The Bemba Trial Judgement – A Memorable Day for the Prosecution of Sexual Violence by the ICC

In this post, Niamh Hayes writes about the significance of the sexual violence aspects of the Bemba judgment. 

For interested observers of the ICC’s efforts to investigate and prosecute conflict-related sexual violence, there has been very little to cheer about over the last 14 years. Despite the broad range of sexual and gender-based crimes contained in the Rome Statute, Prosecutor Ocampo’s early failures to pursue evidence-led investigations and tendency to develop the theory of the prosecution case in the abstract led, unsurprisingly, to a very weak record on prosecutions for crimes of sexual violence. When Fatou Bensouda took over as Prosecutor, the attrition rate for charges of sexual violence at the ICC stood at over 50%, with fewer than half of all such charges successfully confirmed for trial. Those figures have improved under her tenure, particularly following the successful confirmation of all sexual and gender-based charges in the Gbagbo and Ntaganda confirmation decisions. She also spearheaded the development of the Office of the Prosecutor’s Policy Paper on Sexual and Gender-Based Crimes, which made some important recommendations about pursuing alternative modes of liability and selecting the most appropriate legal characterisation of the charges based on the evidence. However, as of yesterday, the ICC had never entered a conviction for crimes of sexual violence.

Today is a very good day for the Office of the Prosecutor. This afternoon, Jean Pierre Bemba Gombo was convicted of rape as a crime against humanity and a war crime, due to his failure as a military commander to prevent or punish such crimes committed by MLC troops under his effective control. This represents the first ever conviction for the crime of rape at the International Criminal Court. Although rape was charged in the cases against Germain Katanga and Mathieu Ngudjolo, and although the Trial Chamber ultimately concluded that the alleged acts of sexual violence had in fact taken place, Katanga and Ngudjolo’s individual criminal responsibility for those crimes were not proven to the satisfaction of the judges and they were both acquitted on those counts. Bemba is not only the first defendant to be convicted of rape as a war crime or crime against humanity at the ICC, he is also the first person to have been held individually responsible for violations of international criminal law committed during the 2002-2003 coup in the Central African Republic.

Bemba’s conviction also represents another first, not only for the ICC but for international criminal law in general. During the trial, the Chamber heard from Witness 23, a male community leader who was raped in front of his wife and children, and Witness 69, who was raped by two soldiers for protesting the rape of his own wife. The testimony of Witness 23 is powerful and heart-rending in its own right, but is also striking for its obvious parallels to the experience and testimony of female victims of sexual violence on issues such as psychological trauma, social stigma, rejection by family members and access to appropriate medical care to treat physical complications caused by the rape. Including this testimony to support the charge of rape was an important step in the ICC’s efforts to highlight and address all forms of sexual and gender-based crimes, including the commission of sexual violence against men, a crime which is habitually ignored even at the international level.

It is even more significant to realise that the Bemba judgement represents the first time in the history of international criminal law that sexual violence against men has been charged as the crime of rape (as opposed to crimes of torture, outrages upon personal dignity or cruel treatment) or that a defendant has been convicted of rape based on the testimony of male victims. The Bemba case will go down in history as a vital precedent on that basis alone, but it also represents a hugely important step in the ICC’s broader efforts to provide greater accountability for sexual violence crimes. Prosecutor Bensouda today reiterated her personal and professional commitment to that goal: “[w]here some may want to draw a veil over these crimes I, as Prosecutor, must and will continue to draw a line under them.” The inclusion of further allegations of male rape in the Ntaganda case and extensive allegations of sexual violence against civilians in the Ongwen case are important and welcome developments in that regard.

It is also worth highlighting the mode of liability in the Bemba case. Bemba was not accused of ordering or directly perpetrating sexual violence himself; he was accused of failing to prevent or punish crimes of sexual violence committed by Mouvement de libération du Congo (MLC) troops under his control. The judges found that Bemba, as President and commander-in-chief of the MLC, had the authority to exercise effective control over MLC troops, that he had knowledge of crimes which had been committed or were about to be committed by MLC soldiers, and that his failure to take necessary and reasonable measures to prevent, repress or punish such crimes directly contributed to their commission. In essence, Bemba was convicted for what he failed to do and for what he allowed others to do, rather than what he did himself.

