The following is a transcript of Episode 170 of the Identity/Crisis Podcast. Note: This is a lightly edited transcript of a conversation, please excuse any errors.

Yehuda: Hi everyone, welcome to Identity Crisis, a show about news and ideas from the Shalom Hartman Institute. I’m Yehuda Kurtzer, recording on Tuesday, December 26th, 2023. 

So the reason that societies have rules that apply to extreme and egregious moral failings, and the reason that organizations have procedures in place to deal with crises when they should come up, is precisely because those kinds of situations that demand those rules or procedures can be so intense, that they influence your judgment, so you hope desperately that the pre-work helps you in real time. 

But good luck. When you’re actually in crisis, are you actually gonna remember what to do? In our show last month with Cochav Elkayam-Levy, the Israeli human rights scholar and law professor who’s now chairing Israel’s Civil Commission on Crimes Committed by Hamas Against Women and Children on October 7th, I tried, with some difficulty, to speculate in conversation with her as to why it has come to pass that so many international bodies ostensibly responsible for policing and advocating for human rights could not find their way to condemn violations of human rights when committed against Israelis. 

I know one easy answer is that it’s anti-Semitism, that somehow the rules apply differently, or not at all, to Jews, and I don’t want to discount that may be a piece of the story. Still, the whole thing is jarring, especially given the fact, as we’ll explore today, that Jews played such an essential role in the formation of the very idea of human rights. 

I raised a hypothesis during that podcast that I want to return to today, one that I think might be wrong, but provocative enough to launch our episode, that maybe the world has come to the conclusion that in the Israeli-Palestinian conflict, Israelis have civil rights and Palestinians largely don’t, and that therefore human rights entirely belong to the Palestinians. 

Early on in the history of human rights, Hannah Arendt, the philosopher, posited this very distinction between civil and human rights as a way of critiquing the idea of human rights as it was emerging. Human rights as a discourse, as a discipline, really emerged after the Second World War. We’ll do more on that history today.

And Arendt wrote in 1948, responding to the forming of the United Nations, an essay entitled, “The Rights of Man: What Are They?” Arendt argued that human rights, as they emerged, were something of a paradox. All of the risks that they meant to prevent stemmed from nation-states that had gone crazy, murdering the vulnerable and the stateless. 

But human rights offered people none of the rights of citizenship that would actually immunize themselves from those dangers. In other words, Arendt was arguing, vulnerable people don’t really need human rights. They need civil rights. They need the protections that come with belonging to the state itself. Human rights are abstract, but people live within political communities. Arendt wanted to make the first human right the right to belong to a political community where those other rights could be protected, what became known as “the right to have rights.” 

Arendt was skeptical ultimately that a commitment to human rights, or an attempt to apply them universally would help anyone. After all, the people most vulnerable to crimes against humanity were going to be the stateless. More than those people needed rights, they needed power. And therefore, maybe the reason the international community thinks they can ignore crimes against humanity committed against the Jews is because the international community thinks it already gave the Jews the tools to fight back, and that it thinks now that its primary responsibility is to the stateless Palestinians. 

Or maybe this hypothesis gives the international community too much credit. I thought of our rent though, when I rent the stunning essay by Yehudah Mirsky in the online journal Unheard from a few weeks ago. I cited the essay during the podcast with Cochav, but it’s worthy of its own episode today. 

Yehudah Mirsky is a professor at Brandeis, a former State Department official, worked on human right, and he argued in the essay, which is called Human Rights Died in Gaza, that the failure of the international community to respond adequately to October 7th signals that the 75-year experiment with human rights as a global concern may be over. The crux of Mirsky’s argument was that a tool meant to prevent the abusive overreaches of states has essentially become a kind of universalist abstraction. And that in turn can be embraced on paper by states doing terrible things. Consider for instance that Iran chairs the International Commission on Human Rights. So what are we doing here anymore? 

I invited Yehuda here onto the podcast, joining me from his home in Jerusalem to go deeper on his diagnosis of what has gone wrong in international human rights, to probe why October 7th might be a turning point, and to explore what might be done to reverse course. 

So Yehuda, thanks for joining us today. And I guess I wanted to start by asking you, somewhat unfairly, to give us a kind of history on one foot of the emergence of human rights, where it came from over the past century, and why you think we’ve kind of reached this point, as I’ve summarized, of maybe a kind of uselessness of this framework for the international community to police conflicts like the one we’re experiencing right now.

Yehudah: Well, first, thank you, Yehuda and Tessa and your colleagues for having me. I’ve been thinking about this for a very, very long time, and I’m not sure that I have pat answers to anything, but I’ll try. 

So this thing that we call human rights is, it’s something both very old and very new, right? We have throughout history, wherever you are, you have, in the great religious traditions, Judaism, Christianity, Islam, Confucianism, et cetera, you have ideas about, setting limits to what rulers can do to their subjects and those limits are grounded in some larger conception of what people are and what society is and what’s the fundamental relationships of human beings to one another. 

That’s how we can find, you know, this thing that we see all the time, that there will be books about human rights in great world traditions, and you sort of trot out the relevant verses from the Hebrew Bible or the New Testament or the Quran or, you know, Mencius or whomever. 

But then we have this distinctive configuration of human rights. Now, rights, or what we call rights talk, for lack of a better word, seeing politics as a matter of individual rights and so forth, we see it in the early modern period. I mean, I’m telescoping an awful lot here, but there’s this idea that people have rights by virtue of their belongings, by virtue of the collectives to which they belong. And eventually, they have rights by virtue of being human. 

