A man in Gaza City (MOHAMMED ABED/AFP via Getty Images)

December 8, 2023   7 mins

Religions die hard. They promise something better, something truer, more powerful and lasting than our familiar cruelties, corruptions and deaths. Their traditions take shape over time; they develop rituals, build communities, give life order and meaning, and at their best bring forth genuine prophets and authentic saints. But eventually, the very things that keep religion going become their own idolatries, giving demonic cover for the very same cruelty and corruption religion sought to combat.

Any number of religions have passed through this cycle of birth, growth, decay, reformation and renewal. The latest is a religion born 75 years ago this week — the religion of human rights.

Sadly, it is hard to escape the conclusion that the manifest failures of the human rights framework as we know it today, and its grotesque contributions to the evil it is meant to fight, are not a bug of the system, but a feature. For decades in the Middle East, the UN’s countless Declarations, Covenants, Reports, Commissions and disproportionate denunciations of Israel did nothing to stem the chain of conflicts, cruelties and injustices that led to the horrific massacres of October 7, the subsequent flattening of much of Gaza, with hundreds of thousands of people displaced and innocent hostages buried alive in tunnels. Indescribable butcheries and tortures, and even documented gang rapes, were met by UN bodies, human rights NGOs and women’s organisations with thunderous silence. It took nearly two months for UN Women to even acknowledge these horrors at all.

Elsewhere, responses were more insidious. On 18 October, Human Rights Watch announced that it had verified “three incidents of deliberate killings” taking place during “the October 7, 2023 attacks by Hamas-led gunmen”. Three. In a statement issued on 8 November, it called on the US, UK, Canada and Germany to suspend military assistance and arms sales to Israel, detailing what it described as “widespread, serious abuses amounting to war crimes against Palestinian civilians”, with scarce mention of Hamas, other than one line calling on “Iran and other governments” to stop arming them. A week later, any lingering benefit of the doubt vanished after an outgoing senior editor there explained that this bloodless response to the bloodiest day for Jews since 1945 “did not happen in a vacuum”. Rather, “Human Rights Watch’s initial response was the fruition of years of politicisation of its Israel-Palestine work that has frequently violated basic editorial standards related to rigour, balance, and collegiality.”

In fairness, Human Rights Watch’s passing mention of Iran, though the kind of perfunctory ritual that gives insincerity a bad name, was still better than most anything coming from Amnesty International. But, then, Iran has long assumed a peculiar role in the world of human rights. Just last month, Hamas’s most prominent sponsor, a regime that openly imprisons and tortures dissenters, was allowed to chair a meeting of the Social Forum of the UN Human Rights Council in Geneva. Yet few eyebrows were raised: over the decades, we have learned to shrug off such quirks with cockeyed optimism, convincing ourselves that they don’t really matter. But they do. And even by the comically degraded standards of UN human rights bodies, this was breathtaking.

More to the point, the Iranian regime is able to participate in the world of human rights institutions precisely because, like the Soviet Union before it, it does not believe in them at all. Not that the Iranians, Hamas and other Jihadists don’t have principles. They certainly do, and we discount them at our peril. In the moral universe of Jihadism, the well-being of individuals, and certainly of infidels, dissolves into nothingness in the face of the divine; and the violence of October 7 was its own kind of worship. Oscar Wilde’s quip that “hypocrisy is the homage vice pays to virtue” turns out to have been tragically optimistic. When it comes to human rights, hypocrisy is the Devil’s method of rotting goodness from within.

How did we end up here? The concept of human rights feels both extremely old and extremely new. It echoes messages of justice, ethics and respect for human personhood known throughout history, and yet it also propounds a notion of universal rights not enunciated until the end of the Second World War. The year of the Universal Declaration of Human Rights, 1948, was also the year of the Genocide Convention, the desegregation of the US Armed Forces, the creation of the State of Israel, and the Berlin Airlift. It saw the birth of the American-led international order that would define our lives in terms of human rights, free trade, aspirations to racial justice, and the creation of nation-states for oppressed minorities. It was that year, more than 1945, which in many ways gave birth to the world order that is now collapsing before our eyes. But the idea of human rights was also built on the past.

Notions of the sacredness of human personhood and the unique claims of human dignity have been with us for millennia. Our modern understanding of human rights, though, first emerged from ideas of “natural rights” that had fuelled Europe’s and America’s political revolutions in the 18th century. Those revolutionaries, as well as the Abolitionists and Humanitarians of the 19th century, synthesised rich religious legacies of moral reflection and the sacredness of human life with modern concerns for individual well-being and nations’ aspirations for self-determination. During the heat of the Dreyfus Affair, Émile Durkheim wrote that this concern for individual well-being was a new kind of religion, a new moral order around which society would hopefully convene.

