Human Rights and Root Causes

Human Rights and Root Causes
Author(s): Susan Marks

Source: The Modern Law Review , JANUARY 2011, Vol. 74, No. 1 (JANUARY 2011), pp.
57-78
Published by: Wiley on behalf of the Modern Law Review
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Susan Marks*
The human rights movement has traditionally focused on documenting abuses, rather than
attempting to explain them. In recent years, however, the question of the 'root causes' of viola
tions has emerged as a key issue in human rights work. The present article examines this new (or
newly insistent) discourse of root causes. While valuable, it is shown to have significant limita
tions. It foreshortens the investigation of causes; it treats effects as though they were causes; and it
identifies causes only to put them aside. With these points in mind, the article counterposes an
alternative approach in which the orienting concept is not root causes, but 'planned misery'.
Most histories of the international protection of human rights begin in the

mid-20th century, with the Universal Declaration of Human Rights and the
various treaties, institutions and procedures that then followed. Some histories
begin earlier, sometimes centuries earlier, highlighting the emergence of the
idea of universal and inalienable rights. But few begin later. For the political
analyst Naomi Klein, however, the really important starting-point for the inter
national protection of human rights is in fact more recent, and it corresponds to
the time when what we now recognise as the human rights movement began to
take shape.1
As she tells the story, an especially formative context was the effort during the
1970s to stop torture and disappearance in Chile and Argentina. Ruled by mili
tary juntas engaged in violent repression on a massive scale, these countries served
as a laboratory for a relatively new activist model: the grassroots human rights
movement'.2 The characteristic of this emergent movement that most interests
Klein is its commitment to neutrality and impartiality. That commitment arose
in well-known circumstances, which saw the enmeshment of human rights in
Cold War divisions and rivalries. West and East loudly trumpeted abuses by the
other, at the same time dismissing allegations about shortcomings of their own.
This was not just a matter of inter-governmental mud-slinging. In 1967 it was
revealed that the Geneva-based non-governmental organisation, the International
Commission of Jurists, received its initial funding from the CIA.3
Against that background, the idea took root that the new activist model which
was to provide the front line of international human rights protection could enjoy
credibility only if it remained strictly neutral, impartial and non-political. The
International Commission of Jurists itself reorganised, while Amnesty Inter
national famously constituted itself in a manner that precluded funding from
*Professor of International Law, London School of Economics.
1 N. Klein, The Shock Doctrine (London: Penguin, 2007) esp 118-128.

2 ibid IIS.
3 See H. Tolley, The International Commission of Jurists: Global Advocates for Human Rights (Philadelphia:
University of Pennsylvania Press, 1994).
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Published by Blackwell Publishing, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Maiden, MA 02148, USA

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governments and political parties, and made the organisation accountable solely
to its worldwide membership.4 When it came to the abuses being committed in
the Southern Cone, this helped the victims and their allies insofar as it facilitated
the investigation and denunciation of what was happening. But it also had an
important limitation. The determination to steer clear of all political engagement
meant that international human rights work was restricted to documenting vio
lations, and did not extend to considering why those violations were occurring.
For Klein, Amnesty Internationals 1976 report on Argentina illustrates
why this is a problem.5 After setting out the evidence of state-sponsored violence,
the report considers the government's claims that the 'dirty war' was necessary to
maintain order and counteract the threat posed by left-wing guerrillas. The
report's conclusion is that these claims cannot be accepted; the repressive measures
were grossly disproportionate to any threat posed. But if the measures were
unjustifiable, presumably they were nonetheless explicable. On what basis? Klein
observes that the report makes no mention of the fact that at the same time
as it was engaging in systematic torture and disappearance, the junta was in the
process of restructuring the country's economy along radically neo-liberal lines.
The report contains long lists of decrees that violated civil liberties, but makes
no reference to the laws that led wages to be lowered and prices increased, no
reference to the abrupt abrogation of social protection and redistributive
schemes, or to the deepening poverty of ordinary Argentinians that was the result
of these measures.
Had the economic dimensions of the regime been taken even minimally into
account, Klein contends that 'it would have been clear why such extraordinary
repression was necessary, just as it would have explained why so many of
Amnesty's prisoners of conscience were peaceful trade unionists and social work
ers'.6 In this connection, she points up another limitation of the report. The con
flict is presented as one between the military and left-wing subversives. There is
no mention of the US officials and others who encouraged, supported and guided
the junta's policies, nor any mention of the transnational corporations and local
landowners who stood to gain from them. Yet, again, Klein maintains that
'[wjithout an examination of the larger plan to impose "pure" capitalism on Latin
America, and the powerful interests behind that project, the acts of sadism docu
mented in the report made no sense at all'. They were just random, free-floating
bad events, drifting in the political ether, to be condemned by all people of con
science but impossible to understand'.7
Much of Klein's analysis in the book from which these passages are taken is
devoted to showing the influence of Chicago School economists on economic
trends since the 1970s, and her account begins in the Southern Cone of Latin
America. If during that decade the region was a laboratory for a new activist
model, she recalls that it was also a laboratory for a new economic model, the Tree
4 See S. Hopgood, Keepers of the Flame: Understanding Amnesty International (Ithaca: Cornell University
Press, 2006).
5 See Report of an Amnesty International Mission to Argentina, 6-15 November 1976 (London: Amnesty
International Publications, 1977).
6 n 1 above 119-120.
7 ibid 120.
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Susan Marks
market libertarianism'promoted by Milton Friedman and his associates.8 But just

as the economists remained largely silent on the human rights abuses, so too the
activists had almost nothing to say about the economic transformations. Accord
ing to her, the idea that 'the repression and the economics were in fact a single
unified project' is reflected in only one major human rights report from this
period, the Brazilian truth commission report 'Brasil: Nunca Mais'.9 Posing the
question of how the atrocities perpetrated in the country in the preceding years
were to be explained, the truth commission was clear in its answer: 'Since the
economic policy was extremely unpopular among the most numerous sectors of
the population, it had to be implemented by force.'10
Klein considers that Amnesty International's report on Argentina was rightly
applauded as a breakthrough exposure of a brutal dictatorship. She has no doubts
that the organisation's work played a significant role in putting an end to the ter
ror. However, she argues that this came at a cost: 'by focusing purely on the crimes
and not on the reasons behind them, the human rights movement.. . helped the
Chicago School ideology to escape from its first bloody laboratory virtually
unscathed'.11 At the same time, the new activist model was set on a course that
detached violations of human rights from the political, economic and social con
texts which make them possible and even rational. Borrowing a phrase from
Argentine journalist Rodolfo Walsh (himself a victim of disappearance in 1977),
she proposes that what got lost in the process was any sense that we may be con
fronted not with random, free-floating bad events, but instead 'planned misery'.12
Human rights emerged as a set of 'blinders' that narrow our field of vision and
prevent us from seeing (and hence from challenging) the wider scene.13
Whatever the cogency of Klein's analysis of these events in the 1970s, develop
ments since then mean that at least one aspect of her account requires qualifica
tion. Today the human rights movement does focus on the reasons behind
violations. The question of the causes, indeed the root causes', of human rights
violations has become a central and very conspicuous element of discussions
within global civil society and, perhaps most strikingly, the United Nations. The
UN High Commissioner for Human Rights regularly refers in her speeches
to the root causes of whatever abuse she is discussing, and certain of the special
procedures' mandated by the UN Human Rights Council have developed a
particular attentiveness to the issue. It cannot now be said that the human
rights movement only documents violations, and fails to consider why they are
occurring. But if Klein's premises no longer hold, this article is concerned with
her conclusion. Does it follow from the current preoccupation with root causes
8 On the Southern Cone during this period as a 'laboratory' (and on a number of the other themes
touched in the section ofThe Shock Doctrine I outline here), see further Y. Dezalay and B. Garth, The
Internationalization of Palace Wars: Lawyers, Economists, and the Contest toTransform Latin American States
(Chicago: Chicago University Press, 2002).
9 n 1 above 124. A summary of the report is published in J. Dassin (ed), Torture in Brazil: A Shocking
Report on the Pervasive Use of Torture by Brazilian Military Governments 1964?1979, Secretly Prepared by the
Archdiocese of Sao Paolo (Austin: University of Texas Press, J.Wright trans, 1998).
10 nl above 125.
11 mm.
12 ibid 95. Regarding the implications of this phrase, see further below.
13 ibidllS.
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(2011) 74(1) MLR 57-78 59