But there’s some crucial steps here. And to step down a little bit from these abstractions, in the American Revolution say, the American framers talk a great deal about people having, about their having the rights of natural born Englishmen. In the French Revolution, rights are very much something that you receive as part of your membership in the French nation. 

The phrase human rights, as I understand it, or as I’ve seen it, shows up as sort of a gloss to the natural rights of Englishmen, the natural rights of Frenchmen, there’s natural rights by virtue of being human. Interestingly, one of the people who uses, I mean, I see some uses of it already in the 18th century, but you see abolitionists using this language a lot. Frederick Douglass talks a lot about human rights. Ralph Waldo Emerson talks about human rights. And they’re trying to take a discourse of rights that is grounded, that is very much the sort of thing that Hannah Arendt was talking about in that really important essay that you cited earlier, your rights being inextricable from your membership in some political community or other, to rights being something that you have by virtue of being a human being, by virtue of being born. 

Now, this thing called human rights, I think, becomes sort of the repository of a whole bunch of political, social, moral movements and ideas that are gathering steam, certainly in the 19th century. So, for instance, I mentioned abolitionism against slavery, which is a transnational movement. You have some anti-colonial movements. Though colonialism is a tricky thing, because, say, British colonialism was in many respects liberal colonialism. Often they were bringing these liberal ideas to the countries that they colonized, however uncomfortable and fashionable it may be to point that out today. 

You have in the 19th century the development of this idea of humanitarianism, the sort of thing we see in the Red Cross, that there’s something about being human, which means that you have certain protections or ought to have protections in every situation. And again, that doesn’t emerge out of a vacuum. Laws of war exist throughout history. Even in the Tanakh, in Sefer Amos, like the opening lines of Amos when he lists, you know, the three sins of the Moabites and the four sins of the Ammonites, if you take a look what he’s talking about are what’s considered the war crimes of the time.

And there’s also this question of rights for groups. Rights are an entitlement, a shield, a claim, a just claim that one can make. And rights, the notion of rights also emerges, as I’ve sort of indicated before in talking about nationalism. And nationalism, we forget the extent to which in the 19th century nationalism was a liberal cause. Because nationalism is about groups pressing claims vis-a-vis these large empires that are ruling them, saying we ought to be able to rule ourselves.

Now this conception of rights, you know, liberalism understandably tries to thin things out. So much of liberalism, like so much of empiricism, modern scientific method, at some point in early modernity, people in the West conclude, we really ought to stop murdering one another over these ideological and doctrinal questions, and let’s thin out the things that we think are worth fighting about. So scientific method greatly restricts the things that are worth killing people over, at least in theory, and liberalism tries to say, let’s, especially Lockean liberalism, the kind that creates the American Republic, let’s look at people as individuals and their mutual reciprocal rights and responsibilities with one another without necessarily overarching grand conceptions of our of our collective life together. 

These conceptions of rights are also tied to people’s fundamental ideas about what it is to be a human being. We hold these truths to be self-evident that all men are created equal, they are endowed by their creator with certain inalienable rights. All political philosophy entails some underlying conception of what it is to be a human being and what that means to be a human being and thus as a result what it means to be a human being living in society with others.

Now, rights for groups as being of a piece with rights for individuals, again, was a staple of liberal Western thinking in the 19th century. That’s how you have people, that’s how you have, say for instance, Theodor Herzl, who’s a great liberal nationalist, right? In order for Jews to follow their bliss, as we might say, fulfill themselves as individuals, they need to be living in a nation state of their own and other national minorities as well. 

Yehuda: So I’m gonna interrupt you for a second, which is to ask just what it sounds as though we’re building towards is basically a paradox that’s gonna get baked into the human rights approach, which is that it, on one hand, is about a kind of flattening of human difference, respecting all human beings, like Genesis 1, all human beings are created in the image of God outside of the framework of political communities. They’re entitled to rights just by virtue of being human.

And at the same time, it is born out of a concern that humans do need to be organized into national groupings in order to ensure that they have infrastructure that doesn’t rely on the goodwill of other human beings to protect themselves. In the framing of one Italian thinker, Giuseppe Mazzini, which I’ve read mostly through Martha Nussbaum, who argues that the nation is significant because it’s the largest unit to which strong attachments to a group can be affixed. So like that’s the strongest thing. I can’t really have obligations to the rest of humanity, but I can have a relationship to a nation that goes beyond just family and tribe and actually enables me to belong in some sense. 

So it kind of feels as though the allusion to Herzl and the allusion to nations is driving one approach to rights, which is a system that’s gonna be protected within nations, while at the same time, there’s also this language that’s emerging that is actually like, no, rights need to be talked about as though they’re entirely universal. Is it fair to notice that paradox as part of this?

Yehudah: Yeah, I think that’s right. And there’s something else here, as you quote Martha Nussbaum, who I was going to get to anyway, because sooner or later, we always get to Martha Nussbaum. She’s such a fertile thinker. The idea that the nation is the largest thing to which I can have affective ties, ties of feeling, in certain respects, yes, but in certain respects, that’s a very Protestant idea.

And this because that’s a piece of this that we haven’t that I know we haven’t spoken about till now, right, the Catholic Church, as the name implies, in West, is the Catholic Church, it’s the universal church, so in pre-modern times, my sense of belonging to something much larger, much greater, even transcendent, goes through the church.

With the tremendous restriction of the Catholic Church in Europe, and it’s being supplanted so much by Protestantism, we see the rise of the nation-state. Now, that’s actually important because when we talk about religious traditions and their relationship to human rights, these ideas of let’s call it human dignity are carried along by these religious traditions. But these religious traditions have very large senses of meaningful collective belonging, whether it’s for Jews, the Jewish people, whether it’s the Catholic Church, whether it’s the Muslim Ummah. 

