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UN report proclaims self-defense is not a right
A report (pdf format) submitted by Barbara Frey, Special Rapporteur, whatever that is, to the UN Human Rights Councils's Sub-Commission on the Promotion and Protection of Human Rights, whatever that is.
Re-reading it, I think the point is that the Special Rapper wants to class self-defense as something less than a "right" (i.e., as a manner of criminal defense) because if it were recognized as a "right" it would be something governments would be bound to guarantee -- and that leads right to Prof. Glenn Harlan Reynold's argument that a right to arms should be guaranteed as an international right. How could governments "guarantee" such a right (in the sense of doing something more than saying "you can plead this as a defense if prosecuted" -- as might be expected the UN document treats "rights" as something more than "the government must leave you alone" -- while outlawing the items a person needs to exercise that right? This leads to the anomaly that the report claims that the right to life is a "right," but the right to keep from having your life taken is not. I suppose it equates to -- you have a "right," however unenforcable, to be protected by government, but not to defend yourself if it fails to do so. As might be expected from the source, the concept of "right" is rather ineptly socialist: rights are what you may ask the government to do for you. (And of course strongly of the legal positivist school: rights are not something that pre-exist government, and any official declaration of them, derived from a deity, morality, or man's nature. Rather, in this view they are created by the document, or government, that acts to write them down. Created, as opposed to guaranteed).
"20. Self-defence is a widely recognized, yet legally proscribed, exception to the universal duty to respect the right to life of others. Self-defence is a basis for exemption from criminal responsibility that can be raised by any State agent or non-State actor. Self-defence is sometimes designated as a “right”. There is inadequate legal support for such an interpretation. Self-defence is more properly characterized as a means of protecting the right to life and, as such, a basis for avoiding responsibility for violating the rights of another. " [Not quite sure what babble means--More in extended remarks below]
21. No international human right of self-defence is expressly set forth in the primary sources of international law: treaties, customary law, or general principles. While the right to life is recognized in virtually every major international human rights treaty, the principle of self-defence is expressly recognized in only one, the Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights), article 2. 15 Self-defence, however, is not recognized as a right in the European Convention on Human Rights. According to one commentator, “The function of this provision is simply to remove from the scope of application of article 2 (1) killings necessary to defend against unlawful violence. It does not provide a right that must be secured by the State”. 16
22. Self-defence is broadly recognized in customary international law as a defence to criminal responsibility as shown by State practice. There is not evidence however that States have enacted self-defence as a freestanding right under their domestic laws, nor is there evidence of opinio juris that would compel States to recognize an independent, supervening right to self-defence that they must enforce in the context of their domestic jurisdictions as a supervening right.
23. Similarly, international criminal law sets forth self-defence as a basis for avoiding criminal responsibility, not as an independent right. The International Criminal Tribunal for the Former Yugoslavia noted the universal elements of the principle of self-defence. 17 The International Criminal Tribunal for the Former Yugoslavia noted “that the ‘principle of self-defence’ enshrined in article 31, paragraph 1, of the Rome Statute of the International Criminal Court ‘reflects provisions found in most national criminal codes and may be regarded as constituting a rule of customary international law’”. 18 As the chapeau of article 31 makes clear, self-defence is identified as one of the “grounds for excluding criminal responsibility”. The legal defence defined in article 31, paragraph (d) is for: conduct which is alleged to constitute a crime within the jurisdiction of the Court has been caused by duress resulting from a threat of imminent death or of continuing or imminent serious bodily harm against that person or another person, and the person acts necessarily and reasonably to avoid this threat, provided that the person does not intend to cause a greater harm than the one sought to be avoided. 19 Thus, international criminal law designates self-defence as a rule to be followed to determine criminal liability, and not as an independent right which States are required to enforce.
24. There is support in the jurisprudence of international human rights bodies for requiring States to recognize and evaluate a plea of self-defence as part of the due process rights of criminal defendants. Some members of the Human Rights Committee have even argued that article 6, paragraph 2, of the International Covenant on Civil and Political Rights requires national courts to consider the personal circumstances of a defendant when sentencing a person to death, including possible claims of self-defence, based on the States Parties’ duty to protect the right to life. 20 Under common law jurisdictions, courts must take into account factual and personal circumstances in sentencing to the death penalty in homicide cases. Similarly, in civil law jurisdictions: “Various aggravating or extenuating circumstances such as self-defence, necessity, distress and mental capacity of the accused need to be considered in reaching criminal conviction/sentence in each case of homicide.” 21
25. Again, the Committee’s interpretation supports the requirement that States recognize self-defence in a criminal law context. Under this interpretation of international human rights law, the State could be required to exonerate a defendant for using firearms under extreme circumstances where it may be necessary and proportional to an imminent threat to life. Even so, none of these authorities enumerate an affirmative international legal obligation upon the State that would require the State to allow a defendant access to a gun.
