Archive for Americas

The Scope of Justice: Comparing Two Distant Criminal Justice Systems

By Donggeun Lee, RightsViews Staff Writer and a second-semester junior majoring in Human Rights.

“Comparison is in many ways a useful mirror into which we look, and by looking we notice things about ourselves and our own country and our systems that sometimes might please us [and] that sometimes might give us pause and even cause us disappointment and dismay.” – Professor David T. Johnson

On October 12th, the Columbia Law School hosted an event entitled “Criminal Justice in Japan – A Comparative Perspective” addressing the question of what we can learn from differences between criminal justice in Japan and the United States. The event was moderated by the executive director of the Center for Japanese Legal Studies, Nobuhisa Ishizuka, and featured two speakers: David T. Johnson, a professor at the University of Hawaii, and Kiyo A. Matsumoto, a United States District Judge at the Eastern District of New York. 

Differences between Japan and the United States

According to Franklin E. Zimring, the author of the book, “The City That Became Safe,” America’s crime rate has been in decline  since the 1990s. The largest and longest sustained drop in street crime ever experienced by a big city in the developed world is in New York City. However, when one compares NYC to Tokyo, one can conclude that, in terms of crime,such as homicide, NYC is still not as safe compared to Tokyo as Professor Johnson said. Additionally, other East Asian cities are far safer than NYC.

When it comes to criminal justice, the incarceration rate, and killings by police in the US are by far higher than they are in Japan. Professor Johnson believes the availability of guns might partly explain the lower rates of homicide and killings by police in Japan, as guns make homicide easier and policing more dangerous. In addition, the professor argues, Japan uses criminal sanctions far less and more carefully  than the United States. 

The conviction rates

Interestingly, the conviction rate is higher in Japan. However, the direct comparison in the conviction rates between the US and Japan also has a flaw; plea bargain cases do not go to trials in the States, unlike in Japan where they do. In addition, Japan’s version of plea bargaining provides leniency in exchange for information for someone else’s crime, not in exchange for confession. The Japanese Constitution provides protection against self-incrimination. If one were to add the plea bargain into calculation in the conviction rate in the US, the conviction rate goes up to nearly 99%, which is then similar to that of Japan. Both countries rely on admissions of guilt to secure a conviction; however, the employed pressures are different.

The role of admission of guilt

In the US, the significant trial tax and the high chance of receiving a longer sentence if someone loses in a trial make it nearly impossible for many defendants to reject the offers made by prosecutors. In Japan, however, suspects of crimes have the right to remain silent, but they are not entitled to have a lawyer present during interrogation nor can they request that their testimony be registered in a dossier. In addition, interrogations tend to be long. These characteristics of the Japanese “Hostage Justice” system may lead defendants to admit guilt regardless of whether that is a lie or truth. They do so to get out of the interrogation, explained Professor Johnson. 

The number of cases that go to trials is significantly lower in Japan than in the US, added Executive Director Ishizuka. This might suggest that prosecutors are less interested in exercising their power. Professor Johnson believes the conviction rate, excluding plea bargain numbers in the States, is lower in Japan because prosecutors in Japan are more cautious, only bringing cases to trial when acquittals are not likely to happen. 

This cautiousness, which Professor Johnson referred to as “shinsho”(しんちょう []), in Japan leads to several questions. First, perhaps Japan is failing to prosecute ‘all’ cases, even necessary ones. Second, going further with the first question, deterrence might not be the primary goal in Japan as it is in the States. Third, the high conviction rate discourages the supply of defense lawyers. Fourth, judges in Japan might be longing to see a case where they can adjudicate, or they might assume that the trials are beyond a reasonable doubt only by knowing that trials have been brought, Professor Johnson said.

Differences in the Exercise of Prosecutorial Discretion

Despite these questions, Professor Johnson stated that the main reason for the high incarceration rate in the US is “prosecutor-driven prison admissions.” Additionally, the plea bargaining is not well-protected by international laws, said Professor Johnson.

Judge Matsumoto, a District Judge for the Eastern District of New York, explained the processes of the US justice system before a trial. Before a trial, a grand jury must agree to the indictment. There are regulations to protect a suspect’s rights in the US grand jury, such as only admitting legally obtained evidence. For example, any evidence gathered without a lawyer’s presence after a suspect requested a lawyer must be suppressed in the US. The grand jury does not exist in Japan, and unlawfully obtained evidence may be used.  There are exceptions in both countries. This “fruit of the poisonous tree” concept, which describes a doctrine that extends the exclusionary rule to suppress illegally obtained evidence, exists in Japan. In practice, however, it is frequently ignored. The concept tends to be  interpreted as a right to remain silent while enduring questions.

Professor Johnson added that by no means is the Japanese criminal system perfect. However, from a strictly comparative perspective, more things could be improved in the American justice system. Judge Matsumoto points out the higher incarceration rates of people of color and the privatization of prisons, which is a highly controversial topic. However, the judge also pointed out that hope is not lost in the US. For example, the federal government has released a sentencing guideline, which is now mandatory to reduce disparity of criminal sanctions among the states and reform the justice system. There has been some progress especially for the treatment of non-violence drug crimes, said Matsumoto. 

Takeaways and Reflection

From a comparative perspective, both countries’ problems in criminal justice become amplified, especially the incarceration rate in the States. However, too many factors play important roles in two justice systems on top of pre-existing cultural differences: plea bargains, regulations on interrogations, presence or absence of a grand jury, laws in practice, and statistical differences. 

