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Tuesday, September 25, 2018

Historical negationism

From Wikipedia, the free encyclopedia

Historical negationism or denialism is an illegitimate distortion of the historical record. It is often imprecisely or intentionally incorrectly referred to as historical revisionism, but that term also denotes a legitimate academic pursuit of re-interpretation of the historical record and questioning the accepted views.

In attempting to revise the past, illegitimate historical revisionism may use techniques inadmissible in proper historical discourse, such as presenting known forged documents as genuine; inventing ingenious but implausible reasons for distrusting genuine documents; attributing conclusions to books and sources that report the opposite; manipulating statistical series to support the given point of view; and deliberately mis-translating texts (in languages other than the revisionist's).

Some countries, such as Germany, have criminalised the negationist revision of certain historical events, while others take a more cautious position for various reasons, such as protection of free speech; still others mandate negationist views.

Notable examples of negationism include Holocaust denial, Armenian Genocide denial, Japanese war crime denial and the denial of Soviet crimes (such as the Holodomor, invasion of Poland, the Katyn massacre, and the forced deporations of Poles, Romanians/Moldovans, Lithuanians, Ukrainians, Tatars, and etc.)

In literature, the consequences of historical negationism have been imaginatively depicted in some works of fiction, such as Nineteen Eighty-Four, by George Orwell. In modern times, negationism may spread via new media, such as the Internet.

Origin of the term

The term "negationism" (négationnisme) was first coined by the French historian Henry Rousso in his 1987 book The Vichy Syndrome which looked at the French popular memory of Vichy France and the French Resistance. Rousso argued that it was necessary to distinguish between legitimate historical revisionism in Holocaust studies and politically-motivated denial of the Holocaust, which he termed negationism.

Purposes

Usually, the purpose of historical negation is to achieve a national, political aim, by transferring war-guilt, demonizing an enemy, providing an illusion of victory, or preserving a friendship. Sometimes the purpose of a revised history is to sell more books or to attract attention with a newspaper headline. The historian James M. McPherson said that negationists would want revisionist history understood as, "a consciously-falsified or distorted interpretation of the past to serve partisan or ideological purposes in the present".

Ideological influence

The principal functions of negationist history are the abilities to control ideological influence and to control political influence. In "History Men Battle over Britain's Future", Michael d’Ancona said that historical negationists "seem to have been given a collective task in [a] nation's cultural development, the full significance of which is emerging only now: To redefine [national] status in a changing world". History is a social resource that contributes to shaping national identity, culture, and the public memory. Through the study of history, people are imbued with a particular cultural identity; therefore, by negatively revising history, the negationist can craft a specific, ideological identity. Because historians are credited as people who single-mindedly pursue truth, by way of fact, negationist historians capitalize on the historian's professional credibility, and present their pseudohistory as true scholarship. By adding a measure of credibility to the work of revised history, the ideas of the negationist historian are more readily accepted in the public mind. As such, professional historians recognize the revisionist practice of historical negationism as the work of "truth-seekers" finding different truths in the historical record to fit their political, social, and ideological contexts.

Political influence

History provides insight into past political policies and consequences, and thus assists people in extrapolating political implications for contemporary society. Historical negationism is applied to cultivate a specific political myth – sometimes with official consent from the government – whereby self-taught, amateur, and dissident academic historians either manipulate or misrepresent historical accounts to achieve political ends. In the USSR (1917–91), the ideology of the Communist Party of the Soviet Union and Soviet historiography treated reality and the party line as the same intellectual entity; Soviet historical negationism advanced a specific, political and ideological agenda about Russia and its place in world history.

Techniques of negationism

Historical negationism applies the techniques of research, quotation, and presentation for deception of the reader and denial of the historical record. In support of the "revised history" perspective, the negationist historian uses false documents as genuine sources, presents specious reasons to distrust genuine documents, exploits published opinions, by quoting out of historical context, manipulates statistics, and mistranslates texts in other languages. The revision techniques of historical negationism operate in the intellectual space of public debate for the advancement of a given interpretation of history and the cultural-perspective of the "revised history". As a document, the revised history is used to negate the validity of the factual, documentary record, and so reframe explanations and perceptions of the discussed historical event, in order to deceive the reader, the listener, and the viewer; therefore, historical negationism functions as a technique of propaganda. Rather than submit their works for peer review, negationist historians rewrite history and use logical fallacies to construct arguments that will obtain the desired results, a "revised history" that supports an agenda – political, ideological, religious, etc. In the practice of historiography, the British historian Richard J. Evans describes the technical differences, between professional historians and negationist historians:
Reputable and professional historians do not suppress parts of quotations from documents that go against their own case, but take them into account, and, if necessary, amend their own case, accordingly. They do not present, as genuine, documents which they know to be forged, just because these forgeries happen to back up what they are saying. They do not invent ingenious, but implausible, and utterly unsupported reasons for distrusting genuine documents, because these documents run counter to their arguments; again, they amend their arguments, if this is the case, or, indeed, abandon them altogether. They do not consciously attribute their own conclusions to books and other sources, which, in fact, on closer inspection, actually say the opposite. They do not eagerly seek out the highest possible figures in a series of statistics, independently of their reliability, or otherwise, simply because they want, for whatever reason, to maximize the figure in question, but rather, they assess all the available figures, as impartially as possible, in order to arrive at a number that will withstand the critical scrutiny of others. They do not knowingly mistranslate sources in foreign languages in order to make them more serviceable to themselves. They do not willfully invent words, phrases, quotations, incidents and events, for which there is no historical evidence, in order to make their arguments more plausible.

Deception

Deception includes falsifying information, obscuring the truth, and lying in order to manipulate public opinion about the historical event discussed in the revised history. The negationist historian applies the techniques of deception to achieve either a political or an ideological goal, or both. The field of history distinguishes among history books based upon credible, verifiable sources, and were peer-reviewed before publication; and deceptive history books, based upon incredible sources, and which were not submitted for peer review. The distinction among types of history-book rests upon the research techniques used in writing a history. Verifiability, accuracy, and openness to criticism are central tenets of historical scholarship. When these techniques are sidestepped, the presented historical information might be deliberately deceptive, a "revised history".

Denial

Denial is defensively protecting information from being shared with other historians, and claiming that facts are untrue – especially denial of the war crimes and crimes against humanity perpetrated in the course of the World War II (1939–45) and the Holocaust (1933–45). The negationist historian protects the historical-revisionism project by shifting the blame, censorship, distraction, and media manipulation; occasionally, denial by protection includes risk management for the physical security of revisionist sources.

Relativization and trivialization

Comparing certain historical atrocities to other crimes is the practice of relativization, interpretation by moral judgements, in order to alter public perception of the first historical atrocity. Although such comparisons can often occur in negationist history, their pronouncement is not usually part of revisionist intentions upon the historical facts, but an opinion of moral judgement.

Examples

Book burning

Repositories of literature have been targeted throughout history (e.g., the Library of Alexandria), burning of the liturgical and historical books of the St. Thomas Christians by the archbishop of Goa Aleixo de Menezes, including recently, such as the Burning of Jaffna library and the destruction of Iraqi libraries by ISIS during the fall of Mosul.

Chinese book burning

The Burning of books and burying of scholars (traditional Chinese: 焚書坑儒; simplified Chinese: 焚书坑儒; pinyin: fénshū kēngrú; literally: "burning of books and burying (alive) of (Confucian) scholars"), or "Fires of Qin", refers to the burning of writings and slaughter of scholars during the Qin Dynasty of Ancient China, between the period of 213 and 210 BC. "Books" at this point refers to writings on bamboo strips, which were then bound together. This contributed to the loss to history of many philosophical theories of proper government (known as "the Hundred Schools of Thought"). The official philosophy of government ("legalism") survived.

Nazi book burning

A Nazi-sponsored book burning meant to negate the value of Germany's literary history (10 May 1933, Berlin).

In the mid–1930s, the Nazi book burnings were part of a campaign of anti-intellectualism conducted throughout Germany and Austria by the Deutsche Studentenschaft (German Student Association) of the Third Reich (1933–45). The burning of books was a public ceremony in which the works of authors whose politics were classical liberal, anarchist, Socialist, pacifist, and Communist were fuel for bonfires. Given the official antisemitism of the Reich, the works of Jewish writers were specifically identified for burning; thus did Nazi Germany rid themselves of writers deemed subversive of the National Socialist ideology.

In Poland, the Sonderfahndungsbuch Polen ("Special Prosecution Book-Poland") was the book of political proscription for the killing of socially important Poles who might lead resistance against the Nazi Occupation of Poland (1939–45). Compiled before the war began in 1939, the book contained lists that identified more than 61,000 members of the Polish elites – political and social activists, the intelligentsia, scholars, actors, former military officers – as enemies of the state dangerous to the Third Reich.

In Germany-occupied France, anti-fascist exiles made a "Library of Burned Books" of every book that Adolf Hitler had ordered destroyed in France. It listed copies of titles that had been burned. The book burnings in France were an idea that the French fascists, of the collaborating Vichy government (1940–44), borrowed from the Nazis, to cleanse French culture of Jewish intellectualism and the foreign politics of pacifism, decadent literature, and degenerate art, as the Nazis had cleansed German culture. In the event, after the Final Solution had concluded, for the post-war world, the Nazis had planned to establish a museum of Judaism that would have featured selected books of Jewish culture, preserved in memoriam of the extinct Jews of Europe.

United States history

Confederate revisionism

The historical negationism of American Civil War revisionists and Neo-Confederates claims that the Confederate States (1861–65) were the defenders rather than the instigators of the war, and that the Confederacy's motivation for secession from the United States was the maintenance of the southern states' rights and limited government, rather than the preservation and expansion of the chattel slavery of African Americans.