This represents the first conviction for command responsibility under Article 28 of the Rome Statute. The ICC has struggled with more immediate forms of liability in other cases, particularly establishing responsibility for direct and indirect co-perpetration under Article 25(3)(a) or proving that sexual violence formed part of a common plan under Article 25(3)(d). Achieving a conviction for command responsibility is based on proving the knowledge of senior political and military leaders that crimes are being or may be committed, their failure to exercise effective control over forces under their command, and their failure to use their powers or authority to either prevent such crimes or submit them to the relevant authorities for investigation and prosecution.

Article 28 is therefore a powerful means of holding senior leaders accountable for creating a “climate of acquiescence” where serious international crimes can be committed with impunity. Bemba is the most senior military or political leader to be tried or convicted by the ICC to date, and it is worth remembering that he was arrested in Belgium in 2008 pursuant to a sealed warrant. While it may not be possible to accurately measure the deterrent effect of international prosecutions, it is comforting to think that, after today, senior political and military figures who have responded dismissively or permissively to allegations of sexual violence committed by troops under their command might find themselves experiencing a sudden zeal to be seen to effectively exercise their disciplinary powers, or at least a sudden rush of anxiety about their next European shopping trip. They most certainly should not sleep as soundly as they did last night. 

Supreme Court of South Africa finds Government's failure to arrest Bashir was unlawful

The Supreme Court of Appeal in South Africa issued a judgment earlier today on the failure of the Government to arrest Sudanese President Omar Al-Bashir last June. This judgment confirms an earlier decision, which found that the Government should have arrested Al-Bashir and transferred him to The Hague. 

The decision has some interesting things to say about immunity of sitting heads of state under international law. Following the International Court of Justice's position on this point, it declines to hold that there is an 'international crimes exception' to the immunity enjoyed by heads of state before foreign national courts. Instead, it finds that the domestic legislation - South Africa's Implementation Act - waives the immunity of heads of state or government. 

The wording of the Implementation Act does, however, contain a potentially important difference to Article 27 of the ICC Statute on irrelevance of official capacity. Section 4(2) of the the Act states that:

(2) Despite any other law to the contrary, including customary and conventional international law, the fact that a person—

(a) is or was a head of State or government, a member of a government or parliament, an elected representative or a government official; or

(b) being a member of a security service or armed force, was under a legal obligation to obey a manifestly unlawful order of a government or superior, is neither—

(i)  a defence to a crime; nor

(ii)  a ground for any possible reduction of sentence once a person has been

convicted of a crime.

This is essentially a reflection of Article 27(1) of the ICC Statute, except that the term 'defence' in the South African act is used instead of the ICC Statute's, arguably broader, term of 'exempt[ing] a person from criminal responsibility'. However, as Dapo Akande has previously noted, 'To say that official capacity does not exclude criminal responsibility is not necessarily to say that the person may not be immune from the jurisdiction of particular tribunals'. Crucially for me, there is no equivalent provision to Article 27(2) of the Statute in the domestic Act - this is the provision which states that: 

Immunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.

In the absence of an equivalent provision in the South African Act, I am not convinced of the Court's conclusion that section 4(2) 'is a clear indication that South Africa does not support immunities when people are charged with international crimes.' Certainly, it does not support the invocation of official capacity as a defence to international crimes, but there is nothing in the Act that stops the accused from raising immunity as a bar to jurisdiction, which is an entirely different matter. The question of whether heads of state of non-State Parties are entitled to immunity, especially in light of Article 98(1) of the ICC Statute, remains far from fully resolved.

Celebrating the Four Freedoms: Freedom from Fear

“The fourth is freedom from fear—which, translated into world terms, means a world-wide

reduction of armaments to such a point and in such a thorough fashion that no nation will be in

a position to commit an act of physical aggression against any neighbor—anywhere in the world.”