Now where these things start to get tricky is sort of also getting back to our historical timeline in the 20th century and especially after World War I, what happens when people’s national identities don’t fit the borders of the states in which they’re in?

It’s such a huge problem of our times. For some years I’ve been thinking that if I were to create like, Middle Eastern state as a category in political science, irrespective of its geography, it would be, you know, a state where people have to live with people who they don’t want to live with because they’re all inside borders that they didn’t draw, but that somebody else drew for them.

Yehuda: They didn’t create, yeah.

Yehudah: After World War I, the League of Nations creates something called the Minority Rights Treaty System. By the way, what I’m saying here, I’m basing myself on the magnificent scholarship of James Loeffler, Carol Fink, and others. 

So the minority rights system was something that had been evolving in the early 20th century. Indeed, the Zionists subscribed to it. In 1906, the Zionist movement formally adopted a platform calling for national rights for the Jewish minority in that particular part of the Ottoman Empire known as Palestine, and national rights for Jews in Poland and Russia and in Czechoslovakia and wherever.

Yehuda: And this is an essential point because to 21st century Jews who are skeptical of human rights from a place of Jewish particularism and Jewish nationalism, it’s really critical to understand that that’s not where human rights began. Human rights was understood as part and parcel of national rights for the Jewish people as part of a larger commitment to human rights. It only feels that those have diverged much later in history, but we can get to that.

Yehudah: Well, and then what happens, by the way, one of the great, you know, and all sorts of Zionists believed in this. Dmitry Shumsky has argued, maybe a little too strenuously that most of the founders of Zionism, all they were looking for was minority rights within the Ottoman Empire, et cetera. That might be a bit much, but it’s an important intervention to make that point. 

Now, the thing is that mentioning the League of Nations, just the very fact of invoking League of Nations means that it failed. So the League of Nations was, of course, a moral failure in it’s, you know, inability to prevent war. But it was also a legal failure. And the legal failure was the failure of these minority rights treaties, which failed miserably to protect minority rights. 

And indeed, rights for minorities became a cause for combat in war in World War II. Hitler was saying he had to protect German minorities here, there, and everywhere. So during the course of the war, of World War II, all sorts of people are thinking, you know, during wars, people think about what’s going to happen afterwards, right? And post-war planning, in all sorts of corners, starts very early in World War II. On the other side as well, of course, like the Nazis and the Soviets and the Japanese had their ideas for what the world was going to look like once they had won the war. 

So in the course of World War II, many of the jurists, especially Jews, who had been involved in this minority treaty system of the League of Nations like Hersch Lauterpacht, a very famous international jurist, like Jacob Robinson who eventually becomes the legal advisor to the Israeli delegation to the United Nations and a very significant player in the early years of the United Nations, like Raphael Lemkin, eventually the drafter of the Genocide Convention, start thinking about alternatives to this failed minority treaty system. 

Now, it’s not only Jews thinking about this. All sorts of people have this sense that here is this World War. Something uniquely horrible happened. We have to try to create a new world order where this doesn’t happen again. And this is where the year 1948 becomes very critical. Obviously, for Jews who are obsessed with Israel and Zionism, 1948 is the year of the creation of the State of Israel. But it’s the year of the passage of the Universal Declaration of Human Rights. It’s the year of the adoption of the Genocide Convention. It’s the year of the Berlin airlift when America announces, makes clear that it’s going to be defending the borders of the free world with American military power. It’s the year that America starts to desegregate its own military. It’s the year that the General Agreement on Tariff and Trades goes into force. 

All these things that are being done in order to create a new kind of world. Now, you have Jews who are pushing for something like the Universal Declaration of Human Rights, though amazingly, everybody assumes that Universal Declaration of Human Rights was created in response to the Holocaust. Yes and no, because Jews are not mentioned anywhere in the protocols, in the discussions, in the meetings. And many of the Jewish jurists at the time are a little put off, to put it mildly, that they’re not. 

Yehuda: Is that, let me interrupt you for a second, is that code? Are they not mentioned because they’re the obvious case? I mean, it seems that the protocols around the rules about genocide only exist because of the Holocaust of the Jews in Europe, right?

Yehudah: Well, the Genocide Convention and the Human Rights Declaration are two different creatures. And, by the way, it’s the Jewish jurist who I mentioned earlier, Hersch Lauterpacht, he coins the term crimes against humanity, which is then adopted by the Americans at the Nuremberg trial, even though the Jews aren’t discussed much at the Nuremberg trials. 

But the Jews aren’t the only ones pushing this. Among the thinkers involved in, there were different strains of thought. Here as in so much else, we’re indebted to the scholarship of Sam Moyn, Catholic thinkers are very crucial to the development of the idea of human rights. Already in the interwar period, Catholic thinkers are increasingly developing this idea of human rights because they are looking for a moral, political, ethical idea that isn’t Marxist and isn’t fascist and isn’t liberal in the narrow sense of liberal individualism.

And this is something that I’ve been thinking about for some while lately, we’ve come to so identify liberalism with a view of economics, that views economics as nothing but individual choices, that we lose sight of how liberalism originally was embedded in much richer senses of what it is to be a human being, including a human being embedded in society. 

A great example of this, Émile Durkheim, one of the founders of modern sociology right and among the founding fathers of speak of modern sociology, the Jew, I mean Marx’s Jewishness is famously crazed and murderous, in terms of self-hating the murderous, Durkheim never disavowed his Jewishness and also his conceptions of society and religion are very much derived from his identity as the son of a rabbi. 

