid, this would signify a lack of “even-handedness.”¹⁰⁵

Second, human rights organizations and transitional justice institutions have increasingly framed their investigations in relation to jus in bello humanitarian norms, those pertaining to conduct in conflict rather than cause of conflict. Although international criminal tribunals for Rwanda and the former Yugoslavia are championed as a means to promote justice and human rights, their investigations are explicitly grounded in means of combat analyses rather than human rights law. In response to the invasion of Iraq, Human Rights Watch also focused almost entirely on means of combat issues, such as the use of cluster munitions and treatment of detainees.¹⁰⁶

The narrowing of human rights aspirations and concern to a focus on means of combat analysis is reflected in the conclusion reached by Michael Ignatieff, former director of Harvard's Carr Center for Human Rights, that “all that can be said about human rights is that they are necessary to protect individuals from violence and abuse.”¹⁰⁷ Yet whereas human rights investigations are legitimated as a basis for moral judgment and the pursuit of justice, the humanitarian focus on conduct in war, or jus in bello, was historically a basis for minimizing the effects of war by avoiding moral judgment of political systems engaged in conflict.

Debates on the role of humanitarian principles in the South African TRC illustrate how this shift in framing has been adopted as a way to address challenges to the impartiality of human rights investigations. South African apartheid was at one time condemned by human rights organizations and the United Nations as an egregious combination of political, social, and economic injustices.¹⁰⁸

Yet to judge the former system in such broad terms was viewed as a threat to stability. The TRC sought an alternative basis for impartiality by explicitly relying on the humanitarian distinction between “conduct in war” and “cause of war” as a way to investigate the actions of the African National Congress and those of the National Party through the same lens. The TRC Report states that although the liberation groups were “clearly fighting for a just cause,” their conduct in the conflict could fairly be judged by the same criteria as that of the state and paramilitary groups.¹⁰⁹

Finally, several transitional justice institutions have framed their investigations in accordance with a humanitarian concern for the suffering of all victims regardless of context. The South African TRC used this focus on the suffering of all victims as a basis for addressing challenges to its impartiality. The Truth and Reconciliation Commission of South Africa Report (TRC Report) explains that the focus on the conduct of all parties “contributes to national unity and reconciliation by treating individual victims with equal respect, regardless of whether the harm was caused by an official of the state or of the liberation movements.”¹¹⁰

Thus, South Africa's TRC Report opens with these words from Desmond Tutu: “Our country is soaked in the blood of her children of all races and all political persuasions.”¹¹¹ Other truth commissions have similarly characterized their work as a process of “healing the wounds” of the past. According to commissioner for the National Commission for Reception Truth and Reconciliation in East Timor, “sometimes an old infected wound needs to be reopened and looked at, cleaned and treated, so that it might finally heal properly. In East Timor, we need to remember for a little while, open up the wounds so that they can be healed.”¹¹² Similarly, the Truth and Reconciliation Commission for Sierra Leone identifies one of its major goals as helping to “heal the wounds of the war.”¹¹³

The South African TRC developed a sophisticated argument for identifying justice with healing that drew on communitarian conceptions of restorative justice.¹¹⁴

Yet the focus on victim suffering and healing is not unique to truth commissions and has also been invoked to address challenges to the impartiality of criminal tribunals. Payam Akhavan, a legal adviser to the International Criminal Tribunal for the Former Yugoslavia, concedes that international courts may not generate a clear historical record that all parties can accept, but maintains that, “given the opportunity, Muslims, Serbs, and Croats alike can appreciate the more elemental truths that snipers should not murder helpless civilians in cold blood … that the pain of a bereaved mother or an orphaned child transcends ethnic affiliation.”¹¹⁵ In this manner, Akhavan suggests, international justice contributes to “empathy for human suffering.”

The humanitarian movement has looked to human rights for a more critical, yet still impartial, framework. At the same time, these transitional justice institutions exemplify the way in which a humanitarian approach to establishing impartiality has been invoked as a way to soften and moderate the critical impact of human rights judgments. Human rights investigations into massive political violence are invariably controversial and contested. The humanitarian focus on jus in bello and victim suffering on all sides has been adopted as a way to frame investigations so as to minimize such conflicts with varying degrees of success.¹¹⁶

Yet incorporating humanitarian logic into transitional justice investigations is also in tension with the stated goals of human rights advocates. While these institutions are established to promote a just peace and accountability for past abuses, they rely on an analytic framework that was designed to “minimize suffering” during wartime by avoiding judgment of political and historical responsibility. The South African TRC provides the most striking example of the implications of this logic, as it invoked humanitarian law to shift the focus of analysis away from the political system of apartheid and to soften the judgment that would have followed from a more comprehensive human rights investigation of institutionalized racism. This is particularly significant given that the struggle against South African apartheid played a defining role in shaping the contemporary human rights movement.¹¹⁷ Although these elements of humanitarian logic were incorporated as a way to alleviate political conflict, they might better be understood as strategies of avoidance. They do not provide a basis for analyzing or addressing divisive conflicts, but rather function to remove them from view.