.......
29. The severe consequences of firearm use therefore necessitate more detailed and stricter guidelines than other means of force. 26 Even when firearm use does not result in death, the injuries caused by firearm shots can be paralyzing, painful, and may immobilize a person for a much longer period of time than would other methods of temporary immobilization. 27 The raining handbook for police on human rights practices and standards produced by the Office of the High Commissioner for Human Rights says that “firearms are to be used only in extreme circumstance”. 28 Any use of a firearm by a law enforcement official outside of the above-mentioned situational context will likely be incompatible with human rights norms.
[UPDATE: welcome, Instavalanch! Check out the main site if you like. I've recently discussed the Bloomberg suit fiasco, and a second amendment documentary I'm working on].
· UN
38 Comments
Maybe Barbara Frey and her "committee" should be the first up to test these theories.
Yeah I think the main problem is that they are using the word "right" to mean something different from what normal people might.
The other problem is that they are writing a guidebook that has to be broad enough to be applicable to a wide range of countries. The median country in such a group is probably pretty abominable from an natural law standpoint.
Perfectly predictable for the collectivist mentality that prevails there (and far too many other places), even without any link to arms. In their world view, "rights" are things that governments should not only respect, but also provide for. So things like medical care, education, life, employment can all be deemed to be "rights" without accepting that individual choice or decision making in them. Since medical care is a "right", there should be a state run health provision system, not necessarily private physicians or hospitals; the state should make certain that there are jobs for everyone, but is completely free to limit, restrict or even prohibit private employment at its discretion; the state should respect life and provide police protection, but not necessarily self defense. Of course, to quote the UN Universal Declaration of Human Rights, "In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." In other words, any "rights" one might have are indeed, void where prohibited by law.
I made it as far as "...principle of self-defence... but does not provide an independent, supervening right to small arms possession, nor does it ameloriate the DUTY (emph added) of States to use due diligence in regulating civilian possession..."
before it felt like I was going to burst a blood vessel in my head. I don't like the way the US regulates guns, and none of us have any reason to trust the UN to make decisions that affect us.
Thank you for posting this.
I started a discussion thread at The High Road (http://www.thehighroad.org/showthread.php?t=218432) where I noted that this document seems to be the first step to forming a legal precedent for labeling "human rights violator" any country without a licensing/registration regime. The report throws the term "due diligence" around a lot, and even states that an "international human rights bodies" should "require" states to implement licensing/registration.
Apparently, IANSA's grubby paws are involved:
So you have a right to life but not a right to defend it. Hmmmm. So I guess the state has a right to take it if so desired, no? For the greater good of course. After all, if the rights of the masses demand it, then the minority must cease to exist.
Shades of Hitler/Stalin/Mao/Pol Pot/and company.
Their definition of rights seems to be something that is granted to the individual by government. This does NOT agree with my understanding of individual rights. Sounds like what they are preaching is international totalitarianism, with the UN being the governing body. If our government agrees to what they are selling, then we are in worse shape than I thought.
Just my opinion.
This is the nature of the secular state: the state can never imagine an authority above its own that would suffer it to subordinate its desires to the interests of the people, especially individual interests. The secular state is certainly not impressed with the idea of natural or god-given rights. (I'm not arguing that any particular religious notion must gird any conception of rights; only that all value terms--including "right is right"--ultimately reduce to metaphysics--to "oughtness" rather than "isness."
But the metaphysics of rights become irrelevant in regard to a sovereign nation. This country compacted to have a government that had very limited powers, and absolutely no powers to alter what were considered natural or god-given rights. Such questions simply never even to arise for the limited government--hence the argument no Bill of Rights was necessary.
No other nation or even association of nations can call into question the right of this nation to honor its compact without calling into question their own legitimacy. Upon what meat do they feed that makes their compact more "right" than ours? (Back to either metaphysics or the pragmatic right of might--which is presently on our side.)
