[dropcap]A[/dropcap]rguments are concentrated around questions of international law but refugees, – those fleeing from North Africa, are somehow absent. As if their rights were not important, or – maybe worse – as if we unconsciously stopped believing that they had any. Unfortunately, neither the intervention nor struggle of Arab peoples themselves are over, so there still remains time to discuss the issue. Before I elaborate on what I have in mind, however, I want make a confession: seeing how Gaddafi’s forces have been dealing with rebels, I wanted “somebody to do something.” Something didn’t of course mean anything, it meant undertaking certain steps towards helping the anti-governmental side because they were weaker and I feel no sympathy for a “socialist regime” in Libya whatsoever. And I am quite realistic in terms of reasons for the intervention: expecting Western powers to invade a country merely for noble causes is simply naïve. In international relations and especially military interventions there are always interests behind noble words, and in many – too many – cases those are not the interests of the invaded. Anne Orford was perfectly right claiming that “responsibility to protect” (r2p) norm is a tool for pursuing Western interests rather than a universal imperative to stand for those who suffer. Bahrain and Yemen are the key examples (to limit myself to Arab Spring only) of a scandalous situation when interests and desire for stability override noble feelings (if there were any). It took real bloodbath in Syria to make Western powers react. And the reaction was limited to political sanctions. There is even more: we should not forget about those who take the r2p on their coat of arms – do France (the expulsion of Roma minority) and USA (“war on terror” atrocities) not deserve to be persecuted for their actions? Western countries and their allies can feel relatively safe. In this context r2p is a rather twisted heir of the spirit of ius publicum europeumwhich guaranteed relative stability in the Old World only because non-European land and peoples were left for unlimited exploitation and imperial expansion. R2p gives moral ground for selective interventions favoring imperial interests, under the decoy of defending the allegedly universal values.
National sovereignty, however, is not an argument against an intervention. First of all, sovereignty is not a response to empire, as Stewart Motha noted. In many cases imperial oppression finds its ally in national governments. In fact, in capitalist world-system, no country is fully sovereign, for the net of economic relations embraces the whole Earth and each state’s agency is limited by ‘sovereignty’ of capital. State sovereignty is at once necessary but impossible: necessary because it is a sine qua non of international relations; impossible – for reasons already mentioned above. National sovereignty was a sustainable illusion when there were land to grab and peoples without legal protection to exploit – these were the conditions of possibility of the sovereignty: a non-European land was the space for the expansion for capital. States have to act as if they were sovereign, act ‘as if,’ pretending that they do not know that at the moment there is no free exploitable space: land is partitioned, sea and air as well. We abandoned dreams of cosmic conquests. The only space left is cyberspace which, however, does not seem to be as attractive as new lands in previous centuries. The only ‘externality’ that is left are other countries.
There is also another problem with the r2p-vs-national sovereignty model. R2p and sovereignty are two sides of the same coin, they operate in the same paradigm or, in other words: r2p questions the idea of state sovereignty but at the same time it feeds on it. The truth of both sovereignty and r2p is a good (?) old protego ergo obligo. The one that poses itself in the position of protector demands loyalty and obedience in terms of either giving up the right of self-determinacy (over political or economic organization of polity) or claims the right to draw strict divisions over who is to be protected and in what way. It is the idea of sovereign power protecting individuals under its jurisdiction that justifies European actions against refugees from North Africa and migrants from elsewhere: reintroduction of border controls in Schengen zone and Frontex-lead operation Hermes aimed at keeping fleeing North Africa off European shores. In fact concentrating on legality or righteousness of the intervention conceals the tragedy of the hundreds of thousands North African countries which still suffer from colonial and post-colonial exploitation fleeing to Europe. It conceals the situation of people in Bahrain, Syria and Yemen despite many invocations by “whattabouters”. One of Polish governmental officials already introduced a division into “good” and “bad” migrants. “The good” are those who are fleeing war zone – that is Libyans. “The bad” are those who want to make their life bearable in economic terms – Tunisians and alike – as if not all migrants from North Africa risking their lives on rafts and overcrowded boats were indirect victims of Western exploitation, mediated by regimes of Gaddafi, Ben Ali or Mubarak. R2p and state sovereignty – as two sides of sovereignty – claim the monopoly of interpretation of international law, monopoly to determine denotation of the concepts such as a migrant, refugee, human and citizen, to connect the words with things or in this context – human beings.
In this context the most important question is: how to grasp both issues – the problematic intervention and situation of the refugees and the oppressed – without resorting to the concept of sovereignty. In more practical terms, this question concerns how to connect the issue of resistance of a probable oil grab by Western powers with treating refugees not as bare life but as subjects. Maybe it is time to reanimate human rights and read them in a radical way. I expect to hear from the disciples of Hannah Arendt that the demise of national sovereignty caused the situation in which “human rights” are empty unless they assume a form of the rights of citizens of a concrete state and that refugees, people deprived of all but abstract humanity, are enjoying in fact no protection and are the perfect example of this emptiness. I expect to hear that human rights are a tool of dividing human being into those who count as humans and those who do not and are reduced to homo sacer 0 bare life, from homo sapiens sapiens. They are right. Rights do not describe humans, they create them. A yet another argument would state that protection of human rights was mentioned in Resolution 1973 and are used as a tool of Western imperialism. It is also right. Moreover – rights as a tool of protection of individuals and groups have become a vernacular and degenerated themselves (Costas Douzinas pointed at this fact many times). The “politics of rights” – if I might use such term – replaces politics, substitutes social and economic conflicts with technical problems over the meaning of the rules, and leads to biopolitical management of population. It is true that in such circumstances human rights lose their protective power.