But the point is during the Dreyfus affair, when people are in the late 1890s, when people are saying, why are we turning France upside down just to save one innocent man? What is this, some kind of crazy new religion? And Durkheim writes in his essay saying, yes, this is a new religion. This is an overarching conception of the human good where individuals matter. It’s in this essay called “The Individual and the Intellectuals.” But he takes pains to say that when I say the individual, I don’t mean the standalone person who doesn’t care about anyone else. I mean somebody who’s who’s embedded in community with whom he has rights and responsibilities. 

So you have a number of these Catholic thinkers and also Confucian thinkers involved in drafting the Universal Declaration of Human Rights. The Jews who are involved in it tend not to be theologians, like some of the people I mentioned earlier, Robinson, Lauterpacht, René Cassin, they tend to be, you know, they’re sort of liberal nationalists who have been disabused and disaffected by the abject failure of the League of Nations. 

And then there’s Lemkin.

Yehuda: Before you get to Lemkin in a second, does the fact of their Jewishness and the Catholicness, is that intentional or incidental? In other words, because one critique of Jews, generally, is that the great naive universalists of history have tended to be Jews, those who are effectively escaping the particularism of Jewishness and trying to argue in the belief that there’s some universal human community, which, you know, Leo Strauss says about them, the story of the Jew is the person who goes out in search of universal community only to discover he’s the only one, and then he returns to his community, that’s what he calls a ba’al teshuvah, a repentant.

Yehudah: Oh, that’s like the old joke about the Esperanto conventions where during the day they would, well, at the conventions they would speak Esperanto and in the hotels they would speak Yiddish. Right, yeah.

Yehuda: Right. So I guess, is this, does the fact that Jews, leave aside Catholics for now, because we’re mostly talking to Jews about Judaism here, does the fact that Jews have a particular interest in human rights, is that a, to generalize, is that an intentional commitment that emerges out of, Jewishness tells us about b’tselem elohim, is it an intentional commitment that comes out of the Jewish experience of being the vulnerable minority amidst nations, or is it this avoidant strategy of, we want to kind of evade our own particularism by being engaged in this kind of moral universalism?

Yehudah: Of the three options you said, I think it’s sort of most the second. This comes out of their understanding of Jewish experience. The, certainly the people I’ve been mentioning like Lauterpacht and Robinson, they’re not very starry-eyed about humanity. And interestingly, they are Zionists. They’re lifelong Zionists. Lemkin was a Zionist too. I mean, we’ll get to that in a moment. Lemkin, of the Genocide Convention, was a Zionist too. 

The players, interestingly, and I know that you’re a very profound student of Jewish organizational and communal history. The players who were in this historical episode towards the evolution of human rights, who were most in this broadly Jewish universalist thing, was actually the American Jewish Committee. The American Jewish Committee, which at the time was the leading American Jewish organization, and Jacob Blaustein, the longstanding chair of American Jewish Committee, very forceful and vigorous leader, had these platoons of lawyers and intellectuals who were very much pushing an abstract ideal of sort of broad liberal universalism that they saw as comporting with Jewish values. And that may to some extent be the case with René Cassin, right, who was French. French Jewish figure would have been very involved with the Alliance israélite universelle. But the others were much more hardheaded. And again, Robinson not only became was a Zionist, he became a very important official in the new state of Israel. And Lauterpacht was also was also a Zionist. And so they, it was for them, I think they supported both this idea of people need to have a universal, some sort of basket of rights that they have, that they can take with them everywhere and anywhere, and minorities need nation-states, as the Jews needed one in the newly established state of Israel. 

Yehuda: Let’s move if we can to, you know, on one foot, an industry of human rights emerges after 1948, after the UN, after…

Yehudah: Well, it does and it doesn’t. Human rights, this is Samuel Moyn, who I mentioned earlier in his path-breaking book, The Last Utopia, argues very powerfully that human rights doesn’t play a very prominent role in international politics and people’s discussions of things until the 1970s. 

And if you take a look, what’s going on in the 1970s? In the 1970s, Third World Revolution has lost its luster. The decolonization movements have entirely been taken over by the Soviets. America has been very mired in Vietnam, the Cold War doesn’t seem to be ending, and people rediscover this idea of human rights, but interestingly, this idea of human rights is regularly asserted by Czechs who don’t want to be, who want to run Czechoslovakia and not be run by the Soviets, right? So this notion of human rights as a universalizing dimension.

And America takes on, it’s sort of already in the 1970s that Jimmy Carter decides to make human rights a pillar of American foreign policy. Also because American foreign policy is always looking for to have like some sort of moral valence and you want American foreign policy and its moral stature not simply to be America’s interests vis-a-vis the competing block, the Soviets, and say what you will about Jimmy Carter, in this respect he’s also being very sincere. And also because people are looking for some way of managing the moral questions that arise from America having to support right-wing dictatorships in Latin America in their fights against communism, et cetera. 

Now, in the late 1970s and the early 1980s under the Reagan administration, you start having human rights being incorporated into American foreign policy, also under the leadership of the great Senator Henry Jackson, who if your listeners don’t know about him really should, the great Cold War progressive liberals, also great champion of human rights and champion of the rights of Jews and Soviet Jewry. 

Now, interestingly, the Soviet Jewry movement plays a very important role in the human rights story because it’s almost this perfect combination, this trifecta of an individual group rights arguing for human rights, and in a way that also fits the larger purposes of America’s seeing itself as the defender of democracy around the world. 

