Will human rights law actually save us from fascism?
By the time fascism fully unfolds at the political level, human rights law may not only come too late, it may even have contributed to transforming the state.
A number
of articles speak about fascism and also about the relevance of human rights to
current political events, but I have not seen a piece that addresses directly
the question of how human rights law would deal with a fascist regime.
There are many histories of international human rights law, just as there are many histories, justifications and critiques of human rights. Part of that history on the European continent was fascism, the Nazi Holocaust and the belief that the atrocities of the early twentieth century could have been averted, had an effective legal system for the protection of human rights existed at that time.
Other factors too were crucial, including the containment of the communist ‘threat’, but the faith in an institutional machinery for human rights protection as a shield against fascism at the international level was central to the introduction of the European Convention on Human Rights (ECHR) in 1950.
In the face of a mounting far-right resurgence across the European continent and beyond, with the Trumps, the UKIPs and the Le Pens fuelling and normalising xenophobic and racist discourses and practices, one is prompted to ask: are we any more immune to the atrocities of the early twentieth century? Will human rights law save us from the threat of fascism?
The question is important, not because of my own faith in human rights in the struggle against fascism, but because human rights law constitutes one of liberal democracy’s last lines of defence against its political consolidation.
Proponents of human rights (and legal constitutionalism more generally) often justify human rights as limits to the ‘excesses’ of majoritarian representative democracy. The idea itself implies a certain contempt for the masses that cannot be entirely disassociated from the present crisis. But leaving that point to one side, now that liberal democracy has delivered us far-right regimes in Hungary, Poland, the US, India and possibly France, there is cause to ask whether human rights law will deliver on its promise of a future without fascism or whether there is an urgent need for liberals not only to awaken to the realities of the present political conjuncture, but also to the limitations of their own strategies of resistance.
European human rights framework
In what follows, I am concerned with the European human rights framework, but the issue is obviously of wider significance. For want of space, I cannot look at how human rights law would deal with a fascist party seeking access to the democratic arena. Neither can I address how the ECHR has dealt with individuals propagating racist and fascist views. But these questions are crucial to understanding how fascist organisations may find the legal space to grow from within a rights-based liberal democracy.
In this short contribution my aim instead is to consider what would happen if a fascist regime were to come into power in Europe, whether elected from an explicit fascist platform, or through a far right nationalist agenda that subsequently develops along authoritarian and fascist lines. This is a condensed form of a far broader and more complex argument, but there are two main reasons, I think, why the human rights framework is unlikely to deliver on its promise.
Human rights and the rise of fascism
Fascism is anathema to the concept of human rights or, for that matter, liberal values more generally. It is the institutionalisation of what Robbie Shilliam aptly calls ‘colonial difference’, the ‘multi-faceted and (only) partially mutable racialized division of humanity into the humans who deserve empathy, dignity, rights protections and the satiation of needs – and those who are not deserving of the same’.
This is not only contrary to specific rights such as the right to be free from discrimination. Fascism goes against any notion of a universal human right and of equality before the law. The point is obvious, and yet, it is not at all clear that the human rights framework could prevent its juridical anti-thesis from coming into power, particularly if the fascist regime is eventuated through the democratic process.
The laws and practices of such a regime could be challenged on human rights grounds. But this is different from saying that human rights law could be used to prevent or challenge the election of a party with fascist views. Article 17 ECHR provides that ‘nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention’.
But this addresses activities that annihilate human rights; it does not directly speak to the question of the political ideology of a regime or the political formation of the State. It aims also to exclude reliance on the Convention, typically by individuals engaged in activities such as hate speech or racial discrimination claiming the protection of Article 10 ECHR on freedom of expression.
It cannot be invoked in a self-standing manner to challenge the actions, let alone nature, of a state. It speaks to some of the limitations of this framework that, for example, an openly neo-Nazi party like Golden Dawn sits with a comfortable 7% in the Greek Parliament.
Emergencies and the consolidation of fascism
In addition, the ECHR would not necessarily prevent a regime with fascist aspirations from derogating from its human rights obligations and beginning to adopt measures that would facilitate the emergence of a fascist state. The ECHR was partly drafted with a view to avoiding a remake of the Weimar Constitution, which was suspended throughout the period of the Third Reich. Article 15 ECHR still enables states to derogate from their human rights obligations, but it makes these derogatory regimes subject to conditions and to the supervision of the European Court of Human Rights (ECtHR).
In particular, the Court is to verify whether there is a ‘war or other public emergency threatening the life of the nation’ that justifies departure from the ECHR, and whether the measures taken do not go beyond what is ‘strictly required by the exigencies of the situation’. Yet, there are reasons to doubt the ‘resilience’ of this framework to the Schmittian problem of ‘the exception’.