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that the grounds of her conclusion also fall away? If human rights were once a set
of blinders, to what extent do they now enable us to see?
ROOT CAUSES
Although root causes' are currently a prominent feature of the discourse of inter
national human rights, this was not always so. Let us therefore begin with a brief
review of the concept and its history as an aspect of the international protection of
human rights.
The concept of root causes belongs, quite obviously, with the practice of expla
nation in the natural and social sciences. Root causes are the initiating phenomena
in a chain of causation. They may initiate that chain in a manner which is
intended or unintended, manifest or hidden, recent or longstanding, but, what
ever their precise dynamics, they are to be understood as the basis on which a
given circumstance rests. They are often considered also to mark the level at which
an intervention would be effective. If you don't address root causes, we hear, you
cannot hope to bring about significant and lasting change. The Oxford English
Dictionary cites as the earliest usage of the phrase a passage in a book published in
1915; writing under the title The Healing of Nations and the Hidden Sources of their
Strife, the author expresses the need to get at the root-causes of this war'.14 More
recently, root cause analysis' has become associated with a particular method or
approach to problem-solving in business, administration and management - one
that recursively asks 'why?', so as to identify which causes would, if removed,
eliminate a problem or prevent it from escalating further.15
The issue of causation has always had a place in discussions of internationally
protected human rights. As in all legal contexts, it is relevant to the determination
of responsibility - in this case, state responsibility - for failure to comply with
obligations. It is also central to the determination of liability for the commission
of crimes - in this case, international crimes. Clearly, however, that bears primar
ily on the question of whether a particular actor can be held answerable for a legal
wrong. It does not address the question of why that wrong occurred, how it
relates to other wrongs, or what its enabling conditions were. As distinct, then,
from causation, the issue of root causes is for the most part a recent theme of
human rights work. Certainly, its visibility in the documentation published by
the United Nations and leading human rights organisations rose exponentially
during the first decade of the new millennium.16 Linked to this, its range of refer
ence also mushroomed. Today there is talk of the root causes of human trafficking,
violence against women, forced migration, hunger and malnutrition, child abuse,
worker abuse, maternal mortality, infection with HIV-AIDs, arbitrary detention,
summary execution, and the persecution of religious minorities. In contrast to the
14 E. Carpenter, The Healing of Nations and the Hidden Sources of their Strife (London: George Allen and
Unwin, 1915) 12.
15 See eg, D. Oakes, Root Cause Analysis: The Core of Problem Solving and Corrective Action (Milwaukee:
ASQ Quality Press, 2009).
16 To refer to one indication of this, in a search of 'root causes', the website of the Office of the High
Commissioner for Human Rights registers 2380 hits, of which roughly two-thirds relate to the
period 2006 to early 2010, and the overwhelming majority relate to the period since 2000.
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Susan Marks
situation described by Naomi Klein, there is also talk of the root causes of torture
and disappearance. Indeed, there is talk of the root causes of violations of virtually
every internationally recognised human right.
An initial preoccupation was with the violation of human rights as itself a root
cause of violent conflict, even as violent conflict is seen to set the stage for the
violation of human rights. The theme of root causes appears to have entered the
human rights lexicon at least partly in conjunction with debates about conflict
prevention, and much discussion in this context continues to revolve around the
relation between human rights abuse and armed conflict. In 1999 Mary Robinson
made the first speech by a UN High Commissioner for Human Rights in the
UN Security Council. Reporting this, a representative of Human Rights Watch
commented: 'Most of the conflicts the Council deals with these days have human
rights violations as their root cause, so Mary Robinson should be a regular visitor
there'.17 Around the same time, investigation by a Dutch research team into the
causes of human rights violations' led for some years to the annual publication of
a map showing the shifting global connections between human rights abuse and
armed conflict.18 In areas of violent conflict, human rights organisations routinely
emphasise the need to strengthen the national protection of human rights in order
to 'address the root causes of conflict and tensions'.19
As indicated, however, the theme of root causes is not just about what human
rights abuse causes; it is also about what causes human rights abuse. Intertwined
with that latter issue is a further preoccupation with violence, but not as a phe
nomenon to be set in opposition to the protection or violation of human rights.
Instead the focus is on the interrelation of different human rights, including dif
ferent categories of human rights. Renewing the longstanding question of how
civil and political rights affect and are affected by economic, social and cultural
rights, attention is called to the links between violence, on the one hand, and pov
erty, discrimination, marginalisation and social exclusion, on the other. A wide
ranging study on this topic was published in 2006 by the non-governmental
World Organisation against Torture.20 Entitled Attacking the Root Causes of Torture:
Poverty, Inequality and Violence, the study outlines evidence of correlations between
socio-economic inequality and (state and non-state) violence, and presents case
studies illustrating the correlations. It then examines to what extent the existence
of a link between poverty and violence is reflected in human rights work at the
UN and other international organisations.
17 Human Rights Watch, 'Robinson Addresses Security Council: "It's About Time'" 15 September
1999, at http://www.hrw.org/en/news/1999/09/15/robinson-addresses-security-council-its-about
time (last visited 15 September 2010).
18 PIOOM (Programma voor Interdisciplinair Onderzoek naar Oorzaken van Mensenrechtenschendingen), based
at Leiden University. The project has been discontinued; the final map related to 2001/2.
19 See eg, report of the Office of the High Commissioner for Human Rights on Guyana (2006?2007)
at http://www.ohchr.org/EN/Countries/LACRegion/Pages/GYSummary.aspx (last visited 15 Sep
tember 2010).
20 World Organisation against Torture, Attacking the Root Causes of Torture: Poverty, Inequality and Violence
(Geneva: World Organisation against Torture, 2006) at http://escr.omct.org/interdisciplinary
study/ (last visited 15 September 2010). This is one of many illuminating reports by the World
Organisation against Torture around this general theme.
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The UN special procedures system is one sphere in which frequent reference has
been made to such a link. Reviewing the activities of eleven special rapporteurs' and
other experts' under this system during the period 1999 to 2005, the study shows that
all highlighted poverty, discrimination, marginalisation and exclusion as structural
causes of human rights violations'.21 Some also emphasised the impact in that con
nection of privatisation, deregulation and other processes of economic restructuring,
and of macro-economic policies adopted at international level. In a few cases, a'hol
istic approach' became established in which there is systematic investigation of the
linkages between denial of civil, cultural, economic, political and social rights. The
study additionally demonstrates the way discussion of root causes brings with it an
emphasis on the issue of vulnerable groups. To elucidate what is causing abuses is at
the same time to shed light on who is most at risk of suffering those abuses. The
study observes that many vulnerable groups were identified, and that the need to
empower such groups was a recurrent theme of experts' reports.
On the other hand, the study also reveals considerable variation among the special
procedures. This was in part a function of the nature of particular mandates. In the case
of mandates focused on the rights of a particular group or on the causes and conse
quences' of a particular problem - for example, the Special Rapporteur on indigenous
peoples and the Special Rapporteur on violence against women - the interplay
between violations of civil and political rights and the denial of economic, social and
cultural rights was systematically described. In the case of mandates mainly focused on
economic, social and cultural rights - for example, the Special Rapporteur on the right
to health and the Special Rapporteur on adequate housing - cases of violence relating
to the rights protected and to poverty generally were often reported. Some of these
mandates, though not all, had become associated with the holistic approach mentioned
above. But in the case of mandates mainly focused on civil and political rights - for
example, the Special Rapporteur on extrajudicial executions and the Special Rappor
teur on torture ? the sodo-economic context of violations was only sporadically noted.
Equally, approaches varied among individual mandate-holders. Having pointed to
the link between poverty and violence, some mandate-holders put the issue to one
side for reasons to do with time and information, or because they considered that it
was appropriately addressed in other settings. Among those who did take it up, few
took it into account in formulating their specific recommendations. Reporting as
Special Rapporteur on torture, for example, Sir Nigel Rodley wrote that 'poverty is
all too relevant to issues falling within his mandate', but, after registering some of the
ways in which this was so, he remarked that he had neither the competence nor the
expertise to offer solutions to change these bleak realities'.22 Reporting as Special Rap
porteur on extrajudicial executions, Asma Jahangir was more sanguine, though not
necessarily more encouraging.'Poverty has a cure, she wrote,'which requires patience,
sincerity and sound planning'. Above all, 'it requires the political will and courage to
eradicate poverty through an effective programme built on justice for all'.23 What
21 ibid 244.
22 Interim report of the Special Rapporteur on the question of torture and other cruel, inhuman or
degrading treatment or punishment, UN Doc A/55/29011 August 2000, paras 35-36.
23 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to
Honduras, UN Doc E/CN.4/2003/3/Add.2 14 June 2002, para 40.
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Susan Marks
Jahangir did not say was how that political will and courage might arise, where they
might come from, and - perhaps most relevantly in a discussion of root causes - why
they appeared to be missing in current conditions.
THREE EXAMPLES
We have seen something of what is involved in the explanatory turn in interna

