Category: International Criminal Law

Remembering Rev. Dr. Martin Luther King, Jr. as we Celebrate Human Rights Day

by Chadra Pittman

“An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity.”   Dr. Martin Luther King, Jr                                            
photo of MLK making a speech
Source: Yahoo Images

On this day, January 16, 2023, we remember a man known as the champion of human rights, Civil Rights Leader, Dr. Martin Luther King, Jr., who would have been 94 years old had he lived. As the leader of the Civil Rights Movement, Dr. King dedicated his life to advocating against racial discrimination and injustice. Through multiple death threats, the bombings of his family home, enduring physical attacks and being stabbed, until his assassination on April 4, 1968; Dr. King remained committed to the principle of non-violence. He was only 39 years old when he was killed.

Dr. King believed in the universality of human rights for all and acknowledged that, “Injustice anywhere is a threat to justice everywhere.”  What better way to begin a blog about “Human Rights Day” and the “Universal Declaration of Human Rights”, than on the day we commemorate the birth of a man who used his voice, and ultimately risked his life in pursuit of equal rights for all of humanity,

The UDHR document
Source: United Nations

Seventy-five years ago, the United Nations adopted the Universal Declaration of Human Rights on December 10, 1948, at a General Assembly meeting in Paris. The UDHR was created to formalize a global standard for human rights across the world. Annually, on December 10th, a day which commemorates the passing of the UDHR, the UN acknowledges this day as Human Rights Day.

What is the Universal Declaration of Human Rights?

In less than half a century, the Universal Declaration of Human Rights (UDHR) has come to be regarded as possibly the single most important document created in the twentieth century and as the accepted world standard for human rights. Referred to as a milestone document in the history of human rights, the UDHR is a collaborative effort of experts from the legal and cultural fields from around the world. The goal was to create a document which rights would be acknowledged globally and would serve as protection for all people living within any nation across the world. 

As the most translated document in the world, the UDHR is available in 500 languages, which speaks to the efforts made to ensure that all humans across the world are aware of their human rights, can access them in their native language and know that those rights are acknowledged by the United Nations and the world. It was Former First Lady of the United States, Eleanor Rooselvelt, who served as Chair of the Human Rights Commission (HRC),  who advocated for the declaration to be “…written in clear accessible language so that it might be readily embraced by peoples of the world. She exerted similar pressure on the U.S. State Department, arguing that for the declaration to have any impact it must not be seen as an American or western dominated document.” She also recognized that the U.S. would receive criticism for advocating for human rights across the globe, when the racist policies of Jim Crow were plaguing the lives of African Americans within the United States.  Even so, the Commission forged onward and the UDHR was born.

UN Poster that reads "Stand Up for Human Rights"
Source: United Nations

Timeline for the Universal Declaration of Human Rights

On April 25, 1945, on the heels of World War II, representatives from fifty nations met to “organize the United Nations” in San Francisco, California. On June 26, the representatives adopted the United Nations Charter, Article 68. The purpose of this article was for the General Assembly  to “set up commissions in economic and social fields and for the promotion of human rights.” 

In December 1945, Former First Lady Eleanor Roosevelt was appointed by then President Harry S. Truman to the United States delegation to the United Nations. UN Secretary-General Trygve Lie, appointed Roosevelt to the commission and with the task of creating the formal Human Rights Commission (HRC).

In February 1946, a “nuclear” commission on human rights was created by the United Nations Economic and Social Council (ECOSOC) and its job was to recommend a “structure and mission for the permanent Human Rights Commission (HRC)”.  

In April 1946, Roosevelt was nominated to be the chair of the HRC. The ECOSOC gave the HRC three tasks to complete: “a draft International Declaration, a draft covenant, and provisions for the implementation.” 

On December 10, 1948, after convening with “representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris (General Assembly resolution 217 A). 

photosearch/Getty Images
photosearch/Getty Imagesj

Roosevelt led the way to ensure that the declaration was inclusive and advocated that when considering human rights that the State Department make sure that, “it must not be seen as an American or western dominated document… advocating that they “…expand its concept of human rights from a concept of merely political and civil rights to include economic, social, and cultural rights.” 

What are the Human Rights Concerns of 2022?

One might think, we have come far in our efforts to afford equitable attainment of human rights to all people across the world. While we, collectively have made strides, we still have a long way to go to free the world of human rights violations. According to the Institute for Human Rights and Business, listed below are the top 10 human rights issues in 2022.

  • Redesigning supply chain
  • Personal Data Tracking & Tracing
  • Stranded at Sea
  • Wage Abuse
  • Office and Work Place
  • Forced Labor
  • Climate Change
  • Racial Matters
  • Standards Fragmentation
  • Transition Finance

These issues are reflective of the ongoing and unprecedented impact of COVID-19.

On December 10, 2023, the 75th anniversary of the Universal Declaration of Human Rights will be celebrated. However, on Human Rights Day, December 10, 2022, the United Nations will launch a year-long campaign to showcase the UDHR by focusing on its legacy, relevance and activism.” The 2022 slogan is “Dignity, Freedom, and Justice for All.”

How to Participate in Human Rights Day on December 10th and beyond

Your college experience is full of opportunities to grow and learn, academically, socially and even politically. You will meet people from varying backgrounds and having lived experiences which may be foreign, pun intended, to you. So on Human Rights Day, what can you do to support the initiative? Well, the college interns at the United Nations Association, came up with 10 Ways to support Human Rights Day. Hopefully, you will be inspired to do one.  

1. Pass a student government resolution: Work with a member of your student government or student council to pass a resolution in honor of Human Rights Day.

2. Write an op-ed or article in your school’s newspaper: School newspapers can be a great place to talk about the importance of human rights around the world.

3. Stage a public reading: Set up a microphone in your student center or, if the weather’s right, outside and read the Universal Declaration of Human Rights in full.

4. Set up a free expression wall: Set up a blank wall or giant piece of paper and encourage your friends to write about what human rights mean to them.

5. Make a viral video about human rights day: Film your UNA chapter kicking it Gangnam style to celebrate human rights and put the video online: it’ll go viral in a matter of minutes.

6. Start a Facebook campaign: Encourage your friends to change their profile pictures to an individualized Human Rights Day banner.

7. Hand out t-shirts and other gear: If you have the funds, buy t-shirts, sunglasses, or even 90’s-style sweatbands featuring a slogan about human rights to give to your classmates.

8. Coordinate an extra-credit lecture: Work with professors in the history department, the law school, or the international relations program to host a lecture about human rights, and work with other professors in the department to get attendees extra credit—trust us, your friends will thank you.

9. Hold a candlelight vigil or other commemorative event: While it’s important to have fun, human rights are serious business. Consider holding a vigil or other event to commemorate those who have suffered human rights abuses and those whose human rights are still violated.

10. Hold a talent show, dance, or party: Big social events are a great way to bring awareness to an issue, so why not have a human rights-themed party? Free admission if you dress up like Eleanor Roosevelt or Ban Ki-Moon. Also, here are two organizations you can support: Free and Equal and He for She.

Former President of South Africa, Nelson Mandela once said that, “To deny people their human rights is to deny their very humanity.” For the past 75 years, the UDHR has existed to ensure that our human rights are not violated, and if they are that there is accountability on a global stage.  We all deserve the right to live freely and uninhibited, the freedom to love who we want and practice the religion of our choice. We must work together as a humanity to ensure that protecting our human rights continues to be a priority. 

For Dr. King, protecting, and advocating for human rights and speaking out against injustice was his priority. On August 28, 1963, officially called the March on Washington for Jobs and Freedom… some 250,000 people gathered at the Lincoln Memorial, and more than 3,000 members of the press covered the event. On that historic day, Dr. King said, “I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal.” 

Let us work together to transform his dream into reality. Beyond this nation of the United States, let us work collectively to ensure equal and equitable rights for ALL women, men, and gender nonbinary humans.  Protecting human rights was a priority for Dr. King. On November 3, 1967, just a few miles away from this campus of UAB, Dr, King wrote his infamous ‘Letter from a Birmingham Jail” to the Clergymen.

Martin_Luther_King_Jr_in_Jefferson_County_Jail_Birmingham_Alabama_November_3_1967

Martin Luther King Jr. in Jefferson County Jail, Birmingham, Alabama, November 3, 1967 Fair use image“While confined here in the Birmingham jail, I came across your recent statement calling my present activities “unwise and untimely… I am in Birmingham because injustice is here…  Moreover, I am cognizant of the interrelatedness of all communities and states. I cannot sit idly by in Atlanta and not be concerned about what happens in Birmingham. Injustice anywhere is a threat to justice everywhere. We are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever affects one directly, affects all indirectly.”

Dr. King reminds us that “The time is always right to do what is right” and that we as a humanity must ensure that the single garment of destiny is threaded with equal rights for all humans for this is the only true way forward. In the spirit of Dr. King, we must work to ensure that the rights of ALL humans are acknowledged, respected and protected by law, and not just on Human Rights Day, but every day, and everywhere across the globe.

 

The Pinochet Precedent: Convicting Human Rights Violators

On October 16th, 1998, darkness set as police approached the London Bridge Hospital. They were there to arrest the former dictator General Augusto Pinochet. That Friday night, Pinochet was detained after receiving minor back surgery, the first former head of state to be arrested on a diplomatic passport in the UK. Suddenly, the immunity generally granted to persons of government had been contested, and the exiles and victims of Pinochet took a step toward justice. 

Pinochet’s human rights violations

On September 11th, 1973, bombs were dropped on the presidential palace in Santiago, Chile. This was the first day in what was to be a bloody reign by the dictator General Augusto Pinochet. Overnight, the democratically elected socialist government was replaced with a repressive regime predicated on fear, oppression, and violence. 

Previously, Chile had held the position as the longest-living democracy and most politically stable nation in Latin America. However, in the wake of the 1973 coup, Pinochet’s junta began a crusade to solidify power: constitutional guarantees were suspended, Congress was disbanded, and a country-wide state of siege was declared. 

According to decades-long documentation by Amnesty International, “torture was systematic; ‘disappearance’ became a state policy.” These gross human rights violations were perpetrated by the Dirección de Inteligencia Nacional (DINA), the secret military police created to target the real and imagined opponents of the authoritarian regime. 