– Franklin Delano Roosevelt

I am delighted, as part of the University of Iowa Center forHuman Rights’ 75th anniversary celebration of the Four Freedoms Speech, to consider Roosevelt’s fourth and final freedom – freedom from fear. David Keane pondered whether the four freedoms ought to be considered in terms of hierarchy and he suggested that freedom of speech might come out tops – not just because it is the first of the freedoms but because freedom of speech is a “gateway” right. This may be so but freedom from fear outranks the others in its own ways. On the one hand, freedom from fear was the most ambitious of Roosevelt’s four (although ‘freedom from want’ puts up quite the challenge). Freedom from fear represented the aspiration of an international prohibition on aggression or, indeed, the “human right to peace”[1]. There is though another way of reading Roosevelt’s fourth freedom. Freedom from fear was in fact the leitmotif of the entire speech. Fear is invoked ambiguously – equivocally, even – both as a provocation, to rally public support and to justify American intervention in the war, and as a promise, of future freedom. In other words, Roosevelt was telling the American public – in order to enjoy this freedom, in order to secure freedom from fear, we must go to war. From a rhetorical perspective, by neatly and rhythmically rounding off the four freedoms, freedom from fear represented the alliterative crowning glory of Roosevelt’s speech and his call to intervention.

As Shane Darcy and Brian Farrell have noted, Roosevelt’s four freedoms sowed the seeds for the post-war international order and also played a sizeable role in the development of the international system of human rights. So where, beyond the preamble of the Universal Declaration of Human Rights, does freedom from fear feature in this international system? What does freedom from fear even mean? And, perhaps more importantly, how are we doing in the achievement of this freedom?

Freedom from aggression is not as aurally evocative but that is essentially what Roosevelt meant by freedom from fear. His vision, on a surface reading of the speech, was an end to aggressive wars precipitated by an end to the production of arms. The Atlantic Charter, the joint declaration signed by Churchill and Roosevelt in Newfoundland in August 1941, articulating their war aims and their vision of a post-war international order, incorporated, and elaborated on, the idea of freedom from fear. Principle six envisaged: “…after the final destruction of the Nazi tyranny … a peace which will afford to all nations the means of dwelling in safety within their own boundaries, and which will afford assurance that all the men in all lands may live out their lives in freedom from fear and want”. Principle eight contemplated a ban on the use of force in international relations and the disarmament of aggressive nations: “… all of the nations of the world, for realistic as well as spiritual reasons must come to the abandonment of the use of force. Since no future peace can be maintained if land, sea or air armaments continue to be employed by nations which threaten, or may threaten, aggression outside of their frontiers …. pending the establishment of a wider and permanent system of general security … the disarmament of such nations is essential.”

The United Nations Charter – conceived of and drafted in the throes of the war – codifies a system of collective security, underpinned by the infamous ban, under Art 2(4), on the threat or use of force in international relations. The Charter specifies exceptions to this ban. Under article 42, the Security Council is authorised to take measures “as may be necessary to restore international peace and security”. Under article 51, Member states are endowed with “the inherent right of individual or collective self-defense if an armed attack occurs against a Member”. More recently, in 2010, following a fraught process, the Rome Statute of the permanent International Criminal Court (established in 1998) was amended to include the crime of aggression. The Rome Statute defines in detail an act of aggression as a manifest violation of the UN Charter and provides a jurisdictional regime for the prosecution of that crime. The limitations to and the challenges inherent in the UN Charter use of force regime are well known. These range from interpretative indeterminacy around the scope and meaning of “armed attack” and of self-defense to endless debates around the legality or propriety of humanitarian intervention. The permanent membership of the Security Council, invested as it is with the authority to determine threats to international peace and security, exacerbates the legal and political contestation. For interpretative and geopolitical reasons, it is easy to see that the prosecution of the crime of aggression will be a challenge.

Do, then, the UN Charter and the crime of aggression fulfil Roosevelt’s aspiration of freedom from fear? Certainly, Roosevelt would have applauded the international prohibition and criminalisation of acts of aggression. He did not, however, only advocate a legislative ban on aggression. He saw a direct link between the production of arms and the use of force. His vision was, arguably, not just for a ban on the use of force but for a ban on the production of weapons in order to deter or prevent aggression. The United Nations does promote nuclear disarmament and non-proliferation as well as the disarmament of biological, chemical and conventional weapons. The Office for Disarmament Affairs admits to some of the challenges it faces – political and technical. But let’s be clear, the biggest challenge to disarmament is economic. Weapons are big business.