There is first a question of timing. Under Article 15 ECHR, a state must inform the Council of Europe of the reasons for its derogation and the measures they have taken to address the situation. But it could be years before the ECtHR comes to rule on the legality of a derogation, by which time the framework necessary for the institutionalisation and entrenchment of fascist ideology and praxis could already be in place.
Matters could be somewhat speeded up if the action were brought by another state rather than an individual victim. But such inter-state claims remain marginal and become even less likely under conditions of general convergence towards the far right. Despite allegations of torture and calls for the re-introduction of the death penalty – both of which are forbidden even under conditions of emergency – no state has yet challenged Erdogan’s derogation from the ECHR following the failed military coup of July 2016.
Second, there are questions about the effectiveness of judicial control. The ECtHR’s general approach to Article 15 ECHR has been to accord states a high ‘margin of appreciation’ on the ground that national authorities are best placed to determine whether an emergency exists, and what measures it may require. This limited review has been criticised, but judicial control will always face limitations that are inherent to the capabilities and function of the judiciary.
Already, the result has been a dilution of the legal constraints on the boundaries and methods of ‘the exception’. Throughout the years, the distinction between normalcy and the emergency has largely collapsed. There is no longer a need for the state to demonstrate the existence of an imminent and concrete threat – intelligence over a possible terrorist attack on UK soil following 9/11 was held to be sufficient to meet the requirements of Article 15 ECHR. Coupled with the malleability of the definition of ‘terrorism’, that gives states considerable leeway in crafting the conditions of a state of emergency.
Instrumentalising emergency powers
Neither has the ECHR done much to prevent the instrumentalisation of emergency powers. Many of the measures that were introduced in France under the state of emergency in place since the Paris attacks of November 2015 have since been used to suppress political activism. Famously, a shoe protest was staged after the climate march was banned in March 2016 during the UN summit on climate change. And various political activists were forbidden to attend demonstrations and strikes against the “Loi El-Komhri”, a controversial law dismantling much of the labour law guarantees for workers. Similarly, Erdogan has used the emergency in Turkey to further clamp down on the press, universities, public officials and the opposition.
Finally, although Article 17 ECHR could in theory prevent a fascist regime from invoking Article 15 ECHR, this would require a frontal questioning of the character, practices and future intentions of the regime, which the European Court has shown little willingness to make. In the so-called ‘Greek case’, several states objected to the invocation of Article 15 ECHR by the Greek military junta. Their argument was that Article 17 ECHR excluded derogations that were aimed at the destruction of the rights and freedoms set forth in the Convention. The Commission did not address the question, as it found that the junta had failed to establish that an alleged communist conspiracy existed and threatened the life of the Greek nation. But nowhere in the judgment did it take an explicit stance on the character of the regime.
Even if one were to object that this episode forecloses the possibility that the ECtHR would take a more forceful stance towards a fascist regime, it is unlikely that any such regime would come into being through an explicitly fascist platform that would dispense with the need to take a hard look at the situation on the ground.
In addition, the form and conditions for fascism are historically and geographically contingent: its trajectory and mode of operation may be very different from that which was experienced in Nazi Germany or fascist Italy during the 1930s, however helpful some analogies and comparisons may be to understanding the present political conjuncture.
If a fascist state were to come into being, the likelihood, and fear, is that it will do so as a particular stage in the development of the social conditions that gave rise and put in power the far-right, such as the hegemonisation of the anti-immigration and racist discourses that we hear all so often in debates over Brexit or the refugee crisis.
By the time fascism fully unfolds at the political level, human rights law may not only come too late, it may even have contributed to the conditions that facilitated the transformation of the state, be it through its acceptance of a state of emergency or of the free expression of xenophobic and racist ideas. .
The scenario is not as far-fetched as it might sound. In France, the state of emergency made the space for the introduction of institutionalised forms of racism and Islamophobia, as the controversial Burkini Ban adopted on grounds of ‘peace and public order’ demonstrates. The French Council of the State (Conseil d’Etat) set aside some of the bans, but various regional bodies still refuse to comply and one is left to wonder how the state of emergency will unfold if Le Pen is elected.
The Front National may not at present be advocating the imposition of a fascist state or organising itself through the sort of extra-parliamentary quasi-military groups that we see with Golden Dawn in Greece, but this is more a matter of political conjuncture, and particularly the weakness of the organised left, than an ideological renunciation of fascist ideas.
So legally, the situation is different from the 1930s. At the time, there was no international human rights regime in place that could be brought to bear on the internal activities of the state. It would however be naïve, and dangerous, to think that the human rights framework will deliver on its promise to curb the impulses of fascism. During a period of capitalist crisis, liberal democracy made space for, and quickly accommodated, the Trumps and the Farages of this world. On Trump’s election, Obama and Clinton did not call for demonstrations in the streets.
On the contrary, they handed over the keys to present a façade of business-as-usual. There is no basis to think that human rights law will cope any better with the consequences of a resurgent far right. And there is therefore no space or time for complacency.