Regarding Neo-Confederate revisionism of the U.S. Civil War, the historian Brooks D. Simpson said that:
This is an active attempt to reshape historical memory, an effort by white Southerners to find historical justifications for present-day actions. The neo–Confederate movement's ideologues have grasped that if they control how people remember the past, they'll control how people approach the present and the future. Ultimately, this is a very conscious war for memory and heritage. It's a quest for legitimacy, the eternal quest for justification.
In the early 20th century, Mildred Rutherford, the historian general of the United Daughters of the Confederacy (UDC), led the attack against American history textbooks that did not present the Lost Cause of the Confederacy (ca. 1900) version of the history of the U.S. Civil War. To that pedagogical end, Rutherford assembled a "massive collection" of documents that included "essay contests on the glory of the Ku Klux Klan and personal tributes to faithful slaves". About the historical negationism of the United Daughters of the Confederacy, the historian David Blight said:
All UDC members and leaders were not as virulently racist as Rutherford, but all, in the name of a reconciled nation, participated in an enterprise that deeply influenced the white supremacist vision of Civil War memory.

War crimes

Japanese war crimes

The post-war minimisation of the war crimes of Japanese imperialism is an example of "illegitimate" historical revisionism; some contemporary Japanese revisionists, such as Yūko Iwanami (granddaughter of General Hideki Tojo), propose that Japan's invasion of China, and World War II, itself, were justified reactions to racist Western imperialism of the time. On 2 March 2007, Japanese prime minister Shinzō Abe denied that the military had forced women into sexual slavery during the war, saying, "The fact is, there is no evidence to prove there was coercion". Before he spoke, some Liberal Democratic Party legislators also sought to revise Yōhei Kōno's apology to former comfort women in 1993; likewise, there was the controversial negation of the six-week Nanking Massacre in 1937–1938.

Shinzo Abe led the Japanese Society for History Textbook Reform and headed the Diet antenna of Nippon Kaigi, two openly revisionist groups denying Japanese war crimes.

Editor-in-chief of the conservative Yomiuri Shimbun Tsuneo Watanabe criticized the Yasukuni Shrine as a bastion of revisionism: "The Yasukuni Shrine runs a museum where they show items in order to encourage and worship militarism. It's wrong for the prime minister to visit such a place". Other critics note that men, who would contemporarily be perceived as "Korean" and "Chinese", are enshrined for the military actions they effected as Japanese Imperial subjects.

Hiroshima and Nagasaki bombings

The Hibakusha ("explosion-affected people") of Hiroshima and Nagasaki seek compensation from their government and criticize it for failing to "accept responsibility for having instigated and then prolonged an aggressive war long after Japan's defeat was apparent, resulting in a heavy toll in Japanese, Asian and American lives". Historians Hill and Koshiro have stated that attempts to minimize the importance of the atomic bombings of Hiroshima and Nagasaki is revisionist history. EB Sledge expressed concern that such revisionism, in his words "mellowing", would allow us to forget the harsh facts of the history that led to the bombings.

Serbian war crimes in the Yugoslav wars

There have been a number of scholars and political activists who have publicly disagreed with mainstream views of Serbian war crimes in the Yugoslav wars of 1991–1999. Among the points of contention are whether the victims of massacres such as the Račak massacre and Srebrenica massacre were unarmed civilians or armed resistance fighters, whether death and rape tolls were inflated, and whether prison camps such as Sremska Mitrovica camp were sites of mass war crimes.

These scholars are labeled "revisionists" by their opponents. For example, Diana Johnstone's controversial book, Fools' Crusade: Yugoslavia, Nato, and Western Delusions, questions whether genocidal killings occurred in Srebrenica. The book was rejected by publishers in Sweden prompting an open letter in 2003 defending Johnstone's book (and her right to publish) which was signed by, among others, Noam Chomsky, Arundhati Roy, Tariq Ali and John Pilger: "We regard Diana Johnstone's Fools' Crusade as an outstanding work, dissenting from the mainstream view but doing so by an appeal to fact and reason, in a great tradition." On the other hand, Richard Caplan of Reading and Oxford University reviewed the work in International Affairs, where he described the work as "a revisionist and highly contentious account of western policy and the dissolution of Yugoslavia". The historian Marko Attila Hoare called it "an extremely poor book, one that is little more than a polemic in defence of the Serb-nationalist record during the wars of the 1990s – and an ill-informed one at that".

The Report about Case Srebrenica by Darko Trifunovic, commissioned by the government of the Republika Srpska, was described by the International Criminal Tribunal for the former Yugoslavia as "one of the worst examples of revisionism in relation to the mass executions of Bosnian Muslims committed in Srebrenica in July 1995". Outrage and condemnation by a wide variety of Balkan and international figures eventually forced the Republika Srpska to disown the report.

Turkey and the Armenian Genocide

Turkish laws such as Article 301, that state "a person who publicly insults Turkishness, or the Republic or [the] Turkish Grand National Assembly of Turkey, shall be punishable by imprisonment", were used to criminally charge the writer Orhan Pamuk with disrespecting Turkey, for saying that "Thirty thousand Kurds, and a million Armenians, were killed in these lands, and nobody, but me, dares to talk about it". The controversy occurred as Turkey was first vying for membership in the European Union (EU) where the suppression of dissenters is looked down upon. Article 301 originally was part of penal-law reforms meant to modernise Turkey to EU standards, as part of negotiating Turkey's membership to the EU. In 2006, the charges were dropped due to pressure from the European Union and United States on the Turkish government.

On 7 February 2006, five journalists were tried for insulting the judicial institutions of the State, and for aiming to prejudice a court case (per Article 288 of the Turkish penal code). The reporters were on trial for criticising the court-ordered closing of a conference in Istanbul regarding the Armenian genocide during the time of the Ottoman Empire. The conference continued elsewhere, transferring locations from a state to a private university. The trial continued until 11 April 2006, when four of the reporters were acquitted. The case against the fifth journalist, Murat Belge, proceeded until 8 June 2006, when he was also acquitted. The purpose of the conference was to critically analyze the official Turkish view of the Armenian Genocide in 1915; a taboo subject in Turkey. The trial proved to be a test case between Turkey and the European Union; the EU insisted that Turkey allow increased freedom of expression rights, as a condition to membership.

Soviet history

Nikolai Yezhov walking with Stalin in the top photo from the mid 1930s. Following his execution in 1940, Yezhov was edited out of the photo by Soviet censors.
 
During the existence of the Russian SFSR (1918–1991) and the Soviet Union (1922–1991), the Communist Party of the Soviet Union (CPSU) attempted to ideologically and politically control the writing of both academic and popular history. These attempts were most successful in 1934–52 period. According to Mehnert, the Soviets attempt to control academic historiography (the writing of history by academic historians) to promote ideological and ethno-racial imperialism by Russians. During the 1928–56 period, modern and contemporary history was generally composed according to the wishes of the CPSU, not the requirements of accepted historiographic method.

During and after the rule of Nikita Khrushchev (1956–64), Soviet historiographic practice is more complicated. Although not entirely corrupted, Soviet historiography was characterized by complex competition between Stalinist and anti-Stalinist Marxist historians. To avoid the professional hazard of politicized history, some historians chose pre-modern, medieval history or classical history, where ideological demands were relatively relaxed and conversation with other historians in the field could be fostered; nevertheless, despite the potential danger of proscribed ideology corrupting historians' work, not all of Soviet historiography was corrupt.

Control over party history and the legal status of individual ex-party members played a large role in dictating the ideological diversity and thus the faction in power within the CPSU. The history of the Communist Party was revised to delete references to leaders purged from the party, especially during the rule of Joseph Stalin (1922–53).

In the Historiography of the Cold War, a controversy over negationist historical revisionism exists, where numerous revisionist scholars in the West have been accused of whitewashing the crimes of Stalinism, overlooking the Katyn massacre in Poland and disregarding the validity of the Venona messages with regards to Soviet espionage in the United States.

Azerbaijan

Many scholars, among them Victor Schnirelmann, Willem Floor, Robert Hewsen, George Bournoutian and others state that in Soviet and post-Soviet Azerbaijan since the 1960s there is a practice of revising primary sources on the South Caucasus in which any mention about Armenians is deleted. For instance in the revised texts the word "Armenian" is either simply removed or is replaced by the word "Albanian"; there are many other examples of such falsifications, all of which have the purpose of creating an impression that historically Armenians were not present in this territory.

Willem M. Floor and Hasan Javadi in the English edition of "The Heavenly Rose-Garden: A History of Shirvan & Daghestan" by Bakikhanov specifically point out to the instances of distortions and falsifications made by Buniatov in his Russian translation of this book. According to Bournoutian and Hewsen these distortions are widespread in these works; they thus advise the readers in general to avoid the books produced in Azerbaijan in Soviet and post-Soviet times if these books do not contain the facsimile copy of original sources. Shnirelman thinks that this practice is being realized in Azerbaijan according to state order.

Philip L. Kohl brings an example of a theory advanced by Azerbaijani archeologist Akhundov about Albanian origin of Khachkars as an example of patently false cultural origin myths.

In their turn Azerbaijani historians claim that the historians of other countries falsify the true history of Azerbaijan. As an example of falsifications Azerbaijani historians consider historical references about the presence of Armenians on the territory of Karabakh (Azerbaijanis claim that Armenians appeared there only in 1828) or the fact that in these books there is no mention of "the powerful states of Azerbaijan with 5000 years of statehood history". After the Director of the Hermitage Museum Mikhail Piotrovsky expressed his protest about the destruction of Armenian khachkars in Julfa he was accused by Azeris of supporting the "total falsification of the history and culture of Azerbaijan".

In Azerbaijan the Armenian genocide is officially denied and is considered a hoax. According to state ideology of Azerbaijan a genocide of Azerbaijanis, carried out by Armenians and Russians, took place starting from 1813.

North Korea

The Korean War
Since the start of the Korean War (1950–53), the government of North Korea has consistently denied that the Democratic Peoples' Republic of Korea (DPRK) launched the attack with which began the war for the Communist unification of Korea. The historiography of the DPRK maintains that the war was provoked by South Korea, at the instigation of the United States:
On June 17, Juche 39 [1950] the then U.S. President [Harry S.] Truman sent [John Foster] Dulles as his special envoy to South Korea to examine the anti-North war scenario and give an order to start the attack. On June 18, Dulles inspected the 38th parallel and the war preparations of the ‘ROK Army’ units. That day he told Syngman Rhee to start the attack on North Korea with the counter-propaganda that North Korea first ‘invaded’ the south.
Further North Korean pronouncements included the claim that the U.S. needed the peninsula of Korea as "a bridgehead, for invading the Asian continent, and as a strategic base, from which to fight against national-liberation movements and socialism, and, ultimately, to attain world supremacy." Likewise, the DPRK denied the war crimes committed by the North Korean army in the course of the war; nonetheless, in the 1951-52 period, the Workers' Party of Korea (WPK) privately admitted to the "excesses" of their earlier campaign against North Korean citizens who had collaborated with the enemy – either actually or allegedly – during the US–South Korean occupation of North Korea. Later, the WPK blamed every war-time atrocity upon the U.S. military, e.g. the Sinchon Massacre (17 October – 7 December 1950) occurred during the retreat of the DPRK government from Hwanghae Province, in the south-west of North Korea.