The compact of this country was rather unique; the problem the framers meant to address was liberty of the individual in the community. That was what the old liberalism was about. Today's political liberalism here and abroad is about liberty of the community relative to governments, and in the US, relative to individual rights and freedoms--rights which were never of much concern elsewhere. Ultimately, such a view means that actual liberty and welfare of the people must be "managed." (I'm reminded of the early days of social science and system theory when it was argued that groups, not individuals, were the real entities--relative to what absolute reality?)
Unfortunately, "The Great Experiment" is dying from within of the toxins of "management"--or perhaps of moderation. It was "moderate" adjustment of water temperature that eventually cooked the lab frog. (Remember how Goldwater was ridiculed for his pronouncement on extremism and moderation with regard to liberty?) In the "evolving" "democratic" "new-world-order" "moderation" will be the shibboleth. Translation: vox populi, vox nil.
Whatever happened to “We hold these truths to be self-evident?” If they are self-evident then they are provable in nature and certainly they are. “The Right of Self-defense is the first law of nature” and this can be shown in that predators like tigers have claws and eagles have talons which are used both to obtain food and for self-defense. They are a means to sustain life and to defend it. The U.N. is denying the self-evident proof in nature and is saying that their view of how the World should be is correct and therefore nature is wrong.
"The raining handbook"???
I guess that we shouldn't expect someone to spell words correctly when they can't reason well.
Does the UN have any sense that more people (by a huge margin) died in the twentieth century through actions of their own governments than in wars? American libertarians aren't delusional - they understand history. This understanding is not characteristic of rhe UN.
I invented rights.
Also, lefts.
"Even when firearm use does not result in death, the injuries caused by firearm shots can be paralyzing, painful, and may immobilize a person for a much longer period of time than would other methods of temporary immobilization."
Really? Worse than machetes? Worse that the rack? Worse than the fists of an angry mob?
It is striking how narrow the idea of self-defense is in this argument. It is strictly spoken of in terms of avoidance of criminal penalties after the fact. There is no contemplation of the right in the context of defending oneself from the government.
The things you learn...
Shorter David Hardy: "What... is... this? (DEREK sweeps model off table) A school for ANTS?"
So does this mean that one has the right to slug an UN official without fear of retaliation?
Almost too funny for words. Apparently the sharp legal minds that crafted the report forgot that rights don't have to have legal recognition, that some (inherent) rights are beyond anyone's power to grant or revoke (which is not to say the rights can't be infringed), and that governments don't have to actively guarantee all rights. It is enough that government guarantees some rights and removes itself from infringing or unreasonably limiting the defence of all other rights.
What would one expect from a body consisting of thugs and dictators (not that there's any difference). The U.N. sometimes does a fair maybe even good job of distributing food and aid to regions where needed.
As for keeping the peace...one might as well hire the Bloods and Crips!
"27 The raining handbook for police on human rights practices and standards produced by the Office of the High Commissioner for Human Rights says that “firearms are to be used only in extreme circumstance”.
"Raining"? They don't even know the word is "reigning"?
Small wonder their thinking is so fuzzy. They appear to be linguistically deprived.
Can we station Barbara Frey in Srbrenica?
Really? Worse than machetes? Worse that the rack? Worse than the fists of an angry mob?
Of course. In their little world of abstract detachment, using a gun is something they can get their heads around, since it is to a degree an impersonal detached method of violence. Fists and machetes, on the other hand, require an up close and personal approach, dealing with real anger, violence, and blood and guts. Since they are not able to recognize true evil, that's what they can't imagine or face.
We all saw this red flag coming from a long way off. No one is surprised. I don't suppose our president has any idea or opinion on this. I like to think he is not hiding out wringing his hands over this a-la-Jimmy Carter. What a great opportunity go get instant 75-85& approvals just repudiate the UN and boot their sorry butts out!
Well at least it's consistent with the UN RTL arguements on the death penalty and abortion. What exactlly do they expect crime victims to do, let's use rape victims, since they are so down with womens rights? Plead for mercy, carry condoms, timeout and call a rape intervention line, where are they going with this? How do educated caring people advance arguements that will cause more needless human suffering.
I know people who have been warning for years about such trends at the UN. Seems fair to treat the UN as an enemy of freedom.
Regardless how absolutely nuts this sounds to the average, sane person, it is a perfect indication of the leftist mind. I'll guarantee any number of democrats would agree with the UN position. As all rights emanate from the state, self defense is not a right unless the state makes some sort of special dispensation--something it would surely not do. The free exercise of human initiative, claims of rights being ours as a function of natural law--these things would result in anarchy in a proper totalitarian, big brother state.