tional human rights. It will be instructive now to consider in more detail some
examples of it. The succeeding paragraphs present three examples, designed to
illustrate the scope and variety of the human rights movements engagement with
the question of why abuses occur.
Example 1: arbitrary detention
An initial example relates to arbitrary detention. In 2009 the Human Rights Unit of
the UN Assistance Mission in Afghanistan (UNAMA) published a report on the
problem of arbitrary detention in Afghanistan.24 People were routinely being held
for acts that did not constitute crimes, after trials that were manifestly unfair, and
beyond the dates on which their sentences had been served, and the Human Rights
Unit wished to help the Afghan Government by proposing effective measures for
dealing with the problem. A substantial section of the report was devoted to an
examination of the root causes of the patterns identified'. Five root causes were high
lighted. First, the formal system of justice was in competition with informal systems
and customary and religious practice that lacked the same conceptions of procedural
and substantive justice. In particular, the presumption of innocence, the right of
defence and the principle of equality before the law were not well understood.
Secondly, the legal framework had significant gaps and inconsistencies. The right
of habeas corpus was not recognised or, insofar as it was recognised, it was not
respected. The criminal law was also insufficiently clear on certain key matters,
including the intersection with religious law. Thirdly, the formal system of law was
still developing. Police, prosecutors and judges often had limited technical knowl
edge. An effective bail system did not yet exist, and administrative arrangements
were too inefficient to permit timely case-management. Fourthly, there was corrup
tion within the criminal justice system. Most of those who languished in detention
were poor, since they lacked the financial resources or influence to gain their free
dom. Weak oversight meant that corrupt practices continued with impunity. Finally,
training and capacity-building programmes remained incomplete. The duties and
responsibilities associated with the administration of justice had not been effectively
communicated to the authorities. Insufficient attention had also been paid to the
need to raise awareness among ordinary people of their rights.
Alongside each root cause, the report had a section entitled 'finding solutions'.
Solutions proposed include better training and capacity-building programmes,
24 Arbitrary Detention in Afghanistan: A Call for Action, Vol 1 - Overview and Recommendations (Kabul:
UNAMA, Human Rights, 2009).
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law reform, an awareness-raising campaign, and the provision of enhanced over

sight with effective enforcement, and these points were amplified in a section set
ting out concrete recommendations. The report added that 'firm and unyielding
political support from both national leaders and the international community
also is a pre-requisite to combating impunity and corruption and improving
accountability'.25 This is plainly a compelling and well thought-out analysis,
and it yields an agenda for action that is both practicable and reasonable. To what
extent, however, does it help us to understand why arbitrary detention is occur
ring in Afghanistan and what it will take to change the situation? The report tells
us about competing conceptions of justice under religious and customary law,
gaps and inconsistencies in the legal system, weaknesses in the administration of
justice, corruption, impunity and lack of accountability on the part of those in
charge, and incomplete training and capacity-building. But it says nothing about
the context in which those problems arise.
Why, for example, are there competing conceptions of justice of the particular
sort identified? Is this simply a fact of Afghan culture, or must it be understood with
reference to a wider array of national and transnational circumstances? Either way,
can the competition be surmounted or circumvented through better training in the
concepts and practices of modern law? The report highlights a perception among
judges that those accused of crimes relating to subversion or anti-government
activities should not have access to defence counsel. Is that because the judges
do not sufficiently grasp the implications of due process, or does it remind us that
arbitrary detention, while reprehensible, is often rational, in the sense that it
has a purpose within a contested political order? The report also observes that the
principle of equality before the law is not applied to women, who are frequently
detained for moral crimes', such as running away from home. Again, is that because
the principle of equality before the law is not well understood? Would the situation
be transformed if the authorities had improved knowledge of their responsibilities
for the administration of justice? Are the gaps and inconsistencies in the legal
system that permit detention for running away from home causes of such gendered
justice, or instead symptoms of a deeper problem with its roots in socio-economic
inequalities?
The report informs us that there is a preponderance of poor people in arbitrary
detention, inasmuch as those better off are able to buy their freedom. If the problem
of arbitrary detention is so manifestly bound up with social class, is it likely to be
remedied by the introduction of a new system of bail or a more efficient system of
judicial administration? Might not procedural and administrative reforms, however
desirable, simply alter the context, leaving the problem itself to persist? The thread
that runs through the report is that more robust measures are required on the part of
both national authorities and international stakeholders'. Firm and unyielding poli
tical support, we are told, is a prerequisite to combating impunity and corruption
and improving accountability. This raises the question of how, and by whom, mobi
lisation can be expected for change in this sphere. Who gains - and who loses - if
arbitrary detention is put to a stop in Afghanistan? Finally, there is the report's
25 ibid 20.
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Susan Marks
emphasis on public education. A much stressed aspect of the recommendations is the