Political Responses to Injustice and the Limits of Impartiality

As humanitarian organizations have struggled to address the limitations of impartial activism, many have looked to human rights as a basis for politicizing their work. The human rights movement is appealing because it offers a framework for critical transformation, yet also claims to remain politically impartial. Yet human rights organizations have struggled with challenges to their own claims to impartiality and incorporated humanitarian law and logic as a way to soften or avoid the potentially volatile conflicts associated with human rights judgments. In borrowing strategies from one another, humanitarian and human rights advocates have reformulated their claims to impartiality by combining the justice claims of the human rights movement with the urgency and pragmatic avoidance of judgment associated with humanitarianism. Although the two movements looked to one another for strategies to better address political challenges, the danger is that particular amalgam of idealism and pragmatism will function to avoid such challenges and make them more difficult to assess.

As human rights and humanitarian movements seek to address the dilemmas of impartial activism it will be important to contend with the limitations of their own claims to impartiality and, more broadly, the limitations of impartial activism as a response to injustice and suffering. In order to do so, it will be important to think critically about how these movements have framed the relationship between politics and ethics. Even as impartial activists strive to become more politically effective, they have to some extent retained Pictet's conception of politics as hopelessly barbaric and antithetical to ethical action. This is evident in the common claim that the primary reason for the failure of human rights and humanitarian norms is a lack of “political will.” The call for “political will,” which is especially common in human rights advocacy, often seems to reduce politics to a kind of force that would be needed to realize pre-existing norms without the limitations of conflict, deliberation, or compromise. This way of framing humanitarian and human rights advocacy has not surprisingly been associated with an increasing tendency to focus on the use of force as a response to injustice and to focus on those injustices that appear to be most amenable to forceful resolution. The problem is that political conflict and compromise not only threaten to undermine collective norms, but are also essential in realizing and defining them.

To acknowledge the limitations of impartial activism is not to say that it is inevitably self-defeating or obfuscating. Their efforts to become impartial have never freed humanitarian and human rights organizations from the political origins or implications of the norms that they espouse. Rather, impartial activists have developed strategies designed to obtain a kind of provisional distance from political conflict. These strategies have given human rights and humanitarian organizations unique opportunities to witness and document abuses that would otherwise be hidden from view and to present information about such abuses in ways that are often persuasive and compelling to those who might otherwise deny their existence. Instead of calling for the “political will” to enact impartial interventions, humanitarian and human rights organizations might view this critical distance as a way to provoke and inform political responses to injustice. This critical role might be more effective where the limitations and differences inherent in their claims to impartiality are acknowledged and clarified.

James Orbinski articulated this type of approach when he accepted the Nobel Peace Prize on behalf of MSF in 1999. Although Orbinski stressed that humanitarian “space” should remain independent of politics, he acknowledged that it is also importantly facilitated through political negotiation. Humanitarianism is “not a tool to end war or to create peace,” he argued, but rather “a citizens' response to political failure,” which “cannot erase the long term necessity of political responsibility.”¹¹⁸

The ability to provide humanitarian relief without jeopardizing the lives of aid workers or vulnerable populations remains dependent upon some effort on the part of humanitarians to remain outside of the fray. Yet this withdrawal and the access it facilitates to marginalized, trapped, desperate populations can provide unique insight into what Orbinski refers to as “patterns of exclusion and inclusion.”¹¹⁹ To the extent that the work of humanitarians is conducted in the present tense, it does not permit the lengthy process of evaluating guilt and the historical context of suffering. MSF became famous for incorporating human rights into humanitarian work, yet has remained committed to acknowledging the trade-offs that this sometimes entails. Making such trade-offs public has been a way for MSF to inform better political responses to the abuses that they encounter.

Prominent human rights organizations have developed a critical distance from political conflict by seeking to establish procedural integrity in the enforcement of widely accepted principles of international law. This can enhance the persuasiveness of human rights investigations and so contribute to political reform by making it more difficult to deny past or ongoing abuses. Such investigations also complement the work of humanitarians to the extent that they shed light on responsibility for abuses of power and the ways in which present inequalities and conflicts are related to past abuses. Yet procedural integrity and legal consensus cannot erase the political character of human rights norms and the fact that human rights reports and transitional justice investigations imply political judgments. Incorporating humanitarian law and logic into the framing of human rights investigations has not made them less political. Rather, it has often been a strategy for avoiding or deferring judgment on volatile issues. Acknowledging the limitations of legal impartiality would allow the human rights movement to play a more critical role in efforts to establish commonality across lines of conflict through political debate, negotiation, and mobilization.