This makes it hard to claim that the Japanese system is “better” on face value. Many regulations, which do not exist in Japan, might be the reason for the United States’ lower conviction rate, excluding the number of plea bargain cases. Existing racial biases and inequality in wealth are also factors in the American justice system. Plea bargaining prosecutors incarcerate people without trials, and vigorous adversarial defense lawyers may charge higher rates and may then be available only to wealthy people.

The story of Kalief Browder shows that the problem in the US is real, not theoretical. Browder spent 3 years in the Robert N. Davoren Center, without a trial, after being charged for robbery in the second degree and other crimes. Browder’s trial was delayed 31 times by a request of the prosecutor and neither him nor his family were too poor to pay ransom or afford a defense lawyer. The appointed lawyer was overwhelmed with other cases and failed to take effective measures for Browder. The latter never accepted any offer from the prosecutor because he wanted to seek justice and prove innocence. In the meantime, Browder had to suffer from physical and sexual violence in jail, in addition to spending 800 days in solitary confinement, out of 1110 days of imprisonment. Later it was found that the prosecutor did not have any good evidence for this case; it was clear that the prosecutor’s main goal was to keep Browder in jail by delaying his trial and breaking his will so he would have no choice but accept the off After the prosecutor dropped the case without any compensation or even an apology, Browder was released from prison but killed himself two years later. 

Almost every problem in the American justice system can be found in Browder’s blood-boiling story. Presumption of innocence was ignored in the name of plea bargain, an innocent adolescent had to suffer from incarceration, violence, and solitary confinement, and seeking justice was impossible due to lack of financial means. 

In the US, the suspects who lack sufficient legal knowledge and help can easily be turned into criminals. Thus, the prosecutors and police – the law enforcement agency – can abuse plea bargaining as a means to gloss over their misjudgment, bringing criminal charges against innocent suspects. The justice of the legal system can be threatened, as in Browder’s case,  by the fact that the suspect is from a low-income household and is black, a target of racial discrimination.

Getting back to a comparative perspective, one thing that ties the two countries together is that reformation is hard to achieve. However, the challenge of reform must be taken on for the sake of the human rights of those involved in either country’s criminal justice system. 

“It’s Not Living, It’s Surviving:” Venezuelan Refugees in Colombia and the COVID-19 Crisis

By Larissa Peltola, a staff writer for RightsViews and a graduate student in the Human Rights MA Program

The political and economic crises which have plagued Venezuela since 2014 have resulted in the mass exodus of over 5 million Venezuelans, the largest migrant crisis in the history of the Western Hemisphere. Of the over 5 million people that have fled their home country of Venezuela, over 1.6 million have settled in neighboring Colombia, resulting in a refugee crisis made increasingly worse by the COVID-19 pandemic. Dr. Milena Gomez Kopp, Visiting Research Scholar at School of International and Public Affairs, engaged with students during the October 28, 2020, Food for Thought speaker series and discussed her analysis of the growing refugee crisis.

Background 

Venezuela was once considered the wealthiest and most resource-rich country in Latin America. With the largest oil reserve in the world, the economy grew rapidly, and Western countries looked for ways to engage in trade with Venezuela. This changed with the rise of former President Hugo Chavez, who cut off the country to the rest of the world. The Chavez era was marked by the widespread emigration of what Professor Kopp explains as the “executive immigrants,” the highly educated and trained, land-owning, and upper class Venezuelans who fled their country, mainly to Colombia and the United States, for fear of economic insecurity and political repression.

Matters were made worse by the death of Hugo Chavez and the 2013 succession of the current contested President Nicolas Maduro. His presidency has been marred by controversy, bloodshed, political persecution of opposition leaders, suppression of the free press, state-sponsored human rights violations and crimes against humanity, and an overwhelming exodus of Venezuelans who can no longer find food, medicine, and other basic necessities in their home country.  

“No es vivir, es sobrevivir” /  “It’s not living, it’s surviving” 

As the situation deteriorated in Caracas, the capital of Venezuela, poor and desperate Venezuelans poured into Colombia seeking asylum and refuge. According to Dr. Kopp, the number of migrants grew from 140,000 in 2015 to over 1.6 million in 2019 alone. The dramatic increase in the number of asylum seekers in Colombia has overwhelmed Colombia’s capacity to settle them.

Making matters worse, in 2015 President Maduro closed the Venezuelan/Colombia border, effectively separating families, preventing the flow of resources into Venezuela, and labeling any Venezuelans who fled to Colombia as traitors, many of whom could be jailed, tortured, or killed upon return to their home country.  

The Impact of COVID- 19 

Colombia, like many countries around the world, faces an urgent crisis with the COVID-19 pandemic. Migration from Venezuela only increased in 2020 as political repression and violence intensified under the Maduro regime. Despite receiving aid from international organizations like the UNHCR, fiscal restraints drastically limit the Colombian government’s capacity to administer necessary public services to the rapidly increasing migrant population. Beyond this, Dr. Kopp explained, this refugee crisis has only garnered a fraction of the attention of other refugee crises such as those happening in Syria and Myanmar. According to the Organization of American States (OAS), Syrian refugees have received an estimated $33 billion in donations, South Sudan, $9.4 billion, and Myanmar which received roughly $1.2 billion. Comparatively, international donations for Venezuelan refugees total $600 million. 