The disarmament paradox was explicit in Roosevelt’s speech. He asked Congress outright for the authority to manufacture additional munitions and war supplies for the Allies and for American defense. There may be little doubt today about the justification for this supply of “ships, planes, tanks, guns” or the propriety of American involvement in the war. But this is the point – just war is always in the eye of the beholder. The beholder is rarely the aggressor. Weapons’ manufacture is always for defense.  Roosevelt’s speech was not a call to global disarmament nor was it an absolute appeal to end aggression – it was an appeal to end ‘their’ access to arms, their aggression. From a political, military or foreign policy perspective, this, for many, is not controversial – of course a nation will justify its own defense and its resort to war. However, this speech is memorialised for the four freedoms that Roosevelt envisaged. Those four freedoms may now be reflected in international human rights law. The strategy of Roosevelt’s speech is also an enduring one, however. Just as in 1941, today, freedoms and rights are instrumentalised, and reflected, in justifications for armed conflict, self-defense and military/humanitarian intervention.

Freedom from fear was one of the ‘ends’ of Roosevelt’s policy. But fear was also one of his means to achieve this ‘end’. His speech opened with the spectre of the unprecedented threat – “No previous time has American security been as seriously threatened from without as it is today”. It culminated in an invocation of the “supremacy of human rights everywhere”. To bridge that gap, it was necessary to fight for rights, literally.

Without a doubt, Roosevelt’s words had impact. But freedom from fear, and what it represents, was then, and remains, a slippery concept.

Michelle Farrell is a senior lecturer in law at the School of Law and Social Justice, University of Liverpool. She is also currently a Fellow in Residence in the Centre for Human Rights and Legal Pluralism, University of McGill.

[1] See William A. Schabas, ‘Freedom from Fear and the human right to peace’ in David Keane and Yvonne McDermott, The Challenge of Human Rights: Past, Present and Future (Edward Elgar, 2012) 36 for a discussion of freedom from fear as the forgotten human right to peace.

Celebrating the Four Freedoms: Freedom from Want

“The third is freedom from want . . . everywhere in the world.”

– Franklin Delano Roosevelt

The first and second of the Four Freedoms articulated by President Franklin Delano Roosevelt during his State of the Union speech on January 6, 1941, would have seemed familiar and comfortable to most listeners. After all, the freedom of speech and freedom of religion were two classic limits on the power of government – what we often call “negative” rights, or civil and political rights. Such rights were at the core of the American constitutional order, enshrined in the Bill of Rights.

As Roosevelt continued his speech, he identified two additional Freedoms of a very different character. The third of the Four Freedoms was “freedom from want – which, translated into world terms, means economic understandings which will secure to every nation a healthy peacetime life for its inhabitants – everywhere in the world.” This was followed by freedom from fear. Unlike the first two Freedoms, these did not limit government interference with the individual; rather, they contemplated an affirmative government obligation to deliver these societal necessities to its citizens.

Although not rooted in the Bill of Rights in the same way as the previous Freedoms, the freedom from want would not have appeared as an entirely novel concept. It evoked the legislative development of a social safety net as part of Roosevelt’s domestic New Deal. Earlier in the speech, the President pointed to economic security as one of the foundations of a healthy democracy. He called for “Equality of opportunity for youth and others. Jobs for those who can work. Security for those who need it. The ending of special privilege for the few.” The rise of European fascism in the 1930s was at least partially a result of the dire economic conditions that prevailed during the early years of the Depression. Freedom from want, then, was not just an altruistic goal. It was also a strategy aimed at ensuring a stable and peaceful post-war world.

Indeed, when the Universal Declaration of Human Rights was adopted by the United Natiosl General Assembly on December 10, 1948, it proclaimed that “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.” Among the inalienable rights enumerated in the Universal Declaration were the right to social security (Ar. 22); the right to work (Art. 23); and the right to an adequate standard of living, “including food, clothing, housing, and medical care” (Art. 25).