Now, at the same time, getting back in the 1970s, what we’re starting to see is that this language of human rights starts to get also used by people talking about third-world liberation movements, and getting mixed in with other kinds of discourses. And also, this is just a general point that people don’t realize the extent to which so much of the most virulent anti-Zionist rhetoric that we hear today is sort of a recycled version of things that the Soviets were putting into the mouths of their third world spokespeople back in the 1970s.

Yehuda: For instance? 

Yehudah: Zionism is racism is the great example. The UN resolution of Zionism is racism of 1975. And also during the Cold War, you’re right that this human rights entities proliferate. There’s UN treaties and treaty bodies, and human rights, and of course, it takes until the 1960s till they’re ratified, but the UN has two distinct covenants on rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social, and Cultural Rights. 

As you might guess, the International Civil and Political Rights is the covenant that resonates with American sensibilities, that the important thing is to guarantee people civil rights and political rights, and devoutly socialist countries resonated more with the covenant on economic, social, and cultural rights. 

But also within the sort of broader, if you call it, human rights community, really interesting distinction develops. Subtle but important between human rights promotion and democracy promotion. 

You have a cluster of groups, like say Amnesty International or Human Rights Watch, who argue, who advocate that the thing to do is to try to create an international network of institutions that will sort of do at the international level what domestic legal institutions do at the domestic level, in terms of enforcing certain norms and penalizing offenders and so on with an aspiration that this will have some sort of global reach. 

And for some versions of that, especially Amnesty International, the founder of Amnesty International, Peter Benenson, was a Jew who committed to who converted to Catholicism and didn’t convert to the Catholicism of the natural law philosophers who were into natural rights. He was, we won’t get into the weeds of Catholic theology here, but very much had the sense that the rights of the individual are the same, no matter the system under which they’re living. 

So if somebody’s rights are being violated under a totalitarian system or under a democratic system, philosophically, morally, it is the same violation. What if I say, yeah, but should I really look at it the same way? Because the person whose rights are violated in the totalitarian system is like totally up the creek, and the person whose rights are violated in the democratic system, he has other forms of redress, and also I shouldn’t necessarily condemn that government for violating their rights because after all, balance is democracy, and Peter Benenson would say no, right, because right and wrong are right or wrong wherever they are.

So practically, getting back to this human rights democracy distinction, what do I want to spend my time, effort, energy doing? Creating international bodies of human rights? Or working at creating local domestic political institutions of rule of law and representative government, which will inevitably be flawed, which will inevitably be compromised, and frankly, given the dynamics of the Cold War, we’ll probably be more in America’s orbit.

Yehuda: Okay, but the corollary to that is it does seem contradictory to what you described as Benenson’s position because if that’s the case, if it is the case as Benenson is arguing that human rights violation is a human rights violation regardless of the context in which it materializes, one, you might have seen the sprouting up of Amnesty and Human Rights Watch offices in every district of every country in the world and basically arguing like this voting rights violation that took place in Georgia requires the full force and credit of these organizations the same way as this human rights violation that’s taken place in Bethlehem. 

But in practice, that hasn’t happened. In practice, what happened was maybe it’s a resource choice or maybe it’s a encoded different choice, which is, in theory we claim that all human rights violations are the same. In practice, we are gonna focus on a certain set of area, where for a whole bunch of unarticulated reasons, we consider to be the primary and most egregious concerns as relates to human rights.

Yehudah: But I think it also has to do with capabilities. I mean, I remember one time when I was in, as you mentioned earlier, I worked in the State Department’s Human Rights Bureau. I remember one of the things I did was I was the press officer for my bureau. And once a journalist was asking me, why are you guys beating up on Burma so much more than you’re beating up, then it was called Myanmar, why are you guys beating up on Myanmar so much more than you are beating up on China? And I said, to be perfectly honest, because we can. So it’s much easier, of course. Democratic governments will be receptive to these kinds of arguments.

Yehuda: Right, but that’s what’s so insanely aggravating. But that’s what’s so aggravating about this whole business, which is to say, there’s no, the worst human rights violators on the planet never are really the focus of the attention of the human rights industry. The focus of the human rights industry tends to be on those places that are, that seem to be inherently receptive to the argument about the legitimacy of human rights.

Yehudah: And in many respects, this points to a deeper question. Is this whole idea of human rights an attempt to get around politics? To say some things, there are some things that are beyond politics. And there are some things that aren’t defined, aren’t to be defined, constrained, take whatever shape they can only through what is possible or impossible in the politics and the distributions of soft power and hard power in different places around the world. 

That’s one of the ways in which once you put it like that, then human rights becomes a very theological idea. 

Personally, I tend to think that one of the reasons liberalism has a hard time in many places around the world is because so much of liberalism, even liberal ideas originated as religious ideas that no longer saw themselves such. I mentioned earlier Frederick Douglass. Frederick Douglass is a great believer in God. When he talks about God giving human rights, he’s not kidding. It’s not mere rhetoric. 

Yehuda: A senior diplomat told me a couple years ago that when, I don’t remember whether it was first Amnesty or Human Rights Watch first came out with a declaration that what Israel’s practices in the West Bank and Gaza constituted the crime of apartheid. And he attempted to argue with the leadership, that those organizations were much more effective at documenting the problems, than they were at coming up with what effectively is a policy prescription, right? 

And he said, the minute that you declare this is a state of apartheid, you’ve actually lost anybody who might be persuaded by the evidence that you’re providing because you’ve now given a framework through which you mean to understand what’s taking place here. And then all the evidence serves your framework as opposed to the other way around.