COVID-19 has put Venezuelan migrants in Colombia in even more dire straits as a majority have lost their jobs due to government lockdowns in order to prevent further spread of the virus. Because many of the migrants in Colombia are low-skilled and held jobs in the construction sector, the service industry, and in domestic work, the lockdown triggered a drastic wave of unemployment in the country. According to the National Administrative Department of Statistics in Colombia, since the pandemic economic activity in the country shrank to just 15.7% and unemployment reached 21%. Furthermore, poverty levels are expected to rise and in addition to the lack of access to health services and forced evictions, many Venezuelan refugees are facing urgent and life-threatening situations in the country where they sought safety and refuge. 

Due to the lack of community support and work opportunities in Colombia, over 100,000 Venezuelans were forced to return home to confront the poverty, hunger, violence and repression they had fled, only to now also deal with high COVID infection rates.  

What Does the Future Hold? 

It may be difficult to feel much optimism with the current economic, health, and political crises plaguing much of the Americas. COVID is far from over, meaning that continued migration from Venezuela to Colombia will continue to rise and will eventually stabilize. The refugee crisis, however, will continue long after the end of the pandemic. According to the OAS, the total number of Venezuelan emigrants could reach up to 7.5 million which will further pose a great challenge for the international community.

Despite increasing numbers of refugees and asylum seekers pouring into other countries in Latin America and into the US, little action is being taken, especially when compared to the plight of other international refugees. According to Dr. Kopp, geographical location and political contexts play a large role in the lack of attention and inaction: “Europeans fear the presence of millions of refugees at their doorstep and, for this reason, the European Union have actively supported the plight of Syrian refugees by outsourcing their problem to Turkey, for example, in exchange for billions of dollars.” This is not the case with Venezuela, argues Dr. Kopp, “The United States has pledged millions, not billions of dollars because desperate Venezuelans refugees are not a priority in the country’s foreign policy objectives.” Instead, the Trump administration is fixated on defeating President Maduro and the drug trade in the region. “Low-income migrants,” she explains, “are no threat as they are too poor to attempt to cross the Darien [gap] in order to arrive to the US/Mexican border.”

Until there is a change in regimes in Venezuela, and  native Venezuelans feel safe enough to return home, the only solution to this growing problem is to provide the necessary funds to support refugees and take some of the burden off of Colombia and other countries that have resettled Venezuelan migrants.  

Food for Thought is a speaker series that welcomes a distinguished lineup of EMPA Faculty approaching the Covid-19 crisis and social justice reform. Each week a speaker will present their recommendation paper, highlight their perspective on the crisis, and engage in a dialogue with EMPA students, alumni, and other faculty members.

Milena Gomez Kopp was previously Chargé d’ Affairs/ Minister Plenipotentiary at the Embassy of Colombia in Turkey. She has taught at SIPA, the Universidad Externado de Colombia, the Middle East Technical University (METU) in Ankara and the Universidad Tecnológica de Pereira. She holds a Ph.D. from Columbia University.

Does Addressing Climate Change Mean Addressing Racism?

By Noah Smith, RightsViews staff writer and graduate student in the Human Rights Studies program at Columbia University

On October 28, Climate Refugees and the Institute for the Study of Human Rights at Columbia University brought together experts in environmental racism, indigenous rights, climate science and racial justice to discuss the two fundamental issues of our time: race and climate change. The panelists offered their expert opinions on the intersectional relationship between race and climate change and discussed solutions to mitigate these issues moving forward.

The climate crisis has disproportionately impacted marginalized populations, many of whom may be displaced or forced to migrate, because of years of unequal access to opportunities and gaps in human rights. Panelist Dr. Ingrid Waldron, a noted sociologist, has coined this disproportionate impact as ‘Environmental Racism’ which she defined as ‘‘a disproportionate location and exposure for indigenous, racialized communities and poor white communities to contamination from polluting industries and other environmentally hazardous activities.’’

The panel further articulated the delineation of ‘Environmental Racism’ by discussing the COVID-19 pandemic, George Floyd’s murder and the subsequent protests for racial justice, which correspondingly exemplified the effects of two divergent crises that have disproportionate impacts on Black, Indigenous and People of Color (BIPOC) because of systemic unequal access to opportunities. In 2020 the JAMA Network Open, which is part of the Journal of the American Medical Association, published a report which elucidated that in the United States Black mothers are most adversely affected by pregnancy risks associated with climate change and Black communities face heightened risks of air pollution. Upon revealing these startling realities, the panelists state that race appears to be a greater risk of exposure to environmental pollutants than poverty.

Panelist Professor Philip G. Alston, the UN Special Rapporteur on Extreme Poverty and Human Rights, discussed a 2019 report on Climate Change and Poverty, which found that developing nations will bear 75% of the financial costs and losses associated with the climate crisis, despite only contributing 10%  of carbon dioxide emissions. Alston further asserted that one could argue that ‘‘the whole phenomenon of climate change is driven by racism because it’s outsourced, and the dominant white elites are going to be able to protect themselves and they do not care about the terrible consequences that are being predicted because they will hit other groups.’’

Given the current bleak narrative, the panel offered future solutions to assuage the concerning trend we see regarding the current crisis. Panelist Dr. Lucky Tran, a science communicator based at Columbia University, spoke of the need to fight for communities harmed by bad science policies. Stating that there is a broad misunderstanding by science advocates who operate under the belief that facts alone are enough to convince individuals that climate change as well as racial inequality are real and pose existential threats to our society. He pointed out that this line of advocacy is not enough stating that ‘‘facts are not enough, we are talking about values. We’re talking about real lives, we’re talking about stories, and we have to do that a lot better.’’ This emphasis on storytelling as part of the solution to the climate crisis has been utilized by many science advocates in recent years. 