While the freedom from want was articulated in these and other articles of the Universal Declaration, the Declaration itself was framed as being a “common standard of achievement,” rather than a binding legal document. Thus, the question of how to interpret and enforce these principles did not carry immediate urgency. As the human rights system matured, however, such issues became troublesome. Was a state truly under an obligation to guarantee jobs for all? What level of housing or medical care was “adequate?” Would these answers be viewed differently depending whether a state was poor or wealthy? Moreover, the discourse became colored by the politics of the cold war, as Soviet bloc states frequently advocated for these economic and social rights while Western states championed civil and political rights.

Ultimately, the effort to create a binding human rights framework was bifurcated, and two treaties emerged from the General Assembly in 1966: the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. The split has been viewed by many as unfortunate because it can lead to “prioritization” of rights (usually the view that the rights in the former treaty take priority over the latter). In any event, the two Covenants frame state obligations differently. Whereas the Covenant on Civil and Political Rights simply directs states to respect and ensure those rights, the Covenant on Economic, Social, and Cultural Rights takes a different approach. It requires that each signatory “undertakes to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant by all appropriate means, including particularly the adoption of legislative measure.” This language recognizes that, unlike, for example, the prohibition against torture, many economic and social rights cannot be immediately realized and are dependent on a state’s resources.

Following adoption of the Covenant there have been further attempts to clarify how freedom from want is to be understood and implemented. In 1999, for example, the U.N. Committee on Economic, Social, and Cultural Rights adopted a “general comment” on the right to food. It explained that the right to food meant the availability of food in a quantity and quality sufficient to satisfy the dietary and cultural needs of individuals, in a sustainable manner. The Committee went on to identify three levels of state obligation: first, a state cannot prevent existing access to food; second, it must protect against interference with an individual’s access by third parties; third, it must engage in activities intended to strengthen access to and production of food; and fourth, it must provide food if an individual is unable to secure food for reasons beyond their control.

In turn, these obligations beg the question of enforcement. It is not unusual for a court to find a person has been unlawfully detained and order them released from jail, but the same judge may be much less comfortable determining whether a state has met its obligations under the right to an adequate standard of living. And if violation is found, how does the court compel a state to implement legislative policies and allocate resources to fulfil its obligations, particularly if the state does not have the financial resources to do so? These are difficult issues that reflect as much about the judiciary as about the nature of economic and social rights, although courts in countries like India and South Africa have shown that courts can address such issues.

Of course, the complexity of interpreting and enforcing economic and social rights highlights the very existence and growth of these rights. “Freedom from want,” a principle articulated by an American president in 1941, has actually been incorporated into the international post-war order in the form of binding universal human rights. This, in itself, is quite remarkable.

Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa.

Florida’s Death Penalty Law Ruled Unconstitutional

Last week, in an 8-1 decision, the United States Supreme Court invalidated the State of Florida’s death penalty statute. In a January 12 opinion in Hurst v. Florida, the Court held that the law violated the Sixth Amendment by allowing the trial judge, rather than the jury, to make the ultimate decision on punishment. While capital juries in Florida did render an “advisory sentence,” this did not satisfy the requirement previously set forth by the Supreme Court in Ring v. Arizona that a jury must find the facts necessary to sentence a defendant to death. In Hurst’s case, the jury’s 7-5 vote for the death penalty was only a recommendation, and did not specify aggravating facts. The Supreme Court’s opinion, available here, was authored by Associate Justice Sonia Sotomayor.

While the Hurst opinion does not touch on the bigger question of the continued constitutionality of the death penalty in the United States, it marks another restriction imposed by the federal judiciary. This comes at a time when the number of death sentences and executions is on the decline nationally, and the number of abolitionist states continues to grow. In 2015, Nebraska became the nineteenth American state to abolish the death penalty, and governors have imposed moratoriums on executions in another four. Only six states actually carried out executions in 2015. As Harvard Law Professor James Ogletree writes in a recent article in Slate, in the United States “the death penalty is collapsing under the weight of its own corruption and cruelty.”

This post was contributed by Dr. Brian Farrell, who is a Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa College of Law. Follow him on Twitter at @IowaLawFarrell.