On June 1974, a year after the bloody seizure of power, Article 1 of Decree-Law 521 established DINA as a “military organization of a professional technical nature, directly dependent upon the Government junta, and whose mission will be that of gathering all information at the national level coming from the different fields of activity, with the purpose of producing the intelligence which is required for the formulation of policies, planning and for the adoption of measures that seek to protect the national security and the development of the country.”

In the immediate days following the coup, hundreds of people were detained and taken to two sports stadiums in Santiago. Thousands of social activists, teachers, lawyers, trade unionists, students, and political activists became targets and prisoners of secret detention centers across the country. 

Flowers resting atop white marble covered with names and dates.
Figure 1: Source: Reuters found on Yahoo Images; Roses laying on top of a memorial for disappeared persons in a general cemetery, Santiago, Chile.

These detention centers, and also labor camps, existed under the entirety of Pinochet’s reign. Villa Grimaldi was one of many of these camps used for interrogation and torture. It is estimated that 4,500 prisoners were abused at this site alone, the most common forms of torture including electroshock, waterboarding, forcing heads into excrement, rape, and death. 

According to Amnesty International, the number of officially recognized disappeared or killed is 3,000 people between 1973 and 1990 and the survivors of political imprisonment and torture is around 40,000 people. To this day, 1,100 people remain missing and only 104 have been found. 

International approaches to convict human rights violations

International law is a relatively new field. Born out of the horrors of World War Two, the United Nations is the multinational body that mediates the rules and creates the international dialogue on human rights. On December 10th, 1948, the UN passed the Universal Declaration of Human Rights comprised of 30 articles that outline the fundamental principles of human rights. Since then, the UN has written more specific conventions and treaties to expound further on the rights of: 

  • Women
  • Refugees
  • People with disabilities 
  • Children 
  • Indigenous peoples 

And even civil and political, economic, social, and cultural rights. 

When it comes to the implementation of these conventions, there are very divergent paths in the realization of human rights. Opinio juris expresses that a norm about behavior exists but is not consistently followed. In opposition, jus cogens refer to laws and norms in which no derogation is permitted, this includes crimes against humanity (torture, war crimes, apartheid, systematic and widespread violence) and genocide. 

A drawn image of a person with bound wrists, a gun, and wrists in chains.
Figure 2: Source: Open Society Justice Initiative from Yahoo Images; Depictions of crimes against humanity.

It is the principle of jus cogens that gives rise to universal jurisdiction. Universal jurisdiction refers to the duty that all states have to prosecute individuals who commit crimes against humanity, whether domestically or by other states when the nation where the crime occurred is unwilling or unable to indict violators. It was universal jurisdiction that was key in establishing accountability during the Nuremberg Trials following the holocaust. 

Fifty years later, this principle was used to arrest Pinochet for his systematic use of torture and crimes against humanity in Chile. 

An end to amnesty 

After democracy was restored in Chile, Pinochet lost the presidential election, but not before creating a legal structure to protect himself and his accomplices. In 1978, Pinochet passed an Amnesty Law to protect military personnel who committed human rights violations. Additionally, Pinochet remained commander-in-chief of the Chilean Armed Forces after losing his presidential position and was appointed a senator for life. It appeared, to Pinochet and his victims, that he would remain outside of a courtroom. 

A black and white image of a group of women holding pictures of people with “Donde estan?”
Figure 3: Source: Wikimedia Commons found on Yahoo Images, Kena Lorenzini; Chilean mothers of disappeared holding signs of their loved ones.

Instead, victims were not deterred from bringing awareness to the crimes of Pinochet. Lawyers representing victims of Pinochet’s repressive regime decided to file complaints in Spain where the principle of universal jurisdiction was enshrined in their legislation. Joan Garcés, a Spanish lawyer, had begun filing for Pinochet’s arrest in 1996, and when it was known that the former dictator would be traveling to the UK, the moment to act became apparent. On October 15th, 1998, Garcés’ team filed a motion for Pinochet’s arrest which was granted. An Interpol red notice was issued, which is a formal international request to locate and arrest persons pending extradition, and a day later Pinochet was detained. 

Pinochet twice petitioned the House of the Lords to dismiss his arrest claiming immunity on the basis of being a former head of state. Both of these requests were denied as the House of Lords affirmed that former heads of state did enjoy immunity for acts committed as functions of a head of state, international crimes such as torture and crimes against humanity were not such functions. Ultimately, in March 2000 Pinochet was released and returned to Chile on medical grounds after tests found him mentally unfit to stand trial. 

However, in the wake of Pinochet’s arrest, Chile’s political and legal landscape had transformed allowing more space for the voices of victims and a sweep of new legal interpretations. The Supreme Court had found the Amnesty Laws only applied prior to 1978 when the state of siege was declared over, additionally, they stated that amnesty could only be granted after an investigation. Moreover, in the cases of disappeared persons, this act constituted an ongoing aggravated kidnapping meaning these cases went beyond the 1978 cut-off. 

Chilean Judge Juan Guzmán asked the courts to strip Pinochet of his immunity and the courts agreed, indicting Pinochet and placing him under house arrest. 

Unfortunately, Pinochet never stood for trial, but his military officers did. 

The indictment of Pinochet and new interpretations of the 1978 Amnesty Laws paved the way for other human rights violators to be prosecuted in Chile. By July 2003, 300 military officers had been indicted and dozens convicted, mostly surrounding cases of enforced disappearances. In 2017, 106 ex-agents of DINA were charged with kidnapping and killing 16 people in “Operation Colombo” during the early years of Pinochet’s dictatorship. Many were already serving times for other cases and were sentenced to between 541 days to 20 years in jail, while the state was ordered to pay around $7.5 million (5 billion Chilean pesos) to the families of the deceased. 

Photo from behind a person in front of a wall of pictures of people.
Figure 4: Source: Wikimedia Common found on Yahoo Images, Carlos Texidor Cadenas; An exhibit of images of victims of the Pinochet dictatorship at the Museo de la Memoria y Los Derechos Humanos, Santiago, Chile.

Justice is not only a conviction of a crime. While it is vital to convict human rights violators, it can be extremely challenging, but the arrest of Pinochet has laid the foundation for other dictators to stand trial. Of equal note, this case transformed how victims were seen and heard in Chile, offering justice through legal means when possible and honoring the injustices publicly when before there was silence. Chile continues to reconcile with its past, voting to do away with the constitution written by Pinochet in place of a new one and through the tireless efforts of human rights defenders domestically and internationally. 

You can offer your support or learn more below: 

International Attempts at Transitional Justice

Note from the author: This blog was written to accompany the social justice cafe on Wednesday, November 30th at 4:00 pm on zoom. To join, sign up here. Alongside this event, this post focuses on an international scale while the recent post by Maya Crocker focuses on transitional justice in the United States. 

Forgiving and being reconciled to our enemies or our loved ones are not about pretending that things are other than they are. It is not about patting one another on the back and turning a blind eye to the wrong. True reconciliation exposes the awfulness, the abuse, the hurt, the truth. It could even sometimes make things worse. It is a risky undertaking but in the end, it is worthwhile, because, in the end, only an honest confrontation with reality can bring real healing. Superficial reconciliation can bring only superficial healing.

Archbishop Desmond Tutu

A headshot of a Black man smiling wearing purple clerical attire and collar.
Figure 1: Source: Flickr, John Mathew Smith; Archbishop Desmond Tutu in Washington, D.C., 1999.

What is transitional justice?

Transitional justice (TJ) refers to a set of judicial and non-judicial processes addressing previous injustices of authoritarian regimes (or multiple perpetrator groups) and establishing rule of law. Transitional justice has several aims and synthesizes aspects of punitive and restorative justice. 

According to the United Nations Office of the High Commissioner on Human Rights (OHCHR), these aims include: 

  • Providing recognition to victims 
  • Building trust between citizens and state institutions
  • Reinforcing the rule of law 
  • Committing to human rights and building solidarity with victims
  • Reconciliation between victims, perpetrators, and bystanders
  • Preventing new violations

But only characterizing transitional justice through its aims would not highlight the transformative effect this approach attempts in states where massive or systematic violations have occurred. While providing redress to victims and undertaking prosecutorial avenues as practical solutions, this approach also takes a strategic initiative to change the political systems, conflicts, and conditions that contributed to violations occurring in the first place. 

This field first emerged in the 1980s and early 90s in response to the drastic political changes in Latin America and East Europe. Human rights advocates and citizens alike questioned how and what kind of redress should occur in the wake of widespread and systematic violence. Fears over disrupting political changes by pursuing indictments of former leaders were salient: how could justice exist without compromising democratization? 

Thus, “transitions to democracy” and “justice” intersected and involved multiple processes to be sensitive to these concerns during a critical period in the country.

These processes are: 

  • Criminal Prosecutions: judicial investigations
  • Truth Commissions: ad hoc commissions of inquiry established in, and authorized by, states for the primary purposes of investigating and reporting on key periods of recent past abuse. 
  • Amnesty: a pardon granted to perpetrators, usually granted to those who comply with truth commissions and offer testimonies
  • Purges, lustrations, and security reforms: (1) removal of known collaborators of oppression from office and state institutions, (2) process of vetting personnel in state institutions, (3) transformation in state institutions involved in repression, like the military, police, judiciary
  • Reparations: state-sponsored initiatives that aim at repairing, on a massive scale, the consequences of past abuse experienced by certain classes of victims, including material and symbolic benefits
  • Gender Justice: focusing on the intersections of human rights abuse and gender during a period of repression, fact-finding initiatives to establish the nature of gendered abuses
  • Memorialization: museums, memorials, and other means of preserving the public memory of victims and raising moral consciousness about past abuse

Ultimately, TJ is a context-specific process that crucially (and historically) is led by the nation where the violations happened.

Specific attempts at transitional justice: the good and bad

Bolivia: 

Days after the restoration to democracy in 1982, the government created the National Commission of Inquiry into Disappearances. No reports or prosecutions were produced. In 1986, prosecutions began against the former military leader, General García Meza, and some of his officers. The trial was not complete until 1993, by which point Meza had gone into hiding to avoid a 30-year sentence for torture and murder. Notably, this court case rejected pardons for those convicted of crimes against humanity. 