Remember, gun control is not about guns. Its about control. That's the bottom line for any person who supports the state as being superior to the individual.
This is what comes from defining employment, food, housing, education and social safety net programs as rights. There's a big difference between the rights in the Bill of Rights from those promoted by FDR's Four Freedoms and the U.N. Can you imagine arguing that the Second Amendment requires the government to furnish everybody a firearm? That's the logic behind this Report and it typifies the thinking of those who argue that having a right to get an abortion means the government has to pay for it.
Looks like Barbara Frey is just a typical Minnesota liberal...
http://www.chgs.umn.edu/Contact_Information/Barbara_A__Frey/barbara_a__frey.html
David:
Wonderful catch and nice report.
My take on it is here: http://unix-jedi.livejournal.com/22851.html 'Did you realise that you only have "rights?"'
I find this proof positive that the UN (not other member states, such as the Cold War, but the UN itself) is now in full-scale ideological war with the United States.
Note to self -- if neighborhood thugs come around to kill me and my family, best not to call Kofi for help.
Why are we paying good money to support the UN in hiring people to think and write such ideas that undermine the Bill of Rights and Constitution of the USA. We should withdraw from it and create a worldwide organization that puts the rights of human kind first.
"27 The raining handbook for police on human rights practices and standards produced by the Office of the High Commissioner for Human Rights says that “firearms are to be used only in extreme circumstance”.
Further to what MB says, they seem to forget that "the police" are NOT "free citizens", they are "agents of the State", and as such are constrained by what they can and cannot do in the name of the State.
As well, they don't bother to define what "extreme circumstances" means - but I bet that it includes "self defence"...
This is nothing more than self-justifying, totalitarin tripe.
*sigh*
Failing reading comprehension again, are we?
"Self-defence is broadly recognized in customary international law as a defence to criminal responsibility as shown by State practice. There is not evidence however that States have enacted self-defence as a freestanding right under their domestic laws, nor is there evidence of opinio juris that would compel States to recognize an independent, supervening right to self-defence that they must enforce in the context of their domestic jurisdictions as a supervening right."
In other words - self-defense and justifiable homicide are broadly recognized as grounds for an aquittal in a trial, but it's not a right in the sense that the right to life is.
Having the right to life means never having to go into court to justify your continued existence if the government can't see a use for you.
That there isn't a right to self-defense in the same vein means that if you kill someone in selkf-defense that's not an automatic free pass - the law should be involved in determining if you used appropriate levels of force.
If you used an RPG to shoot the kid who threathened you with a slingshot, there should be some questions asked. As there should be if you used your handgun to kill an armed intruder.
Not having self-defense as a human right gives governments the legal right to discriminate between the two cases - if self-defense was an unqualified right like the right to life, you'd have an automatic aquittal in both cases.
So - do you think that letting governments and the community decided what standards should exist instead of making an UN-mandated universal rule somehow means the UN is intruding into your legal framwork?
There's something about Lund's comments that bothers me, and I'm not quite sure that I've got it figured out. Part of it has to do with his statement:
Having the right to life means never having to go into court to justify your continued existence if the government can't see a use for you.
I don't think this is a particularly useful construct. I'm sure that we can all think of numerous occasions where exactly that happens - maybe not in supposedly "free" countries, like the US and Canada, but people are hauled into courts all the time and tried based on a wide variety of arbitrary, State imposed "reasons", and their lives are put in jeopardy thereby.
I think it might be more instructive to think of it this way: the "right to self defence" is a legal justification for taking the action of "defending one's self" against someone who would deprive you of your life.
A "crime" occurs when one person infringes upon the rights of another, thus causing them "harm". Resistence against the infringement of your rights - by anyone - should never be a crime. Part of the purpose and function of the Courts is to determine (discriminate) if a "crime" has taken place, find out who is responsible for the crime, and to what "degree" someone has been "harmed", then impose appropriate legal sanctions.
There are also a number of differnt levels of "discrimination" - the police and/or the District Attorneys can decide whether or not charges will be laid; in the US, the Grand Jury decides whether or not to indict; and so on.
The "right", therefore, gives you the authority to act; the right also acts as a legal justification at any subsequent trial by the State. However, if self-defense were an "unqualified right", as Lund puts it, there would be no "acquittal", because there would be no trial, because there would be no grounds upon which to lay charges in the firt place.