The campaign against "collaborators" was attributed to political and ideological manipulations by the U.S. About which the high-rank leader Pak Chang-ok said that the American enemy had "started to use a new method, namely, it donned a leftist garb, which considerably influenced the inexperienced cadres of the Party and government organs." In Soviet Aims in Korea and the Origins of the Korean War, 1945–1950: New Evidence from Russian Archives (1993), by Kathryn Weathersby, confirmed that the Korean War was launched by order of Kim Il-sung (1912–1994); and also refuted the DPRK's allegations of biological warfare in the Korean War. The Korean Central News Agency dismissed the historical record of Soviet documents as "sheer forgery".

Holocaust denial

Holocaust deniers usually reject the term Holocaust denier as an inaccurate description of their historical point of view, instead, preferring, the term Holocaust revisionist; nonetheless, scholars prefer "Holocaust denier" to differentiate deniers from legitimate historical revisionists, whose goal is to accurately analyze historical evidence with established methods. Historian Alan Berger reports that Holocaust deniers argue in support of a preconceived theory – that the Holocaust either did not occur or was mostly a hoax – by ignoring extensive historical evidence to the contrary.

When the author David Irving lost his English libel case against Deborah Lipstadt, and her publisher, Penguin Books, and thus was publicly discredited and identified as a Holocaust denier, the trial judge, Justice Charles Gray, concluded that:
Irving has, for his own ideological reasons, persistently and deliberately misrepresented and manipulated historical evidence; that, for the same reasons, he has portrayed Hitler in an unwarrantedly favorable light, principally in relation to his attitude towards, and responsibility for, the treatment of the Jews; that he is an active Holocaust denier; that he is anti-semitic and racist, and that he associates with right-wing extremists who promote neo-Nazism.
On 20 February 2006, Irving was found guilty, and sentenced to three years imprisonment for Holocaust denial, under Austria's 1947 law banning Nazi revivalism and criminalising the "public denial, belittling or justification of National Socialist crimes". Besides Austria, eleven other countries – including Belgium, France, Germany, Lithuania, Poland, and Switzerland – have criminalised Holocaust denial as punishable with imprisonment.

China: denial of Tiananmen Square Massacre

The Tiananmen Square Protests of 1989 were a series of pro-democracy demonstrations that were put down violently on June 4, 1989, by the Chinese government via the People's Liberation Army, resulting in estimated casualty of over 10,000 deaths and 40,000 injured, obtained via later declassified documents., whereas the government claimed official estimates of 0 - 200 civilian deaths. Western media referred to this crackdown as the "Tiananmen Square Massacre", and in Chinese media it was called the "June Fourth Incident".

However, the Chinese Communist Party decided to downplay and later deny the occurrence of the protests and massacre, therefore, soon afterwards, news media and internet coverage of the events were suppressed and the search terms in Chinese for "June Fourth protests", "June Fourth incident", "Tiananmen Square protests", "Tiananmen Square Massacre", and similar terms were manipulated through censorship such that no results come up or if any, only results that have been cleaned up and relate to Tiananmen Square or June Fourth in general would be shown. On Baidu, China's largest internet search engine for the Chinese language and on Baidu Baike, Baidu's version of Wikipedia, for the entry "June 4", which lists all significant events on this date in history throughout the world, for the year 1989, there's completely no mention of this incident.

In textbooks

Former Yugoslavia

Throughout the post war era, though Tito denounced nationalist sentiments in historiography, those trends continued with Croat and Serbian academics at times accusing each other of misrepresenting each other's histories, especially in relation to the Croat-Nazi alliance. Communist historiography was challenged in the 1980s and a rehabilitation of Serbian nationalism by Serbian historians began. Historians and other members of the intelligentsia belonging to the Serbian Academy of Sciences and Arts (SANU) and the Writers Association played a significant role in the explanation of the new historical narrative. The process of writing a "new Serbian history" paralleled alongside the emerging ethno-nationalist mobilisation of Serbs with the objective of reorganising the Yugoslav federation. Using ideas and concepts from Holocaust historiography, Serbian historians alongside church leaders applied it to World War Two Yugoslavia and equated the Serbs with Jews and Croats with Nazi Germans.

Četniks along with the Ustaša were vilified by Tito era historiography within Yugoslavia. In the 1980s, Serbian historians initiated the process of reexamining the narrative of how World War Two was told in Yugoslavia which was accompanied by the rehabilitation of Četnik leader Draža Mihailović. Monographs relating to Mihailović and the Četnik movement were produced by some younger historians who were ideologically close to it toward the end of the 1990s. Being preoccupied with the era, Serbian historians have looked to vindicate Četnik history by portraying Četniks as righteous freedom fighters battling the Nazis while removing from history books the ambiguous alliances with the Italians and Germans. Whereas the crimes committed by Četniks against Croats and Muslims in Serbian historiography are overall "cloaked in silence". During the Milošević era, Serbian history was falsified to obscure the role Serbian collaborators Milan Nedić and Dimitrije Ljotić played in cleansing Serbia's Jewish community, killing them in the country or deporting them to Eastern European concentration camps.

In the 1990s following a massive western media coverage of the Yugoslav civil war, there was a rise of the publications considering the matter on historical revisionism of former Yugoslavia. One of the most prominent authors on the field of historical revisionism in the 1990s considering the newly emerged republics is Noel Malcolm and his works Bosnia: A Short History (1994) and Kosovo: A Short History (1998), that have seen a robust debate among historians following their release; following the release of the latter, the merits of the book were the subject of an extended debate in Foreign Affairs. Critics said that the book was "marred by his sympathies for its ethnic Albanian separatists, anti-Serbian bias, and illusions about the Balkans". In late 1999, Thomas Emmert of the history faculty of Gustavus Adolphus College in Minnesota reviewed the book in Journal of Southern Europe and the Balkans Online and while praising aspects of the book also asserted that it was "shaped by the author's overriding determination to challenge Serbian myths", that Malcolm was "partisan", and also complained that the book made a "transparent attempt to prove that the main Serbian myths are false". In 2006, a study by Frederick Anscombe looked at issues surrounding scholarship on Kosovo such as Noel Malcolm's work Kosovo: A Short History. Anscombe noted that Malcolm offered a "a detailed critique of the competing versions of Kosovo's history" and that his work marked a "remarkable reversal" of previous acceptance by Western historians of the "Serbian account" regarding the migration of the Serbs (1690) from Kosovo. Malcolm has been criticized for being "anti-Serbian" and selective like the Serbs with the sources, while other more restrained critics note that "his arguments are unconvincing". Anscombe noted that Malcolm, like Serbian and Yugoslav historians who have ignored his conclusions sideline and are unwilling to consider indigenous evidence such as that from the Ottoman archive when composing national history.

Japan

Historical negationism: a member of the Japanese Society for History Textbook Reform erects a banner reading "[Give] the Children Correct History Textbooks".

The history textbook controversy centers upon the secondary school history textbook Atarashii Rekishi Kyōkasho ("New History Textbook") said to minimise the nature of Japanese militarism in the First Sino-Japanese War (1894–95), in annexing Korea in 1910, in the Second Sino-Japanese War (1937–45), and in the Pacific Theater of World War II (1941–45). The conservative Japanese Society for History Textbook Reform commissioned the Atarashii Rekishi Kyōkasho textbook with the purpose of traditional national and international view of that Japanese historical period. The Ministry of Education vets all history textbooks, and those that do not mention Japanese war crimes and atrocities are not vetted; however, the Atarashii Rekishi Kyōkasho de-emphasises aggressive Japanese Imperial wartime behaviour and the matter of Chinese and Korean comfort women. It has even been denied that the Nanking massacre (a series of violences and rapes carried on by the Japanese army against Chinese civilians during the Second Sino-Japanese War) ever took place (see Nanking massacre denial). In 2007, the Ministry of Education attempted to revise textbooks regarding the Battle of Okinawa, lessening the involvement of the Japanese military in Okinawan civilian mass suicides.

Pakistan

Allegations of historical revisionism have been made regarding Pakistani textbooks in that they are laced with Indophobic and Islamist bias. Pakistan's use of officially published textbooks has been criticized for using schools to more subtly foster religious extremism, whitewashing Muslim conquests on the Indian subcontinent and promoting "expansive pan-Islamic imaginings" that "detect the beginnings of Pakistan in the birth of Islam on the Arabian peninsula". Since 2001, the Pakistani government has stated that curriculum reforms have been underway by the Ministry of Education.

South Korea

12 October 2015, South Korea's government has announced controversial plans to control the history textbooks used in secondary schools despite oppositional concerns of people and academics that the decision is made to glorify the history of those who served the Imperial Japanese government (Chinilpa). Section and the authoritarian dictatorships in South Korea during 1960s–1980s.The Ministry of Education announced that it would put the secondary-school history textbook under state control; "This was an inevitable choice in order to straighten out historical errors and end the social dispute caused by ideological bias in the textbooks," Hwang Woo-yea, education minister said on 12 October 2015. According to the government's plan, the current history textbooks of South Korea will be replaced by a single textbook written by a panel of government-appointed historians and the new series of publications would be issued under the title The Correct Textbook of History and are to be issued to the public and private primary and secondary schools in 2017 onwards.