And it seems to correlate with your argument that they are effectively operating as a political industry in a place that is avoiding politics. In other words, in some ways, Human Rights and Amnesty have stepped in to avoid where the Israeli left has effectively failed.

Yehudah: Well, one of the things turning to the Israel case, one of the things that’s so striking about so many of the pronouncements of the human rights organizations is that they seem to not believe that there’s anyone in the state of Israel who would be willing to adopt a point of view other than that of, you know, sort of the government policies that they oppose, or that they’re not worth trying to convince? 

Or is this something that I keep coming back to in all these questions about, and that’s not just about human rights, any, you know, any sort of political or policy-related statement that we make, whether it’s as a government or an organization or just somebody mouthing off on Twitter, we have to ask, does this help? Is this helpful? Is this just virtue signaling? Or is this not? 

Now, admittedly, just to sort of finish this historical sketch, with the end of the Cold War and the American defeat of the Soviet Union, there was, in retrospect, naive, but you could understand why people thought, OK, so now something like human rights might actually become the lingua franca of the world, because there seemed to be no real alternative to the American-led order, at least not at the time, or things that weren’t falling in line, seemed to be so to speak pockets of resistance, right? 

There was this tremendous determinism that free market capitalism along with its political system was just kind of inevitable. It’s funny, like when Marxism was in business. We used to argue that the Marxist claim of historical inevitability was by definition nonsense. And then we sort of tended to forget that when America was on the winning side. 

But what you said a moment ago sort of gets closer to the heart of what I’ve been thinking for so long, that there’s something about the way in which the human rights discussion is conducted that precisely makes it harder to get political solutions. Even before getting to the insane hypocrisy of Iran chairing UN human rights meetings, once you posit these, there’s a certain abstraction called human rights and if you’re not respecting that, then I don’t need to respect you in any way and I don’t need to take any of your own claims seriously, then all you’re left with is brute force. 

Now the tricky thing though is that we don’t want to entirely say, well, human rights means nothing, this is all nonsense, right? We don’t want to take this, what in international relations is called realism, right? This realist theory that all that matters is the power relations between states and however they define their interests. And also one of the less enjoyable ironies of the last few weeks of seeing sort of really prominent international relations realists like Stephen Walt and John Mearsheimer, who have made their careers as great realists, arguing of course that realism reaches its limit when they come to Israel and they’re, Israel’s worthy of moral condemnation of the sort that they regard as irrelevant elsewhere.

This notion that there are certain irreducible things to be a human being, that you shouldn’t, that even if you can’t get yourself a passport to anywhere, getting back to Arendt’s question that you mentioned at the beginning, right, even if you can’t get yourself a passport to anywhere, there’s certain things that no state ought to be allowed to do to you. That is a very precious idea. I think it’s a powerful idea. I think it’s one that I don’t want to discard.

What I don’t know, I’ve been thinking about for a long time and don’t know is how to extricate it, how to disentangle it from where it’s gone, where human rights discourse so often is, has become part of the problem rather than the solution. And also because, and here I have to thank my old friend David Kaye, who was until recently the UN special rapporteur on freedom of expression, and wrote a wonderful response, critical but wonderful response to that article of mine that you mentioned. 

And he, one of the points he makes there is that all around the world, there are dissidents and minorities who are up against terrible governments and the only card they have to play vis-a-vis their governments is whatever human rights treaty they may have signed and whatever human rights organizations they may be in touch with. 

So it is a challenge that we don’t want to entirely subsume and collapse everything, all of our morals into politics, right? But how do you, how do we safeguard that remainder, that something extra?

Yehuda: But it’s not just politics versus human rights. I have three options. I basically have three options when I’m facing, when I’m facing a crisis like this. I have politics, right? Change the conditions. I have human rights, which is an appeal to some sort of larger order, right? In that respect, it’s like the appeal to the, that’s where it becomes like an appeal to the theological. And the third is violence. 

And the tricky part, to me, if it feels about the human rights challenge, is that there’s almost no way around the use of violence to preserve human rights. Right, that’s the, like a weird paradox of sorts. Human rights emerges because of a perpetuation of a genocide. It emerges because the world basically concludes that the only way you stop, you know, a bad guy with a gun is a good guy with a gun. 

And it, when the state of Israel is attacked with a crime against humanity on October 7th, its response is not merely to, you know, walk with a bunch of papers over to the International Court of Justice and try to argue, look, Hamas committed war crimes and crimes against humanity against our people. It’s actually to legitimately fight back and to argue that the use of violence by people who feel that they are experiencing human rights violations is illegitimate, but our use of violence to punish them for their human rights violations is legitimate. So I just, that’s the part that feels to me intractable about all of this.

Yehudah: Well, but I think though politics is also woven, I’m not sure if like coercion or force is the third option. It’s something that will inevitably be woven into the other two. Right. I mean, right. How did Max Weber define the state, right? The state is the holder of the monopoly of legitimate coercion in any given, any given place. And for those purposes, I guess the international community. Is that which holds the monopoly of legitimate coercion, if there is such a thing?

But I think there’s another piece of this also, and this touches on a key issue and something that really, that Jews talk about a lot, and not only this idea of human rights as this, what you said, that you put it really nicely, human rights as this other order, so to speak, almost this universalizing idea. If politics seems to be a very, almost like parochializing or domesticating idea, then human rights is this larger idea. There’s different kinds of universalism. And we tend to associate universalism with a certain liberal kind. But Islamism is a universalism too, the same way communism once was. Should China become more of a global power? 

For some years now, China, it has seemed to be the one power that could ideologically challenge the West on its own terms by offering a competing conception of the good life that people in the West might subscribe to. When the Soviets said, give us your rights and we’ll give you prosperity, it was a lie. When the Chinese government says it, it’s not entirely a lie. I mean, bearing in mind all the many caveats about how Chinese economics works. 