In fact, I recently watched a documentary titled America’s First Climate Change Refugees, which told the stories of communities across the US who are now threatened by rising sea-levels resulting from climate change. The individual voices showcased in this documentary are incredibly powerful and exemplify how storytelling can help us address complicated issues such as climate change. 

Furthermore, panelist Dr. Carlton Waterhouse, an international expert on environmental law, spoke about environmental justice and suggested we think of it in three frames: distributive, procedural, and justice as recognition. This framework of conceptualizing environmental justice recognizes that there is an unequal distribution of pollutant sources in society, a lack of recognition of marginalized voices in government and environment policy procedural processes, as well as a lack of recognition of what marginalized communities need and deserve. 

Actualizing these frames of justice should be a priority and as stated by Dr. Waterhouse recognizing ‘‘inequitable distribution of pollution, the harm that comes from it, and the benefits that are derived from it, that to me is the core of environmental justice.’’

Voter Suppression in the United States: Infringements on the Right to Vote

By: Jalileh Garcia, Staff Writer at RightsViews

In the midst of a pandemic, with a rising number of COVID-19 cases, the United States election will take place on November 3, 2020. This election will be decisive for many of the contemporary issues that people are facing in the United States, and beyond. 

The right to vote is understood as one of the foundational cornerstones of a democracy, allowing free and fair elections to take place. Different civil and human rights safeguard the right to vote, namely the 15th Amendment of the U.S. Constitution, the Voting Rights Act of 1965, and Article 25 (b) of the International Covenant on Civil and Political Rights (ICCPR). Despite having these legal protections, different states such as Georgia, North Carolina, among others continue to limit the exercise of this right in the country. 

The UN Committee on Human Rights delineated in the General Comment 25 of the ICCPR that States have the duty to “take effective measures to ensure that all persons entitled to vote are able to exercise that right.” Furthermore, when required registration of voters “should be facilitated and obstacles to such registration should not be imposed.” 

Voter suppression is one of the ways that countries create obstacles to the right to vote. Myrna Perez, director of the Brennan Center’s Voting Rights and Elections Program, noted that voter suppression is “an attempt to depress turnout or participation where there is some actor trying to reduce access to the ballot.” 

This exclusion of certain groups of voters is nothing new – rather, it has been the norm in the United States. Polling taxes, literacy tests, purges of voter rolls, and other tactics have been used to historically disenfranchise Black and Native American voters. Recently, voter suppression has also been affecting Latinx populations.  

Different restrictions to the right to vote, through voter suppression, can include voter-ID laws, limiting and cutting the hours at the polls, purging voter rolls, and outright intimidation.   

According to the National Conference of State Legislatures, a total of 36 states have laws that request or require voters to show some form of identification (i.e. strict photo ID, ID without photo, etc) at the polls, 35 of these are in force for this 2020 election. A study by Zoltan Hajnal, Nazita Lajevardi, and Lindsay Nielson found that “strict identification laws have a differentially negative impact on the turnout of racial and ethnic minorities in primaries and general elections.” Furthermore, it found that these laws “skew democracy toward those on the political right.” 

Videos have surfaced on social media of people waiting hours to cast their ballots at sites prepared for early voting in New York City. The New York Times indicated that some people waited as long as 5 hours. One of the reasons for these long lines – people are scared that their absentee ballots will not be counted due to bureaucratic, technical issues, so they had chosen to vote in-person despite COVID-19 worries.   

Many disputes have arisen over the purging of voter rolls, which is used to disenfranchise many minority voters in the United States. This has been seen before when, in 2016,  the County Board of Elections challenged the votes of 180 Black people in Sparta, Georgia by summoning voters’ to prove residence, or they would lose the ability to vote in that election. This fear continues throughout the 2020 election, given that the State of Georgia “mandates some of the country’s most aggressive methods for purging voters from registration rolls”, says ACLU Georgia

In a new age of “fake news”, disinformation campaigns to depress turnout in elections have flooded social media. Win Black, a campaign that seeks to ensure that Black and Brown communities do not suffer at the hands of disinformation campaigns, explained how these campaigns seek to discourage Black and Brown voters from casting their ballots by playing on these communities’ worries, inspiring them to not vote. 

Intimidation has also been documented in the early voting periods of the 2020 election. Different methods of intimidation have been used including: armed men standing outside of early voting sites, voters wearing “Black Lives Matter” shirts being turned away at the polls, and false phone calls to residents in primarily Black communities that discouraged voting by mail. In Graham, North Carolina, the police pepper sprayed participants of a march and rally to increase voter turnout, though they had the proper permits. 

While the United States manifests itself as a “champion of democracy” in the international community because of its “adherence” to civil and political rights, this discourse is tainted with voter suppression tactics that negatively impact Black and Brown voters specifically, denying them the right to vote and participate in democratic processes. 

Complicating Ruth Bader Ginsburg’s Legacy Through the Lens of White Feminism, Race, and Indigenous Rights

By Rowena Kosher, Co-Editor of RightsViews and student at Columbia’s School of General Studies majoring in Human Rights with a Concentration in Gender & Sexuality Studies.

