Jews, Law, and Human Rights By Michael Pinto-Duschinsky
Are legally enforceable codes of human rights good for the Jews? Even to ask this question seems parochial and unseemly. Human rights deserve the utmost respect—and by Jews of all people. They are morally necessary; they are in keeping with the best religious, moral, and cultural traditions of Judaism; they are a universal imperative.
Yet, the “Good for the Jews” question cannot be ignored for two important reasons. First, the creation of international human rights conventions was seen in the 1940s as a response to the Holocaust and potentially the most effective way to prevent any repetition of the genocide perpetrated by Adolf Hitler’s Germany. It was hoped that a set of international human rights institutions would protect Jews and other minorities.
Second, Jewish opinion is now fiercely divided as to whether these institutions—particularly the United Nations Human Rights Council (Geneva), the International Criminal Court (The Hague), and the European Court of Human Rights (Strasbourg)—have achieved this outcome. Jewish voices are often heard to complain that the new international human rights system has come to be systematically biased against Jewish and Israeli interests. “Lawfare” has become a modern form of anti-Semitic agitation, albeit often conducted (it is claimed) by dissident Jews.
Jewish scholars and activists have been at the forefront of what denigrators call the human rights industry since its post-war inception. Many of the leading legal philosophers of the past century have been Jewish. The greatly respected but controversial American jurist Ronald Dworkin is one of the most influential advocates of, as his book title puts it, Taking Rights Seriously. Michael Sandel’s course titled “Justice” attracts enough students at Harvard to fill Sanders Theater and has proved a YouTube sensation—the lectures have been viewed over seven million times. At Oxford University, Herbert Hart (the descendant of a rabbi) wrote the ground-breaking volume The Concept of Law. He was followed by Joseph Raz, who arrived in Oxford from the Hebrew University of Jerusalem. By far the most influential of Britain’s international lawyers, Sir Hersch Lauterpacht, came to Cambridge University from Galicia via Vienna, where he studied under another intellectual giant, Hans Kelsen, a Jewish convert to Catholicism. Other Jewish names to be conjured with include Raphael Lemkin, credited with the invention of the term “genocide,” and the French jurist René Cassin. It would be repetitious to include the title of “Professor” gained by all of the above.
Their influence was not confined to academe. Kelsen, a member of Sigmund Freud’s circle, sat on Austria’s constitutional court, formed after the country’s defeat and dismemberment in the First World War. Lauterpacht advised the British Government on the legal basis of the Nuremberg war crimes trials. He later sat on the United Nations’ Law Commission and as a judge on the International Court of Justice at The Hague. Cassin served as president of the European Court of Human Rights and won the Nobel Peace Prize. Some of the largest benefactors of human rights organizations, such as George Soros and Sigrid Rausing, are Jewish. So are many of the world’s leading human rights activists and experts—Aryeh Neier of the Open Society Institute, Richard L. Bernstein (the founder of Human Rights Watch), Peter Benenson (founder of Amnesty International), Lord Lester of Herne Hill (co-founder of Interights), the British judges Lord Hoffmann and Sir Stephen Sedley, and the former head of Israel’s Supreme Court, Aharon Barak, to name only a few.
Regardless of any calculus of communal benefit, there are very strong reasons for Jews to promote humane practices in peace and in war. It should be a matter of pride that rabbis such as William G. Braude, Saul Leeman, and Nathan Rosen were active in the civil rights movement in the American South in the 1960s. On a personal note, I wish to pay tribute to my late father, Rabbi Jeno Duschinsky; his Beth Din colleague in Cape Town, Rabbi David Rosen, and his friend Dennis Diamond (of the Board of Deputies of South African Jews) for their stands, albeit cautious, against apartheid.
In this article and in a second piece on Jewish Ideas Daily tomorrow (dealing with recent and current European conflicts, in particular about the Holocaust and the legality of circumcision and kosher slaughter), I will set out a few of the problems, for Jewish interests, of human rights advocacy. But, in so doing, it is vital to avoid any misunderstanding about the importance of human rights themselves and the need for tolerance within Jewish communities about the way in which differences of opinion about human rights may be discussed.