Uruguay: 

After a 12-year military rule in 1985, the new government avoided truth commissions. Instead, President Sanguinetti issued a pardon (1986) to all soldiers and officers of the previous regime, with no distinction as to those who followed orders and those who gave them. He claimed this was the ‘safest path’ but ‘not a moral decision,’ highlighting that TJ attempts are not pursued in every situation. This is often a result of corruption and officials often rely on a dialogue of ‘national reconciliation by granting large amnesties but failing to pursue any other TJ processes, essentially dismissing victims’ realities.  Victims were denied any form of reparation and violators remain in high office in the police and military. An official Commission for Peace was established in 2000 under President Jorge Batlle with the official report released in April 2003 confirming that the military dictatorship was involved in some of the disappearances. 

Chile: 

This history of Chile’s dictatorship and eventual prosecutorial redress can be read about in my next blog. Part of the reason for the near-decade gap between the restoration of democracy (1990) and Pinochet’s arrest (1998) was due to Pinochet’s change of the constitution during military rule. Not only did he pardon himself and his torturers in 1978, but he enshrined legal protections from purges and lustration attempts. Nonetheless, Chile has engaged in memorialization and reparations in the cases of successful prosecution of former DINA police. 

El Salvador: 

A Commission on the Truth of El Salvador was established in 1991, led by three international jurists and staffed and financed by the United Nations. While only fully investigating 33 disappearances out of the reported 22,000, the commission did identify 40 individuals connected to the armed forces and involved in crimes against humanity. Additionally, the Commission was able to confirm the El Mozote massacre, where nearly 1,000 villagers were killed by US-trained and equipped Salvadoran army members. The Commission also called on the Supreme Court to retire, which they declined. René Ponce was named general and ordered the execution of 6 Jesuit priests (one the then head of the Human Rights Institute). Due to Ponce’s involvement in the peace negotiations and settlement with FMLN, his prosecution was never attempted. The report from the truth commission was rejected and the then-president offered a blanket amnesty for all political crimes which the Supreme Court upheld (1995). After 20 years, no other transitional justice attempts have been implemented. 

Haiti:

Haiti suffered massive human rights violations under the Duvalier reign between 1957 to 1986. Over 40,000 Haitians were killed and it wasn’t until 1990 that democracy was established with the election of President Jean-Bertrand Aristide. Soon after, he was ousted by General Raoul Cedras, showing just how volatile transitions toward democracy can be. Under Cedras, hundreds were killed by the paramilitary group Front for the Advancement and Progress of Haiti (FRAPH), funded in part by the CIA. Democracy was restored in 1994 and power returned to Aristide but at the cost of blanket amnesty for all rapes, murders, and political killings. He went on to establish a National Commission for Truth and Justice which in February 1996 urged for the prosecution of individuals who committed crimes against humanity by an international tribunal. There has been no tribunal and no prosecutions, and to this day impunity is chronic. 

Argentina: 

Spray painted image of a general with crossed-out eyes on a wall. The words “More than 30,000 reasons for popular justice. Never again look the other way" are painted beside the images.
Figure 2: Source: Yahoo Images, Colin Snider; Graffiti of General Jorge Videla with the phrases “More than 30,000 reasons for popular justice. Never again look the other way.”

Argentina took the most extensive approach of the states discussed so far. In 1983 after the defeat of the military in the Falklands Wars, President Raoul Alfonsín annulled the amnesty the military had given themselves. He also set up the Commission on the Disappeared which produced the report Nunca Más (Never Again) which was a national bestseller – fulfilling some forms of memorialization. The evidence the commission gathered was used to prosecute 5 of the most senior members of the military junta, but when indictments began on less senior officers the military revolted in 1987. Trials ceased to end the conflict but Alfonsín refused to give any pardons. His successor Carlos Menem was the one to pardon ex-president Videla and others on grounds of “national reconciliation.” In spite of Menem’s undermining, human rights groups and families of the disappeared renewed the vigor for criminal accountability in 2003, and as of 2010, more than 800 face criminal charges and 200 have been sentenced. 

South Africa:

When one thinks of “truth and reconciliation” or “truth commissions,” the most likely example to come to mind is South Africa. After the end of apartheid (a crime against humanity) in 1994, the new democratic government formed the unique tripartite Truth and Reconciliation Commission (TRC). It had three responsibilities: (1) record the apartheid era for memory, (2) make recommendations for reparations, and (3) grant amnesty to individuals based on application and only in limited circumstances. 

This was a revolutionary step for transitional justice and helped citizens come to terms with the violent and discriminatory apartheid. In spite of the success of this TRC, no prosecutions have ever been mounted and organizations like Human Rights Watch and Amnesty International fear the TRC suggestions are not being fully implemented. 

Nonetheless, it is important to note that the commission was chaired by none other than Archbishop Desmond Tutu whose ceaseless human rights efforts have helped define the role of TRCs as both forward and backward-looking. In his words, “True reconciliation is never cheap, for it is based on forgiveness which is costly. Forgiveness in turn depends on repentance, which has to be based on an acknowledgment of what was done wrong, and therefore on disclosure of the truth. You cannot forgive what you do not know.” 

United States: 

For an in-depth examination of the transitional justice movement in the United States, please read Maya Crocker’s blog here. 

Conclusion

Without addressing the seeds which sprouted violence, the threat of their reoccurrence cannot be escaped. This means acknowledgment, and hardest of all, forgiveness. While a generation suffered, hatred should not be allowed to pass down and threaten long-lasting peace.

This is not easy, but if you believe in human rights, affirming the realities of victims and perpetrators and all those in between is crucial. As Desmond Tutu says, “We must not only speak about forgiveness and reconciliation, we must act on these principles.” 

This post draws a lot of information from the book Crimes Against Humanity: The Struggle for Global Justice by Geoffrey Robertson, originally published in 1999 with multiple editions given the continuous development of human rights. I will be utilizing information from a 1999 edition, and thus, certain information on the results of transitional justice attempts will have developed more in the last two decades. If you are interested in obtaining a copy for yourself, the latest edition was updated in 2013 and includes additional sections on Iraq, Guantanamo, the Obama administration’s use of drone warfare, the Charles Taylor conviction, and the trials of Mladic, Karadzic, and Khalid Sheik Mohammed. 

A book cover, there is no background, only a bold white title against black. 
Figure 3: Source: Target; Cover of the aforementioned book.

Geoffery Robertson is an internationally acclaimed lawyer and human rights advocate who has served as a UN war crimes judge and founded Doughty Street Chambers in London, a leading human rights law practice. In his book, he deconstructs international human rights law, beginning with the foundational philosophy of rights dialogue (natural rights, social contract, Enlightenment) and moving through the defining events of 20th-century human rights law formation. His book is written in a non-legalese, prose-like style and is a strong starting point for learning a breadth of information about the very complex processes behind prosecutions (and more often why they don’t happen). 

If this interests you, read Robertson’s book or check out more blogs from IHR below:

  • What is the International Criminal Court and Why Should I Care?
  • The Age of Human Rights?
  • Relativism’s Implications on Universal Human Rights
  • A Bright Future – Recent Human Rights Victories 
  • Justice(s) for Crimes Against Humanity: The Uyghur Muslims in China
  • Covenants Without the Sword: International Humanitarian Law (IHL) and Sexual Violence

Worldwide consequences of the Russian occupation of Ukraine

I wanted to include this image to portray some of the realities of what Ukrainians are facing.
Source: Yahoo Images; A picture of Ukraine being attacked

The Russian invasion of Ukraine has devastated both nations, with the people of Ukraine struggling to defend their homes against the more advanced Russian military, the people of Russia struggling financially in the face of global sanctions, and has spread anxiety to many nations of the possibilities of another world war, or even worse, the escalation into nuclear warfare. While there is a lot of coverage regarding the many attempts at diplomacy, the bombings and other military attacks on Ukraine, and the reactions of both Vladimir Putin, the Russian leader, as well as Volodymyr Zelensky, the Ukrainian leader, there are many consequences of this crisis that need to be brought to attention. It is important to focus on the impact of this crisis on the civilian populations of both nations and equally important for people to recognize that this crisis, along with similar crises around the world, is further fueling the climate crisis, even without the threats of nuclear warfare dangerously being dangled as an option. Additionally, the Ukrainian forces of resistance are essentially complex; on one side, ordinary Ukrainian citizens should be honored for their bravery and resistance at defending their nation from foreign invasion, but on the other hand, it is necessary to recognize that the Ukrainian military also includes the Azov Battalion, the neo-Nazi Special Operations unit in the Ukrainian National Guard. These are some delicate times, and transparency can help increase the trust among nations. Just the same, in the wake of this crisis, the world should not ignore the other brutalities taking place globally, many of which have participated in egregious violations of human rights. Finally, it is pertinent that people be aware of the war crimes and crimes against humanity committed by Russia and hold them accountable.

The Human Impact

I included this image to show how the same location from the previous image looked prior to being bombed.
Source: Yahoo Images; A picture of Ukraine’s nightlife to capture its beauty before Russia’s invasion

While this crisis is a result of drastic measures taken by Putin and as a response to Putin’s aggressions, Zelensky, the civilian populations are the ones that are most impacted by it. On the one side of the conflict, Russian civilians are facing tremendous economic struggles, as sanctions are being placed on Russia from countries throughout the world. Among those who placed sanctions against Russia were the European Union, Australia, Japan, and even the famously neutral Switzerland. The European Union promised to cause “maximum impact” on Russia’s economy, some states like Japan and Australia chose to sanction the oligarchs and their luxury goods, and the United States sanctions included a freeze on Putin’s assets. With that being said, it is important to analyze how these sanctions can harm everyday Russian citizens. Civilians are lining up at ATMs and banks to withdraw their cash as stocks are plunging and the Russian currency, the Ruble, lost its value by 25%. Many Russian-made products are being boycotted around the world, and even Russian participation in events like the Paralympics is being banned. Russian citizens are unable to access their money through Google Pay and Apple Pay, as both have been suspended in Russia. For fear of Russian propaganda, the United States has even banned Russian media outlets from having access to the American people. Furthermore, even amidst these sanctions and economic uncertainties, Russian civilians have risked their lives to protest against their leader and the Ukrainian invasion in large numbers. When the invasion first began, 2,000 Russian protesters against the war got arrested by the Russian police. Almost two weeks into this invasion, as the protests continue to take place, as many as 4,300protesters have been arrested. Shockingly, many of the Russian soldiers sent to invade Ukraine have been reported abandoning their posts, fleeing or voluntarily surrendering to the Ukrainian forces, admitting that they were not even aware they were being sent into combat. These Russian soldiers, many of whom are inexperienced, young adults, are being forced to fight or be assassinated by their officers for abandoning their military posts during active wartime.