need to improve rights-awareness among ordinary Afghans. But what if those latter
already know that it is wrong for people to be detained for acts that are not crimes,
after unfair trials, and beyond the end of their sentences? What if their need is not for
legal experts to tell them that, but instead for support in directing their already acute
sense of injustice into organised political action?
Example 2: disaster relief
A second example takes us to a different part of the world and to a different issue.
On 12 January 2010 an earthquake struck Haiti, with its epicentre near the capital,
Port-au-Prince. More than a million people were killed, injured or left without
homes and essential services. Two weeks later, the UN Human Rights Council
held an emergency meeting (or special session) to discuss the Haitian recovery
process and underline the importance of a 'human rights approach'.26 In a state
ment to the session, UN High Commissioner for Human Rights Navanethem
Pillay paid tribute to the 'bravery, resilience and mutual solidarity that had been
displayed in the face of immense adversity'.27 This was the 'worst tragedy' experi
enced in the Western hemisphere for many decades. Its effects had been 'exacer
bated by pre-existing inhuman conditions of poverty, instability and feeble
institutions', and if these were to be overcome, initiatives had to be anchored in
human rights. A human rights approach helps ensure that the root causes of vul
nerabilities, in this case poverty and discrimination, are addressed', she said.
Government and civil society delegates likewise spoke of the tragedy that had
befallen Haiti, of its roots in persistent poverty and discrimination, and of the need
not to let human rights be eclipsed by the immediate demands of humanitarian
assistance. For it was crucial to be aware that natural disasters and the way in which
international organizations responded to them had clear human rights implica
tions'28 In what sense, however, was this a natural' disaster? At the same time as that
discussion was unfolding in the Human Rights Council, another debate was under
way on the historical context in which 'poverty and discrimination had caused so
many people to be killed, injured and made homeless. Contributors recalled the
course of Haitian history since the slave revolt that ended French colonial rule in
1803.29 Beginning with a punishing blockade and the imposition by France of
26 See Report of the Human Rights Council on its Thirteenth Special Session 2 February 2010, UN
Doc A/HRC/S-13/2.
27 Statement of Ms Navanethem Pillay, United Nations High Commissioner for Human Rights to
the Human Rights Council Special Session, Geneva, 27 January 2010 at http://www.ohchr.org/
EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=9778&LangID=e (last visited 15 September
2010).
28 'Human Rights Council Opens Special Session on Support to Recovery Process in Haiti: A
Human Rights Approach, Statement of Walter Kaelin, Representative of the Secretary-General
on the Human Rights of Internally Displaced Persons at http://www.ohchr.org/en/NewsEvents/
Pages/DisplayNews.aspx?NewsID=9780&LangID (last visited 15 September 2010).
29 See eg, P. Hallward,'The land that wouldn't lie' New Statesman 28 January 2010 (and, for analysis of
more recent Haitian history, P. Hallward, Damming the Flood: Haiti, Aristide and the Politics of Contain
ment (London: Verso, 2007)).
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massive reparations' for the loss of slaves and other colonial property, it is a litany of
interventions in the country to support foreign commercial interests and the tiny
local elite, the successors to the earlier colonial plantation owners.
The viciousness of Duvalier j?eVe etjils, the US-backed despots who ruled Haiti
from the 1950s to the 1980s, is well known, and it was during the younger Duva
lier's reign of terror that economic modernisation came to Haiti. Peter Hallward
reports that Haitians referred to the scheme of privatisation, fiscal austerity and
de-agrarianisation as the Heath plan'.30 Decades later, that certainly appears to have
been, and in January 2010 to have remained, its significance for many. When the
earthquake hit, hundreds of thousands of Haitians were living in and around
Port-au-Prince in flimsy slum dwellings pushed to the precarious edge of defor
ested and eroding ravines. These considerations make it clear that, if nature
brought the earthquake to Haiti, the catastrophe it caused was decidedly man
made.31 The Human Rights Council was plainly aware of this; as we have seen,
poverty and discrimination were repeatedly held up as the root causes of what had
happened. But what caused them? According to one commentator, 'Haiti's pov
erty was treated [in public debates] as some baffling quirk of history or culture'32
Was it treated the same way in the UN human rights system?
When evoking the 'pre-existing inhuman conditions of poverty, instability and
feeble institutions' which she said had exacerbated the earthquake's effects, Pillay
observed that these conditions resulted from policies such as that of the Duvalier
regime which forced people from rural areas and farmers from rice fields to the capi
tal to provide cheap labour for Haiti's elite 33 But she did not - indeed, she could not
? mention the relation of that regime to the United States, and nor did she say any
thing about the role of the 'international community', the international financial
institutions and the UN itself in carrying the policies forward through structural
adjustment, peacekeeping, 'technical assistance', and international law.34 Delegates to
the Human Rights Council special session highlighted the urgent need in Haiti for
food, water, medical supplies and shelter, and the inability of the Haitian govern
ment to provide these itself. But they too remained silent on the lending and aid
conditions that had forced successive Haitian governments to cut public infrastruc
ture, scale back the already limited health service, and drastically reduce the protec
tion given to local industries. Although dependent on food imports in 2010, Haiti
had been self-sufficient in its staple of rice until import tariffs were lifted and subsi
dised US rice began flooding in, but the delegates did not refer to that either.
In the UNAMA Human Rights Unit's analysis of arbitrary detention in
Afghanistan, the focus was on problems of a legal, institutional and cultural char
30 Hallward, 'The land that wouldn't lie' ibid.

31 On 27 February 2010 an earthquake of significantly greater magnitude (8.8 on the moment magni
tude scale, as opposed to the Haitian earthquakes 7.0) struck Chile, also near urban centres. While
comparisons are, of course, difficult, the disparity in fatalities is striking, to say the least. Estimates
of those killed in Chile range from 500 to 800, while estimates of those killed in Haiti range from
100,000 to 300,000.
32 S. Milne,'Haiti's suffering is a result of calculated impoverishment' The Guardian 20 January 2010.
33 n 27 above.
34 On the international legal dimensions, see C. Mieville, 'Multilateralism as Terror: International
Law, Haiti and Imperialism' (2008) 19 FinnishYearbook of International Law 63.
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acter, and I raised the question of whether these were root causes of arbitrary
detention, or instead symptoms of a deeper problem with its roots in socio
economic inequalities. Here, in the Human Rights Council debate on the Haitian
recovery process, the focus is on socio-economic inequalities - the poverty and
discrimination that placed those killed in mortal danger, and rendered the gov
ernment helpless to provide relief to the survivors. Yet that poverty and that dis
crimination are themselves depicted not as the outcome of determinate forces and
relations, including forces and relations that stretch across the world, but as local
dysfunctions and accidents of history. Above all, they are made to seem the work
of a cruel dictatorship that suddenly arrived one fearful day and wreaked havoc,
almost as though it were ... an earthquake. When the real earthquake struck, the
talk was, accordingly, of 'tragedy', with all the mystery, fatality and nobility of
suffering that implies.35 The Human Rights Council signalled that the Haitian
earthquake was not simply a natural disaster, but it left us to imagine that the
vulnerability of those affected was.
Example 3: food crisis
A third and final example concerns another crisis, the surge in world food prices
that began in 2007, and brought sharp increases in hunger and malnutrition in
many countries. In a series of documents, the UN Special Rapporteur on the
Right to Food, Olivier De Schutter, examined the crisis from the perspective of
the human right to adequate food.36 Pertinently to our previous discussion, he
began an initial note on the subject by affirming that the crisis was not a natural
disaster. 'The disaster which results from the increase of international prices of
food commodities... is a man-made disaster', he wrote. 'The causes are identifi
able. Both immediate and medium-term solutions can be agreed upon.'37 In a later
report, he outlined four problems38 The first was under-investment in agricul
ture. Subsidies and marketing boards had been dismantled under structural
adjustment programmes, but they had not been replaced by sufficient new invest
ment. Insofar as money was being spent, it was allocated according to policies that
favoured large-scale agro-industrial production, to the detriment of small produ
cers whose contribution to food security was often greater, especially in remote
areas where transport and marketing costs were high.
Secondly, recent years had seen an accelerating trend towards the acquisition or
long-term lease by governments and private investors of large tracts of farmland
in the global South. In part, this was linked to incentives in the global North for
the production of biofuels, and to anticipated revenues from carbon storage
35 On these common associations of tragedy and their relation to the term's wider range of meanings,
seeT. Eagleton, Sweet Violence: The Idea of theTragic (Oxford: Blackwell, 2003).
36 For a list of relevant reports, see www2.ohchr.org/english/issues/food/index.htm (last visited 15
September 2010).
37 'Background Note: Analysis of the World Food Crisis by the UN Special Rapporteur on the Right
to Food, Olivier De Schutter' 2 May 2008, 1, at http://www2.ohchr.org/english/issues/food/
index.htm (last visited 15 September 2010).
38 Report of the Special Rapporteur on the right to food, O. De Schutter, 'Crisis into opportunity:
reinforcing multilateralism UN Doc A/HRC/12/31, 21 July 2009.
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through plantation and avoided deforestation. While these arrangements brought

