Stirring the Human Rights Revolution
by harold hongju koh
AS THE NASCENT HUMAN RIGHTS MOVEMENT WAS RISING FROM the ashes of the Great Depression and World War II, a young priest in
As he embarked on what would become a lifelong commitment to the human rights movement, Father Drinan worked to make real his simple, radical dream: universal acceptance of the idea that every person is endowed with human rights simply by virtue of being born human; that these rights are in alienable and unconditional; that human rights are held by all, against all; and that governments must be organized to respect and protect these rights.
Father Drinan was right there at every stage in the development of international human rights law. During the first age of post war human rights, what I call the Era of Universalization (1941–1956), President Franklin D. Roosevelt identified four freedoms worth waging war for: freedom of speech, freedom of religion, freedom from fear, and freedom from want. As a young United Nations pledged its commitment to human rights, Bob Drinan was a young student and priest studying the religious roots of human rights law in medieval Christianity and absorbing the teachings of St. Thomas Aquinas, John Locke, and Jean-Jacques Rousseau.
During the Cold War, an Era of Institutionalization for human rights organizations (1956–1976), the world witnessed adoption of the first human rights treaties and governmental and nongovernmental bodies. During those years, as a fiery law dean and congressman from
During the third postwar phase of human rights law, the Era of Operationalization of human rights law through institutional action (1976–1989), national and international systems began to emerge for protecting and enforcing human rights. In
During the decade after the Cold War, an Era of Global Optimism (1989–2001), Bob Drinan returned to the academy and his teaching and writing as a professor of human rights law at Georgetown Law School. As freedom swept through
Today, wherever a dictator is called to account for crimes against humanity; wherever political heat is brought to bear on an American president to forgo expediency in favor of the rule of law; whenever a student is called to pursue not merely the good life, but a life lived for the good; whenever an activist saves a life through passionate argument, Father Drinan’s fingerprints are there. Father Drinan’s Revolution, the Human Rights Revolution, pervades the work of an emerging international civil society.
And yet today, we find that the fruits of that revolution are at risk. Since September 11, 2001, the
But September 11 turned this vision upside down. In responding to the terrorist threat,
How to repair the damage and reestablish human rights as an American priority?
We saw a flicker of light with Hamdan v. Rumsfeld (2006), in which the US Supreme Court held in a 5-3 decision that President Bush lacked the constitutional and legal authority unilaterally to establish a system of Military Commissions, which violated not only the Uniform Code of Military Justice, but also Common Article Three of the
Closely read, Hamdan prescribes a blueprint for the way we should conduct the war on terror and for the future of human rights law. Hamdan says that the president’s authority is limited by congressional exercise of its war powers. It says that a person is entitled to the protection of legal standards and procedures, and that the
In short, steady application of the principles of Hamdan by the courts, Congress, the President, and civil society could restore Father Drinan’s vision.
Yet instead, what we have seen since is a legislative repudiation of the Court’s ruling. In the Military Commissions Act of 2006, Congress passed legislation that, among other things, sought to eliminate judicial review in matters pertaining to enemy combatants and prohibited enemy combatants from invoking rights guaranteed by the
At this writing, several key cases are currently wending their way through the courts contesting the legislative stripping of habeas corpus rights. But these are unlikely to reach the Supreme Court before next year. Only recently, some members of the newly Democratic Congress have begun talking about new legislation to revise the Military Commissions Act and to restore the right of habeas corpus to the prisoners on
Can Father Drinan’s revolution be rescued? Ultimately, the answer to that question rests on four others: Is our executive branch willing to rely on diplomacy and compliance with international law over force and threats of force, to promote global cooperation?
Is our legislative branch willing to ensure that our government and foreign governments play by global human rights rules?
Will our civil society—citizens groups, media, bar associations, the church, the academy—monitor our government and hold our leaders accountable for human rights conduct?
Is our judicial branch willing to ensure that we continue to pay what the Declaration of
What Father Drinan taught us is that protecting human rights and law in an age of globalization is far too important a task to be left to governments and government officials. It is a challenge for all thinking twenty-first century citizens, lawyers, and law schools.
What Father Drinan told us, in effect, is that the fate of his human rights revolution is in our hands. And what history teaches is that Father Drinan’s revolution is one worth winning.
This article is based on remarks Dean Koh made at the inauguration of the Father Robert F. Drinan SJ, Professorship in International Human Rights Law at Georgetown Law