Nevertheless, as a result of Putin’s aggression, on the other side of this conflict, Ukrainians are being forced to deal with the devastations of war, and the people of Ukraine are fully invested in the defense of their nation. Ordinary citizens are being taught how to make Molotov cocktails, civilians are coming together to help each other meet their basic needs and anyone capable of fighting is being recruited to join the Ukrainian defense forces. Unfortunately, Ukraine has banned 18 to 60-year-old men from leaving the nation and forcing them to join the fight. This wartime crisis has also led to a massive refugee crisis as women and children and people of other nations are trying to escape the conflict zones. This refugee crisis has its own issues, with reported instances of discrimination against refugees from the Global South fleeing Ukraine. These reports focus on the mistreatment, harassment, and restriction of the refugees from leaving Ukraine to seek safety. Additionally, while the global solidarity to support Ukrainian refugees is admirable and should be commended, many critics have argued that Ukrainian refugees have been better received from the rest of Europe and the rest of the world in general, while refugees from the Middle East or other Global South nations have not been treated with the same courtesy. These are some valid points to consider, and the refugee crisis is only going to be amplified as a result of the many consequences of climate change.

Warfare and Climate Change

I wanted to include this image to insist on how important climate change really is.
Source: Yahoo Images; A map of the world in black, engulfed in a fiery background. The world is on fire and steps need to be taken to combat climate change.

Climate change continues to impact the world during this crisis. The latest report from the Intergovernmental Panel on Climate Change (IPCC) illustrates just how fragile our current climate crisis seems to be, exclaiming that anthropogenic (caused by humans) climate change is increasing the severity and frequency of natural disasters, and warming up the globe around 1.5 degrees Celsius (2.7 degrees Fahrenheit). The planet is already experiencing irreversible changes, the IPCC warns, and if actions are not taken to limit emissions and combat the climate crisis, the future of humanity is at risk. Additionally, another finding was reported about the Amazon Rainforest, (popularly dubbed the “Lungs of our Planet”), being unable to recuperate as quickly as it should due to heavy logging and massive fires it has experienced just over a couple of decades. These shocking revelations should be taken seriously, as this development will lead to more conflicts over land and resources. As people around the world are beginning to experience the calamities of climate change, nuclear warfare would maximize its destructions. With Russia being a nuclear state, tensions are surmounting globally, as nations continue to condemn Putin’s aggressions, and call for a ceasefire. Putting aside the possibilities of nuclear warfare, regular warfare amplifies the climate crisis in many ways.

First and foremost, warfare and military operations have a direct correlation to climate change in that they use massive amounts of fossil fuels to operate their machines and weapons, and militaries are among the largest producers of carbon across the world. This means that not only do militaries and their operations consume massive amounts of fossil fuels, but they are also among the biggest polluters in the world. Militaries worldwide need to decrease their carbon footprints and engage in more diplomatic strategies instead of engaging in warfare. We need to focus on international efforts to combat climate change and transform our economies and infrastructures into sustainable ones that rely on renewable resources. With this in mind, Germany addressed the energy crisis in Europe by suggesting that there needs to be a shift to a more sustainable economy, away from the influences of Russia, with the intentions of also fighting against climate change while becoming economically independent from Russian resources.

Furthermore, Russia, on the first day of its invasion against Ukraine, captured the site of the nuclear disaster, Chernobyl. While many argue that this was a strategic move to provide Russian troops a shortcut into Kyiv through Belarus, (Russia’s allies), others argue that the capturing of Chernobyl was meant to send a message to the West to not interfere. Still, others believe that the capture of Chernobyl held historic relevance, as many believe that the incident at Chernobyl led to the fall of the Soviet Union. Whatever may be the case, it is unclear what Putin’s plans for Chernobyl are, and as an area that is filled with radioactive, nuclear waste, people’s concerns with Putin’s possession of Chernobyl seem valid. If not contained and treated with caution, the nuclear waste being stored at Chernobyl can cause irreversible damages to both the environment and nearby populations for decades. Recently, there have been reports of Russian attacks on the Zaporizhzhia Ukrainian nuclear power plant which caught on fire, increasing the risks of a disaster ten times as bad as Chernobyl was. While we are still unclear as to the details of this report, we do know that Russia has captured it, and at the very least, wants to hinder Ukraine’s source of energy. Ukraine depends on nuclear energy for its electricity, and this plant produced 20% of the nation’s energy. At best, this was a strategic move on Russia’s part, yet some have even suggested that if Putin is so irresponsible with his attacks on a nuclear power plant, how much restraint might he show with regards to using nuclear weapons if he feels pushed into a corner.

Finally, as was explored during the Cold War, nuclear weapons themselves have dramatic consequences on the planet as a whole and have the power of ending humanity. This was one of the major epiphanies that led to the de-escalation of the Cold War when both the United States and the Soviet Union understood that to use nuclear weapons against each other would be “mutually assured destruction.” While many argue that Putin’s instructions to ready Russia’s nuclear weapons is a form of intimidation targeted on the West, these threats can carry out unimaginable consequences if acted upon. With increasing pressures from all sides, including the global sanctions, and the massive resistance from Ukraine, Putin’s incentives are becoming unclear as this conflict continues to unfold.

I wanted to include this image to showcase how complex nuclear plants are and why this plant needs to be approached with extreme caution and an understanding of nuclear power.
Source: Yahoo Images; A picture of the nuclear facility at Chernobyl.

The Complexities of the Ukrainian Crisis

There has been a backlash by some that the world was not this enraged when similar invasions and occupations occurred in Palestine, Syria, or during several of the Middle Eastern conflicts that have devastated the people of that region. Still, others have dismissed this argument, stating that what makes this crisis especially relevant globally is its threats of nuclear warfare. Others, however, argue that the global support of Ukraine is in part due to their being a population of white Christians. To support this argument, they point to many instances in Western media coverage of the Ukrainian invasion that has suggested this exact idea. A CBS reporter cried on a news segment, “this isn’t a place, with all due respect, like Iraq or Afghanistan, that has seen conflict raging for decades. This is relatively civilized, relatively European….” Even a Ukrainian prosecutor was caught saying “It’s very emotional for me because I see European people with blue eyes and blonde hair being killed.” This is important to note because Ukraine’s military has a Special Operations Unit known as the Azov Battalion, which is made up of far-right neo-Nazis, sporting Nazi regalia and symbols of White Supremacy. Putin’s many excuses for invading Ukraine included the need to “de-Nazify Ukraine”, referring to Ukraine’s empowering of the Azov Battalion’s rise to military and political prominence in the country. The Azov Battalion came under fire in 2016 for committing human rights violations and war crimes, detailing reports of abuse and terrorism against the civilians of the Donbas region in separatist Ukraine. With that being said, Putin’s excuse of wanting to terrorize an entire nation for the sake of his opposition to one particular group of Ukrainians is not justified, and people argue that his motivations are much more insidious than that. With the Ukrainian crisis being such a complex and nuanced issue, much of the world is focused on the conflict, a reality that many nations are taking advantage of to benefit their own national interests.

Other Aggressions still taking place around the world

I wanted to include this image to showcase that other brutalities continue to take place around the world, and deserve just as much global attention as the conflict in Ukraine
Source: Yahoo Images; A woman holding a Palestinian flag, as Israeli forces continue to occupy Palestinian land.

While the world’s attention is captured by the Ukraine-Russian crisis, some countries are taking advantage of a distracted world to commit their own atrocities. For one, Palestine continues to be colonized by Israel, a struggle that has lasted for over fifty years now. While Israelis are showing solidarity for Ukrainians from occupied Palestinian lands, they are oblivious to the hypocrisy of their actions and refuse to recognize their role in the suffering of the Palestinians. Just a few days ago, Israeli forces attacked and killed Palestinian civilians in the occupied West Bank, and they continue to terrorize the Palestinians in an attempt to force them out of their homes.

In another part of the world, the United States, while calling for peace in Ukraine, proceeded to bomb Somalia in the past week. A conflict that the United States has been a part of for fifteen years now, American forces claim that their intended targets are the militant groups in Somalia. Yet, according to Amnesty International, the US African Command admitted to having killed civilian populations with one of its many airstrikes conducted over Galgaduud in 2018. In fact, they claim that the only reason the US even admitted to the civilian casualties in Somalia was due to extensive research on the part of Amnesty International.

The Ukrainian conflict also has Taiwan on the edge of its seats, as many are focusing on the US response to the Ukrainian invasion to measure the reactions that the US might have if China were to invade Taiwan. Many Taiwanese officials are contemplating Russia and China’s close relationship and are worried about what a successive Russian invasion of Ukraine might mean for their own development with China. The Chinese government is already engaging in misinformation/disinformation campaigns against Taiwan, and many Taiwanese claims that China has also been conducting cyberattacks in Taiwan and military drills around the island.

Resistance and Accountability

I wanted to use this image to showcase Ukrainian resistance agains the Russian invasion
Source: Yahoo Images; A picture of a man in the motion of throwing a Molotov cocktail

Ukrainians, much to Putin’s dismay, have been successfully defending their nation and holding off Russian forces for over a week now. In response to its successful resistance, Ukraine’s forces claim that the Russian bombings have been targeting civilian buildings and taking the lives of innocent civilians, among them at least fourteen children. As videos of the Ukrainian invasion surface on social media platforms such as Tik Tok and Twitter, many experts are suggesting that the Russians are engaging in war crimes and crimes against humanity, and the International Criminal Court (ICC) has begun an investigation into these possibilities. The ICC is focusing not only on recent attacks against Ukraine but seem to also include past Russian aggression against Ukraine in their investigation. These crimes include the violation of the Geneva Convention, the bombing of civilian infrastructures, and even Russia’s use of vacuum bombs, (otherwise known as thermobaric bombs), which are bombs intended to suck the oxygen out of the air in its surroundings and convert it into a pressurized explosion. Although the vacuum bombs have been used in various places since the 1970s, (by Russia against Chechnya in 1990, by the Syrian government in 2016, and even by the United States in 2017 against Afghanistan), experts warn that these weapons can be extremely lethal and destructive in densely populated areas. Along with the above-mentioned violations against human rights, Russia’s attack on the Ukrainian nuclear power plant is added to the list of war crimes and crimes against humanity committed by Russia, and it continues to grow as the invasion persists.