On September 18, Justice Ruth Bader Ginsburg died at 87, after serving on the Supreme Court of the United States (SCOTUS) for 27 years. Ginsburg, popularly known as RBG, and in her most recent fame “The Notorious RBG,” is a feminist icon. This is for good reason—she accomplished a number of “firsts” in her lifetime and her work contributed to groundbreaking progressive legal changes, particularly regarding gender. 

Flowers on the steps of the Supreme Court following Ginsburg’s death. // Creative Commons

Ginsburg graduated top of her Columbia class and became the first woman to be appointed as full professor at Columbia Law. As Director of the ACLU’s Women’s Rights Project, she litigated over 300 sex discrimination cases before working on the D.C Court of Appeals for 13 years. Ginsburg joined SCOTUS in 1993, where she served until her death. During this time, Ginsburg rose to mainstream fame, becoming well known for her blistering dissents and constant advocacy as one of the vital liberal justices on an increasingly conservative court.

Following Ginsburg’s death, the media blew up with condolences, concerns about political implications, and articles commending Ginsburg on the successes of her career. Yet in this barrage of (justifiable) abounding praise, I couldn’t help but think about what happens when a person, a human, becomes an icon so coopted by a movement that her humanity becomes erased. In truth, Ginsburg was a person, and people are not perfect. What do we lose in this black and white thinking about legacy?

A caveat: in this article, I will offer a critical overview of Ginsburg’s legacy. In doing so, I do not intend to discredit or ignore the vastly important implications of the decisions that she made over the course of her career, particularly for women. Rather, I hope that this article presents the opportunity to, amongst our mourning and praise, also think deeply about who benefits from RBG’s legacy, and more importantly who falls to the wayside: namely poor, queer, Black and Indigenous People.

 

Ginsburg’s Feminism was for White Women

In 2013, a NYC student started a Tumblr account entitled “The Notorious RBG,” beginning the memeification of Justice Ginsburg as a white feminist icon. // Creative Commons

Ginsburg was director of the Women’s Rights Project during the height of second wave feminism, a time characterized by calls for women’s equality to men. Also known as “sameness feminism”, this camp challenges anything that could be perceived as treating women as the “lesser sex.” Ginsburg based her entire legal career on reasoning that adhered to this model. Her cases on sex discrimination followed a formula: anything that appeared to be treating a member of one sex differently from a member of the other sex was either sex discrimination, or in the case of her 1 in 4 male plaintiffs, reverse sex discrimination. 

Although on face value, this version of feminism intuitively makes sense, its historical context and practical application mean that in practice, it only really benefits one group: white women. Of which, of course, Ginsburg herself was a member.

As Muqing Zhang points out in a 2019 article in The Establishment, equality to men is an easy point of view for an upper-middle class white woman to have because sexism is often the only form of discrimination that white women face. Yet, maintaining a sameness-based sex equality argument obscures, and even worsens, the experiences of, for instance, poor, Black, queer women, whose marginalizations are plural. In fact, it was the very prominence of the consistent exclusions resulting from a sameness feminist model that led to the development of Critical Race Theory.

Ginsburg’s appeal to white feminism is clear and with this in mind, Ginsburg’s popularized successes in court take on a different tone. Zhang argues that Ginsburg’s formulaic equality framework resulted in the consistent and lasting elimination of any preferential policies towards women—results that were successes for only white women. Cases such as Weinberger v Wiesenfeld (1975) and Califano v Goldfarb (1977), ended policies on federal aid that benefited women specifically. Although aligned with a white feminist model of success, eliminating preferential policies leaves the poor, queer, non-white women who rely on these programs stranded. The results of these decisions are not racist in intent, but they do say something about the challenges of her positionality as a wealthy white woman. Zhang writes, “Although it may not have been Ginsburg’s explicit intent to harm the most marginalized of women, part of the insidiousness of white feminism is that it convinces its believers that the white woman’s experience is the universal experience for all women…in the end, it is not the intent, but the devastating impact that matters.”

On Race:

Ginsburg was not entirely oblivious about the challenges that she did not herself face. At her swearing-in ceremony in 1993, Ginsburg said: “A system of justice will be the richer for diversity of background and experience.” In 1994, Jerome McCristal Culp Jr. wrote and published “An Open Letter From One Black Scholar to Justice Ruth Bader Ginsburg” in which he reminded Ginsburg that diversity on the court does not automatically ensure that diverse voices are heard before the court. Further, understanding one form of oppression (gender) does not mean that one can or will understand another (race), or their intersections. “Privilege does not mean that the holder cannot hear the voices of the oppressed,” writes Culp Jr., “but it does suggest that one possessing such privilege ought to take care to examine where she is in relation to others and where she and others are going.” As with Crenshaw, Culp Jr. cites the challenges of applying an equality model to racial settings. The Equal Protection Clause of the 14th Amendment is a model that at best maintains the status quo, and at worst reinforces existing racialized inequalities.

When Ginsburg engaged with issues of race directly, it came across with mixed messages. One such example is her hiring record. At her confirmation hearing, Senator Hatch questioned Ginsburg about the fact that over her 13 years at the DC District Court, out of 57 employees, not a single one was Black. Ginsburg replied by saying, “I am going to try harder, and if you confirm me for this job, my attractiveness to Black candidates is going to improve.” Yet, over her 27 years on SCOTUS, she only hired one Black law clerk. Granted, law clerks for SCOTUS justices are notoriously white across the board—85% since 2005. However, a systemic problem is not an excuse for a lack of revision of hiring practices, and it is still disappointing to read of Ginsburg’s poor record.