So I’m not sure also that it’s a choice between universalism, and say Jewish interests or democracy, but also like which of different competing universalisms. And certainly in the present war, Anshel Pfeffer from Haaretz had a wonderful essay a few weeks ago where he said, you know, we’re so caught up in this war and conversations about colonization this and decolonization that, how come nobody’s listening to how the men of Hamas actually describe themselves and like they say what they’re doing what they’re doing and decolonization is not about it, it’s their religious truth, right? 

And at times I’ve thought that over the years principled critics of human rights from sort of religious traditions and traditional religious figures, understand that this is some other alternative conception of the good life and it’s a universalism that threatens theirs. And I think one needs to be clear about that. I mean, there’s something about liberalism and free market capitalism that it sees itself as transparent. It’s obviously the truth. Right? You don’t need to, it doesn’t, and it doesn’t come with some thick understanding of the human condition. It’s the default mode of the human race and that simply is not the case. Right? 

And in the same way, it’s this fundamental paradox of the idea of human rights. On the one hand, it seems to be sounding the tones of moral ideas that were with us for many, many centuries, but on the other hand, as you pointed out, until the middle of the 20th century, nobody talks like this.

Yehuda: Right, so is then the crux of your argument that the application of human rights language to what Israel is doing in Gaza, in fighting against Hamas, as opposed to what Hamas did in southern Israel on October 7th, is that what breaks the basic legitimacy of this human rights discourse, its inability to understand the context and the actors to which it’s applying, the inability to condemn a crime against humanity when it takes place? What is it that ruptures, because your argument was a big one. It said, great, we had a 75-year history, it’s now over. What is it that actually breaks human rights?

Yehudah: Well, I think… There’s human rights and there’s international humanitarian law, which is a different thing, the laws of warfare. The laws of warfare are a good thing. We want there to be basic rules governing the conduct of war. And Israel in its campaign in Gaza, the West Bank is a different story. Israel is not a belligerent occupier of Gaza. You can argue that Israel, that the restrictions have been maintained on airspace, et cetera. But it wasn’t. And the situation there, frankly, is different in the West Bank, certainly parts of the West Bank, where Israel is a belligerent occupying force, where certain sorts of considerations would apply. 

So in the Gaza case, the case of the Gaza War, there’s the international humanitarian law that appropriately governs the conflict. However, it’s interpreted, and the Israeli legal office of the Israeli Foreign Ministry, and you and I both know terrific people who work there, have an interpretation which not all international jurists would share, but any number of them do. When human rights gets attached internationally, international humanitarian law assumes that there will be wars, assumes that there will be conflicts, assumes that there will be casualties, and we try to regulate that. 

The ideal of human rights almost like wants to do away with that friction, that inevitable friction. And applying human rights standards to that is a kind of shatnez, it’s this kind of like unholy mixture. And part of my concern about the human rights idea is that the idea of human rights, by being attached to so many things, will discredit things that shouldn’t be discredited.

I don’t think the entire enterprise of international humanitarian law should be discredited. I don’t think the idea that people having certain basic claims to subsistence should be discredited just because the human rights world has become so cynical about it. Maybe human rights exists properly only aspirationally, right, as a theological idea.

Yehuda: So when you say in your piece that you would love to see reform take place, is that basically what we’re talking about, which is the willingness of these international bodies to just be a little bit more serious about allowing for the possibility of war and sometimes the moral necessity of war, for taking seriously that there’s international law that governs war and that human rights only really matters, either as we’ve said kind of to this appeal to some North Star principle, which then means it’s not that useful, or that it kind of kicks in when the systems otherwise don’t work.

Yehudah: I think it’s worth looking at each institution on its own. Generally speaking, when we talk about the UN, the United Nations, we’re talking about three different entities. We’re talking about the General Assembly, this great talking shop for every place in the world that’s considered a state. We have the UN Security Council, and we have the whole alphabet soup of UN organizations, human rights organizations, as well as Health, UNICEF, whoever. 

And I think that each one of those needs to be looked at separately. 

And I think also in the alphabet soup, each one needs to be looked at differently. The UN Security Council, what is its job? Its job is to keep the world from blowing itself up in nuclear war. By that measure, it has done not a bad job of keeping the fact that we made it through the Cold War without America and the Soviet Union destroying one another, that we have these nuclear powers and they’re more or less kept in check. The UN General Assembly, again, it’s this nonsensical organization, and I think the different UN agencies, each one needs to be examined and evaluated at its own merit. 

So here’s a thought experiment. Let’s say tomorrow we got rid of the UN Human Rights Council in Geneva. To my mind it would make no appreciable difference to anyone in the world. The only difference it might make is, you know, countries, less wealthy countries who use their votes in the UN Human Rights Council as bargaining chips with larger countries from whom they’re trying to get financial aid, right? They would notice its absence. But I don’t think anybody would care if the UN Human Rights Council would vanish. The UN Special Rapporteurs, it’s probably a nice idea. The UN councils whereby countries are meant to report to the UN, file reports to the UN, on how they’re fulfilling their commitments under the international covenants, which they’ve signed, that might be worth looking at, right? 

Also, if we look at things like the conventions on the elimination of all forms of discrimination against women, the convention on the rights of people with disabilities, these are very valuable interventions in the life of humanity. 