Even with these threats and unprovoked aggression from Russia, Ukrainians have been more resistant than Putin had planned. Ukrainian civilians have taken up arms to defend their nation, and their enormous bravery is inspiring to witness. This sense of solidarity among the Ukrainian people is, many believe, a direct result of President Zelensky’s own courage and his choice to fight alongside his people instead of fleeing to safety. This action alone has emboldened the Ukrainian morale, and everyone is attempting to do their part in this conflict. People are helping each other out with humanitarian needs like securing food and shelter, and civilians are constructing Molotov cocktails to throw at the incoming Russian forces to stall their advances. Zelensky even released Ukraine’s prisoners and armed them, urging them to fight and defend the nation.  These instances of Ukrainian resistance and unity among other nations of the world give us hope that they have a chance at winning global support against this crisis and bringing about peace and stability in the Ukrainian regions under attack. Considering the real threat of another world war unfolding before our very own eyes, it is important now more than ever, that we approach this conflict as objectively as possible. In order to do so, we have to employ different approaches that we have never before attempted and think outside of the box. With their efforts at resisting the invasion, Ukrainians have inspired me to believe that we as humans might be able to come together globally and perhaps tackle the climate crisis as well and protect our planet in the same manner the Ukrainians are defending their own homes before it’s too late.

Justice for ISIS Child Suspects

What is happening in Iraq
An infographic displays the treatment of children by the authorities. Source: Yahoo Images.

The Human Rights Watch collected evidence in between January and June 2020 that closely reviewed the trial cases of 75 alleged child offenders who were recruited by the Islamic State (ISIS). The cases had led to the misconstrued holding of the children, but upon review, the Human Rights Watch ordered the release of the children, using reasons like a lack of evidence and preventing double jeopardy, as well as provisions of Iraq’s amnesty law. The 2016 Iraq Amnesty Law offers amnesty to persons who can show that they joined ISIS or another terrorist group against their will and did not commit a serious offense prior to joining the group.For years, Iraqi and Kurdistan judicial authorities have charged hundreds of children with terrorism for alleged ISIS affiliation. Several of the charges have been based on the dubious accusations and forced confessions of these children, regardless of the extent of their involvement with ISIS, if any. Such behavior from authorities has led to an international norm that children recruited by armed groups should be treated as victims, first and foremost, not as criminals.

In January 2020, a committee formed under the Nineveh Federal Court of Appeal and Bar Association, consisting of a judge, a general prosecutor, and a social worker. This committee adjudicated the cases of suspects who were children at the time of their alleged alliance with ISIS. The approach taken by this committee was one of compassion and complied very well with acknowledging the human rights of these child suspects. In June 2020, Iraqi judicial authorities dissolved the committee, saying it had reviewed all the pending cases, but another committee in Nineveh, Iraq, continued adjudicating such cases. In August 2020, an anonymous source close to the Nineveh Bar Association told the Human Rights Watch that the committee had reviewed 300 case files before being disbanded in June. They convicted 202 people, dropped charges against and released 31, and pardoned and released 44 under Iraq’s 2016 Amnesty Law. Three cases were dropped because the defendant had already served a sentence for the same crime, so to not invoke double jeopardy, the committee permanently ceased proceedings against the three people.

Arrested child suspects line a corridor, awaiting response from the police
Arrested child suspects line a corridor, awaiting response from the police. Source: Yahoo Images.

The committee, unlike other Iraqi courts, attempted to review individual cases more fairly and better apply international standards. By doing so, it was able to convict the guilty and release the innocent, which Iraqi courts do not have the best record for. In the Iraqi-Kurdistan regions, children have been tried in Kurdistan and re-tried for the same crime in Baghdad-controlled territory, with courts ignoring whether or not the child had been acquitted or convicted and already served a sentence in Kurdistan.

This has been the case since the advent of ISIS in Iraq: hundreds of children have been charged with crimes of terror, and such convictions have been justified under Iraq’s 1983 Juvenile Welfare Act. The Act states that the minimum age of criminal responsibility is 9 in Iraq and 11 in the Kurdistan region. Children that are under 18 at the time of the alleged crime are sent to a “youth rehabilitation school” which is designed to provide social rehabilitation and reintegration via educational or vocational training. However, a source within the Tal Kayf prison said that “the cells are identical to those for adult detainees, with no access to any reading or studying materials besides the Quran.”

What needs to be done?

The Nineveh committee is the first step towards attaining a more efficient and fair judicial system in Iraq where ISIS affiliation does not automatically translate to imprisonment. Children should only be detained as a last resort and for the shortest appropriate period, in compliance with international law. Countries should provide proper assistance for children illegally recruited by armed groups and/or forces, including assistance for their physical and psychological recovery and social reintegration. The Iraqi government and Kurdistan Regional government should amend their counterterrorism laws to end the detention and prosecution of children solely for participating in ISIS training or membership with recognition of international law that prohibits recruiting children into armed groups. And the High Judicial Council should permit committees to delve into more counterterrorism cases to avoid the trend of double jeopardy, while instructing judges across Iraq to release all children who have not committed crimes and ensure their proper rehabilitation and reintegration.

In the first half of 2020, Iraq has taken an essential step towards protecting the rights of children rather than trampling them. But this progress is at risk of Iraqi officials do not implement such steps elsewhere.

The Death Penalty is Inhumane

One of the best things that my 12th grade high school teacher encouraged me to do was to read and watch Just Mercy, a book written by Bryan Stevenson and a film directed by Destin Daniel Cretton. Both the film and book allowed me to greater understand the importance of confronting injustice, while also standing up for those wrongly convicted.

An image with the words "Just Mercy" and "Bryan Stevenson"

In the United States, about 43% of all executions have involved people of color, 55% currently awaiting the death penalty, all while only accounting for 27% of the general population. When comparing defendants, one fact to note is that “as of October 2002, 12 people have been executed where the defendant was white and the murder victim black, compared with 178 black defendants executed for murders with white victims.” According to the ACLU, “a system racial bias in the application of the death penalty exists at both the state and federal level.”

But what exactly is the death penalty? What are the different forms of capital punishment and arguments for and against them?

What exactly is capital punishment?

Britannica defines capital punishment as the “execution of an offender sentenced to death after conviction by a court of law of a criminal offense,” meaning that this type of punishment would be reserved for the most dangerous of criminals.

The death penalty has been present in societies for hundreds of centuries, dating all the way back to before the establishment of Hammurabi’s Code in 18th century BC. Hammurabi’s Code laid the foundation of the death penalty for 25 different crimes; placing emphasis on theft between two groups of people. Hammurabi’s Code also established punishment as equal to the crime committed, as known from historical references as “an eye for an eye, and a tooth for a tooth.” These types of punishments were often cruel and included crucifixion, burial alive, impalement, and others.

Notable forms of Capital Punishment throughout History and Today

The Guillotine

The Guillotine, one of the older methods of execution, was introduced in France in 1792. This device fixes the head between two logs with a heavily weighted knife suspended a couple of feet in the air. This method of execution was introduced to make the process of execution “by means of a machine,” making it “as painless as possible.”

Notable figures executed by means of the guillotine as King Louis XVI and Marie-Antoinette for crimes against the French people.An image of a guillotine, with the blade and a basket where the head is supposed to be kept.

Hanging

Carried out in countries in Asia, North Africa, and the Middle East, hanging is defined as suspending someone in the air as a form of execution. Death either occurs through decapitation or through strangulation, depending on the length of the rope compared to the weight of the prisoner.

Lethal Injection

Lethal Injection consists of an anesthetic alongside chemicals used to paralyze the prisoner and stop the heart. This form of punishment exists in China and Vietnam.

Surprisingly, the United States also uses the lethal injection, with the most recent execution taking place on September 24th, 2020. “Christopher Vialva was sentenced to death for the 1999 murders of Todd and Stacie Bagley.” Vialva’s execution was the 1,526th in the United States since 1976, 10th in the federal system, and the 1,346th person executed by means of lethal injection.

Although the injection is designed to kill ‘quickly’ and ‘smoothly,’ inexperience on the part of prison staff has flawed the execution process. One case in particular is that of Dennis McGuire. Reports show that after the injection was administered to Dennis McGuire, he gasped and convulsed for 10 minutes; much longer than the time that previous injections have taken to execute someone, before dying.

Electrocution

Execution by electrocution occurs when a prisoner is strapped to an electric char with a “metal skullcap-shaped electrode” attached to their scalp or forehead. Following these actions, the prisoner receives a jolt of electricity up to 2000 volts for up t o30 seconds, until the prisoner is dead.

Electrocution is a method of execution carried out in the United States, with the first electrocution taking place at Auburn Prison in New York against someone who was convicted of murdering “with an axe.”

Why the Continuation of the Death Penalty Creates a Gray Area

Today, “more than 70% of the world’s countries have abolished capital punishment.” Countries today that still have the death penalty range from countries with large populations under authoritarian rule, with the United States being the outlier as the only democracy with it in place.

An image of the world map highlighting countries that have abolished and retained the death penalty as of 2006.
Death Penalty Laws Over The World 2006.

According to the Embassy of the United States of America, capital punishment still exists due to the inability of the federal government to dictate laws to the states. Although the United States has been one of the foremost leaders in reforming capital punishment, other countries have had an easier time in abolishing it by “national governments imposing top-down reform because they decided the death penalty was no longer necessary or legitimate.” And since the Constitution allocates criminal law to the states, only they can repeal their own capital punishment laws. The Supreme Court is the only national-level body capable of declaring capital punishment unconstitutional.

Around the world, many consider implementing the death penalty a violation of human rights, especially those that require states to recognize the right to life, as shown through Article 3 of the Universal Declaration of Human Rights: “Life is a Human Right.” Although intended to curb violent crimes and atrocities committed by criminals, the loss of life through the death penalty violates “the right of life and the right to live free from torture or cruel, inhuman or degrading treatment or punishment,” which the death penalty unfortunately promotes.