Ginsburg made headlines again in 2016 for her insensitive response to Colin Kaepernick kneeling for the National Anthem as a protest to police violence and in support of Black Lives Matter. In the original interview, Ginsburg calls the protest “dumb and disrespectful” and compares it to flag burning. Ginsburg quickly apologized after massive media blowback. Although it appears that Ginsburg was taking issue more with the action of political speech that Kaepernick chose to take than with the cause he was protesting for, it’s frankly surprising that she was “unaware” of the nature of these protests and further, demonstrates a tendency in the legal world to interpret political actions along a hierarchy of value. Progressive values are structured to favor some political spaces (like campaigns) over others (like sports). And the very spaces that are favored are the spaces that are already structurally exclusionary to BIPOC.  Where is the space for voices against racism when the easily accessible platforms to denounce it are valued less than the institutions that gatekeep? 

In her world in the courtroom, Ginsburg didn’t stand out on cases related to race but generally sided with the other liberal justices in condemning white supremacy & racial discrimination. After all, the civil rights framework that challenges racism is the same as her well-worn equality framework for gender discrimination. For example, as an attorney, Ginsburg credited the work of Black queer civil rights attorney Pauli Murray in Reed v Reed. She authored an amicus brief for Coker v Georgia writing, “the death penalty for rape is an outgrowth of both male patriarchal views of women…and gross racial injustice created in part out of that patriarchal foundation.” Ginsburg also clearly addressed the intersections of voter suppression and race in her famous dissent, Shelby County v Holder.

She ruled in favor of several important cases regarding the rights of the incarcerated, although it is not clear that these decisions were based on her awareness of mass incarceration as an issue with disproportionate effect on BIPOC. Yet Ginsburg also supported increased barriers for prisoners seeking rights in federal courts and joined the majority in Overton v Bazzetta, upholding draconian visiting restrictions. Definitely a mixed record.

One interesting case study of Ginsburg’s lack of engagement with race is her Utah v Strieff (2016) dissent. An equal protection 4th amendment case about warrants and unlawful stops, Justice Sonya Sotomayor wrote a harsh dissent critiquing the ruling, which included what is now colloquially referred to as Sotomayor’s “Black Lives Matter Manifesto.” In this condemnation that also cited Black scholars and activists Michelle Alexander and Ta-Nehisi Coates, Sotomayor wrote “[the decision] implies that you are not a citizen of democracy but the subject of a carceral state, just waiting to be catalogued.” Ginsburg signed onto all of Sotomayor’s dissent except this section. Ginsburg ruled on the liberal side, and yet stopped herself at Sotomayor’s explicit discussion of race. Why did she pass up an opportunity to use her platform as a prominent white woman in power to express solidarity with BIPOC?

Indigenous Rights: RBG’s Biggest Regret

Ginsburg accepting her nomination to the Supreme Court in 1993. She was nominated by President Bill Clinton. // Creative Commons

When it comes to Indigenous Rights, Ginsburg likewise does not have a strong record of support. The legal field itself contributes to this. US law is based primarily on individual rights, a reflection of Western neoliberalism. This comes in conflict when dealing with Indigenous Peoples, whose rights are collective. Further, education about Indian Law is poor across law schools; only a few states include it on their Bar examinations. As a whole, the American legal system is rooted in the history of systemic genocide, exclusion, and erasure of American Indians. Given this, it is upsetting but not surprising that in her confirmation hearing, Ginsburg stated that “I cannot pretend to any special knowledge in this area of the law.” The Marshall Project does note that Ginsburg’s decisions on cases regarding Indian Law improved over the course of her time on the court. For example, her very last Indian Law case, McGirt v Oklahoma (2020), importantly ruled that a majority of Eastern Oklahoma is Indian Country—a landmark recognition of tribal sovereignty. However, backtracking to some of her earlier decisions, we see a number of cases where Ginsburg restricted Indian rights, such as US v Navajo Nation (2002) and Strate v A-1 Contractors (1997). Perhaps the most notorious, however, is City of Sherrill v Oneida Indian Nation of New York.

Ginsburg authored the 8-1 2005 Sherrill decision, ruling against the Oneida Indian Nation regarding their claim to tax-exempt status on traditional Oneida land which NY had acquired as the result of an illegal transaction in the 19th century, and then was repurchased by the Oneida Nation in 1997-98. Ginsburg’s reasoning rested on longstanding racist legal doctrines such as the “Doctrine of Discovery.” Ginsburg argued that the “longstanding Non-Indian character” of the land and the Oneida’s delay in seeking relief kept the tribe from “rekindling the embers of sovereignty that long ago grew cold.” This decision was heavily and rightfully critiqued.

It is clear that Ginsburg took these critiques to heart. In May of 2020 she confided in some of her clerks and peers that Sherrill was the single decision in her time at the court that she regretted the most. She paired this with a declaration of hope that the next SCOTUS nominee be a Native American woman.

What does all of this tell us? It tells us that Ginsburg made countless valuable progressive, life changing decisions that benefitted hundreds of thousands of Americans. It tells us she has the capacity for growth and critical thought and the humility to apologize. It also tells us that she made some really bad decisions, too. In other words, she wasn’t perfect. Nobody is. Legacies are complicated, and the legacy of a judge on SCOTUS even more so. 