potential benefits to host states, they were not being controlled so as to protect
local communities. Thirdly, social safety nets were inadequate. As with famines
generally, the world food crisis was primarily the result, not of too little food
being available, but of food prices that were too high relative to the incomes of
those affected. The resulting inability to command food would have been less
consequential if better social protection had been in place. Finally, there was a lack
of effective safeguards against market volatility. This left countries that depended
on internationally traded grains perilously exposed. Inasmuch as financial specu
lation played a significant role in producing that volatility, it also brought into
relief the lack of restraints on speculative activity on global commodity markets,
including futures markets for agricultural commodities.
In outlining each of these problems, De Schutter put forward proposals for over
coming or alleviating it. For example, with regard to under-investment in agricul
ture, governments should reinvest in rural development, and should do so in a
manner that has regard to the right of all to adequate food. With regard to large-scale
land acquisitions and leases, legislative and other measures should be adopted to
protect local communities subsisting rights to land. With regard to social safety nets,
programmes of social protection should be strengthened, perhaps underwritten by
wealthier countries. And with regard to market volatility, states should cooperate to
stabilise markets in agricultural commodities, and should regulate the activities of
speculative commodity index funds. He also proposed a new framework for global
governance in the area of food security. If hunger and malnutrition had not been
eradicated, he considered that that was in part because approaches to food emergencies
had been uncoordinated, knowledge of the bases of food security remained incom
plete, and governments had persistently failed to follow up on commitments they
had made, due to the lack of any accountability. Thus, the new framework would be
designed to improve coordination, enhance knowledge, and monitor progress.
Like the UNAMA Human Rights Units report, this is clearly an impressive
and convincing analysis. And like the Human Rights Councils special session, it
takes account not only of abuses, but also of vulnerabilities. Indeed, it goes beyond
the special session in pointing to the historical and global context in which those
vulnerabilities arise or are sustained. Structural adjustment, aid conditionalities,
trade rules, climate change, carbon trading, peak oil, financial speculation, land
speculation, and international inefficiency or indifference are all there, in the back
ground or mostly the foreground, informing the account of how a surge in the
price of food commodities caused certain people in certain countries to be
deprived of adequate food. Once again, however, we need to ask to what extent
this helps us to understand why such a violation of human rights has occurred, and
what it will take to prevent a recurrence. In De Schutters account, vulnerability
to hunger and malnutrition is due to bad national and international policies.
Governments should invest more in agriculture. They should introduce legislation
to protect local communities from predatory investors. They should strengthen
programmes of social protection. They should underwrite poorer countries'
programmes of social protection. They should act together to stabilise food com
modities markets and regulate financial speculation in the global public interest.
They should do all those things, yes. But why don't they?
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De Schutter s answer is primarily twofold. On the one hand, insufficient atten

tion is paid to the human right to adequate food. In the specific circumstances of
the world food crisis, he suggests that that right may have been assumed to express
long-term objectives which were out of reach for the present and thus of little
immediate relevance. But such an attitude would .. . betray a fundamental mis
understanding of what the right to food is about'.39 That*right becomes more
central, not less, in times of crisis; it requires that patterns of vulnerability be
mapped, and that governments develop national strategies for ensuring food
security and accord it priority in public policy generally. On the other hand, there
has also been insufficient monitoring of governmental action and hence insuffi
cient accountability. This too is an aspect of the right to adequate food, he
observes, insofar as one of the correlative obligations of states is to put in place
mechanisms whereby victims can challenge the choices made by decision-makers.
At the same time, it points to a failure of global governance. In another document
he is particularly forthright on this theme: 'Hunger is not a fatality', he writes.'It is
the result of policies that could have been different, and would not have been have
allowed to stand if their impacts had been monitored more carefully in the past'.40
There can be little doubt that the right to adequate food can provide valuable
orientations for institutional and legal reform, and that improved monitoring
and accountability would help in challenging policy decisions relevant to food
security. But is the problem really misunderstanding or inadvertence? Is it that
national strategies have not been adequately monitored, and decision-making
processes have been permitted to remain opaque? Is it indeed a matter of deci
sions, in the sense of individual policies and the methods chosen to implement
them? To answer those questions affirmatively is to suppose that there is no sys
temic or material basis for hunger and malnutrition, nothing about the organisa
tion of the global economy that generates food crises, and does so not just
contingently but necessarily, as part of its logic. It is also to suppose that the con
ditions which create vulnerability to hunger and malnutrition do not exist at least
in part because they benefit some groups of people, even as they massively disad
vantage others. De Schutter highlights the role of investors and speculators, but
he does not mention the members of pension funds, holders of insurance policies,
customers of banks, and all the others in both the global North and the global
South who live off the arrangements that he identifies as reasons for the world
food crisis.
For him, the key issue is popular participation: 'participation [must be] at the
heart of the design and implementation of public policies'.41 Clearly, however, if
the problems are systemic, the solutions must equally be systemic; even if
(for example) poor people living in areas subject to large-scale land acquisition
or lease could take part in every decision involved, the circumstances that link
39 ibid, para 7.
40 O. De Schutter,'The Role of the Right to Food in achieving Sustainable Food Security' Statement
to the World Summit on Food Security 18 November 2009, 2 at http://www2.ohchr.org/english/
issues/food/index.htm (last visited 16 September 2010).
41 O. De Schutter,The Right to Food and the Political Economy of Hunger' Twenty-sixth McDou
gall Memorial Lecture, Opening of the thirty-sixth Session of the FAO Conference, 18 November
2009, 7 at http://www2.ohchr.org/english/issues/food/index.htm (last visited 16 September 2010).
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their poverty with others' affluence would remain unaffected. In an earlier report,
he proposed a series of principles and measures with regard to large-scale land
acquisitions and leases, to guide investors and host governments in negotiating
terms that are balanced, work for the benefit of the population in the host country
and are conducive to sustainable development'.42 Were our imagined hyper-parti
cipatory scenario to be realised, the circumstances would likewise remain unaf
fected that lead ? indeed, that require - foreign investors, when buying up or
leasing land, to give priority not to the benefit of the population in the host coun
try, but rather to the generation of profit. De Schutter does not want to treat the
world food crisis as a natural disaster. But if the only things he can invite us to
work for are improved understanding of human rights, better global governance
and accountability, and wider participation in the design and implementation of
public policies, then the question arises whether, in fact, he does treat it that way.
CAUSES AND EFFECTS
These examples testify to the substantial and wide-ranging engagement of the