The move has sparked fierce criticism from academics who argue the system can be used to distort the history and glorify the history of those who served the Imperial Japanese government (Chinilpa) and of the authoritarian dictatorships. Moreover, 466 organisations including Korean Teachers and Education Workers Union formed History Act Network in solidarity and have staged protests: "The government's decision allows the state too much control and power and, therefore, it is against political neutrality that is certainly the fundamental principle of education." Many South Korean historians condemned Kyohaksa for their text glorifying those who served the Imperial Japanese government (Chinilpa) and the authoritarian dictatorship with a far-right political perspective. On the other hand, New Right supporters welcomed the textbook saying that ‘the new textbook finally describes historical truths contrary to the history textbooks published by left-wing publishers,’ and the textbook issue became intensified as a case of ideological conflict.

In fact, there once was a time in Korean history that the history textbook was put under state control. It was during the authoritarian regime under Park Chung-hee (1963-1979), who is a father of Park Geun-hye, former President of South Korea, and was used as a means to keep the Yushin Regime (also known as Yushin Dictatorship). However, there had been continuous criticisms about the system especially from the 1980s when Korea experienced a dramatic democratic development. In 2003, liberalisation of textbook began when the textbooks on Korean modern and contemporary history were published though the Textbook Screening System, which allows textbooks to be published not by a single government body but by many different companies, for the first time.

Turkey

Education in Turkey is centralised: its policy, administration and content are each determined by the Turkish government. Textbooks taught in schools are either prepared directly by the Ministry of National Education (MEB) or must be approved by its Instruction and Education Board. In practice, this means that the Turkish government is directly responsible for what textbooks are taught in schools across Turkey.

In 2014, Taner Akçam, writing for the Armenian Weekly, discussed 2014-15 Turkish elementary and middle school textbooks that the MEB had made available on the internet. He found that Turkish history textbooks are filled with the message that Armenians are people "who are incited by foreigners, who aim to break apart the state and the country, and who murdered Turks and Muslims." The Armenian Genocide is referred to as the "Armenian matter", and is described as a lie perpetrated in order to further the perceived hidden agenda of Armenians. Recognition of the Armenian Genocide is defined as the "biggest threat to Turkish national security".

Akçam summarized one textbook that claims the Armenians had sided with the Russians during the war. The 1909 Adana massacre, in which as many as 20,000–30,000 Armenians were massacred, is identified as "The Rebellion of Armenians of Adana". According to the book, the Armenian Hnchak and Dashnak organizations instituted rebellions in many parts of Anatolia, and "didn’t hesitate to kill Armenians who would not join them," issuing instructions that "if you want to survive you have to kill your neighbor first." Claims highlighted by Akçam:
[The Armenians murdered] many people living in villages, even children, by attacking Turkish villages, which had become defenseless because all the Turkish men were fighting on the war fronts. ... They stabbed the Ottoman forces in the back. They created obstacles for the operations of the Ottoman units by cutting off their supply routes and destroying bridges and roads. ... They spied for Russia and by rebelling in the cities where they were located, they eased the way for the Russian invasion. ... Since the Armenians who engaged in massacres in collaboration with the Russians created a dangerous situation, this law required the migration of [Armenian people] from the towns they were living in to Syria, a safe Ottoman territory. ... Despite being in the midst of war, the Ottoman state took precautions and measures when it came to the Armenians who were migrating. Their tax payments were postponed, they were permitted to take any personal property they wished, government officials were assigned to ensure that they were protected from attacks during the journey and that their needs were met, police stations were established to ensure that their lives and properties were secure.
Similar revisionist claims found in other textbooks by Akçam included that Armenian "back-stabbing" was the reason the Ottomans lost the Russo-Turkish War of 1877–78 (similar to the post-War German stab-in-the-back myth), that the Hamidian massacres never happened, that the Armenians were armed by the Russians during late World War I to fight the Ottomans (in reality they had already been nearly annihilated from the area by this point), that Armenians killed 600,000 Turks during said war, that the deportation were to save Armenians from other violent Armenian gangs, and that Armenians who were deported were later able to return to Turkey unscathed and reclaim their properties.

As of 2015, Turkish textbooks still describe the Armenians as "traitors", call the Armenian Genocide a lie and say that the Ottoman Turks "took necessary measures to counter Armenian separatism." Armenians are also characterised as "dishonorable and treacherous," and students are taught that Armenians were forcibly relocated to protect Turkish citizens from attacks.

French law recognising colonialism's positive value

On 23 February 2005, the Union for a Popular Movement (UMP) conservative majority at the French National Assembly voted a law compelling history textbooks and teachers to "acknowledge and recognize in particular the positive role of the French presence abroad, especially in North Africa". Criticized by historians and teachers, among them Pierre Vidal-Naquet, who refused to recognise the French Parliament's right to influence the way history is written (despite the French Holocaust denial laws, see Loi Gayssot). That law was also challenged by left-wing parties and the former French colonies; critics argued that the law was tantamount to refusing to acknowledge the racism inherent to French colonialism, and that the law proper is a form of historical revisionism.

Ramifications and judicature

Some countries have criminalised historical revisionism of historic events such as the Holocaust. The Council of Europe defines it as the "denial, gross minimisation, approval or justification of genocide or crimes against humanity" (article 6, Additional Protocol to the Convention on cybercrime).

International law

Some council-member states proposed an additional protocol to the Council of Europe Cybercrime Convention, addressing materials and "acts of racist or xenophobic nature committed through computer networks"; it was negotiated from late 2001 to early 2002, and, on 7 November 2002, the Council of Europe Committee of Ministers adopted the protocol's final text titled Additional Protocol to the Convention on Cyber-crime, Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed through Computer Systems, ("Protocol"). It opened on 28 January 2003, and became current on 1 March 2006; as of 30 November 2011, 20 States have signed and ratified the Protocol, and 15 others have signed, but not yet ratified it (including Canada and South Africa).

The Protocol requires participant States to criminalise the dissemination of racist and xenophobic material, and of racist and xenophobic threats and insults through computer networks, such as the Internet. Article 6, Section 1 of the Protocol specifically covers Holocaust Denial, and other genocides recognised as such by international courts, established since 1945, by relevant international legal instruments. Section 2 of Article 6 allows a Party to the Protocol, at their discretion, only to prosecute the violator if the crime is committed with the intent to incite hatred or discrimination or violence; or to use a reservation, by allowing a Party not to apply Article 6 – either partly or entirely. The Council of Europe's Explanatory Report of the Protocol says that the "European Court of Human Rights has made it clear that the denial or revision of 'clearly established historical facts – such as the Holocaust  –  ... would be removed from the protection of Article 10 by Article 17' of the European Convention on Human Rights" (see the Lehideux and Isorni judgement of 23 September 1998).

Two of the English-speaking states in Europe, Ireland and the United Kingdom, have not signed the additional protocol, (the third, Malta, signed on 28 January 2003, but has not yet ratified it). On 8 July 2005 Canada became the only non-European state to sign the convention. They were joined by South Africa in April 2008. The United States government does not believe that the final version of the Protocol is consistent with the United States' First Amendment Constitutional rights and has informed the Council of Europe that the United States will not become a Party to the protocol.

Domestic law

There are various domestic laws against negationism and hate speech (which may encompass negationism), in sixteen different countries including
  • Austria (Article I §3 Verbotsgesetz 1947 with its 1992 updates and added paragraph §3h),
  • Argentina (National Law 23054 and 23592),
  • Belgium (Belgian Holocaust denial law),
  • the Czech Republic,
  • France (Gayssot Act),
  • Germany (§130(3) of the penal code)
  • Hungary,
  • Israel,
  • Liechtenstein,
  • Lithuania,
  • Luxembourg,
  • Poland (Article 55 of the law establishing the Institute of National Remembrance 1998),
  • Portugal
  • Romania
  • Slovakia
  • and Switzerland (Article 261bis of the Penal Code).
Additionally, the Netherlands considers denying the Holocaust as a hate crime – which is a punishable offense. Wider use of domestic laws include the 1990 French Gayssot Act that prohibits any "racist, anti-Semitic or xenophobic" speech, and the Czech Republic and Ukraine have criminalised the denial and the minimisation of Communist-era crimes.

Negationism in fiction

In the novel Nineteen Eighty-Four (1949), by George Orwell, the government of Oceania continually revises historical records to concord with the contemporary political explanations of The Party. When Oceania is at war with Eurasia, the public records (newspapers, cinema, television) indicate that Oceania has been always at war with Eurasia; yet, when Eurasia and Oceania are no longer fighting each other, the historical records are subjected to negationism; thus, the populace are brainwashed to believe that Oceania and Eurasia always have been allies against Eastasia.

The protagonist of the story, Winston Smith, is an editor in the Ministry of Truth, responsible for effecting the continual historical revisionism that will negate the contradictions of the past upon the contemporary world of Oceania. To cope with the psychological stresses of life during wartime, Smith begins a diary, in which he observes that "He who controls the present, controls the past. He who controls the past, controls the future", and so illustrates the principal, ideological purpose of historical negationism.

Franz Kurowski was an extremely prolific right-wing German writer who dedicated his entire career to the production of Nazi military propaganda, followed by post-war military pulp fiction and revisionist histories of World War II, claiming the humane behaviour and innocence of war crimes of the Wehrmacht, glorifying war as a desirable state, while fabricating eye-witness reports of atrocities allegedly committed by the Allies, especially Bomber Command and the air raids on Cologne and Dresden as planned genocide of the civilian population.

Crimes against humanity

From Wikipedia, the free encyclopedia

Crimes against humanity are certain acts that are deliberately committed as part of a widespread or systematic attack or individual attack directed against any civilian or an identifiable part of a civilian population. The first prosecution for crimes against humanity took place at the Nuremberg trials. Crimes against humanity have since been prosecuted by other international courts (for example, the International Court of Justice, the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Court) as well as in domestic prosecutions. The law of crimes against humanity has primarily developed through the evolution of customary international law. Crimes against humanity are not codified in an international convention, although there is currently an international effort to establish such a treaty, led by the Crimes Against Humanity Initiative.

Unlike war crimes, crimes against humanity can be committed during peace or war. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. War crimes, murder, massacres, dehumanization, genocide, ethnic cleansing, deportations, unethical human experimentation, extrajudicial punishments including summary executions, use of WMDs, state terrorism or state sponsoring of terrorism, death squads, kidnappings and forced disappearances, military use of children, unjust imprisonment, enslavement, cannibalism, torture, rape, political repression, racial discrimination, religious persecution, and other human rights abuses may reach the threshold of crimes against humanity if they are part of a widespread or systematic practice.

