by Thomas Buergenthal In reflecting on the title of my talk “Never Again: Understanding the Past to Prevent Future Holocausts,” I came across a most depressing quote by Georg Hegel, the German philosopher, who declared: “What experience and history teach is that people and governments have never learned anything from history.” Better known is George Santayana’s less depressing line: “Those who cannot learn from history are doomed to repeat it.” If Hegel is right, we will have learned nothing from the Holocaust. But I am more optimistic and believe with Santayana that we can learn from history. It should therefore be asked whether mankind has learned anything from the Holocaust?
My general conclusion is: Mankind unfortunately is a slow learner. How else to explain the fact that for the past 65 years we have been proclaiming “never again,” only to have to recognize, at the end of yet another genocide, committed in one part of the world or another, that “never again” has once more become “never again until the next time.”
That unfortunately is the lesson many people take from Cambodia, Rwanda and the terrible crimes that were committed during Balkan wars; from the mass killings and rapes in the Congo region; from Darfur, from Stalin’s gulags that continued for many years after the Second World War; and the terrible brutality by which some contemporary strongmen and military regimes still maintain themselves in power.
It would nevertheless be a mistake, in my opinion, to believe that no real progress has been made or that no further progress is possible as far as human rights are concerned. It is true, of course, that the Holocaust did not bring about an end to later genocides. But it cannot be denied that we have over the years witnessed significant improvements in the world’s human rights situation. Keep in mind, too, that we never hear about genocides that have not occurred. In short, I believe mankind is learning, albeit slowly.
Here is a partial list of some recent human rights advances. It is quite impressive. I begin with the demise of the Soviet Union and its terrible gulags. Then there is the end of apartheid in South Africa. When I was elected to the Inter-American Court of Human Rights in 1979, most of the nations of Central and South America were still governed by oppressive military regimes or dictatorships of the left or the right. With one or two exceptions, that is certainly no longer true today. Until the end of the 1960s, much of Africa and various other regions of the world were in the hands of brutal colonial regimes. Although one can argue about whether some successor governments of the former colonial regimes treat their populations any better than their erstwhile colonial masters, the fact remains that there certainly has been some progress, albeit not as much as one would like. The human rights situation has also improved noticeably in some former colonial countries that have gradually rid themselves of their homegrown oppressive one-party regimes.
Over the years, contemporary international human rights law and the institutions it has created have had a very significant impact on human rights conditions in many parts of the world. When Hitler came to power in Germany in 1933, states were free to treat or mistreat their nationals as they saw fit. This meant that Hitler did not violate international law by embarking on the extermination of German Jews or stateless persons. It also meant that other states, which might have wanted to intercede on their behalf, did not do so in order not to violate the international law applicable to non-intervention in the domestic affairs of states. In short, with some minor exceptions, the rights of human beings as such were not protected by the international law of the pre-World War II era.
The regional and international human rights treaties in force today did not exist before the Second World War, and neither did the regional human rights courts and international commissions that are designed to protect individuals against human rights violations. The genesis of these laws and institutions can be traced to the Holocaust. Some scholars have even argued that the Holocaust might have been prevented, while it was still in its early stages, had there existed an international human rights system similar to the one we have today. After all, Nazi Germany’s extermination policies evolved gradually, particularly before 1940, when effective international intercession might have had a deterrent effect and prevented more drastic measures. I prefer to leave it to historians to debate this point, but it is certainly something to think about.
Today there exist three regional human rights systems: we have the European Court of Human Rights, the Inter-American Court and Commission of Human Rights and the African Court and Commission on Human and Peoples’ Rights. Each of these judicial institutions operates under its own regional human rights treaty. Of course, some of these tribunals are more effective than others. That is to be expected because each of these three regions confronts different political, economic and social problems.
In addition to the ever evolving regional human rights law, we also have a large body of UN human rights law. It began with the Genocide Convention and the Universal Declaration of Human Rights whose adoption in 1948 was driven by the then still very vivid memories of the Holocaust. These pioneering human rights instruments were followed by what has become a vast international human rights code, consisting, inter alia, of the International Covenants on Human Rights and various UN conventions that deal with racial discrimination, slavery, women’s rights, torture and children’s rights, to mention just a few. So-called UN treaty bodies have been established to supervise the implementation of the rights guaranteed in each of these conventions. Many of these treaties have, moreover, become part of the national law of the states that have ratified them, with the result that they are directly applied by the national courts of those countries.
Today, too, we finally have a permanent International Criminal Court, established in 2002 under the Rome Statute. More than 110 countries are now parties to it. The Balkan wars and the Rwanda genocide prompted the UN Security Council in the early 1990s to establish the ad hoc International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda. These two bodies have in the meantime sentenced and continue to sentence many individuals found guilty of war crimes, crimes against humanity and genocides. Similar ad hoc tribunals now also exist for Sierra Leone and Cambodia.
It should not be forgotten, moreover, that for about 50 years after the Nuremberg and Tokyo War Crimes Tribunals, there existed no international criminal tribunal to deal with war crimes, crimes against humanity and genocide. The opposition of governments was simply too strong despite what should have been learned from the Holocaust. It was not until the UN found it necessary to establish ad hoc criminal tribunals to deal with the crimes that were being committed in Rwanda and the former Yugoslavia, that the need for a permanent international criminal court was finally recognized. It is regrettable, though, that some countries ‑ among them sadly the United States ‑ are still not parties to the ICC.
The existence of the regional human rights courts and international criminal tribunals I have identified, as well as the vast body of international and regional human rights legislation and court-made law, have pushed human rights issues to the fore of the policy agendas of national governments and international organizations. Today an increasing number of international conferences deal with human rights issues. These developments, in turn, have spawned a plethora of national and international human rights NGO networks. They span the globe and play an ever more important role in promoting the protection of human rights by alerting the world to human rights violations, by lobbying for human rights legislation, and by filing national and international human rights complaints. And then there is the Internet, which plays an ever more important role in alerting the world, in almost real time, to serious human rights violations taking place in far away countries. In the old days, such information might not have been heard of in time for outside help to be provided. It is quite different today and that can frequently make a real difference.
None of these laws, courts or related institutions and groups existed before the Holocaust. Some of them were in fact established as a direct consequence of the Holocaust. That was true, in particular, of the European Convention of Human Rights, which came into being in the early 1950s. It was strongly promoted by European leaders who had experienced the Holocaust and Nazi occupation. We should also not forget that the Genocide Convention and the Universal Declaration of Human Rights were adopted while the Holocaust was still fresh in the minds of the international community.
It is clear, of course, that none of these institutions and laws have been able to prevent some of the terrible violations of human rights that have been committed since the Holocaust. It is equally clear that the existing international human rights system still leaves much to be desired as far as its effectiveness and evenhandedness are concerned. The impunity that some contemporary perpetrators of gross violations of human rights continue to enjoy remains a serious problem, as is the readily apparent failure of the international community to prevent some governments from continuing to engage in serious violations of human rights. The number of these governments is fortunately much lower today than it was 40 or even 30 years ago, but it remains a serious problem.
As you can see, it is not true that we have learned nothing from the Holocaust or, for that matter, from some subsequent genocides. Of course, there is still much more to be learned. But to say that nothing has been learned is to close one’s eyes to the continuing improvement of the human rights situation in many parts of the world. That improvement needs to be acknowledged lest we despair and give up hope that further progress is possible.