We experience a general failure to recognize Ginsburg’s complicated history because she has been elevated to icon status in the pervasive white feminist narrative. As Si’iyda Shabazz writes, “painting her as a superhero on a pedestal” by the ever-impervious white feminist umbrella means we forget (or are prevented from realizing) that at the end of the day, RBG made mistakes. Just as her successes deserve to be shouted from the rooftops, the less rosy side of her record ought to be available for critique. We can only become better citizens, better feminists, and better advocates by knowing that mourning and critical analysis are not mutually exclusive, and in fact can strengthen each other and provoke us to turn Ginsburg’s legacy into justice-oriented action.

A Glimpse of Hope from the U.S. Supreme Court: Bostock v. Clayton County

Guest Contributor Rosa Celorio is an Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy, Rcelorio@law.gwu.edu, https://www.law.gwu.edu/rosa-celorio. (Full Bio at end of  article).

On June 15, 2020, the United States Supreme Court released its historic decision in the case of Bostock v. Clayton County, ruling that employers are prohibited from discriminating against any individual on the basis of their sexual orientation or gender identity in the employment setting. The case relates to three employees who claimed they were fired after revealing they were homosexual and transgender. The Court firmly ruled that Title VII of the Civil Rights Act of 1964 and its prohibition of sex discrimination applies to gay and transgender persons. 

This decision is momentous and noteworthy for the respect and guarantee of human rights in the United States for several reasons.  First, it continues the trend of the Supreme Court in protecting the rights of persons historically discriminated against due to their sexual orientation and gender identity. The decision in Bostock is an important addition to the line of cases already adopted by the Supreme Court in Obergefell v. Hodges, guaranteeing the right to marriage equality, and Lawrence v. Texas, declaring the unconstitutionality of laws which prohibit private intimate activity between homosexual persons. The Court also offers an expansive interpretation of the prohibition of discrimination on the basis of sex under the landmark Civil Rights Act, thereby offering federal judicial protection to millions of LGBTI people who are employed in the United States.  The majority affirmatively concludes that it is unconstitutional for sexual orientation and gender identity to be considered as factors in employment decisions.    

Second, it is remarkable how the Supreme Court continues identifying and protecting human rights, even when they are not explicitly included in the Constitution or federal laws. In Obergefell v. Hodges, the Supreme Court emphasized its role in identifying and protecting human rights under the Constitution, even when these are not reflected in existing legislation. This statement clearly created significant discussion and disagreements between the justices, leading to dissenting opinions in Obergefell emphasizing that the creation of rights solely belongs to the political and democratic process. The debate over the appropriate reach of the Supreme Court in identifying new rights is also very latent in Bostock, as reflected in the dissenting opinions of Justices Samuel Alito, Clarence Thomas, and Brett Kavanaugh.  The Supreme Court decision in Bostock illustrates how the check and balances system in the United States and the role of the courts can be paramount in protecting the rights of marginalized populations, especially in the area of non-discrimination.

Thirdly, the United States is currently a very divided and broken country. Much of the present polarization is related to a deep-seeded history of discrimination and inequality, which has led to protests and claims for much needed reform of current laws, policies, and institutions. It is very noteworthy that this decision was authored by Justice Neil Gorsuch, who is considered a conservative.  Judge Gorsuch applies a textualist approach to the interpretation of the Civil Rights Act, concluding that the plain text of this statute leads to the conclusion that discrimination on the basis of sex also protects homosexual and transgender persons. Chief Justice Roberts – who is also considered a conservative jurist – joined the majority.  In a moment of deep concerns in the United States over discrimination, it is extraordinary to see Justices applying conservative legal interpretation to advance the rights of millions of persons. 

Lastly, the Bostock decision is in line with numerous judgments adopted by international courts offering a flexible interpretation to the prohibition of discrimination in international and regional treaties.  For example, both the European Court of Human Rights and the Inter-American Court of Human Rights have ruled on cases establishing that sexual orientation and gender identity are considered prohibited factors under the European and American Conventions on Human Rights, even though these treaties do not explicitly mention these motives in its discrimination provisions.  As the author has indicated in her previous scholarship, an open interpretation of the non-discrimination clauses in domestic laws is a key gain for legal standards related to discrimination, and for sectors and communities particularly exposed to human rights violations. It will be very interesting to see the impact that Bostock will undoubtedly have on the crafting of new federal and state legislation in the United States protecting the rights of LGBTI persons in the employment and other settings. 

The Supreme Court ruling in Bostock v. Clayton County is groundbreaking and an important step forward in the protection of the rights of the LGBTI community in the United States. United States courts can potentially be the guardians of important human rights protections, the guarantee of non-discrimination, and access to justice.  

The US Supreme Court offered us in Bostock a glimpse of hope when most needed. 

_______________________________________________________________________

Author Bio:

Rosa Celorio currently works as Associate Dean for International and Comparative Legal Studies and Burnett Family Professorial Lecturer in International and Comparative Law and Policy
at the George Washington University Law School in Washington, DC. She also teaches courses related to the US legal system, regional protection of human rights, and the rights of women, and publishes scholarship in these areas.  Previously, she worked for more than a decade as Senior Attorney for the Inter-American Commission on Human Rights (IACHR), one of the main organs of the regional human rights protection system for the Americas. In this capacity, she held various leadership positions, including the supervision of all the legal work performed by the specialized Rapporteurships on women, LGBTI persons, indigenous peoples, racial discrimination, children, and older persons, among others. She has also acted as an advisor and consultant for several United Nations agencies. She is originally from Puerto Rico.