Although many international organizations and countries have abolished the death penalty, like many countries of the Global North save the United States, a case can arise where the death penalty is justified, shown through Bangladesh’s approval of the death penalty for rape. With a viral video showing a group of men sexually assaulting a woman, Bangladesh’s cabinet quickly approved “to incorporate the death penalty for all of the four types of rape defined under Bangladeshi law.” Though detracting from the real problem, that rapists are normal people and not animals, the passage of the death penalty seems just, since there has been a violent outrage at the lack of enforcement on sexual violence in this part of the world.

Moral arguments for the death penalty put quite simply, is the concept of retribution, where the killing of one person justifies the death of the killer. However, opponents of this notion would counteract that point with the fact that issuing capital punishment detracts from the moral message it conveys, alongside the fact that it is fundamentally inhumane.

Despite these arguments, the inhumane action that is the death penalty cannot go unchecked. With the death of Dennis McGuire, for instance, these processes are not clean and fraught with mistakes leading to the disgusting and horrific death of inmates.

“The death penalty has no place in the 21st century” – António Guterres

Overall, the “death penalty is not a useful instrument for combating crime.” Abolishing the death penalty in the United States can allow other countries to ensure the right to life for all people, while also ensuring that the absolute worst of punishments cannot be enforced differently based on a person’s status, color, race, or underlying distinctions.

“The death penalty is the ultimate cruel, inhuman and degrading punishment.” – Amnesty International

Solitary Confinement Amounting to Torture

Image of concrete walls allowing some sunshine with a small window near the top.
jmiller291. Solitary Confinement, Old Geelong Gaol 7. Creative Commons for Flickr.

In the United States, the earliest experiments with solitary confinement began over two centuries ago, during the Enlightenment. Champions of the idea of natural rights, thinkers of the era found that public corporate punishment was incompatible with the development of a free citizen. Instead, silence and solitude would allow prisoners to reflect and that would induce repentance that would drive prisoners to live a more responsible life, making individuals the instrument of their own punishment. However, as the United States’ first silent prisons and penitentiaries were publicized, renowned nineteenth-century thinkers such as Alexis de Tocqueville and Charles Dickens visited these institutions to observe these revolutionary systems. Once intrigued, these icons now condemned these silent prisons as de Tocqueville remarked,

This absolute solitude, if nothing interrupts it, is beyond the strength of man; it destroys the criminal without intermission and without pity; it does not reform, itkills.

As other physicians and experts echoed their concerns, reporting the high risk and evidence of insanity and death of inmates existing in solitude, it gained the attention of the United States Supreme Court which influenced a new philosophy in correctional administration and gradually reduced the regularity of the practice.

This period of relief lasted until prisons began using solitary confinement to segregate more “threatening” and “dangerous” prisoners who were considered a risk to the safety of other prisoners and staff. Then, retribution and deterrence replaced rehabilitation as the professional purpose of corrections. As the U.S. responded by institutionalizing longer sentences, building more prisons, and abolishing parole, the use of solitary confinement rapidly increased with prison growth.

Today, the United States not only incarcerates more people than any other nation, but we also expose more of these people to solitary confinement than any other nation. The United States holds around 100,000 prisoners in solitary confinement typically as punishment, as a tactic to control overcrowded institutions, and as safety from or for the general population.

As individuals, inmates tell us what it is like in solitary confinement. In solitary confinement, your world is a gray concrete box. You may spend around 23 hours a day alone in your cell which are only furnished with a toilet, sink, and bed. When prisoners are escorted out of their cells, they are first placed in restraints through the cuff port and sometimes with additional leg or waist chains and tethered by the hooks on their cuffs to an officer. Prisoners are controlled by bodily restraints, with pervasive and unforgiving round the clock surveillance, and the restricting hallways and cells they exist in. They are lead to solitary exercise each day and a brief shower three times a week then back to their cells. Confined to their own concrete cells, prisoners are both physically and psychologically removed from anyone else. Prisoners depend on officers to bring them anything they may need and are allowed to have such as toilet paper, books, or letters they may receive. Many prisoners relate with dark thoughts that haunt them in isolation. Many become angry and hateful behind compliance.

Where many express anger, they all express a struggle to maintain dignity and a sense of self or humanity. Being alone, prisoners forget how to interact with others. Feeling as though they have nothing to live for in isolation, prisoners may give up on these things. Many interviews describe watching others who were locked in indefinite solitary choosing between giving up by either through suicide or turning into an unfeeling and uncaring creature. Correctional facilities’ workers express their concerns as to why and how they become desensitized through strict policy, regulation, and the specialized emotional stance necessary to interact with these prisoners. Acting as servants for the lives of some bad apples, observing civilized men be reduced to the natural man, and acting in adherence to authority with little voice heard by superiors, this work requires a specialized emotional stance.

Instead of regular and healthy social relationships important to human survival, these prisoners are embedded in a structure that extends itself into them. It enters their mind and sometimes switches off the human inside or sometimes forces it to become violent enough to compete. In this way, it also robs them of self-determination, liberty, and other forms of autonomy.

Image of protesters of solitary confinement holding signs connecting solitary confinement to torture and mental illness.
Felton Davis. 16-11-23 02 Union Square Vigil. Creative Commons for Flickr.

Because the practice of solitary confinement is a global one and brings claims of widespread abuse, the UN special rapporteur presented his report, or evaluation, of solitary confinement. This rapporteur defined prolonged solitary confinement as isolation for more than fifteen days because studies show that the effects of solitary confinement may become irreversible after this point as the rapporteur concluded that solitary confinement can amount to torture or cruel inhuman and degrading treatment.

International and domestic laws prohibit all forms of Racial Discrimination, which address variations in solitary confinement’s demographics, and rights of persons with disabilities which protect individuals with mental, or other, illnesses. They also guarantee the rights of women and children or juveniles, which are especially vulnerable under conditions of solitary confinement or isolation. Both sides address the minimum standards for the treatment of prisoners. More specifically, they address conditions of solitary confinement which always may apply to every individual.

Domestically, the Eighth Amendment reveals how the United States Constitution addresses Solitary Confinement. The Eighth Amendment prohibits the government from inflicting “cruel or unusual punishment” on someone convicted of a crime. This allows these prisoners to challenge their conditions while in custody and the actions of prison officials. To do this, prisoners must first show that the challenged condition is “sufficiently serious” and that prison officials acted with deliberate indifference to the condition. Close observation of court decisions reveals that there is no organized methodology to determine what makes a condition “sufficiently serious”. This decision is made in each case by the personal standards of judges. The judge may question why the prisoner was placed there; however, the Supreme Court has not made a ruling whether intent should play a part in this evaluation. Courts disagree whether it should matter why the individual was placed in solitary confinement. Also, the Amendment did not answer when a prison condition is punishment or not. The debate remains whether the effect of the conditions on the prisoner or the intent of officials makes them punishment. In court, Eighth Amendment analysis hinges on the motivations of state actors and prison officials it is supposed to act as a check against. The conditions of the Eighth Amendment fail to protect prisoners from inhumane treatment through the scope of prison officials’ intent and judges’ objective analysis.

The ICCPR is international law that prohibits torture or cruel, inhuman or degrading treatment or punishment. It later states that people deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of a person and the treatment approach for prisoners should be aimed at efficiently improving their reformation and social rehabilitation.

In 2015, the United Nations General Assembly adopted the Mandela Rules that prohibited restrictions and disciplinary sanctions that could amount to torture or cruel and degrading treatment or punishment, such as Indefinite Solitary Confinement, Prolonged solitary confinement, or to place a prisoner in a dark or constantly lit cell. It defined solitary confinement of prisoners for 22 hours or more a day without meaningful human contact and prolonged solitary confinement for any time period over fifteen days. It states that solitary confinement should only be used as a last case resort for the shortest time possible and given due process to each case. Finally, it paid special attention to protect prisoners with disabilities which may be magnified, and especially vulnerable women and children from solitary confinement.

Through these treaties and agreements, States do not only assume obligations internationally but to their own people as well. Just like our own constitution, these international laws were agreed to and are legally binding to regulate the conduct of states with their citizens. However, without international forces to enforce and regulate these agreements, states may ignore or lose sight of their importance.

Despite these resolutions, Domestic laws are vague so that it is doubtful they meet minimum requirements regarding the ones set by human rights instruments. This creates debate and little guarantees in the legal system. They also undermine fundamental guarantees of due process, are applied randomly, and do not protect the prisoners’ rights.

Today tens of thousands of humans remain alone in concrete boxes in the United States. This report concludes that their conditions are emotionally, physically, and psychologically destructive. They are destructive because it robs us of many things that makes life human and bearable like stimulus through social interaction and interaction with the natural world. Under total control and out of the public eye, people may be subjected to incredible human rights violations. By allowing our government to ignore these people, we are accepting this indifference towards others under its care. By ignoring their human rights, in this way, we diminish our own.

Cleaved and Clamored: The Crisis in Cameroon

On Tuesday, November 5th, the Institute for Human Rights co-sponsored an event alongside Cameroon Humanitarian Relief Initiative to present Herman Cohen (former United States Assistant Secretary of State for African Affairs) and Dr. Fontem Neba  (Secretary General of Cameroon Anglophone Civil Society Consortium). During their panel discussion, Cohen and Neba discussed the history of Cameroon, ongoing Anglophone discrimination, and potential resolutions to end the conflict.

As one of the most prominent voices advocating for Anglophone rights, Dr. Neba spoke directly about the atrocities taking place in Cameroon because he was recently detained for nine months after being charged with terrorism. Followed by its establishment as a federation in 1961 and an illegal referendum in 1972 that unified the Francophone majority (~80%) in the north and Anglophone minority (~20%) in the south, Cameroon has endured significant conflict. With political power most harbored in the north, Anglophone Cameroonians have experienced pressure to assimilate and prevention to secede, which led to a civil war in 2016 that has been riddled with human rights violations. More specifically, the Cameroonian military has permeated the south with their influence by committing heinous acts such as destroying Anglophone schools, burning crops, and murdering separatists. As a result, these acts have led to famine, homelessness, and institutional instability throughout the south. Additionally, thousands have been jailed for speaking out against the Franchophone government, while approximately a half-million are internally displaced and another 40,000 have sought refuge in Nigeria.