In today’s world, we need to avoid the unduly personal attacks made against Jews such as Judge Richard Goldstone when they express unpopular and arguably unjustified criticisms of the behavior of Israeli forces in Gaza. For example, the Jerusalem-based organization NGO Monitor regularly reports on dubious anti-Israeli accusations made by hostile NGOs which are funded largely by European governments. It is a great pity that NGO Monitor and the Im Tirzu campaign of Israeli students devote so much of their energies to attacking another Jewish body, the New Israel Fund.
Nevertheless, the rhetoric and institutions of human rights are sometimes unfair and harmful. While we need to be respectful of Jews who express sincere reservations about aspects of Jewish morality, religion, and action, there is a tendency on the part of some leading Jewish thinkers and activists to be unduly self-critical. For sheer brilliance, there probably is no living legal philosopher greater than Dworkin. But I was taken aback to hear his reply to a theoretical question posed by the eminent political theorist Professor Alan Ryan at a conference at St. Antony’s College, Oxford in January, 2009. Acting as devil’s advocate, Ryan asked Dworkin why he felt every life was of equal moral value. Dworkin answered by saying that there were indeed those who did not have this belief: for example, Jews believed in a superior status as the “chosen people.” In subsequent correspondence, Dworkin justified himself by writing (presumably with reference to the Tanya of the first Lubavitcher Rebbe), “Some Jewish texts, particularly in the mystical tradition, do interpret the claim to imply superiority, though others reject that implication. I cited only the former interpretation as illiberal.”
Irrespective of the dubious validity of Dworkin’s reference to “the chosen people” as an expression of racial superiority, why did he choose this example? Why not refer instead to Nazi beliefs or to those of slave owners? The notion that some Jewish human rights activists are prone to direct too much of their fire against their own co-religionists may sometimes have substance. A belief in the overarching ideal of human rights appears in some cases to be a form of secular religion.
When it comes to international human rights institutions, the bias is undeniable. One does not need to be a defender of every controversial action by Israel in its dealings with Palestinians to realize that the United Nations Human Rights Council has an unreasonable focus on real or alleged Israeli misdeeds. Between 2008 and 2010, no less than 48 percent of this body’s resolutions were directed against Israel. The notion that Israel is responsible for a half of all the human rights violations in the entire globe is absurd. Secretaries General of the UN Kofi Annan and Ban Ki-moon have both criticized the UN Human Rights Council for singling out Israel. “The Council should give the same attention to grave violations committed by other states as well,” said Annan. Yet the procedures for electing countries to membership on the UN Human Rights Council assure that voting blocks of countries hostile to Israel will predominate. The Council is no august, neutral body but is inherently political. The rules whereby judges are elected by the 121 constituent state parties to the International Criminal Court risk producing the same bias in that body.
The politicization of human rights verdicts is not confined to Arab member countries of international human rights bodies. In 2002, when I was carrying out an academic study of political financing for an international organization based in Scandinavia, I spoke to the country’s foreign affairs official responsible for human rights matters about her country’s vote in the UN Human Rights Council on the Israeli “massacre” in Jenin. She was an official with whom I had previous contact in connection with my study. “You needn’t worry,” she assured me. “We know that there was no massacre in Jenin.” In view of the fact her country knew the accusation was untrue, I asked her to explain her country’s vote on the UN Human Rights Council. Her country wished to vote with the countries of the “South,” she said, and with Europe against the United Kingdom. Moreover, her ministry had issued a more detailed statement—which, however, had not been translated into English.
This example of prejudice brings me to the vexed issue of the record and attitude of human rights bodies in Europe to the Holocaust and to Jewish religious matters. This will be explored in tomorrow’s article.
Dr. Michael Pinto-Duschinsky was a member of the United Kingdom Commission on a Bill of Rights. In the 1990s, he was honorary academic adviser to the London-based Claims for Jewish Slave Labour Compensation.
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