Those two counterarguments are based on a presumption that practice of enforcing human rights contradicts their universal claim and thus the rights of man are litera mortua. One way or the other, the rights of man are the rights of white rich males and do not apply to those, who most desperately need their protection. But, and this is the most important point made by Douzinas, Jacques Ranciere and Slavoj Zizek for today, this gap between universal, utopian claim of human rights and imperfect, sometimes disappointing practice is absolutely constitutive of? their emancipatory potential. They are not ultimate principles to be violently imposed on those who do not accept Western lifestyle, neither are they the rules that generally guide (or at least should) the actions of governments. They are not only the written words. The kernel of human rights lies in the tension between the concrete and the universal. To use Ranciere’s expression, human rights “are the rights of those who have not the rights that they have and have the rights that they have not.” This is what Ranciere calls dissensus – not an opposition to agreement but the questioning of the established system of meanings and denotations. “Political names are litigious names, names whose extension and comprehension are uncertain and which open for that reason the space of a test or verification.”. A verification, which is by all means political. And it is this concrete-and-imperfect-against-universal that gives political subjectivity to those, who are perceived only as and reduced to victims. To quote Ranciere once again, “[t]he subject of [human] rights is the subject, or more accurately the process of subjectivization, that bridges the interval between two forms of the existence of those rights”, the written text and rights-in-use, the questioning of the sociopolitical status quo. Human rights do not belong to fully formed human beings. They construct ‘humans’, they give identity and construct us as subjects. In this sense, gesture of risking one’s life in an overcrowded raft to reach Lampedusa, throwing stones at armed governmental tanks in Syria, hunger striking in Greece – all of them are deeply political: they question the whole edifice of social, economic and political relations, they are a claim to become ‘human’. In Slavoj Zizek’s words “[f]ar from being pre-political, ‘universal human rights’ designate the precise space of politicization proper; what they amount to is the right to universality as such—the right of a political agent to assert its radical non-coincidence with itself (in its particular identity), to posit itself as the ‘supernumerary’, the one with no proper place in the social edifice; and thus as an agent of universality of the social itself.”
Human rights understood as a tension between particular and universal, as already always split between reality and idea(l) join the issues of refugees, rebels and NATO invasion. They are a tool for political subjectivization of those who ‘are not taken into account,’ whether it comes to national political self-determination (Syria), better life (refugees) or deciding about national resources (Libya). Human rights read in a truly radical way, with their emancipatory promise taken seriously, are not limited to a set of rules that should be ticked off to call a state democratic. Radicalism of human rights lies in a constant “why only this, why not that.” Why only the right to economic freedom, why not the right to economic welfare? Of course Douzinas warns us, that this “career” of rights leads to their dissolution in political and cultural discourse: “I have the right to X” became equal to “I want X.” But the way out of this paradox is not to give up such claims but claim right things. Radical reading of human rights is to take them as a level struggle.
We must concentrate on human rights not despite intervention in Libya, but precisely because the intervention has already taken place. Gaston Gordillo was right claiming that intervention in Libya is counter-revolutionary: its aim is not to fuel the radical changes in North Africa but rather to implement such changes, that imperial status quo remains intact. Human rights can sustain the revolutionary drive. We must concentrate on human rights because people leave North Africa on their rafts and die on the streets of Syrian cities and towns. We must concentrate on human rights, because their universality and their open dimension of “to come” point to other places that are not on newspapers’ headlines. Concentration on the formal aspect of Libyan intervention aims at finding a secure non-partisan position that enables condemning it without getting one’s hands dirty. The truth is that in a situation when people are dying and being killed in thousands per month there is no such position. If – as Derrida said – the innocence of victims of 9/11 was not so innocent itself, it means that our position is far more complicated: we, willingly or not benefited (as the European Union citizens, as inhabitants of the core of capitalist world-system) from Mubarak’s, Ben Ali’s, Assad’s and Gaddafi’s rule. In such situation we cannot have clear conscience whatsoever. What is at stake here is not a truly non-partisan position of an external spectator (in fact impossible) but rather a political resolution of a problem we are deeply involved in.
 Jacques Ranciere, Who is the Subject of the Rights of Man, in: “South Atlantic Quarterly” 103:2/3, Spring/Summer 2004, p. 302.
 Ibidem, p. 304.
 Ibidem, p. 302.
 For example: Costas Douzinas, Human Rights and Empire. Political philosophy of cosmopolitanism, Routledge 2007, p. 7.
 Slavoj Zizek, Against human rights, in: “New Left Review” 34, p. 131.
 Douzinas, Human Rights and Empire, p. 12.
*Jan Smolenski – prospective student at Central European University, Budapest, Hungary (MA program in Political Science, graduated from Philosophy department at the University of Warsaw, Poland (Magister of Arts), member of Krytyka Polityczna team (journalist and columnist).
The article was first published on Critical Legal Thinking website.