Neba describing Cameroon’s geographic division. Source: UAB Institute for Human Rights

Cohen then spoke about the crisis in Cameroon by drawing parallels with Eritrea which Ethiopia turned  a province before it eventually became an independent country. Although, the international community has been passive about the events unfolding in Cameroon. One exception is none other than the Trump Administration, which signed an executive order last month that effectively removed Cameroon from the African Growth and Opportunity Act. As a result, this action prevents Cameroon from profiting off duty free sales to the U.S. Additionally, south Cameroonians have found an Anglophone ally in Nigeria, making the prior impervious to defeat, while north Cameroonians have been increasingly critical of their government because they are not benefiting from the country’s strong economy. Thus, Cohen argues the U.S. is in the unique position to mediate a resolution. However, the Trump Administration has adopted an isolationist position, which currently places the U.S. distant from potential negotiations. Following, he suggested that the Cameroonian diaspora in U.S. should write letters to their local representatives and urge a cease-fire agreement.

After their presentations, Cohen and Neba took questions from an appalled audience. Addressing a question about the realistic options in our current political environment, Cohen insisted the United Nations Security Council must initiate negotiations and that it must be settled between warring factions; his personal suggestion is that they return to a federation relationship. Additionally, Cohen responded to a question that mentioned the role of former colonial powers, where he mentioned that Great Britain is currently distracted by Brexit, while France, despite reluctance from southern Cameroonians, is taking initiative to mediate the conflict. When asked how geopolitics, namely natural resources, influence this conflict, Neba claimed south Cameroon is rich in cocoa and timber as well as a fevered, educated populace. Although, he argued the region cannot become economically independent because their oil supply, which is on the border, is property of the government. In response, a passionate audience member, and Cameroon native, insisted south Cameroon, much like other small countries, can be independent without an oil industry.

Cohen answering an audience question. Source: UAB Institute for Human Rights

Cohen argued this crisis has potential to become a “Rwanda situation”, but, thankfully, a potential resolution doesn’t require money or soldiers. However, the current trajectory of this crisis primarily lays in the hands of Cameroon (who is persistent on military intimidation), Nigeria (who has enabled separatists in the south), and the U.S. (who has implemented economic sanctions). Thus, these conflicting narratives put human rights advocates in the position to highlight this pressing issue whether it be mentioning it on social media, writing to your local representative, or donating to humanitarian relief.

Justice(s) for Crimes Against Humanity: The Uyghur Muslims in China

*a topographical map depicting where many Uyghur Muslims live in Western China*
“Outline map showing Keiry / Yutian County in Xinjiang, China” by centralasiatraveler, Creative Commons

In early November 2018, the United Nations confronted China about the Chinese government’s human rights record since 2013, with UN Member States pointing specifically to China’s suppression of the Tibetan people and for the barbaric ‘re-education camps’ used to indoctrinate the Uyghur Muslims in the Xinjiang province.  China flatly denied these allegations, contending they are politically motivated and violate Chinese national sovereignty.  While the ongoing conflict regarding Tibet has been covered for decades (you can read an IHR post about it here), the plight of the Uyghur Muslims in China is arguably less familiar to laypersons with vested interests in human rights.  This blog post explores the history of the conflict with the Uyghur, how the international community typically handles these kinds of human rights violations, and what everyday citizens can do to help the Uyghur.  For another perspective on the plight of the Uyghur, read my colleague Dianna Bai’s post here.

History of the Conflict

The Uyghur are an ethnically distinct group, hailing originally from the Altai Mountains in Central Asia, now spread through Central and East Asia (Roberts, 2009).  Scholars frequently debate the heritage of the Uyghur; government-sanctioned Chinese historians claim the Uyghur are indigenous to the Tarim Basin (located within the Chinese Xinjiang province), while most historical accounts situate the Uyghur as descendants of peoples in modern-day Mongolia (Roberts, 2009).  Until recently, many scholars believed that the Soviet Union groomed Uyghur nationalist sentiments during the Cold War, intending to use the fledgling Uyghur people as a colonized Soviet pseudo-nation to exert political and cultural influence in the East Asian theater (Roberts, 2009).  This view has since been challenged, as Uyghur Muslims have long defined themselves an ethnically distinct group with the goal of creating their own nation on sovereign territory, intended to be called Uyghurstan (Roberts, 2009).  Today, the Uyghur of China largely practice Sunni Islam, speak their own language (similar to Uzbek), and some Uyghur label the territory they inhabit “East Turkestan”, not the Xinjiang providence of China.

The Xinjiang providence, located on the fragments of the ancient Silk Road, is rich in resources and attracted the migration of many Han Chinese to the province (aided and abetted by the Chinese government).  This migration brings us to the present day.  Beginning in 2009, the Chinese government has cracked down on Uyghur dissidents and rioters expressing a frustrated desire for autonomous rule (some of these Uyghur were subsequently exiled to the United States).  In 2016, the Chinese government amped up their approach to the Uyghur, attempting to squash Uyghur cultural practices to create a culturally homogenous Xinjiang province.  The Chinese justified these practices by claiming their motivation was to reduce religious extremism in the Xinjiang region.  Homogenization efforts included banning baby names (such as Medina, Jihad, and Muhammad) and restricting the length of beards; both aforementioned names and the tradition of long beards stem from the Uyghur’s Islamic faith.  These tactics are part of the Chinese government’s “Strike Hard” campaign, designed to specifically monitor the Uyghur situation in Xinjiang.  In addition to cultural destruction, the Chinese have recently implemented surveillance programs designed to monitor separatist movements, jihad-ism, or proto-nationalist sentiment.  Surveillance programs largely take the shape of indoctrination (or ‘re-education’) camps.

The United Nations has received verifiable reports that up to one million Uyghur (approximately 10-11% of the adult Muslim population in the region) are currently held against their will in these re-education camps.  The Chinese government, however, claims these are vocational centres, designed to empower the ethnic Uyghur to learn the Chinese language, Chinese law and ideology, and gain workplace skills.  Dilxat Raxit, spokesman for the World Uyghur Congress (more on the WUC later), has publicly decried the camps, as they incessantly monitor Uyghur prisoners through sophisticated facial recognition software, designed with the intention to predict individual or communal acts of protest through the analysis of the prisoners’ micro-expressions (and no, the current year is not 1984).  The prisoners in these camps are expected to ‘secularize’ and ‘modernize’; the Chinese government conditions the entrapped Uyghur Muslims by forcing the prisoners to wish Chinese President Xi Jinping ‘good health’ before the prisoners are given food, thank the Chinese government and Communist Party, and renounce devotion to the Islamic faith.  Furthermore, Uyghur Muslims have been forced to eat pork and drink alcohol during their imprisonment which, for many devout Muslims, is forbidden by the Islamic faith.  One escapee who found asylum in Kazakhstan testified that she “worked at a prison in the mountains” in Xinjiang and was forced to teach Chinese history during her imprisonment.

The Chinese government has not limited its repression to these detention centers.  Beginning in 2016, Uyghur Muslim communities in the Xinjiang province have been subjected to China’s “Becoming Family” initiative (also directed by the government’s “Strike Hard” campaign).  The Chinese government mandates ‘home stays’ (lasting between five days and up to two months) within these communities, dispatching over one million cadres to closely monitor the private homesteads of the Uyghur communities.  These cadres monitor ‘problematic behavior’ such as suspected alcoholism, no alcohol consumption whatsoever (a sign the family is devout Muslim), uncleanliness, and other signs that the Uyghur are becoming ‘too Muslim’ for the secular Chinese government.  Finally, these cadres are tasked to promote ‘ethnic unity’ in the region, spouting the dangers of Islamism, pan-Turkism, and so on.  These spies of the state document every move of the Uyghur communities, reporting intelligence back to the Chinese government, who then specifically targets individuals and families suspected of dissident behavior.  It is impossible to track how many ‘dissidents’ (whether in their home communities or in the Uyghur detention centers) have been murdered by the Chinese government.  A prominent Uyghur human rights activist recently lamented,

Every single Uyghur abroad has relatives waiting for a slow death in these camps… innocent Uyghurs are now counting their final days of isolation under physical, psychological, and spiritual torture.

This begs the question: how do human rights organizations (from the United Nations to the Institute for Human Rights) classify this level of social, cultural, and civil repression?  And furthermore, how can human rights organizations utilize this classification to mobilize aid for the Uyghur Muslims?

A pair of Uyghur elders lead a donkey and boy across a Chinese marketplace
“Uyghur elders” by Todenhoff, Creative Commons

Addressing Crimes Against Humanity

The Rome Statute of the International Criminal Court, Article 7, broadly characterizes Crimes Against Humanity (CAH) as:

any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  1. Murder;
  2. Extermination;
  3. Enslavement;
  4. Deportation or forcible transfer of population;
  5. Imprisonment or other sever deprivation of physical liberty in violation of fundamental rules of international law;
  6. Torture;
  7. Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;
  8. Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;
  9. Enforced disappearance of persons;
  10. The crime of apartheid;
  11. Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

In theory, the plight of the Uyghur Muslims certainly falls within this definition, as the Chinese government is violating parameters 1, 3, 5, 6, 8, 9, and 11 of the Rome Statute.  Again, in theory, this means the international community has an obligation to both classify this as a CAH and prosecute both the Chinese government as a whole and individual officials directly responsible for the repression of Uyghur Muslims.  In practice, however, formally prosecuting CAH are tricky.

To prosecute CAH, a step towards retributive justice, one of two forms of jurisdiction must apply: the state must either (a) be a member to the Rome Statute / International Criminal Court (ICC); or (b) the case is referred to the ICC Prosecutor by the United Nations Security Council (UNSC).  In this case, China is not a State Party to the Rome Statute, so requirement (a) is out.  Regarding requirement (b), the UNSC can indeed refer this to the ICC Prosecutor.  However, since China is a permanent member of the UNSC with full veto power, it seems extremely unlikely the Chinese government would permit a prosecution against its own state.  So what options are left for the international community to protect the Uyghur Muslims and hold their repressors to justice for this ‘unofficial’ Crime Against Humanity?

If the international community suspects a state conducts COH, accusatory states may take indirect action to punish the offender state.  Here’s one example of such indirect action: US Senators Rubio (R-FL) and Menendez (D-NJ) and US House Representatives Smith (R-NJ) and Suozzi (D-NY) are set to introduce legislation to US Congress proposing (a) the creation of a State Department role to monitor the persecution of Uyghur Muslims; and (b) the Secretary of Commerce enact sanctions to state agents in the Xinjiang province.  Indirect action, whether government-led sanctions or non-governmental tactics (e.g. ‘naming and shaming’), aims to overcome the absence of international legal precedent in circumstances such as these (Franklin, 2015).  The endgame of indirect action in circumstances such as these is to either offer an incentive for states to cease CAH or increasingly layer punishments (whether economic or otherwise) to render the CAH more trouble than it’s worth.  In this case, the ideal outcome for US Congress members is that the threat of economic sanctions would punish the Chinese, forcing the state to choose economic growth as a higher-ranking priority than repressing the Uyghur.