Darcy: Celebrating the Four Freedoms: Freedom of Religion

“The second is freedom of every person to worship God in his own way – everywhere in the world”.

– Franklin Delano Roosevelt.

I am pleased to contribute a short essay to the University of Iowa Center of Human Rights’ celebration of the ‘Four Freedoms’ speech, delivered by United States President Roosevelt in January 1941. Those working in this field are well aware that the speech itself and the context of the Second World War in which it was made gave significant impetus to important human rights developments, including the emergence of an international system aimed at protecting and promoting human rights. That system continues to evolve, to elaborate on the substance and meaning of human rights, and to identify where responsibility lies for ensuring respect for human rights.

In considering the second of the four freedoms referred to by Roosevelt in his address, “the freedom of every person to worship God in his own way – everywhere in the world”, it is instructive to look at how this right is elaborated upon in the Universal Declaration of Human Rights. Article 18 provides that:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

But what if one’s religion and its manifestation harms the human rights of others? Today, there remain numerous examples of violations of rights and freedoms carried out in the name of religion. The International Covenant on Civil and Political Rights, which replicates the provision from the Universal Declaration, purposefully adds that freedom of religion might be subject to such limitations “as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others”. The Universal Declaration states that nothing in the instrument can be taken as “implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein”.

The tension that may arise between freedom of religion and the rights and freedoms of others came to the fore in a recent case from Northern Ireland. Gareth Lee took a successful claim against Asher’s Baking Company because of the refusal by the bakery to prepare a cake with a message in support of gay marriage. This constituted discrimination on the grounds of his sexual orientation and political opinion, according to Judge Brownlie of the Northern Ireland county court. According to the judge:

Much as I acknowledge fully their religious belief is that gay marriage is sinful, they are in a business supplying services to all, however constituted. The law requires them to do just that, subject to the graphic being lawful and not contrary to the terms and conditions of the company. […] The defendants are entitled to continue to hold their genuine and deeply held religious beliefs and to manifest them but, in accordance with the law, not to manifest them in the commercial sphere if it is contrary to the rights of others.

The case demonstrates how freedom of worship, as Roosevelt described it, can be problematic when the manifestation of one’s religion moves from the private individual sphere to the public, such as when conducting business. Religion and belief are of course not entirely private or closed affairs for many individuals and groups and public manifestations are a common and often intrinsic part of the exercise of religious freedom “in community with others”. The Northern Ireland court drew the line, however, where such religious belief harmed the rights of others in the context of business activities. The bakery has appealed the decision.

The relationship between business and human rights has garnered considerable attention over the past decade at the United Nations. Business enterprises, in particular multinational corporations, have been the focus of concerted efforts which seek to ensure that they respect human rights throughout their operations. While this may seem a departure from the traditional State-centric approach of international human rights law, it is readily apparent today that human rights can be violated by the actions of so-called non-State actors. The United States is currently preparing a national implementation plan for the UN’s Guiding Principles on business and human rights, and in doing so, may need to grapple with the call for so-called ‘conscience clauses’ which would legally allow companies to refuse to provide services on the basis of religious belief.

In his Four Freedoms speech, Roosevelt had called for a concerted effort to meet the challenges being faced by the United States during the Second World War: “A free nation has the right to expect full cooperation from all groups. A free nation has the right to look to the leaders of business, of labor, and of agriculture to take the lead in stimulating effort.” He was referring here to the necessity of increased arms production, while looking forward to a future of reduced armaments world wide. When the United Nations adopted the Universal Declaration of Human Rights in 1948, it similarly considered that “every individual and every organ of society” had a role to play in promoting respect and securing the “universal and effective recognition and observance” of human rights. Business enterprises can contribute to both the realisation or indeed the harming of human rights, much like States themselves.

Dr. Shane Darcy is a lecturer at the Irish Centre for Human Rights and the editor of the Business and Human Rights in Ireland blog.

 This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

Keane: Celebrating the Four Freedoms: Freedom of Speech and Expression

“The first is freedom of speech and expression – everywhere in the world.”
– Franklin Delano Roosevelt.