History of the term

The term "crimes against humanity" is potentially ambiguous because of the ambiguity of the word "humanity", which can mean humankind (all human beings collectively) or the value of humanness. The history of the term shows that the latter sense is intended.

Abolition of the slave trade

There were several bilateral treaties in 1814 that foreshadowed the multilateral treaty of Final Act of the Congress of Vienna (1815) that used wording expressing condemnation of the slave trade using moral language. For example, the Treaty of Paris (1814) between Britain and France included the wording "principles of natural justice"; and the British and United States plenipotentiaries stated in the Treaty of Ghent (1814) that the slave trade violated the "principles of humanity and justice".

The multilateral Declaration of the Powers, on the Abolition of the Slave Trade, of 8 February 1815 (Which also formed Section XV of the Final Act of the Congress of Vienna of the same year) included in its first sentence the concept of the "principles of humanity and universal morality" as justification for ending a trade that was "odious in its continuance".

First use

The term of"crimes against humanity" was used by George Washington Williams in a pamphlet published in 1890 to describe the practices of Leopold II of Belgium's administration of the Congo Free State. In treaty law, the term originated in the Second Hague Convention of 1899 preamble and was expanded in the Fourth Hague Convention of 1907 preamble and their respective regulations, which were concerned with the codification of new rules of international humanitarian law. The preamble of the two Conventions referenced the “laws of humanity” as an expression of underlying inarticulated humanistic values. The term is part of what is known as the Martens Clause.

On May 24, 1915, the Allied Powers, Britain, France, and Russia, jointly issued a statement explicitly charging for the first time ever another government of committing "a crime against humanity". An excerpt from this joint statement reads:
In view of these new crimes of Ottoman Empire against humanity and civilization, the Allied Governments announce publicly to the Sublime Porte that they will hold personally responsible for these crimes all members of the Ottoman Government, as well as those of their agents who are implicated in such massacres.
At the conclusion of the war, an international war crimes commission recommended the creation of a tribunal to try "violations of the laws of humanity". However, the US representative objected to references to "law of humanity" as being imprecise and insufficiently developed at that time and the concept was not pursued.

Nuremberg trials

Nuremberg Trials. Defendants in the dock. The main target of the prosecution was Hermann Göring (at the left edge on the first row of benches), considered to be the most important surviving official in the Third Reich after Hitler's death.

In the aftermath of the Second World War, the London Charter of the International Military Tribunal was the decree that set down the laws and procedures by which the post-War Nuremberg trials were to be conducted. The drafters of this document were faced with the problem of how to respond to the Holocaust and grave crimes committed by the Nazi regime. A traditional understanding of war crimes gave no provision for crimes committed by a power on its own citizens. Therefore, Article 6 of the Charter was drafted to include not only traditional war crimes and crimes against peace, but also Crimes Against Humanity, defined as
Murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
This definition was notable in its subjugation to the other two categories of offences defined in Article 6 of the Charter. The jurisdictional limitation was explained by the American chief representative to the London Conference, Robert H. Jackson, who pointed out that it "has been a general principle from time immemorial that the internal affairs of another government are not ordinarily our business". Thus, "it is justifiable that we interfere or attempt to bring retribution to individuals or to states only because the concentration camps and the deportations were in pursuance of a common plan or enterprise of making an unjust war". In the Judgment of the International Military Tribunal for the Trial of German Major War Criminals it was stated:
The Tribunal therefore cannot make a general declaration that the acts before 1939 were crimes against humanity within the meaning of the Charter, but from the beginning of the war in 1939 war crimes were committed on a vast scale, which were also crimes against humanity; and insofar as the inhumane acts charged in the Indictment, and committed after the beginning of the war, did not constitute war crimes, they were all committed in execution of, or in connection with, the aggressive war, and therefore constituted crimes against humanity.

Tokyo trials

The defendants at the Tokyo International Tribunal. General Hideki Tojo was one of the main defendants, and is in the centre of the middle row.

The International Military Tribunal for the Far East (IMTFE), also known as the Tokyo Trial, was convened to try the leaders of the Empire of Japan for three types of crimes: "Class A" (crimes against peace), "Class B" (war crimes), and "Class C" (crimes against humanity), committed during the Second World War.

The legal basis for the trial was established by the Charter of the International Military Tribunal for the Far East (CIMTFE) that was proclaimed on 19 January 1946. The tribunal convened on May 3, 1946, and was adjourned on November 12, 1948.

In the Tokyo Trial, Crimes against Humanity (Class C) was not applied for any suspect. Prosecutions related to the Nanking Massacre were categorised as infringements upon the Laws of War.

War crimes charges against more junior personnel were dealt with separately, in other cities throughout Far East Asia, such as the Nanjing War Crimes Tribunal and the Khabarovsk War Crimes Trials.

A panel of eleven judges presided over the IMTFE, one each from victorious Allied powers (United States, Republic of China, Soviet Union, United Kingdom, the Netherlands, Provisional Government of the French Republic, Australia, New Zealand, Canada, British India, and the Philippines).

Types of crimes against humanity

The different types of crimes which may constitute crimes against humanity differs between definitions both internationally and on the domestic level. Isolated inhumane acts of a certain nature committed as part of a widespread or systematic attack may instead constitute grave infringements of human rights, or – depending on the circumstances – war crimes, but are not classified as crimes against humanity.

Apartheid

The systematic persecution of one racial group by another, such as occurred during the South African apartheid government, was recognized as a crime against humanity by the United Nations General Assembly in 1976. The Charter of the United Nations (Article 13, 14, 15) makes actions of the General Assembly advisory to the Security Council. In regard to apartheid in particular, the UN General Assembly has not made any findings, nor have apartheid-related trials for crimes against humanity been conducted.

Rape and sexual violence

Neither the Nuremberg or Tokyo Charters contained an explicit provision recognizing sexual and gender-based crimes as war crimes or crimes against humanity, although Control Council Law No. 10 recognized rape as a crime against humanity. The statutes of the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda both included rape as a crime against humanity. The ICC is the first international instrument expressly to include various forms of sexual and gender-based crimes – including rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilisation, and other forms of sexual violence – as both an underlying act of crimes against humanity and war crime committed in international and/or non-international armed conflicts. As an example, the events of Khojaly and Khatyn can be shown that the world strongly condemns. International institutions have asked for a ransom to avoid such incidents. There are hundreds of massacres, thousands of prisoners and wounded in these incidents.

In 2008, the U.N. Security Council adopted resolution 1820, which noted that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide”.

Legal status of crimes against humanity in international law

Unlike genocide and war crimes, which have been widely recognized and prohibited in international criminal law since the establishment of the Nuremberg principles, there has never been a comprehensive convention on crimes against humanity, even though such crimes are continuously perpetrated worldwide in numerous conflicts and crises. There are eleven international texts defining crimes against humanity, but they all differ slightly as to their definition of that crime and its legal elements.

In 2008, the Crimes Against Humanity Initiative was launched by Professor Leila Nadya Sadat at the Whitney R. Harris World Law Institute to address this gap in international law. The Initiative represents the first concerted effort to address the gap that exists in international criminal law by enumerating a comprehensive international convention on crimes against humanity.

On July 30, 2013, the United Nations International Law Commission voted to include the topic of crimes against humanity in its long-term program of work. In July 2014, the Commission moved this topic to its active programme of work based largely on a report submitted by Sean D. Murphy. Professor Sean D. Murphy, the United States’ Member on the United Nations’ International Law Commission, has been named the Special Rapporteur for Crimes Against Humanity. Sean D. Murphy attended the 2008 Experts' Meeting held by the Crimes Against Humanity Initiative prior to this appointment.

There is some debate on what the status of crimes against humanity under customary international law is. M. Cherif Bassiouni argues that crimes against humanity are part of jus cogens and as such constitute a non-derogable rule of international law.

United Nations

The United Nations has been primarily responsible for the prosecution of crimes against humanity since it was chartered in 1948.

After Nuremberg, there was no international court with jurisdiction over crimes against humanity for almost 50 years. Work continued on developing the definition of crimes against humanity at the United Nations, however. In 1947, the International Law Commission was charged by the United Nations General Assembly with the formulation of the principles of international law recognized and reinforced in the Nuremberg Charter and judgment, and with drafting a ‘code of offenses against the peace and security of mankind’. Completed fifty years later in 1996, the Draft Code defined crimes against humanity as various inhumane acts, i.e., "murder, extermination, torture, enslavement, persecution on political, racial, religious or ethnic grounds, institutionalized discrimination, arbitrary deportation or forcible transfer of population, arbitrary imprisonment, rape, enforced prostitution and other inhuman acts committed in a systematic manner or on a large scale and instigated or directed by a Government or by any organization or group." This definition differs from the one used in Nuremberg, where the criminal acts were to have been committed “before or during the war”, thus establishing a nexus between crimes against humanity and armed conflict.

A report on the 2008–09 Gaza War by Richard Goldstone accused Palestinian and Israeli forces of possibly committing a crime against humanity. In 2011, Goldstone said that he no longer believed that Israeli forces had targeted civilians or committed a crime against humanity.

On 21 March 2013, at its 22nd session, the United Nations Human Rights Council established the Commission of Inquiry on human rights in the Democratic People’s Republic of Korea (DPRK). The Commission is mandated to investigate the systematic, widespread and grave violations of human rights in the Democratic People's Republic of Korea, with a view to ensuring full accountability, in particular for violations which may amount to crimes against humanity. The Commission dealt with matters relating to crimes against humanity on the basis of definitions set out by customary international criminal law and in the Rome Statute of the International Criminal Court. The 2014 Report by the commission found "the body of testimony and other information it received establishes that crimes against humanity have been committed in the Democratic People’s Republic of Korea, pursuant to policies established at the highest level of the State... These crimes against humanity entail extermination, murder, enslavement, torture, imprisonment, rape, forced abortions and other sexual violence, persecution on political, religious, racial and gender grounds, the forcible transfer of populations, the enforced disappearance of persons and the inhumane act of knowingly causing prolonged starvation. The commission further finds that crimes against humanity are ongoing in the Democratic People’s Republic of Korea because the policies, institutions and patterns of impunity that lie at their heart remain in place." Additionally, the commission found that crimes against humanity have been committed against starving populations, particularly during the 1990s, and are being committed against persons from other countries who were systematically abducted or denied repatriation, in order to gain labour and other skills for the Democratic People’s Republic of Korea.