A number of the drafters of the 1948 Universal Declaration were committed to the religious traditions on which they drew, East and West, translating their ideas into the depersonalised, secular idioms of international law. It was hoped that unmooring these ideas from their theistic foundations would make them universally relevant to the making of a better world. Later, however, amid the pressures of the Cold War, the impulses of the human rights creators diverged. Some favoured strengthening decent government and rule of law at the levels of individual states, while others leaned towards creating transnational versions of individual states’ legal systems, along with the vast panoply of councils, committees, rapporteurs and subcommittees made necessary by the absence of decent government and rule of law in so many UN members states.

It was not until the Seventies, once the failures of Soviet and Chinese communism and the disappointments of decolonisation were beyond dispute, that human rights returned to the stage in what Samuel Moyn calls “the last utopia”. Alongside this rose a vast network of human rights advocacy, forced to tack between the genuinely noble idea of transnational standards of justice with the inevitable necessity of choosing sides. Though they advocated a kind of anti-politics, they inevitably ended up as political actors in the global arena.

As always, the great sticking point was the Jews. As James Loeffler has brilliantly shown, the same Jewish jurists were deeply involved in the Universal Declaration and in Zionism, seeing in both an answer to the disastrously failed minority rights treaty system of the League of Nations.

But the roles of Jewishness and antisemitism in the larger story of human rights go even deeper. For millennia, Jewish existence has been a puzzlement to others, and regularly to ourselves. From Biblical times to today, the Jewish people have proclaimed a universal God with ethical demands on the basis of a particular covenant with Him and one another. In other words, Jewish existence always puts into question the relations between the national and the universal, the powerful and the powerless, the religious and the secular. We never fit into standard categories. There have been moments when this Jewish synthesis has risen magnificently onto the world stage, such as the Soviet Jewry Movement, lasting from the Sixties to the Eighties, in which universal rights, national identities and the larger causes of democracy and freedom all came together. But those times are exceptions.

The theological-political tensions of human rights — between the sacredness of individuals and the just claims of collectives — are well illustrated by the path of Amnesty International’s founder, Peter Benenson. A British Jew who worked hard to help Holocaust refugees, he eventually converted to Catholicism. Crucially, the Catholic doctrines he espoused were not the Thomist natural law teachings that played a large role in the post-war formulations of human rights, by which personhood, if ultimately beyond the state, is nonetheless enmeshed in webs of obligation and social order, which makes democratic states qualitatively different from others. Instead, they were rooted in the Augustinian teachings of the irremediable sinfulness of this world, and the lonely purity of the individual, no matter the state or social order against whom they rise, be it democracy or dictatorship.

These seeming abstractions had powerful real-world effects. For Benenson and Amnesty International, the violation of any one individual’s human rights is unacceptable, no matter the larger political and social system in which that person lives, be it democracy or dictatorship. That is a noble judgment, and a beautiful one. It is also, sadly, an invitation to the mindless legalism that can lead to Iran chairing a meeting of the UN Human Rights Council.

The Soviet Union, for its part, freely signed any number of human rights documents because it had no intention of keeping them, and Leninist ideology said it didn’t have to. That not just dissidents, but the United States itself, would hold them to those obligations as they did in the late Seventies came as a bitter surprise.

With Western victory in the Cold War, human rights seemed poised finally to become a universal dispensation and a culmination of the best impulses of history. But this turned out to be a deeply destructive delusion. Today, the religion of human rights is as badly in need of reformation as was the priestly religion of ancient Israel, the Catholic Church in the time of Martin Luther, and, yes, Islamic thought after the frenzies of Jihadism will finally, hopefully, have exhausted themselves.

A reformation need not spell the end of human rights, but their re-birth. Human rights embody the precious notion, wrested from centuries of awful suffering, that there are certain things no state may be allowed to do ever, to anybody. Around the world, there are people standing up to dictatorships with unbelievable bravery and nothing legally to interpose between their governments and themselves but the human rights treaties and conventions that their governments have signed.

But a reformation is still necessary. Partly, this is a question of disaggregation. The term human rights has become linked to many noble and useful concepts: representative government, international humanitarian law, social and economic justice. These are all worlds away from the increasingly unhinged abstractions of human rights as preached in Geneva. And all connote a turning away from airy abstractions to face concrete realities on the ground — one small, usually compromised, step at a time.

The core idea of human rights — of ensuring respect for every single person’s fundamental dignity in processes of government and law, without exception — is not to be discarded. But we have to be brave enough to admit that the iterations of human rights as we know them have failed — and that if they are not drastically revised, conceptually and institutionally, they will do more harm than good. 

Yehudah Mirsky served in the US State Department’s human rights bureau, is a Professor at Brandeis University and lives in Jerusalem. Among his books is Rav Kook: Mystic In A Time Of Revolution (Yale University Press).