A final alternative to addressing CAH is that of truth and reconciliation commissions (TRC; Landsman, 1997).  TRC’s are structured around the idea of restorative justice, meaning that in the wake of CAH, damaged communities themselves work with the international community to: (a) collect ‘facts-on-the-ground’ about ongoing repression, (b) negotiate with the repressing state to end the CAH, and (c) devise solutions to repair the trauma caused by the CAH (Longmont Community Justice Partnership, 2017).  This is a human-driven approach, placing the victims themselves at the center of the process to document, cease, and heal from CAH.  In the this case, this would mean international NGO’s would connect with local Uyghur Muslims in the Xinjiang Province; document the short-, intermediate-, and long-term needs of the afflicted communities; and allow this joint collaboration to drive local and international efforts attempting to bring the CAH to a close.

 

an Uyghur group holds their native flag while protesting repression against the Uyghur people
“Uyghurs protesting” by Paul Keller, Creative Commons

Justice(s) for the Uyghur

Resolving the plight of the Uyghur is a highly complex issue.  Formal legal mechanisms, such as referring this case to the International Criminal Court, are constrained by the structure of international governing bodies.  Indirect action, such economic sanctions proposed by members within the US Congress, have historically had a low success rate (~34% rate of success) to compel policy change (Pape, 1997).  Finally, truth and reconciliation commissions have been criticized for their toothlessness regarding holding human rights violators responsible for their crimes (Van Zyl, 1999).  What, then, can we do?

The World Uyghur Congress (WUC), whose president Dolkun Isa is an exiled Uyghur Muslim, is taking a hybrid approach to seeking justice for the Uyghur.  The WUC’s platform combines the three previously discussed approaches (retributive justice, economic sanctions, and restorative justice), channeling their efforts into international governance, state-level policy and advocacy, and community-driven capacity building.  The WUC, steered by survivors of the conflict themselves, aims to achieve justice(s) for the Uyghur people, through a multi-lateral and multi-level approach.  While many of their efforts are aimed at high-level government officials and advocacy networks, the WUC additionally aims to engage, educate, and empower ordinary citizens (like you, the reader) to make meaningful contributions towards ending the repression of the Uyghur, ranging from advocacy training to planning peaceful protests.  The WUC (and other innovative NGOs addressing other global human rights violations) understands that it is not only the United Nations and its member states that can end human rights violations.  Ordinary citizens themselves must take up the mantle of protecting human rights when the hands of the international community are tied.  Creating justice for crimes against humanity is the responsibility of all global citizens – and here’s what you can do to help.

References

Franklin, J. C. (2015). “Human rights naming and shaming: International and domestic processes” in H. R. Friman (Ed.) The Politics of Leverage in International Relations. London, UK: Palgrave Macmillan.

Landsman, S. (1997). Alternative responses to serious human rights abuses: Of prosecution and truth commissions. Law and Contemporary Problems, 59(4), 81-92.

Longmont Community Justice Partnership (2017). Restorative Conversations and Agreement: Structured Conversations for Resolving One-on-One Conflict. https://boulderhousingcoalition.org/wp-content/uploads/2017/12/Restorative-Conversations-and-Agreement-Meetings-for-BHC-Manual.pdf

Pape, R. A. (1997). Why economic sanctions do not work. International Security, 22(2), 90-136.

Roberts, S. R. (2009). Imagining Uyghurstan: Re-evaluating the birth of the modern Uyghur nation. Central Asian Survey, 28(4), 361-381.

Van Zyl, P. (1999). Dilemmas of transitional justice: The case of South Africa’s Truth and Reconciliation Commission. Journal of International Affairs, 53(2), 647-667.

Covenants without the sword: International humanitarian law (IHL) and sexual violence

by LISA SHARLACH, PhD

Miss Jiuliancheng and the Russian soldier (Kyûrenjô no heiki). Source: LOC Library of Congress Prints and Photographs Division 2009630462.

**Trigger warning: this blog speaks about sexual violence against women.

How do we stop sexual violence in civil war?  My goal is not to offer a comparative assessment of various tactics to stop war rape.  Instead, I look at the ineffectiveness of one particular tactic – law, both domestic and international.  In the mid-1600s, Thomas Hobbes wrote that “covenants, without the sword, are but words, and of no strength to secure a man at all”.  Unfortunately, even today, international law and, to a large degree, domestic law on rape in conflict have not had the backing of the proverbial sword of justice.  No legal code condones rape, whether in war or peace. Regardless, as I demonstrate in the book manuscript I am completing, the international community and individual states’ willingness to prosecute the crimes has been lacking.  The end result has been near-complete impunity for wartime rapists.

This topic is not one limited to academia.  The London Summit of 2014 increased popular awareness of the problem of wartime rape.  Grassroots activists and transnational human rights organizations, such as Amnesty International and Human Rights Watch, have amassed country-specific information on sexual violence and, in their words, “demanding accountability” from governments.  These are positive steps, but insufficient.  Condemnation alone has not stopped mass rape.  For example, newspaper and television stories, human rights watchdog organizations’ reports, and U.N. General Assembly resolutions all condemned the political use of rape by ethnic Serbs in Bosnia-Herzegovina in the early 1990s.  However, none of this prevented Serbian soldiers and paramilitaries from using similar rape warfare tactics against ethnic Albanian women and girls in Kosovo in 1999.

The book I am finishing focuses on few case studies of mass rape:  Bangladesh; Cambodia;  Guatemala;  Peru;  Bosnia-Herzegovina;  Rwanda;  and India. (Rapists may, of course, target anyone, but the preponderance of these attacks have been upon women and girls).  I assess patterns and the scope of rape in these conflicts, and the miniscule numbers of convictions that courts and tribunals were able to secure for the rapists thereafter.  That only an infinitesimal fraction of rapes in the conflicts were ever prosecuted, much less convicted, sends a message to combatants today that they, too, most likely will be able to rape, if they so desire, without fear of punishment.

Bangladesh, Cambodia, Bosnia-Herzegovina, and Rwanda have tried or are trying sexual violence through international tribunals and/or truth commissions; the process has been expensive and ineffective.  In these countries’ civil wars combined, hundreds of thousands, perhaps even a million, rapes took place.  Only a couple of hundred sexual violence cases ever actually appeared before an international tribunal in all these countries combined, and the numbers of convictions is, of course, even lower.  The total number of rapes or other episodes of sexual violence in these countries that went to any sort of trial at all is approximately seven thousand.   The vast majority of these appeared in Rwanda’s informal gacaca courts, and a sizeable number were tried in the national courts of Bosnia-Herzegovina.   The percentage of the seven thousand or so trials that resulted in conviction of the rapist is unknown.  When there are only a few thousand convictions for hundreds and hundreds of thousands of rapes, the unintended message sent by the tribunals to militants around the world is that they can almost certainly rape – and get away with it.

This finding is likely to make one despair of the value of international law in convicting wartime rape.  Unfortunately, the lesson learned from the case studies concerning the efficacy of national courts in this regard is that they are no better.  In India, Peru, and Guatemala, advocates have used the national court system to try to win justice for survivors of mass rape.  Guatemala and Peru have each convicted two of the men determined to have raped in those countries’ protracted, Cold War-era “dirty wars.” In India, only a few men have been found guilty of rape during the 2002 communal violence in Gujarat.  (Throngs of Hindu-nationalist men gang-raped hundreds of Muslim women, most of whom they burned to death immediately thereafter.  Their incineration, a Hindu funerary ritual, precluded a Muslim burial – and also destroyed forensic evidence, which in India is necessary to prosecute most instances of rape. The only Hindu women similarly attacked had Muslim husbands).  In sum, one may count on one’s hands the total number of men found guilty of raping during the riots in Gujarat, India and the wars in Guatemala and Peru combined, even though these instances of mass rape transpired at least fifteen and most often not quite forty years ago.

At present, legal covenants, whether domestic or international, are clearly an ineffective deterrent to rape in conflict.  The question of what might be a better deterrent is a subject open for much-needed discussion.  It is likely that Thomas Hobbes would suggest that “the sword,” or military might, is required, as law – words on paper – is meaningless without it.

In some instances of genocide or gross ethnic/racial inequality, such as during apartheid in South Africa, international actors have, in conjunction with domestic forces, deemed a violation of the norm of sovereignty to be warranted.  Third party governments, coalitions, or armies have intervened and stopped the killing, and, in the case of South Africa, pressured the white oligarchy to give up its monopoly on political power. Why should instances of gross sexual inequality – resulting in mental trauma, bodily injury and even death — matter less?

In recent history, there has been no international intervention intended specifically to protect women’s human rights, although mass rape has been used by governments as additional legitimization for a military campaign that was already underway for other reasons.  An example is President George W. Bush’s frequent allusion to Saddam’s alleged “rape rooms” as one justification for the U.S. invasion.  We do not know that these “rape rooms” ever existed; Bush ceased referring to them after the photographs of sexual violence at occupied Iraq’s Abu Ghraib prison became public.  We are all familiar with the rape accompanying the wars in Syria and in South Sudan;  with the kidnappings and sexual slavery perpetrated by ISIL and by Boko Haram;  and with the daily femicides, or sexualized murders, of women in Central America for which almost no one is ever charged, much less convicted.  And, to date, world leaders seem helpless to stop such increasingly open and aggressive sexual violence.  As long as the international community demurs that violence against women is of little consequence, a cultural practice, a matter of course or of nature, an unfortunate side-effect of ethnic rivalry, a domestic rather than an international problem, not a threat to our vital security interests, or a private affair, then the use of rape as a political weapon is likely to continue and perhaps even to increase.

 

 

Lisa Sharlach is an Associate Professor of Government and the Director of Women’s and Gender Studies at the University of Alabama, Birmingham. She received her Ph.D. from the University of California, Davis, in political science. The focus of her research is the intersection of ethnicity, gender, and political violence.