Security Council

UN Security Council Resolution 1674, adopted by the United Nations Security Council on 28 April 2006, "reaffirms the provisions of paragraphs 138 and 139 of the 2005 World Summit Outcome Document regarding the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity". The resolution commits the Council to action to protect civilians in armed conflict.

In 2008 the U.N. Security Council adopted resolution 1820, which noted that “rape and other forms of sexual violence can constitute war crimes, crimes against humanity or a constitutive act with respect to genocide”.

International courts and criminal tribunals

After the Nuremberg and Tokyo trials of 1945-1946, the next international tribunal with jurisdiction over crimes against humanity was not established for another five decades. In response to atrocities committed in the 1990s, multiple ad hoc tribunals were established with jurisdiction over crimes against humanity. The statutes of the International Criminal Court, the International Criminal Tribunals for the Former Yugolavia and for Rwanda each contain different definitions of crimes against humanity.

International Criminal Tribunal for Yugoslavia

In 1993, the UN Security Council established the International Criminal Tribunal for the former Yugoslavia (ICTY), with jurisdiction to investigate and prosecute three international crimes which had taken place in the former Yugoslavia: genocide, war crimes, and crimes against humanity. Article 5 of the ICTY Statute states that
The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population:
(a) murder;
(b) extermination;
(c) enslavement;
(d) deportation;
(e) imprisonment;
(f) torture;
(g) rape;
(h) persecutions on political, racial and religious grounds;
(i) other inhumane acts."
This definition of crimes against humanity revived the original ‘Nuremberg’ nexus with armed conflict, connecting crimes against humanity to both international and non-international armed conflict. It also expanded the list of criminal acts used in Nuremberg to include imprisonment, torture and rape. Cherif Bassiouni has argued that this definition was necessary as the conflict in the former Yugoslavia was considered to be a conflict of both an international and non-international nature. Therefore, this adjusted definition of crimes against humanity was necessary to afford the tribunal jurisdiction over this crime.

International Criminal Tribunal for Rwanda

The UN Security Council established the International Criminal Tribunal for Rwanda in 1994 following the Rwandan Genocide. Under the ICTR Statute, the link between crimes against humanity and an armed conflict of any kind was dropped. Rather, the requirement was added that the inhumane acts must be part of a “systematic or widespread attack against any civilian population on national, political, ethnic, racial or religious grounds.” Unlike the conflict in the former Yugoslavia, the conflict in Rwanda was deemed to be non-international, so crimes against humanity would likely not have been applicable if the nexus to armed conflict had been maintained.

International Criminal Court

Headquarters of the ICC in The Hague

In 2002, the International Criminal Court (ICC) was established in The Hague (Netherlands) and the Rome Statute provides for the ICC to have jurisdiction over genocide, crimes against humanity and war crimes. The definition of what is a "crime against humanity" for ICC proceedings has significantly broadened from its original legal definition or that used by the UN. Essentially, the Rome Statute employs the same definition of crimes against humanity that the ICTR Statute does, minus the requirement that the attack was carried out ‘on national, political, ethnic, racial or religious grounds’. In addition, the Rome Statute definition offers the most expansive list of specific criminal acts that may constitute crimes against humanity to date.

Article 7 of the treaty stated that:
For the purpose of this Statute, "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health;
The Rome Statute Explanatory Memorandum states that crimes against humanity
are particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority. However, murder, extermination, torture, rape, political, racial, or religious persecution and other inhumane acts reach the threshold of crimes against humanity only if they are part of a widespread or systematic practice. Isolated inhumane acts of this nature may constitute grave infringements of human rights, or depending on the circumstances, war crimes, but may fall short of meriting the stigma attaching to the category of crimes under discussion. On the other hand, an individual may be guilty of crimes against humanity even if he perpetrates one or two of the offences mentioned above, or engages in one such offense against only a few civilians, provided those offenses are part of a consistent pattern of misbehavior by a number of persons linked to that offender (for example, because they engage in armed action on the same side or because they are parties to a common plan or for any similar reason.) Consequently when one or more individuals are not accused of planning or carrying out a policy of inhumanity, but simply of perpetrating specific atrocities or vicious acts, in order to determine whether the necessary threshold is met one should use the following test: one ought to look at these atrocities or acts in their context and verify whether they may be regarded as part of an overall policy or a consistent pattern of an inhumanity, or whether they instead constitute isolated or sporadic acts of cruelty and wickedness.
To fall under the Rome Statute, a crime against humanity which is defined in Article 7.1 must be "part of a widespread or systematic attack directed against any civilian population". Article 7.2.a states "For the purpose of paragraph 1: "Attack directed against any civilian population means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack." This means that an individual crime on its own, or even a number of such crimes, would not fall under the Rome Statute unless they were the result of a State policy or an organizational policy. This was confirmed by Luis Moreno Ocampo in an open letter publishing his conclusions about allegations of crimes committed during the invasion of Iraq in March 2003 which might fall under the ICC. In a section entitled "Allegations concerning Genocide and Crimes against Humanity" he states that "the available information provided no reasonable indicator of the required elements for a crime against humanity," i.e. 'a widespread or systematic attack directed against any civilian population'".

The ICC can only prosecute crimes against humanity in situations under which it has jurisdiction. The ICC only has jurisdiction over crimes contained in its statute - genocide, war crimes and crimes against humanity - which have been committed on the territory of a State party to the Rome Statute, when a non-party State refers a situation within its country to the court or when the United Nation Security Council refers a case to the ICC. In 2005 the UN referred to the ICC the situation in Darfur. This referral resulted in an indictment of Sudanese President Omar al-Bashir for genocide, crimes against humanity and war crimes in 2008. When the ICC President reported to the UN regarding its progress handling these crimes against humanity case, Judge Phillipe Kirsch said "The Court does not have the power to arrest these persons. That is the responsibility of States and other actors. Without arrests, there can be no trials.

Council of Europe

The Committee of Ministers of the Council of Europe on 30 April 2002 issued a recommendation to the member states, on the protection of women against violence. In the section "Additional measures concerning violence in conflict and post-conflict situations", states in paragraph 69 that member states should: "penalize rape, sexual slavery, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity as an intolerable violation of human rights, as crimes against humanity and, when committed in the context of an armed conflict, as war crimes;"

In the Explanatory Memorandum on this recommendation when considering paragraph 69:
Reference should be made to the Statute of the International Criminal Tribunal adopted in Rome in July 1998. Article 7 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence of comparable gravity, as crimes against humanity. Furthermore, Article 8 of the Statute defines rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any other form of sexual violence as a serious breach of the Geneva Conventions and as war crimes.
The Holodomor has been recognized as a crime against humanity by the European Parliament.

20th century

Sources say the 20th century can be considered the bloodiest period in global history. Millions of civilian infants, youngsters, adults, and elderly people died in warfare. One civilian perished for every combatant killed. Efforts of the International Committee of the Red Cross, humanitarian laws, and rules of warfare were not able to stop these crimes against humanity. These terminologies were invented since previous vocabulary was not enough to describe these offenses. War criminals did not fear prosecution, apprehension, or imprisonment before World War II. Britain’s Prime Minister Winston Churchill favored the outright execution of war criminals. The United States was more lenient and called for a just trial. The British Government was convinced to institute the Nuremberg Trial which left several legacies. These are worldwide jurisdiction for severe war crimes are, creation of international war crime tribunals, judicial procedures that documented history of colossal crimes effectively, and success of UN courts in holding impartial trials.

The UN pointed out the Rome Statute of the International Criminal Court (ICC) specifically Article 7 (Crimes against Humanity which defines large-scale acts of violence against a locality’s civilian populace. These acts consist of murder; annihilation; enslavement; bondage; forced removal of the population; imprisonment or deprivation of physical liberty that violates international laws; maltreatment; forced prostitution and rape; discrimination and tyranny against certain groups; apartheid (racial discrimination and segregation); and, other inhumane acts. A publication from Trial International mentioned that crimes against humanity have been collated starting in 1990. These were the 1993 Statute of the International Criminal Tribunal for Yugoslavia (now called the Socialist Federal Republic of Yugoslavia, 1994 Statute of the International Tribunal for Rwanda, and 1998 Rome Statute of the International Criminal Tribunal. The latter contains the latest and most extensive list of detailed crimes against civilians.

Natural and legal rights

From Wikipedia, the free encyclopedia
 
Natural and legal rights are two types of rights. Natural rights are those that are not dependent on the laws or customs of any particular culture or government, and so are universal and inalienable (they cannot be repealed or restrained by human laws). Legal rights are those bestowed onto a person by a given legal system (they can be modified, repealed, and restrained by human laws). 

The concept of natural law is related to the concept of natural rights. Natural law first appeared in ancient Greek philosophy, and was referred to by Roman philosopher Cicero. It was subsequently alluded to in the Bible, and then developed in the Middle Ages by Catholic philosophers such as Albert the Great and his pupil Thomas Aquinas. During the Age of Enlightenment, the concept of natural laws was used to challenge the divine right of kings, and became an alternative justification for the establishment of a social contract, positive law, and government – and thus legal rights – in the form of classical republicanism. Conversely, the concept of natural rights is used by others to challenge the legitimacy of all such establishments.

The idea of human rights is also closely related to that of natural rights: some acknowledge no difference between the two, regarding them as synonymous, while others choose to keep the terms separate to eliminate association with some features traditionally associated with natural rights. Natural rights, in particular, are considered beyond the authority of any government or international body to dismiss. The 1948 United Nations Universal Declaration of Human Rights is an important legal instrument enshrining one conception of natural rights into international soft law. Natural rights were traditionally viewed as exclusively negative rights, whereas human rights also comprise positive rights. Even on a natural rights conception of human rights, the two terms may not be synonymous.
The proposition that animals have natural rights is one that gained the interest of philosophers and legal scholars in the 20th century and into the 21st.