I'm not quite sure what Lund is getting at in his last paragraph - it seems rather confusing to me; perhaps he can clarify his meaning for me/us.
Finally, I would ask Lund to answer the following:
if the State did haul him into court to arbitrarily demand that he justify his continued existence (or otherwise tried to arbitrarilly deprive him of his life), would resisting against that use of force be unlawful, or unjustified? (Not I did not say "illegal"...)
Interesting question, isn't it?
My point, which I don't think we disagree much about, is that the right to life is an unqualified right and that any and all actions taken in your own defense shouldn't be a legal problem for you- as long as your response is appropriate to the threath.
Guy with a machete shows up in your bedroom one night and you shoot him - completely okay.
The annoying kid next door shoots at you with a home-made slingshot and you machinegun him and his whole family in response - not okay.
Anything between those two extremes (and yes, machinegunning the neighbours is a straw man, I don't think anyone on the right side of Sanity Street would do that) should be subject to an inquiry on account of how you've infringed on someone else's right to life in defense of your own. As the UN report quite rightly notes, self-defense with appropriate force is an almost universal grounds for aquittal - but that it should be up to the legal system in individual countries to make that determination.
In other words, the way I read this report is that it recommends the UN butt out of the legal systems of the member nations on this issue and NOT mandate anything on the subject - on the grounds that self-defense shouldn't be a legal trump card that would shut down investigation of cases that would fall into the broad category of Self-defense.
How "The UN shouldn't mandate a standard" morphed into "Self-defense isn't a right" is an intriguing question - and in response to your last question: From what I learned at grandad's knee, resisting a government bent on arbitarrily depriving you of your rights is a Good Thing - he did it himself and was imprisoned for his troubles. Considering that the government that jailed him for resistance was the Nazi regime occupying Norway I'm sure he was justified in his "illegal" activities.
"Illegal" as defined by the Germans, that is.
I don't think there's any western government that can be compared to the nazis at present, but I'm definitely open to the idea that resisting government force is justified even if considered illegal by the government you're resisting. To quote your own history at you - I'm sure that King George's government held that George Washington and the rest were acting illegally even if they felt they were justified in their actions.
Though to get back on topic - I'm wondering how "The UN shouldn't mandate anything through the Human Rights Charter on this as it will probably have detrimental consequences for legal systems of member nations" morphs into "Self-defense isn't a human right". The latter is certainly more pithy, but to me it looks like it's a severe misreading of what the report is saying.
The main point completely overlooked by this report, is the fact that CRIMINALS DON'T OBEY LAWS!!!
Another point of interest is the complete negation of the "Use of Force Continuum".
"conduct which is alleged to constitute a crime within the jurisdiction of the Court has
been caused by duress resulting from a threat of imminent death or of continuing or
imminent serious bodily harm against that person or another person, and the person acts
necessarily and reasonably to avoid this threat, provided that the person does not intend
to cause a greater harm than the one sought to be avoided.19"
You cannot stop a threat by using equivalent force. This only yields a stalemate and does not stop the threat. To stop a threat you must OVERPOWER the threat, so you must use MORE force than what is being used against you. If someone is punching you, you could use pepper spray to stop them. A greater force. If someone is coming at you with a baseball bat or a knife you need a greater force to stop that threat. Pepper spray is not a greater force in this situation, neither is another bat or knife. In this situation you'd use a taser or a gun.
Just one of MANY, MANY idiotic statements in this "report."
I think this is of a piece with the collectivist vision of "right", i.e. that rights belong to groups but not to individuals (the common counter-argument to the NRA's interpretation of the 2nd Amendment). As Hardy points out, the right to self-defense implies the right to the means to effectively exercise it, i.e. arms. Since this threatens collectivist security (individuals might use those arms to forcibly take exception to oppressive State actions), the individual right must be subservient to the collective one.
This is a very dangerous step to take. Making individual self-defense inferior to collective self-defense means that individual existance is inferior to collective existance. In other words, if the State decides the individual must die in order that the State (as its duly appointed leaders conceive of it) might continue to exist, then, according to this UN report, that individual's death is lawful and proper. This position leads directly to UN-sanctioned genocide and a whole host of totalitarian evils -- things the UN was supposedly created to PREVENT.
Yikes!! They've gone completely around the bend and it doesn't appear that they're likely to even try to look back. I wonder what any of the survivors of the genocides in the last 100 years or so would have to say about this utter nonsense?