1 1/3 where / the rift is, the break is

In its bones international human rights law holds a story that has been retold again and again over millennia. Like Cinderella, its story ‘can be told in many different ways, and the details vary, but its fabula or bones remain the same’.

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Whatever way it is told, whatever idea-systems used to support its existence, we, as Hersch Lauterpacht discerns, you and me, are its material source. In part 1, I hold out the golden bough to you, dear reader, and step into the shadows: the half-light and failing-light. Here, over three posts, I begin by telling not just what’s in the story, but what created it. The darkness, the beauty it deflects, and the silences and absences left behind.

the generative force

At the crater lake, the Roman portal to the underworld, Louise Glück bares this story and international human rights law’s radical or root source.

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Our temporal existence and essence.

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Our grace. Our beauty. And, as Martha Nussbaum philosophises, its ‘inseparability from our fragility’.

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‘You will not be spared, nor will what you love’ she warns. So Cormac McCarthy’s character whispers to his sleeping son — I have you.

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But this, the brightness of being, and its fragility, is only the story’s root; its material beginnings, the source of the law’s generative force. Because as Ursula Le Guin’s Shevek explains ‘we can’t prevent suffering’.

So international human rights law’s story begins with ‘unnecessary suffering’. Not ‘this pain and that pain’, but suffering that need not be. Pain, distress, privation and harm that rises our sensibility to justice, that irks or even enrages. Because it was not an effect of our temporal existence or the fragility of living a good life; nor some terrible accident. Because it was unnecessary or remedial. Because it might have been set right and still may be, even transformed.

instancing grand proofs

Our susceptibility and sensibility to suffered injustice, then, sets off a fabula, with a rhythm as old as our beginnings. Mid 20th-century’s vaporised dead and emaciated living, cast out from humanity, on the basis of — nothing but — their humanity, laid bare its score in extremity. Not that this was entirely new, but this time there could be no not seeing or knowing: the barefaced evidence, the terrifying logicality, systemised, organised, borderless and the expedient reality of a common foe.

When the witness Bach Zelewski was asked how Ohlendorf could admit the murder of 90,000 people, he replied: ‘I am of the opinion that when, for years, for decades, the doctrine is preached that the Slav race is an inferior race, and Jews not even human, then such an outcome is inevitable.

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Nor was our sudden inclination for seeing entirely equal. Who for example remembers the ‘five hundred Hiroshima schoolgirls’?

The sculptor gives us three of them,

three thirteen-year-olds

two with plaits, one with bobbed hair,

holding a box marked E=mc2.

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Even so, the ineffable brought us back to 'our beginnings / in which we have an origin like water’. To accepting in public international law, in exact and discernible treaty law, the state’s artifice and yielding its power to emphatically recognise our grace — and claim to have rights. The United Nations (UN) Charter, the Charters of the International Military Tribunals and attendant judgments forged a bedrock for this claim’s development.

the intended cure

The right to belong to humanity or the right to have rights, as Hannah Arendt opines, is the supposed cure: the prophylactic and the remedy.

Crystallised into an itemised list of rights-claims, universalised as customary and treaty law and assumed by states as legal obligations, its words do not yield their source easily.

Something we hadn’t [quite] seen revealed. / Only the meaning wasn’t revealed.

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Like filaments of scar-tissue, then, this body of law forms mostly invisible above the wound. Until, again and again, the music of what happens bares its material source and generative force. Because as Justice Cançado Trinidade might concur, voices stilled by suffered injustice are preserved in lament. And in that 'shadow of a sound', as this judgment suggests, hope, lives.

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The measures of protection have, in my understanding, been ordered by the ICJ [International Court of Justice] to safeguard the fundamental rights of those who remain, in the tragedy of Myanmar, in a continuing situation of extreme vulnerability, if not defencelessness.

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1. S Hustvedt ‘Three Emotional Stories: Reflections on Memory, the Imagination, Narrative and the Self’ Neuropsychoanalysis (2011) 13 (2) 187-196 190 [‘Cinderella can be told in many different ways, and the details may vary, but the fabula, the bones of the story, remain the same. The narrative mode contextualizes the meaning or valence inherent in every emotion. It pulls together and makes sense of disparate sensory and affective elements.’]

2. Merriam-Webster Dictionary (2023) [Radical from the latin radix or root: of, relating to, or proceeding from a root.]

3. L Glück Averno (2006)

4. M Nussbaum The Fragility of Goodness (2001) [‘…part of the peculiar beauty of human excellence just is its vulnerability.’]

5. C McCarthy The Road (2006) [‘No list of things to be done. The day providential in itself. The hour. There is no later. All things of grace and beauty such that one holds them to one’s heart have a common provenance in pain. Their birth in grief and ashes. So, he whispered to the sleeping boy. I have you.’]; U Le Guin The Dispossessed (1974) [‘For after all, he thought now, lying in the warmth of Takver’s sleep, it was joy they were after — the completeness of being. If you evade suffering you also evade the chance of joy.’]

6. Judgment of the Nürnberg International Military Tribunal (1946)

7. M Cannon ‘Hard Lessons’ Donegal Tarantella (2019)

8. L Glück ‘Averno (4)’ Averno (2006)

9. Judge Cançado Trinidade Separate Opinion [citing Cecília Meireles’s Os Mortos] Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) Order of 23 January 2020 ICJ Reports 2020 69

10. C Meireles Os Mortos (1945) and Apresentação (1949) [‘Here is my voice: / The empty shell / The shadow of a sound / Preserving its own lament…’]