History

The idea that certain rights are natural or inalienable also has a history dating back at least to the Stoics of late Antiquity and Catholic law of the early Middle Ages, and descending through the Protestant Reformation and the Age of Enlightenment to today.

The existence of natural rights has been asserted by different individuals on different premises, such as a priori philosophical reasoning or religious principles. For example, Immanuel Kant claimed to derive natural rights through reason alone. The United States Declaration of Independence, meanwhile, is based upon the "self-evident" truth that "all men are … endowed by their Creator with certain unalienable Rights".

Likewise, different philosophers and statesmen have designed different lists of what they believe to be natural rights; almost all include the right to life and liberty as the two highest priorities. H. L. A. Hart argued that if there are any rights at all, there must be the right to liberty, for all the others would depend upon this. T. H. Green argued that “if there are such things as rights at all, then, there must be a right to life and liberty, or, to put it more properly to free life.” John Locke emphasized "life, liberty and property" as primary. However, despite Locke's influential defense of the right of revolution, Thomas Jefferson substituted "pursuit of happiness" in place of "property" in the United States Declaration of Independence.

Ancient

Stephen Kinzer, a veteran journalist for The New York Times and the author of the book All The Shah's Men, writes in the latter that:
The Zoroastrian religion taught Iranians that citizens have an inalienable right to enlightened leadership and that the duty of subjects is not simply to obey wise kings but also to rise up against those who are wicked. Leaders are seen as representative of God on earth, but they deserve allegiance only as long as they have farr, a kind of divine blessing that they must earn by moral behavior.
The Stoics held that no one was a slave by nature; slavery was an external condition juxtaposed to the internal freedom of the soul (sui juris). Seneca the Younger wrote:
It is a mistake to imagine that slavery pervades a man's whole being; the better part of him is exempt from it: the body indeed is subjected and in the power of a master, but the mind is independent, and indeed is so free and wild, that it cannot be restrained even by this prison of the body, wherein it is confined.
Of fundamental importance to the development of the idea of natural rights was the emergence of the idea of natural human equality. As the historian A.J. Carlyle notes: "There is no change in political theory so startling in its completeness as the change from the theory of Aristotle to the later philosophical view represented by Cicero and Seneca.... We think that this cannot be better exemplified than with regard to the theory of the equality of human nature." Charles H. McIlwain likewise observes that "the idea of the equality of men is the profoundest contribution of the Stoics to political thought" and that "its greatest influence is in the changed conception of law that in part resulted from it." Cicero argues in De Legibus that "we are born for Justice, and that right is based, not upon opinions, but upon Nature."

Modern

One of the first Western thinkers to develop the contemporary idea of natural rights was French theologian Jean Gerson, whose 1402 treatise De Vita Spirituali Animae is considered one of the first attempts to develop what would come to be called modern natural rights theory.

Centuries later, the Stoic doctrine that the "inner part cannot be delivered into bondage" re-emerged in the Reformation doctrine of liberty of conscience. Martin Luther wrote:
Furthermore, every man is responsible for his own faith, and he must see it for himself that he believes rightly. As little as another can go to hell or heaven for me, so little can he believe or disbelieve for me; and as little as he can open or shut heaven or hell for me, so little can he drive me to faith or unbelief. Since, then, belief or unbelief is a matter of every one's conscience, and since this is no lessening of the secular power, the latter should be content and attend to its own affairs and permit men to believe one thing or another, as they are able and willing, and constrain no one by force.
17th-century English philosopher John Locke discussed natural rights in his work, identifying them as being "life, liberty, and estate (property)", and argued that such fundamental rights could not be surrendered in the social contract. Preservation of the natural rights to life, liberty, and property was claimed as justification for the rebellion of the American colonies. As George Mason stated in his draft for the Virginia Declaration of Rights, "all men are born equally free," and hold "certain inherent natural rights, of which they cannot, by any compact, deprive or divest their posterity." Another 17th-century Englishman, John Lilburne (known as Freeborn John), who came into conflict with both the monarchy of King Charles I and the military dictatorship of Oliver Cromwell governed republic, argued for level human basic rights he called "freeborn rights" which he defined as being rights that every human being is born with, as opposed to rights bestowed by government or by human law.

The distinction between alienable and unalienable rights was introduced by Francis Hutcheson. In his Inquiry into the Original of Our Ideas of Beauty and Virtue (1725), Hutcheson foreshadowed the Declaration of Independence, stating: “For wherever any Invasion is made upon unalienable Rights, there must arise either a perfect, or external Right to Resistance. . . . Unalienable Rights are essential Limitations in all Governments.” Hutcheson, however, placed clear limits on his notion of unalienable rights, declaring that “there can be no Right, or Limitation of Right, inconsistent with, or opposite to the greatest publick Good." Hutcheson elaborated on this idea of unalienable rights in his A System of Moral Philosophy (1755), based on the Reformation principle of the liberty of conscience. One could not in fact give up the capacity for private judgment (e.g., about religious questions) regardless of any external contracts or oaths to religious or secular authorities so that right is "unalienable." Hutcheson wrote: "Thus no man can really change his sentiments, judgments, and inward affections, at the pleasure of another; nor can it tend to any good to make him profess what is contrary to his heart. The right of private judgment is therefore unalienable."

In the German Enlightenment, Hegel gave a highly developed treatment of this inalienability argument. Like Hutcheson, Hegel based the theory of inalienable rights on the de facto inalienability of those aspects of personhood that distinguish persons from things. A thing, like a piece of property, can in fact be transferred from one person to another. According to Hegel, the same would not apply to those aspects that make one a person:
The right to what is in essence inalienable is imprescriptible, since the act whereby I take possession of my personality, of my substantive essence, and make myself a responsible being, capable of possessing rights and with a moral and religious life, takes away from these characteristics of mine just that externality which alone made them capable of passing into the possession of someone else. When I have thus annulled their externality, I cannot lose them through lapse of time or from any other reason drawn from my prior consent or willingness to alienate them.
In discussion of social contract theory, "inalienable rights" were said to be those rights that could not be surrendered by citizens to the sovereign. Such rights were thought to be natural rights, independent of positive law. Some social contract theorists reasoned, however, that in the natural state only the strongest could benefit from their rights. Thus, people form an implicit social contract, ceding their natural rights to the authority to protect the people from abuse, and living henceforth under the legal rights of that authority.

Many historical apologies for slavery and illiberal government were based on explicit or implicit voluntary contracts to alienate any "natural rights" to freedom and self-determination. The de facto inalienability arguments of Hutcheson and his predecessors provided the basis for the anti-slavery movement to argue not simply against involuntary slavery but against any explicit or implied contractual forms of slavery. Any contract that tried to legally alienate such a right would be inherently invalid. Similarly, the argument was used by the democratic movement to argue against any explicit or implied social contracts of subjection (pactum subjectionis) by which a people would supposedly alienate their right of self-government to a sovereign as, for example, in Leviathan by Thomas Hobbes. According to Ernst Cassirer,
There is, at least, one right that cannot be ceded or abandoned: the right to personality...They charged the great logician [Hobbes] with a contradiction in terms. If a man could give up his personality he would cease being a moral being. … There is no pactum subjectionis, no act of submission by which man can give up the state of free agent and enslave himself. For by such an act of renunciation he would give up that very character which constitutes his nature and essence: he would lose his humanity.
These themes converged in the debate about American Independence. While Jefferson was writing the Declaration of Independence, Richard Price in England sided with the Americans' claim "that Great Britain is attempting to rob them of that liberty to which every member of society and all civil communities have a natural and unalienable title." Price again based the argument on the de facto inalienability of "that principle of spontaneity or self-determination which constitutes us agents or which gives us a command over our actions, rendering them properly ours, and not effects of the operation of any foreign cause." Any social contract or compact allegedly alienating these rights would be non-binding and void, wrote Price:
Neither can any state acquire such an authority over other states in virtue of any compacts or cessions. This is a case in which compacts are not binding. Civil liberty is, in this respect, on the same footing with religious liberty. As no people can lawfully surrender their religious liberty by giving up their right of judging for themselves in religion, or by allowing any human beings to prescribe to them what faith they shall embrace, or what mode of worship they shall practise, so neither can any civil societies lawfully surrender their civil liberty by giving up to any extraneous jurisdiction their power of legislating for themselves and disposing their property.
Price raised a furor of opposition so in 1777 he wrote another tract that clarified his position and again restated the de facto basis for the argument that the "liberty of men as agents is that power of self-determination which all agents, as such, possess." In Intellectual Origins of American Radicalism, Staughton Lynd pulled together these themes and related them to the slavery debate:
Then it turned out to make considerable difference whether one said slavery was wrong because every man has a natural right to the possession of his own body, or because every man has a natural right freely to determine his own destiny. The first kind of right was alienable: thus Locke neatly derived slavery from capture in war, whereby a man forfeited his labor to the conqueror who might lawfully have killed him; and thus Dred Scott was judged permanently to have given up his freedom. But the second kind of right, what Price called "that power of self-determination which all agents, as such, possess," was inalienable as long man remained man. Like the mind's quest for religious truth from which it was derived, self-determination was not a claim to ownership which might be both acquired and surrendered, but an inextricable aspect of the activity of being human.
Meanwhile, in America, Thomas Jefferson "took his division of rights into alienable and unalienable from Hutcheson, who made the distinction popular and important", and in the 1776 United States Declaration of Independence, famously condensed this to:
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...
In the 19th century, the movement to abolish slavery seized this passage as a statement of constitutional principle, although the U.S. constitution recognized and protected slavery. As a lawyer, future Chief Justice Salmon P. Chase argued before the Supreme Court in the case of John Van Zandt, who had been charged with violating the Fugitive Slave Act, that:
The law of the Creator, which invests every human being with an inalienable title to freedom, cannot be repealed by any interior law which asserts that man is property.
The concept of inalienable rights was criticized by Jeremy Bentham and Edmund Burke as groundless. Bentham and Burke, writing in 18th century Britain, claimed that rights arise from the actions of government, or evolve from tradition, and that neither of these can provide anything inalienable. (See Bentham's "Critique of the Doctrine of Inalienable, Natural Rights", and Burke's Reflections on the Revolution in France). Presaging the shift in thinking in the 19th century, Bentham famously dismissed the idea of natural rights as "nonsense on stilts". By way of contrast to the views of British nationals Burke and Bentham, the leading American revolutionary scholar James Wilson condemned Burke's view as "tyranny."