Here’s a different thought experiment. If the state of Israel would never have been created, what would the human rights enterprise look like today? I don’t know, but I’ve been wondering lately. You know, like Richard Nixon famously said, right, when he lost the election in the presidential election in 1960, he gave a press conference and he said, you won’t have Dick Nixon to kick around anymore. If the international human rights community didn’t have Israel to kick around, what would it look like? What would it be focusing on? I don’t know. It’s become so central in the human rights world. And that also becomes its own question of why. 

These UN agencies, for instance, are like also vast jobs programs. So you can’t just easily eliminate them. But I think those are the things we need to think about. And also, what are the elements of the international order, legal and moral, that still need to be preserved.

Yehuda: Let me ask you one last and very hard question. Very, very hard question.

Yehudah: Sure.

Yehuda: We’re struggling and we’ll talk about this more in other episodes. We’ve been struggling for a while throughout this war about the nature of the responsibility of Jews, Zionists, pro-Israel Jews, especially those of us in the diaspora, about what appears to be a human rights catastrophe in Gaza. 

And part of the reason it’s very hard to engage with that is, number one, the world, so to speak, didn’t grant Israel, the legitimacy of its own human rights catastrophe on the southern border of Gaza. And so there’s this almost like weird barter game, right? Give me mine and maybe I can engage with yours. 

But the second and much bigger problem is Israel’s fighting a war that many of us consider fundamentally legitimate, and therefore the human rights catastrophe is something that has emerged out of a legitimate war, as opposed to being the intent. And this is really important because it goes to gen, you know, even the UN conventions on genocide require intent. And a lot of the laws, international humanitarian laws of war require intent with the knowledge that there will be civilian casualties. 

The way that you’ve presented today, the increasing uselessness of the term of human rights is another kind of notch in the argument, in essence, against compassion. I’m not putting those, I’m not trying to put those words in your mouth, but what is the approach then for someone who says, I’m skeptical of the human rights thing, I wanna support my country at war, I’m skeptical that if I use the term of human rights, it’s something that gets weaponized against me. How does a person still not lose their humanity in watching thousands of children getting killed?

Yehudah: Well, that’s a great question, and it helps me think through, your question helps me think through something or formulate better something I said a few minutes ago. I would say, what has happened to Gaza’s civilians since the start of this war is a humanitarian catastrophe, but not a human rights catastrophe. The human rights catastrophe was their having to live under Hamas.

If we think, if human rights means that there’s things that no government is allowed to do to people, then they had, the human rights catastrophe was their having had to live under the rule of Hamas. And as this war reveals just how destructive that rule was. 

And that has led to the humanitarian catastrophe. What do we mean concretely? Humanitarian catastrophe, people don’t have food, they don’t have water, they don’t have shelter, right? Their lives are entirely dislocated. 

And you mentioned a question of Israel and diaspora. You know, I live in, as you know, I’m dual citizen in the United States of Israel and I live in Israel most of the year. And so for me, looking at the humanitarian and human rights, claims, postures of Palestinians in Gaza and in the West Bank, it’s not simply an abstract question because it’s also these are people I want and need to live with. As we know, anybody who tries to live with someone else, with another person, invoking abstractions might be helpful, but it will only get you so far. At some point, they really get in the way. 

How to think about the humanitarian catastrophe unfolding in Gaza? It’s horrible. It’s awful. There’s nothing to rejoice in. You know, the pasuk in Sefer Mishlei, “binfol oyvecha al tismach uvishkashlo al yagel libecha.” Right, and do not rejoice in the fall of your enemy and in his stumbling, do not exalt. I think that’s part of what that biblical verse comes to teach us is along the lines of what you said earlier, precisely there’s a larger moral order judging us. You know, I mean, my enemy might be defeated, it would have been better if my enemy would have changed their mind.

Caring for the people of Gaza is made more difficult by the fact of the, what I call the human rights catastrophe, where they’re still being run by Hamas, right? And Hamas being in charge there and Hamas being, and Hamas having, again, genuine convictions about who they are and what they’re doing. 

I think for Jews, none of us could have imagined that some terror incident or other would invoke the kind of civilizational crisis and reckoning that we’re seeing now. Sitting there in our shelter room on October 7th, hearing the iron domes and whatever going off. If I would have turned to my wife, Tamar, and said, you know what this means, don’t you? Two months from now, there’s going to be so much pressure on the president of Harvard to resign because of this. She would have said, like, how depraved can you be? Like, how twisted are you? 

There’s this vast civilizational reckoning that emerges from this, and we’re only just at the beginning, and who knows where it’s going to go. But I think that, as always, the question has to be not what makes me feel good or righteous, but what concretely can alleviate human suffering or lower the dimensions of preventable human suffering realistically. I mean, so much of, I think we suffer so much from wanting to sort of say something that’s ideologically or morally or whatever satisfying. But that, and part of what I want the human rights world to look at and think about is the statements, the declarations of this, the that. Does this actually help anything?

Yehuda: Well, thank you so much for listening to our show. Thank you so much for listening to our show this week and special thanks to our guest, Yehudah Mirsky. Identity Crisis is produced by Tessa Zitter, our executive producer is Maital Friedman. This episode was produced with assistance from Sam Balough and Sarina Shohet and edited by Ben Azevedo at Bear Cave Audio and by Tessa Zitter with music provided by Socalled.

Transcripts of our show are now available on our website, typically about a week after an episode airs. You can sponsor an episode of the show by following a link in the show notes or visiting shalomhartman.org/identitycrisis. We’re always looking for ideas of what to cover in future episodes. If you have a topic you’d like to hear about, if you have comments on this episode, you can write to us at [email protected]. You can subscribe to our show everywhere podcasts are available. We’ll see you next week and thanks for listening.