Should we think of the four freedoms in terms of a hierarchy? If so, then freedom of speech and expression comes top, as the first enumerated in Roosevelt’s speech, although the speech itself gives no indication beyond the numbers that some of the freedoms are of more importance than others. In contemporary international human rights law, the United Nations emphasises that “[a]ll human rights are universal, indivisible and interdependent and interrelated”, meaning that there is no ranking. For many however, freedom of speech and expression is a ‘gateway right’ essential to the realisation of all other rights. In other words, it is more important than many other rights for it underscores the conditions required for the realisation of a just domestic and world order essential to the articulation and implementation of global rights standards. Thus the 1789 French Declaration of the Rights of Man and of the Citizen, a precursor of the contemporary documents, described free communication of thoughts and opinions as “one of the most precious rights” (Article 11).

It is understood that freedom of expression is not unlimited, but the nature of limitations on freedom of expression varies from a global perspective. Firstly, there is universal agreement on the need for a free press and other essential tools of expression. But differences arise in relation to the need to protect minorities and others from harmful speech, with marked differences in global perspectives. What is considered protected speech in the United States, usually the strongest advocate at the international stage, can be a crime in Europe – both regions sharing common legal traditions. This may be amplified when contrasted with other regions of the world. The role of speech in the commission of atrocities, notably the Rwandan genocide, has played out in international criminal tribunals – the so-called ‘media trial’ of Ferdinand Nahimana and others before the International Criminal Tribunal for Rwanda focused on the use of radio to instill hatred in listeners and foster genocidal intent. The role of similar propaganda in the conditioning of the German public to turn on its Jewish minority before the militarised genocide of the Holocaust was also a feature of the Nuremberg trials of Julius Streicher and others. These extreme situations have led to the understanding that incitement to violence or atrocities cannot be protected by freedom of expression and so it does not have the absolute status at the international level of, say, the prohibition on torture.

A more problematic situation was the so-called ‘Danish cartoons’ controversy, which lasted over a decade and culminated in the shootings one year ago in Paris of the Charlie-Hebdo cartoonists. The shootings were widely depicted as an assault on freedom of expression. There were two strands to the linking of freedom of expression and the cartoons. Firstly, that the cartoons are protected by the right to freedom of expression. Secondly, that the cartoons themselves somehow represented the right to freedom of expression; that they are symbolic of this right and by desisting from drawing them, the wider right itself was under threat. On the first, European cartoonists were not prosecuted for producing the cartoons, which leads to the conclusion that they were protected by freedom of expression (although the debate is a nuanced one given the existence of laws protecting racial and religious groups in Europe). The second is much more difficult – why did these cartoons become invested with this symbolic defence of freedom of expression? And should they have been? There is no answer, but there has long been an acceptance in Europe that certain forms of speech are not tolerated. The European Court of Human Rights regularly upholds prosecutions of those who attack minorities through speech, in particular racial and religious groups. The attacks in Paris (both of them) should not impact the balancing act inherent in protecting European minorities while upholding freedom of expression and related values. These debates will continue and while everyone is agreed on the fundamental importance of freedom of expression, and its securing “everywhere in the world”, blanket articulation of freedom of expression can also lack nuance essential in finding the right balance. There is an interesting story told about freedom of expression by the South African judge, Albie Sachs:

“I once shared a platform at a Book Fair in Sweden with the Nobel Prize winning Nigerian writer, Wole Soyinka, and Nadine Strossen, a distinguished leader of the American Civil Liberties Union, an extremely articulate and persuasive defender of free speech. Nadine spoke forcefully and fluently in favour of virtually unlimited free speech. Wole then started his response in a way that I found surprising and disconcerting. ‘We have just been listening to a white middle-class woman from America’, he told us in his deep voice, ‘giving us a typical lecture of the kind we can expect from a white middle-class American woman.’ Nadine went pale. The audience was embarrassed. I felt a degree of shame that a great writer from my continent could dismiss her arguments in that shallow way. Wole paused for a moment, relaxed his stern posture, and added more quietly: ‘You see, Nadine? These were just words. And they hurt, didn’t they?’”