human rights movement with explanatory analysis. We have reviewed discussion
of why arbitrary detention occurs, why people become vulnerable to the effects of
earthquakes, and why the world food crisis is a world food crisis. In two cases
there has been an emphasis on poverty, discrimination, marginalisation and
exclusion as structural bases of human rights violations, and poverty was also
touched on as a mediating factor in the third. A 'holistic' approach has generally
been favoured that connects the right to adequate food with the right to social
security; the right to clean water with the right to adequate housing; and the right
to personal liberty and security with the right to non-discrimination and equality
before the law. We have seen how the study of root causes is held to belong with
the distinctiveness of a 'human rights approach' to global problems, and also to
form part of what is demanded by particular human rights. Thus, for instance,
'[a]n approach grounded in the right to food requires that we address the root
causes of hunger and malnutrition'.43 And we have noted the attention that comes
with this to the identification and empowerment of vulnerable groups.
But if some pertinent enquiries have been undertaken, we have also observed that
other pertinent enquiries have not. In discussion of root causes, human rights insti
tutions and officials have grappled only partially and rather problematically with the
question of why abuses occur, how vulnerabilities arise, and what it will take to
bring about change. In analytical terms, our examples have brought into focus three
principal problems. In the first place, the investigation of causes is halted too soon.
Secondly, effects are treated as though they were causes. And thirdly, causes are iden
tified, only to be set aside. It is worth emphasising at this point, though more will be
42 n 38 above, para 22. For the report that was presented earlier (though published later) on large-scale
land acquisitions and leases, see 'Report of the Special Rapporteur on the right to food, Olivier De
Schutter, Addendum: Large-scale land acquisitions and leases: A set of minimum principles and
measures to address the human rights challenge' UN Doc A/HRC/13/33/Add.2, 28 December 2009.
43 ibid, para 8.
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said on this in the succeeding paragraphs, that, for the most part, these problems do
not express shortcomings or failings of particular institutions or officials. Rather,
they are limitations in the extent to which those institutions and officials are able to
elucidate the root causes of whatever it is that concerns them, given the arrangements
within which they operate. That is to say, the issue is how the international system of
human rights protection, at least as currently configured, may itself limit the possi
bilities for revealing the reasons behind violations, and what that tells us about the
significance and prospects of root causes as a theme of human rights work. Let us
consider the three problems more fully.
By 'halting the investigation of causes too soon is meant that the analysis of causes
is not taken far enough back. So, for example, attention is directed at abuses, but not
at the vulnerabilities that expose people to those abuses. Or there is discussion of
vulnerabilities, but not of the conditions that engender and sustain those vulnerabil
ities. Or the focus is turned to the conditions that engender and sustain vulnerabil
ities, but not to the larger framework within which those conditions are
systematically reproduced. Speaking more concretely, this often manifests itself in
an emphasis on technical problems and solutions. The implicit message is that, if only
bad procedures, rules and ideas were replaced and good ones adhered to, the miseries
with which human rights are concerned would go away. In a study of human rights
monitoring with respect to torture, Tobias Kelly highlights the assumption that Vio
lence can be eradicated so long as states have the correct technical policies, which they
strictly follow'.44 Torture is assumed to be some kind of accidental aberration or
'product of a failed [or incomplete] modernity', the result of a cultural void' to be
remedied through institutional and legal reforms45 Yet, he observes, this obscures
the 'political nature of violence within modernity; it depoliticises the causes (and
consequences) of torture.46 Kelly stresses that this is not a'deliberate strategy or phi
losophy' on the part of monitoring bodies; it is simply a function of the nature of the
tasks allocated to them and of the conditions in which they work 47
At the same time, the problem of halting the investigation of causes too soon
manifests itself in a privileging of the state as the primary agent of change. For all
the constant talk of grassroots movements' and 'bottom-up strategies', governments
and their 'political will' seem to hold the key. Writing about political violence in Sri
Lanka, Vasuki Nesiah and Alan Keenan observe that a preoccupation with state
oriented remedies [has the consequence that] all claims have to be channelled
through the state. This 'domesticates more complex (and potentially more radical)
demands on the social structure, and, in the process, brings about the'demobilization
of social movements' and other forms of emancipatory struggle.48 To refer to one
final aspect, the problem of halting the investigation of causes too soon manifests
itself in a tendency to concentrate on causes that can be translated into remedial
44 T. Kelly, 'The UN Committee Against Torture: Human Rights Monitoring and the Legal Recog
nition of Cruelty' (2009) 77 Human Rights Quarterly 777, 798-799.
45 ibid, 799.
46 ibid, 800.
47 ibid.
48 V. Nesiah and A. Keenan, 'Human Rights and Sacred Cows: Framing Violence, Disappearing
Struggles' in N. Gordon (ed), From the Margins of Globalization: Critical Perspectives on Human Rights
(Lanham: Lexington Books, 2004) 261, 280.
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proposals, themselves capable of being translated into bullet-point conclusions at the

end of reports. Of course, it is the job of those preparing human rights reports to
produce such proposals; we are again talking about people and organisations doing
what they can and must. Nonetheless, we need to be clear about what gets elided
when an analysis of the root causes of human rights abuse is framed in this manner.
For the various aspects that have just been mentioned are interlinked. The need to
produce remedial proposals in reports addressed to governments and intergovern
mental organisations fosters an emphasis on technical problems and state actions.
Conversely, it discourages engagement with the systemic character of abuses and
with the contributions and further possibilities of action by ordinary citizens.
The second limitation to be gleaned from our examples is a consequence of the
first: effects are treated as though they were causes. Take the case of arbitrary detention
in Afghanistan. We have already observed how legal lacunae may be treated as the
causes of inequalities when they might equally be understood as effects of them, in
the sense of existing in part to help in stabilising a social structure that includes those
inequalities. Alongside legal lacunae, another set of issues flagged up in the UNAMA
Human Rights Units report is corruption, impunity and lack of accountability. For
the Human Rights Unit these are brute facts of the Afghan situation, and, as such,
starting-points for an explanatory analysis. But are corruption, impunity and lack of
accountability causes of arbitrary detention, or does the chain of causation again move
in the opposite direction? That is to say, do the authorities detain people arbitrarily
because they are corrupt, exempt from punishment and otherwise unaccountable, or
are they corrupt, exempt from punishment and otherwise unaccountable so that they
can (among other things) detain people arbitrarily? As noted earlier, the possibility
needs to be contemplated that arbitrary detention is not simply an anomaly or dys
function, allowed to continue through a failure of political leadership in the country
and by the international community, but is in some sense functional to, and hence
rational within, subsisting conditions.
Is this way of thinking about corruption, impunity and lack of accountability
conspiracy theory? That is, quite plainly, a familiar charge against explanatory
analyses that are conducted at the level of background conditions, enabling fra
meworks and overarching systems. From the perspective of those analyses, how
ever, such attempts to keep the focus fixed on individual decisions, policies and
behaviours are themselves bound up with the processes of systemic selfnreproduc
tion. We shall return to that point later. For the moment, one further illustration
of this reversal of cause and effect will help to make clear the concern. This exam
ple relates not to corruption and the other phenomena we have just considered,
but to racism. In remarks on the category of migrant workers', Slavoj Zizek
points to the displacement that occurs when we speak of migrant workers and
immigrants, rather than simply workers or the working class.49 '[T]he proble
matic of power exploitation ... is silently... retranslated into the multi-cultural
ist problematic of tolerance.' And so it comes to appear as if we exploit these
workers because we are racist, rather than that 'we are racist in order to exploit'
49 S. Zizek, 'Human Rights and its Discontents' lecture at Bard College, 16 November 1999 at http://
www.egs.edu/faculty/slavoj-zizek/articles/human-rights-and-its-discontents/ (last visited 16 Sep
tember 2010).
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them.50 Racism, in Zizek's account, is an effect of the deeper problem of exploi