The signers of the Declaration of Independence deemed it a "self-evident truth" that all men "are endowed by their Creator with certain unalienable Rights". In The Social Contract, Jean-Jacques Rousseau claims that the existence of inalienable rights is unnecessary for the existence of a constitution or a set of laws and rights. This idea of a social contract – that rights and responsibilities are derived from a consensual contract between the government and the people – is the most widely recognized alternative.

One criticism of natural rights theory is that one cannot draw norms from facts. This objection is variously expressed as the is-ought problem, the naturalistic fallacy, or the appeal to nature. G.E. Moore, for example, said that ethical naturalism falls prey to the naturalistic fallacy. Some defenders of natural rights theory, however, counter that the term "natural" in "natural rights" is contrasted with "artificial" rather than referring to nature. John Finnis, for example, contends that natural law and natural rights are derived from self-evident principles, not from speculative principles or from facts.

There is also debate as to whether all rights are either natural or legal. Fourth president of the United States James Madison, while representing Virginia in the House of Representatives, believed that there are rights, such as trial by jury, that are social rights, arising neither from natural law nor from positive law (which are the basis of natural and legal rights respectively) but from the social contract from which a government derives its authority.

Thomas Hobbes


Thomas Hobbes (1588–1679) included a discussion of natural rights in his moral and political philosophy. Hobbes' conception of natural rights extended from his conception of man in a "state of nature". Thus he argued that the essential natural (human) right was "to use his own power, as he will himself, for the preservation of his own Nature; that is to say, of his own Life; and consequently, of doing any thing, which in his own judgement, and Reason, he shall conceive to be the aptest means thereunto." (Leviathan. 1, XIV)

Hobbes sharply distinguished this natural "liberty", from natural "laws", described generally as "a precept, or general rule, found out by reason, by which a man is forbidden to do, that, which is destructive of his life, or taketh away the means of preserving his life; and to omit, that, by which he thinketh it may best be preserved." (Leviathan. 1, XIV)

In his natural state, according to Hobbes, man's life consisted entirely of liberties and not at all of laws – "It followeth, that in such a condition, every man has the right to every thing; even to one another's body. And therefore, as long as this natural Right of every man to every thing endureth, there can be no security to any man... of living out the time, which Nature ordinarily allow men to live." (Leviathan. 1, XIV)

This would lead inevitably to a situation known as the "war of all against all", in which human beings kill, steal and enslave others in order to stay alive, and due to their natural lust for "Gain", "Safety" and "Reputation". Hobbes reasoned that this world of chaos created by unlimited rights was highly undesirable, since it would cause human life to be "solitary, poor, nasty, brutish, and short". As such, if humans wish to live peacefully they must give up most of their natural rights and create moral obligations in order to establish political and civil society. This is one of the earliest formulations of the theory of government known as the social contract.

Hobbes objected to the attempt to derive rights from "natural law," arguing that law ("lex") and right ("jus") though often confused, signify opposites, with law referring to obligations, while rights refer to the absence of obligations. Since by our (human) nature, we seek to maximize our well being, rights are prior to law, natural or institutional, and people will not follow the laws of nature without first being subjected to a sovereign power, without which all ideas of right and wrong are meaningless – "Therefore before the names of Just and Unjust can have place, there must be some coercive Power, to compel men equally to the performance of their Covenants..., to make good that Propriety, which by mutual contract men acquire, in recompense of the universal Right they abandon: and such power there is none before the erection of the Commonwealth." (Leviathan. 1, XV)
This marked an important departure from medieval natural law theories which gave precedence to obligations over rights.

John Locke


John Locke (1632 – 1704) was another prominent Western philosopher who conceptualized rights as natural and inalienable. Like Hobbes, Locke believed in a natural right to life, liberty, and property. It was once conventional wisdom that Locke greatly influenced the American Revolutionary War with his writings of natural rights, but this claim has been the subject of protracted dispute in recent decades. For example, the historian Ray Forrest Harvey declared that Jefferson and Locke were at "two opposite poles" in their political philosophy, as evidenced by Jefferson’s use in the Declaration of Independence of the phrase "pursuit of happiness" instead of "property." More recently, the eminent legal historian John Phillip Reid has deplored contemporary scholars’ "misplaced emphasis on John Locke," arguing that American revolutionary leaders saw Locke as a commentator on established constitutional principles. Thomas Pangle has defended Locke's influence on the Founding, claiming that historians who argue to the contrary either misrepresent the classical republican alternative to which they say the revolutionary leaders adhered, do not understand Locke, or point to someone else who was decisively influenced by Locke. This position has also been sustained by Michael Zuckert.

According to Locke there are three natural rights:
  • Life: everyone is entitled to live.
  • Liberty: everyone is entitled to do anything they want to so long as it doesn't conflict with the first right.
  • Estate: everyone is entitled to own all they create or gain through gift or trade so long as it doesn't conflict with the first two rights.
In developing his concept of natural rights, Locke was influenced by reports of society among Native Americans, whom he regarded as "natural peoples" who lived in a state of liberty and "near prefect freedom", but not license. It also informed his conception of social contract.

The social contract is an agreement between members of a country to live within a shared system of laws. Specific forms of government are the result of the decisions made by these persons acting in their collective capacity. Government is instituted to make laws that protect these three natural rights. If a government does not properly protect these rights, it can be overthrown.

Thomas Paine


Thomas Paine (1731–1809) further elaborated on natural rights in his influential work Rights of Man (1791), emphasizing that rights cannot be granted by any charter because this would legally imply they can also be revoked and under such circumstances they would be reduced to privileges:
It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect – that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few. … They...consequently are instruments of injustice.

The fact therefore must be that the individuals themselves, each in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

American individualist anarchists


While at first American individualist anarchists adhered to natural rights positions, later in this era led by Benjamin Tucker, some abandoned natural rights positions and converted to Max Stirner's Egoist anarchism. Rejecting the idea of moral rights, Tucker said there were only two rights: "the right of might" and "the right of contract". He also said, after converting to Egoist individualism, "In times past... it was my habit to talk glibly of the right of man to land. It was a bad habit, and I long ago sloughed it off.... Man's only right to land is his might over it."

According to Wendy McElroy:
In adopting Stirnerite egoism (1886), Tucker rejected natural rights which had long been considered the foundation of libertarianism. This rejection galvanized the movement into fierce debates, with the natural rights proponents accusing the egoists of destroying libertarianism itself. So bitter was the conflict that a number of natural rights proponents withdrew from the pages of Liberty in protest even though they had hitherto been among its frequent contributors. Thereafter, Liberty championed egoism although its general content did not change significantly.
Several periodicals were "undoubtedly influenced by Liberty's presentation of egoism, including I published by C.L. Swartz, edited by W.E. Gordak and J.W. Lloyd (all associates of Liberty); The Ego and The Egoist, both of which were edited by Edward H. Fulton. Among the egoist papers that Tucker followed were the German Der Eigene, edited by Adolf Brand, and The Eagle and The Serpent, issued from London. The latter, the most prominent English-language egoist journal, was published from 1898 to 1900 with the subtitle 'A Journal of Egoistic Philosophy and Sociology'". Among those American anarchists who adhered to egoism include Benjamin Tucker, John Beverley Robinson, Steven T. Byington, Hutchins Hapgood, James L. Walker, Victor Yarros and E.H. Fulton.

Contemporary

Many documents now echo the phrase used in the United States Declaration of Independence. The preamble to the 1948 United Nations Universal Declaration of Human Rights asserts that rights are inalienable: "recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world." Article 1, § 1 of the California Constitution recognizes inalienable rights, and articulated some (not all) of those rights as "defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." However, there is still much dispute over which "rights" are truly natural rights and which are not, and the concept of natural or inalienable rights is still controversial to some.

Erich Fromm argued that some powers over human beings could be wielded only by God, and that if there were no God, no human beings could wield these powers.

Contemporary political philosophies continuing the classical liberal tradition of natural rights include libertarianism, anarcho-capitalism and Objectivism, and include amongst their canon the works of authors such as Robert Nozick, Ludwig von Mises, Ayn Rand, and Murray Rothbard. A libertarian view of inalienable rights is laid out in Morris and Linda Tannehill's The Market for Liberty, which claims that a man has a right to ownership over his life and therefore also his property, because he has invested time (i.e. part of his life) in it and thereby made it an extension of his life. However, if he initiates force against and to the detriment of another man, he alienates himself from the right to that part of his life which is required to pay his debt: "Rights are not inalienable, but only the possessor of a right can alienate himself from that right – no one else can take a man's rights from him."

Various definitions of inalienability include non-relinquishability, non-salability, and non-transferability. This concept has been recognized by libertarians as being central to the question of voluntary slavery, which Murray Rothbard dismissed as illegitimate and even self-contradictory. Stephan Kinsella argues that "viewing rights as alienable is perfectly consistent with – indeed, implied by – the libertarian non-aggression principle. Under this principle, only the initiation of force is prohibited; defensive, restitutive, or retaliatory force is not."

Various philosophers have created different lists of rights they consider to be natural. Proponents of natural rights, in particular Hesselberg and Rothbard, have responded that reason can be applied to separate truly axiomatic rights from supposed rights, stating that any principle that requires itself to be disproved is an axiom. Critics have pointed to the lack of agreement between the proponents as evidence for the claim that the idea of natural rights is merely a political tool.

Hugh Gibbons has proposed a descriptive argument based on human biology. His contention is that Human Beings were other-regarding as a matter of necessity, in order to avoid the costs of conflict. Over time they developed expectations that individuals would act in certain ways which were then prescribed by society (duties of care etc.) and that eventually crystallized into actionable rights.

Entropy (information theory)

From Wikipedia, the free encyclopedia https://en.wikipedia.org/wiki/Entropy_(information_theory) In info...