Wole’s speech went on to describe the role of words, speakers and broadcasters in inciting massacres in his native northern Nigeria. Sachs continues:

“Normally I’m a great defender of free speech against any form of control. Normally I am concerned about censorship and thought control, about the importance in an open society of not suppressing alternative and unpopular views. But at the same time I believe that the right to say what I like, when I like, to whom I like, has to acknowledge the demeaning and destructive impact that words may have in a particular context… In sum, the libertarian right to speak your mind has to be balanced against profound constitutional values of shared citizenship.”

Sachs defended individuals being prosecuted under apartheid laws, one of the most repressive regimes of the UN era including widespread curtailment on freedom of expression, so his balanced understanding of freedom of expression is worth noting. This is particularly so given that, technically, we are realising “freedom of speech and expression – everywhere in the world”, with the internet age. Roosevelt’s first freedom may actually, to a certain extent, have arrived. Although the extent to which the marginalised partake in this freedom is also worth reflecting on, including connectivity gaps between men and women in particular in developing countries. Similarly many of the basics remain the same as they did in Roosevelt’s time, including protection for those who criticise, as journalists, bloggers, writers, human rights defenders or citizens, balanced with the need to ensure that minorities and other groups are afforded protections as well as access.

Dr. David Keane is Associate Professor in International Human Rights Law at Middlesex University, London, UK.

This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.

Farrell: The Significance of Roosevelt's Four Freedoms speech

January 6, 2016, marks the seventy-fifth anniversary of a significant milestone in the recognition and protection of human rights. On January 6, 1941, with war raging in Europe and the Pacific, President Franklin Delano Roosevelt delivered his State of the Union address to Congress. Although the United States was not yet fighting in the Second World War, Roosevelt argued against isolationism, warning that “the future and safety of our country and of our democracy are overwhelmingly involved in events far beyond our borders.” He went on to discuss the country’s policy of national defense, support for other democratic nations, and a just peace.

Near the conclusion of the speech, the President called for a post-war world founded upon “four essential human freedoms.” The first of these was freedom of speech and expression for all people. The second was the freedom for every person to worship in his or her own way. The third was freedom from want, which Roosevelt described as meaning a healthy peacetime life for the inhabitants of every nation. The fourth was freedom from fear, which he defined as a reduction in armaments to prevent future aggression between nations. The President stressed that these four freedoms were not a vision for the distant future, but a concrete plan for a better world in the present generation, and the antithesis of the “new order of tyranny which the dictators seek to create with the crash of a bomb.”

The speech was – and is – significant. It suggested that world peace and security were inextricably tied to the protection of fundamental rights of all. In protecting these rights, it also went beyond familiar American Constitutional liberties (freedom of speech; freedom of religion) to include positive rights. Freedom from want implied that all people had a right to secure basic necessities. Freedom from fear implied all people held a right to live in a safe world.

Roosevelt’s Four Freedoms became a blueprint for a post-war international order concerned not just about nations, but also about individuals. This emphasis on the dignity of every human being was, perhaps, unsurprising in light of the atrocities perpetrated during the war. Shortly after Germany’s surrender and Roosevelt’s death, delegates from the Allied nations met in San Francisco in the summer of 1945 to establish the United Nations, whose purposed included reaffirmation of “faith in fundamental human rights.” To that end, the U.N. General Assembly promptly created a Commission on Human Rights to define, promote, and protect human rights.

The Commission, chaired by Eleanor Roosevelt, widow of the late President, worked to craft a statement of fundamental rights. On December 10, 1948, the U.N. General Assembly unanimously adopted the Universal Declaration of Human Rights, generally considered to be the foundation of the modern human rights system. Both the Declaration and the system that grew out of it were strongly influenced by Roosevelt’s Four Freedoms. The Declaration’s preamble reveals this, proclaiming that “the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people.”

Of course, these four essential freedoms have not existed in reality for many of people around the globe in the post-war years. Perhaps for this very reason, it is valuable for us to remind ourselves of their roots in the dark days of early 1941 as ideals for a secure and peaceful future.

Dr. Brian Farrell is Lecturer in Law and Associate Director of the Center for Human Rights at the University of Iowa. 

This short essay is one in a series celebrating the 75th anniversary of the Four Freedoms speech, and is cross-posted from the UICHR’s Four Freedoms webpage.