tative class relations. To treat it as instead the cause is to depoliticise that problem
by representing it as one that can be overcome through greater tolerance.
The third limitation involves the identification of causes, only to set them
aside. Specifically, it involves the disconnection of explanatory analysis from prac
tical proposals, and of strategies for change from the investigation of material con
ditions. In an article published in 2000, Neve Gordon, Jacinda Swanson and
Joseph Buttigieg review two reports by Human Rights Watch.51 One concerns
trafficking of women and girls in Nepal; the other, bonded child labour in India.
Gordon and his co-authors note that the reports give considerable attention to the
economic context of these violations of human rights. In the case of trafficking,
for instance, there is discussion of how unequal distribution of agricultural land
contributes to poverty, and poverty sets the scene for trafficking into prostitution.
In the case of bonded child labour, there is reference to the combined effect of
factors that include alternative credit sources, adult employment opportunities,
social welfare provision and sub-living wages. But while the connection between
human rights violations and their socio-economic context is vivid in Human
Rights Watch's analysis of the two situations, it is 'almost totally absent from the
recommendations9 ultimately put forward 52 These revolve primarily around mea
sures to improve the position of victims. The organisation does not pursue the
implications of its explanatory analysis into its programmatic agenda 53
The consequences of this third limitation are twofold. On the one hand, root
causes are discussed, but not in a way that suggests the possibility of actually doing
anything about them. On the other hand, since they nevertheless remain root
causes, we are left to wonder whether the action that is proposed points to real,
historically effective conditions of emancipation or instead to 'fantastic' ones and,
to that extent,'false promises'.54 The irony here is that all this happens in the name
of 'practicality'. Perhaps we need to rethink what it means to be 'practical' in this
context. If one answer is in terms of remedial proposals and bullet-point conclu
sions, another is suggested by Chidi Odinkalu in an article entitled 'Why More
Africans Don't Use Human Rights Language 55 Odinkalu argues that more Afri
cans don't use human rights language because the human rights movement fails to
provide them with what they need. They don't need someone to inform them that
'the injustices inflicted upon them must stop, that their government should be
50 ibid.
51 N. Gordon, J. Swanson andj. Buttigieg, 'Is the Struggle for Human Rights a Struggle for Emanci
pation?' (2000) 12 Rethinking Marxism 1. See also the follow-up report of a discussion between the
authors and staff-members of Human Rights Watch,'Human Rights Watch and Global Capitalism:
A Roundtable Discussion with Human Rights Watch' (2001) 13 Rethinking Marxism 52.
52 Gordon, Swanson and Buttigieg, ibid, 7 (emphasis added).
53 For replies to this charge by Human Rights Watch, see 'Human Rights Watch and Global Capital
ism: A Roundtable Discussion with Human Rights Watch'n 51 above.
54 Gordon, Swanson and Buttigieg, n 51 above, 9, quoting K. Marx and F. Engels, The Communist
Manifesto: 'Historical action is to yield to their personal inventive action, historically created condi
tions of emancipation to fantastic ones' (criticising the 'utopian socialists). See (with a slightly dif
ferent translation) T. Carver (ed and trans), Marx: Later Political Writings (Cambridge: Cambridge
University Press, 1996) 27.
55 C Odinkalu, 'Why More Africans Don't Use Human Rights Language' (Winter 1999) Human
Rights Dialogue 2.1.
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doing better, and that the global system is working against them; they are all too
aware of those things. What they do need is a movement that channels these frus
trations into articulate demands' and political strategies. Yet the depoliticising
'practicality' of the human rights movement ensures that that is the one thing it
cannot provide. The result, he writes, is that 'the real life struggles for social justice
are waged despite human rights groups - not by or because of them'.56
PLANNED MISERY
If the current discourse of root causes is problematic in ways we have seen, in this
final part of the discussion I want to consider what a different kind of explanatory
discourse might look like. But first, let us stay for a moment with the current
discourse. How are we to understand the limitations just described? If we put
the various points together, what general picture emerges? In recent work I have
written of the phenomenon of 'false contingency'.57 This phrase is inspired by
Roberto lingers concept of false necessity.58 As is well known, Unger developed
that concept as a critical tool to help in searching out and exposing the necessitar
ian modes of thought that produce, and are reproduced by, social scientific
enquiry. By necessitarian modes of thought are meant those which make it seem
as though the world has to be as it is. False necessity brings into focus the 'fatalistic
myths' which mask the historicity of existing arrangements and prevent us from
grasping their contingency, provisionally and hence, most importantly, their
mutability.59 Underpinning this is plainly the long recognised, but still crucial,
insight that history is a social product, not given but made. And if it has been
made, then it can be remade differently. That is surely a cardinal principle of all
progressive thought. On the other hand, another cardinal principle of progressive
thought is that possibilities are framed by circumstances. While current arrange
ments can indeed be changed, change unfolds within a context that includes sys
tematic constraints and pressures.
That is the point of departure for the concept of false contingency. It reminds
us that things can be, and quite frequently are, contingent without being random,
accidental or arbitrary. Put differently, there is a kind of necessity which must be
reckoned into, rather than always contrasted with, our sense of what it is to be an
artefact of history. And since social scientific enquiry is entangled not just with
false necessity but also with false contingency, we are only doing half the job we
need to do as critics if we attend solely to false necessity. We certainly do need to
search out and expose necessitarian modes of thought. But we also need to search
out and expose voluntarist modes of thought, which mask the systematicity, and
in that sense necessity, of existing configurations of forces and relations. Note well
that the necessity referred to here is not natural' necessity - the ineluctable destiny
56 ibid.
57 See S. Marks,'False Contingency' (2009) 62 Current Legal Problems 1; and, for brief references,'Intro
duction and 'Exploitation as a Legal Concept' in S. Marks (ed), International Law on the Left: Re
examining Marxist Legacies (Cambridge: Cambridge University Press, 2008) 15-16 and 299-302.
58 R. Unger, False Necessity (Cambridge: Cambridge University Press, 1987).
59 ibid 30.
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that is falsified in false necessity; it is historical necessity - the inherited logics,

tendencies and rationalities of social systems and the momentum associated with
them.60 As such, it is itself subject to change if and when those systems are chan
ged. Note also that the concept of false contingency is proposed not as a substitute
for investigation into false necessity, but rather as a corrective or complement to it.
It attempts to renew the prominence of a dimension that has been relatively
under-emphasised in critical writing in recent years61
Against this background, the limitations of the root causes discourse we have
reviewed appear as a form of false contingency. The systemic context of abuses
and vulnerabilities is largely removed from view. Despite ? or rather, because of
- attempts to explain them, human rights violations are made to seem random,
accidental or arbitrary. And if human rights violations are random, accidental or
arbitrary, then the prospects of putting them to an end become as remote as
though they belonged to the order of nature. They come to appear necessary, not
just in the (false contingency) sense of historical necessity, but in the (false neces
sity) sense of natural'necessity. False contingency, then, brings false necessity in
its train. One further aspect is worth highlighting before moving on. It has to do
with the falsity involved here. False contingency is not a matter of what people
know or don't know; it is a matter of how they act. It seems a safe assumption that
those engaged in human rights work at the UN and elsewhere are aware that
there is a systemic context to the violation of human rights. They know that what
is involved is not simply a collection of free-floating bad events, to use Naomi
Klein's phrase.62 Yet, in their work, they act - and, as we have seen, often have
no choice but to act - as if it is. So the point is not to clear up delusions, but to
bring out the effects of action, including action against better knowledge'.63
An explanatory discourse informed by the concept of false contingency could
be fashioned in many different ways, but one is suggested by a phrase evoked at
the beginning of this article: 'planned misery'64 Viewed from the perspective of
false contingency, planned misery does not denote intended or deliberately
inflicted misery, though that is sometimes what is involved. Rather, it denotes
misery that belongs with the logic of particular socio-economic arrangements.
In a discussion of the history of the prohibition on torture, Talal Asad refers to a
distinction drawn in that context between 'necessary' suffering and gratuitous',
'wasteful' or unnecessary'suffering 65 He shows how, during the late 19th century,
this distinction was deployed by colonial authorities to discipline colonised peo
ples in a double manner. On the one hand, it was used to outlaw traditional, local
practices of punishment as gratuitously cruel. On the other hand, it was also used
to justify colonial punishments as necessary to the process of becoming civilised.
60 Regarding the quite different sense of 'natural necessity' in the philosophy of critical realism, see A.
Norrie, Dialectic and Difference (London: Routledge, 2010) esp 7?11.
61 For speculation as to the reasons for this (and also for a fuller discussion of the concept of false
contingency), see S. Marks, 'False Contingency' n 57 above.
62 n 7 above.
63 P. Sloterdijk, The Critique of Cynical Reason (Minneapolis: University of Minnesota Press, 1988) 5.
64 See n 12 above.
65 T. Asad, 'On Torture, or Cruel, Inhuman, and Degrading Treatment' (1996) 63 Social Research 1081,
1092.
(2011) 74(1) MLR 57-78 75

