Know Your Rights

[Sarah Kay is a human rights lawyer from Belfast, Northern Ireland. She is working on counter-terrorism and human rights and is a graduate of Trinity College Dublin. Photo credit: Zach D. Roberts.]

In her new book, “Being Numerous: Essays on Non-Fascist Life”, writer Natasha Lennard examines various aspects of contemporary resistance movements. While the book is, by and large, political, it focuses on issues close to the notion of fundamentals: human rights and who has them, who defends them, and whether they can still be relevant in a populist world in which humanitarian actors and human rights defenders are more often than not considered an enemy. Despite often fighting against the politicization of human rights, it is now unavoidable.

The impossibility of non-violence

In an essay titled “We, anti-fascists”, Lennard discusses the events in Charlottesville, VA when a protest by neo-Nazis descended upon the college town screaming “Blood and Soil”, two summers ago (pictured above). One of them, James Fields Jr, later drove his car into a crowd of counter-protesters, injuring 19 and killing 32 year-old activist Heather Heyer. He is currently serving two consecutive life sentences, including one based on 29 federal hate crime charges.

Lennard does not need to explain how the election of Donald Trump and his subsequent policies have emboldened the far-right in the United States. The US and Western Europe have seen a considerable spike in far-right extremism that has translated into acts of terrorism, a thread intelligence agencies acknowledged was left underestimated for years. On the riot or assault charges leveraged against counter-protesters, Lennard writes,

‘(…) a smashed mosque window or a swastika on a Jewish grave would, by my lights, produce legitimate victims of violence. The latter, but not the former, are in service of an ideology – white supremacy – in which violence inheres. There is a crucial distinction between destruction as a collateral damage of a political end (say, in the goal of disrupting a neo Nazi gathering), versus at its central tenet (genocide).‘

She continues,

“Anti-fascist violence is thus a counterviolence, not an instigation of violence onto a terrain of preexisting peace. A situation in which fascists can gather to preach hate and chant “blood and soil” – this is a background state of violence. The problem we face, then, is not so much that of necessary violence as it is one of impossible nonviolence”. (emphasis hers).

In this, human rights lawyers have by and large found themselves on the side of counter-protesters. A debate took place on Twitter when Tommy Robinson, a far right extremist, had a milkshake thrown at him. The action was meant to mock, but legal Twitter debated whether this constituted assault (British journalist Ian Dunt argued it clearly wasn’t, while tenor of the Bar Matthew Ryder QC replied that, regardless of political views, it was in fact assault).

As human rights defenders, what can our position towards this impossibility of nonviolence be? If milkshakes pale in comparison to a terror attack, or even the famous right hook to Richard Spencer’s jaw, it nonetheless forces us to work beyond what domestic criminal legislation intends to protect, which is the right to security. What Lennard argues is that counter-protesters, the majority of them peaceful, face an existential threat embodied in those figures, granted a platform, their freedom of speech, when not voted into office. Their actions and policies constitute human rights violations, giving way to the question of the legitimacy of state power.

We can, of course, defend protesters in court. We can continue to defend the freedom of assembly, but that would necessarily include members of United The Right, as the ACLU demonstrated unless they are defined as an existential threat. Lennard challenges us to see beyond our domestic statutes. Do we have a right to violent rebellion when the state itself fails?

The ICCPR begins with a promising premise (emphasis mine):

Recognizing that, in accordance with the Universal Declaration of Human Rights, the ideal of free human beings enjoying civil and political freedom and freedom from fear and want can only be achieved if conditions are created whereby everyone may enjoy his civil and political rights, as well as his economic, social and cultural rights;

This freedom from fear is demanded at protests worldwide in response to over-policing of freedom of expression from a specific part of the population. This is how a state births riots, when expression is no longer possible. Art 1(2) applies to the NDPL protesters; Article 2(1) is the most likely to be violated every time we talk about a liberation movement that has used violence, usually against property, not people, for the means of acknowledgement: that is because Article 3 (2)(b) has failed, entirely. When the state has made deliberate decisions to refuse access to these political and civil rights – a direct violation of Article 20 – is there a legal way to resist?

In a paper examining the right to resistance under international law, Matthew Lippman acknowledges that most of those movements are understood to be pacifist and non-violent, but cites Professior Bassiouni on the fundamental right of self-preservation:

“The primary consideration in the law of self-defense is a value judgment based on the inherent justification of self-preservation .. . if fundamental human rights are seriously violated by an institutional entity or a person or persons wielding the authority of the state and acting on its behalf without lawful means of redress or remedy being made available, then the responsibility of the individual, whose conduct was necessitated by the original transgression by reason of his need to redress a continuing wrong, is justified or mitigated (…)”

As such, human rights lawyers must be present to defend protesters and anti-fascist activists lest an assault on fundamentals against an existential threat acknowledged as such – or recognized by international bodies – and fight for either mitigated sentences or acquittal on the basis of defending those who have no other recourse. This forces us to examine who has rights and who doesn’t.

The right to have rights

We must consider accepting that state-confined apparatus is just not enough for us to do our work efficiently – from countering extremism to genocide prevention – with the necessary resources. The current iteration of SCOTUS is extremely partisan; the EU itself as a transnational institution, that could be a guarantee of legal safeguards, is under scrutiny for human rights violations against migrants in Libya.

In a famous chapter of her even more ubiquitous Origins of Totalitarianism, Hannah Arendt, writing at the time when she was still stateless, introduced “the right to have rights”, on how the universality of human rights must exist outside of a state preoccupied by its own preservation. Lennard writes:

“If the phrase sounds question begging, it’s because it partly is: rights can only be conferred on those humans to whom rights are conferred. But simply put, Arendt understood that rights make no sense without recognition, and that this means recognition by state actors. This is not to undermine, but rather to highlight, the importance of such recognition and the necessity to struggle for those who do not have it. Under Trump, this is especially daunting. But under any administration, an appeal to rights presumes the state’s conscience and fealty to the social contract. The use of a rights discourse to defend against repression must be strategic and always limited.”

I would normally take object to those limits. In the United Kingdom, NGO Rights Info works to bolster support for the 1998 Human Rights Act.  The limitation of rights discourse is imposed by a state entity that refuses to recognize rights being conferred to certain groups of people. The US Constitution did not recognize those fundamental and supposedly inalienable rights to women or to people of color until very recently. The UDHR was written at a time where the world was still ruled by empires. Human rights lawyers are in a position where they must either reckon with the fact they’re operating in a system where rights are conferred to some but not all, or decide to work on fighting for universality, regardless of the jurisdiction in which a possible violation may have taken place.

Appeals for the respect for the rule of (criminal) law in the milkshake attack are well-meaning and come from a place of deep commitment: that to the rule of law, one that applies to all regardless of their circumstance. We intimately know about the threat posed by the so-called “alt right”, but we have courts capable of dealing with said threat. The question remains as to whether counter-actions, once again, far from disproportionate, are legitimate and if legality can be the secondary prism through which we see action.

If we assume the state failed at its human rights obligations, we must consider anti-fascist actions to be a measure of last resort that is not necessarily in opposition with human rights law. We have to go back to our roots to understand how radical – challenging, confrontational – human rights law can and must be. We can’t continue praising the courage of a few, unless we are ready to protect any and all acts of resistance against extremists destroying historic achievements.