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In this regard, Asad cites Lord Cromer, British Consul-General to Egypt from
1883 to 1907: if cruelties were imposed in the course of colonial administration, this
was because civilisation must, unfortunately, have its victims.66 Planned misery
denotes the necessary suffering of those dispossessed, exploited and oppressed today
How then might the concept of planned misery orient the analysis of why
human rights abuses occur? At this stage I can provide only a brief, initial sketch,
in terms of five interlinked elements. To begin with, it would encourage a per
spective that is anti-moralistic. In place of the question of what governments and
others should' do, the central issue would be why governments and others are
doing what they are doing, and not doing what they are not. Having determined
that abuses are occurring, we would stay with the indicative mood of actuality,
rather than shifting into the subjunctive mood of unreality and wish-fulfilment.
Beyond that, such an approach would also foster greater reliance on transitive con
cepts - that is to say, concepts that express direct actions on people and things. The
concept of discrimination looms very large in discussions of human rights abuse,
but it expresses an indirect relation. If I discriminate against you, the action does
not 'pass over' to you, and we are less tightly entwined with one another than if,
for example, I exploit you. Transitive concepts such as exploitation, marginalisa
tion, dispossession and displacement are generally more telling, because more
basic to the understanding of social systems, than intransitive concepts, and think
ing about planned misery would prompt us to explore their significance for
human rights more fully than at present.
At the same time, thinking in these terms would promote attention to the rela
tional character of social phenomena. The human rights movement is structurally
predisposed to focus on victims - they are the ones to whom the rights violated
belong. In recent decades, with the development and institutionalisation of inter
national criminal law, there has also been scrutiny of perpetrators, at least in the
case of abuses that constitute international crimes. But very little mention is ever
made of beneficiaries. Those who (directly or indirectly) live off the practices and
processes that victimise others have been allowed to remain comfortably out of
sight. Challenging that invisibility, the concept of planned misery would insist
on the question of how deprivation and privilege interrelate. A further concomi
tant would be an emphasis on materialist explanations - that is to say, explanations
that account for phenomena not only in terms of the ideas informing them, but
also in terms of their connection to processes of social production. To be sure, it is
important to uncover problems at the level of ideas. But if we are fully to under
stand a situation, it is also important to delve deeper and ask about the socio
economic conditions within which those ideas were able to develop and gain
influence. So where abuses are currently explained with reference to bad policies,
laws and interpretations, the concept of planned misery would urge enquiry into
the material context of such harmful thinking.
Finally, an approach oriented to the concept of planned misery would have a
repoliticising thrust. Explanatory analysis would be geared less to problem-solving
and the elaboration of remedial proposals (the style of root cause analysis'pursued
66 E. Baring, Earl of Cromer, Political and Literary Essays, 1908-1913 (London: Macmillan, 1913) 44.
76 (2011) 74(1) MLR 57-78

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Susan Marks
in business, administration and management) than to the strategic task of

channelling grievances into organised and coherent action. Of course, explana
tory analysis cannot itself specify the forms of that action, but it can be under
taken in ways that contribute more and less to effective political mobilisation.
For instance, as we have already observed, a preoccupation with state-oriented
remedies tends to domesticate potentially radical demands on the social structure
and bring with it the demobilisation of oppositional activity. Likewise, the repre
sentation of abuses as products of a local dysfunction, historical accident or
cultural gap tends to reduce the salience of political struggle. The idea that human
rights implicate questions that are not simply technical, but political, is today
quite widely acknowledged.67 But, most commonly, that puts the accent on
particular practices and their distributional consequences, rather than on a collec
tive project and its goals. In critical reflections on the international human rights
movement, David Kennedy calls for a more 'pragmatic attitude to human rights
that '[weighs] the costs and benefits of various alternative forms of engagement -
political, legal, ethical, philosophical, and so on 68 The concept of planned misery
would invite us to consider the conditions under which all such calculations are
made. It would take us beyond 'pragmatism and 'practicality' to praxis, beyond
distributional consequences to the organisation of productive processes, and
beyond 'fantastic' possibilities to real, historically created ones.
CONCLUSION
We began with Naomi Klein's claim that the commitment of the human rights
movement in the 1970s to neutrality and impartiality, while understandable and in
some ways helpful, had significant negative effects. The determination only to
document abuses and not to try to explain them meant that human rights became
a set of blinders. And if those blinders prevented us from seeing what was causing
abuses, then they also prevented us from seeing what it would take to make the
abuses cease. Since the 1970s, however, and especially in recent years, things have
changed. The human rights movement has not renounced its commitment to
neutrality and impartiality, but, at least as far as the UN and leading international
non-governmental organisations are concerned, this is not now understood as
barring the question of why abuses occur. On the contrary, a human rights
approach is held to demand attention to the 'root causes' of violations.
Are we to infer from that that the problem Klein identifies has gone away? Our
investigation suggests reasons for doubt. If the root causes' discourse that has
emerged within human rights circles reveals some aspects of the explanation for
human rights abuse, the examples we have reviewed provide evidence that it can
also conceal other aspects. In particular, we have observed how flaws have been
illuminated at the level of law, procedure and policy. Yet these flaws have been
67 See eg, O. De Schutter, n 41 above (arguing that the human right to adequate food 'asks questions
that are political and not merely technical').
68 D. Kennedy,'The International Human Rights Movement: Part of the Problem?' (2001) European
Human Rights Law Review 245, 246.
(2011) 74(1) MLR 57-78 77

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made to seem like simple misunderstandings or oversights, deficiencies of

leadership or accountability, or quirks of local history or culture. The idea that
they may themselves be explicable with reference to some wider systemic context
has been mostly removed from view. For all the insistence that human rights
abuses and the vulnerabilities which expose people to them are man-made disas
ters, the drift of our analysis is that natural disaster is the model on which the expla
natory effort is imaginatively constructed.
In theoretical terms, I have characterised this situation using the twin concepts
of false contingency and false necessity. Insofar as abuses are made to seem ran
dom, accidental or arbitrary, false contingency is involved. But insofar as that then
leads us to resign ourselves to their persistence, false necessity follows. They
become, as we have just seen, man-made disasters modelled on natural ones. As
one possible alternative; I have described an approach in which the orienting con
cept is not root causes, but instead planned misery. Is this impractical? Does plan
ning imply conspiracy? Part of the distinctiveness of planned misery is that it
prompts a reconsideration of what constitutes practicality in this context and
how charges of conspiracy theory are to be understood. Whether or not that line
of enquiry proves fruitful, Klein provides an excellent vignette of what may be at
stake. In a way', she writes, what happened in the Southern Gone of Latin Amer
ica in the seventies is that it was treated as a murder scene when it was, in fact, the
site of an extraordinarily violent armed robbery.'69
69 N. Klein, nl above 125.
_0 ? 2011 The Author. The Modern Law Review ? 2011 The Modern Law Review Limited,
/o (2011) 74(1) MLR 57-78

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Human Rights and Root Causes

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Stable URL: https://www.jstor.org/stable/20869048

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Most histories of the international protection of human rights begin in the

*Professor of International Law, London School of Economics.

1 N. Klein, The Shock Doctrine (London: Penguin, 2007) esp 118-128.

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market libertarianism'promoted by Milton Friedman and his associates.8 But just

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We have seen something of what is involved in the explanatory turn in interna

Example 1: arbitrary detention

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law reform, an awareness-raising campaign, and the provision of enhanced over

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emphasis on public education. A much stressed aspect of the recommendations is the

Example 2: disaster relief

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30 Hallward, 'The land that wouldn't lie' ibid.

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Example 3: food crisis

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through plantation and avoided deforestation. While these arrangements brought

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De Schutter s answer is primarily twofold. On the one hand, insufficient atten

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CAUSES AND EFFECTS

These examples testify to the substantial and wide-ranging engagement of the

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proposals, themselves capable of being translated into bullet-point conclusions at the

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them.50 Racism, in Zizek's account, is an effect of the deeper problem of exploi

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that is falsified in false necessity; it is historical necessity - the inherited logics,

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in business, administration and management) than to the strategic task of

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made to seem like simple misunderstandings or oversights, deficiencies of

69 N. Klein, nl above 125.

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