For more information, see: https://www.law.gwu.edu/rosa-celorio

 

Truth in Sentencing: Mass Incarceration in the United States

By Reem Katrib, Staff Writer for RightsViews 

With the mark of the 10th year anniversary of Michelle Alexander’s powerful book The New Jim Crow at the end of January, our current celebration of  Black History Month, and an approaching presidential election, it is important to bring to the forefront the continuing systemic racism in the American criminal justice system. The recent eighth presidential debate, argued the evening of February 7, 2020, in New Hampshire, brought forth this topic with the spotlight on presidential candidate Pete Buttigieg when asked why a black resident in South Bend, Indiana was four times more likely to be arrested for the possession of marijuana than a white resident after his appointment to office. While Buttigieg had initially avoided the questions posed by ABC News’ Live News Anchor Linsey Davis, he then conceded, claiming that the arrests made were made as a result of the gang violence that was prevalent in the black community of South Bend, causing the deaths of many black youths. This logic and rhetoric, however, plays into narratives which contribute to the disproportionate criminalization of black Americans, despite Buttigieg’s recognition of systemic racism in the criminal justice system on the national level. This then begs two questions; primarily, what policies on mass incarceration impact persons of color today? And what positions have the democratic presidential candidates taken on such a pervasive issue? 

A History of Mass Incarceration in the United States

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

The 13th Amendment of the United States Constitution was ratified on December 6, 1865 and deems slavery unconstitutional, except as a punishment for crime.  While the ratification of the 13th amendment was meant to abolish slavery, a mythology of black criminality continued to be perpetuated through a white nationalist narrative that took alternative, but just as harmful, forms to target black Americans. Movies such as “The Birth of a Nation” (1915),which was responsible for the rise of the Klu Klux Klan, committed to a narrative of black criminality that many white people wanted to tell. White people wanted to continue to benefit from the “loophole” in the 13th amendment; more so, the movie depicted them, and specifically members of the Klu Klux Klan, as “valiant saviours of a post-war South ravaged by Northern carpetbaggers and immoral freed blacks.”  

Slavery in the 19th century and continuing discrimination, violations and abuse, and segregation policies such as those of the Jim Crow era have led to generational trauma and the dispersion of black communities from the south. These human rights violations have not ceased with time but only have changed in nature; systemic oppression against people of color has continued through carefully nuanced political policies that only propagate these violations as systems of protection. The mass incarceration of people of color, which has fed into the prison industrial complex, reasserts systems of racial discrimination and the policing of those marginalized. While not slavery by name, the mass incarceration of people of color  acts as slavery in practice.

 Although the United States has the highest rate of incarceration at 25% per cent, it only constitutes 5% of the world population. This is a massive statistic, yet, as Alessandro Di Giorgi articulates, “the sheer extension of the correctional population in the United States does not convey the race and class dimensions of the US penal state—the result of a four-decade-long carceral experiment devised from the outset as a political strategy to restructure racial and class domination in the aftermath of the radical social movements of the 1960s.”

The Civil Rights movements that began in the late 1940s were countered by efforts to criminalize black leaders such as Fred Hampton, Assata Shakur, and Angela Davis.  In the 1960s, President Nixon emphasized “law and order” and synonymized crime and race through a “war on drugs” in which drug dependency and addiction were regarded as a crime, a rhetorical “war” that disproportionately targeted poor, urban neighborhoods occupied by primarily people of color. Through this syntax of subtle and thinly veiled racial appeal, matched with backlash towards the Civil Rights Movement, the Nixon campaign deployed the “Southern Strategy,”  which aimed at gaining the votes of lower income white people who had previously voted with the democratic party. This strategy utilized the war on drugs as a top-down approach to gain the support of the white people who had felt isolated and alienated with the dismantling of the Jim Crow laws on racial segregation. 

The war on drugs was only strengthened in later years, especially with the election of Ronald Raegan in 1982. Increase in poverty as well as the widespread dealing of crack, which was easier to access than powdered cocaine, meant an increase in incarceration rates of low income people of color as well. Significantly, crack and cocaine are identical in molecular composition; however, crack had become associated with blackness and thus a worse form than powdered cocaine, which was used just as frequently by high-income white people as a “party drug.” More so, crack was cheaper to produce and therefore circulated more easily among lower income communities as opposed to cocaine which was mostly circulated and in the possession of middle and upper classes, and more specifically, white people. A study conducted by the ACLU found that “in 1986, before the enactment of the federal mandatory minimum sentencing for crack cocaine offenses, the average federal drug sentence for African Americans was 11% higher than for whites. Four years later, the average federal drug sentence for African Americans was 49% higher.”

“What Raegan eventually does is takes the problem of economic inequality, of hyper-segregation in America’s cities, and the problem of drug abuse and criminalizes all of that in the form of the war on drugs,” argues Ava Duvernay in her documentary 13th.  

This narrative was only furthered by President Bill Clinton who proposed several policies encouraging policing and the death penalty for violent crimes. During his administration, the three strikes rule for prisoners as well as mandatory minimums were created. This meant that cases moved from under the jurisdiction of judges to that of prosecutors; notably, 95% of elected prosecutors throughout the U.S. are white. “Truth in sentencing,” which is a law enacted in order to reduce the likelihood of early release from imprisonment,  has often been questioned as a result of this change in how individuals charged with crimes get prosecuted and sentenced. Significantly, 97% of those locked up, for example, have plea bargains and do not even go through trials. This was significant to the Clinton administration as he claimed a more hardline approach with regards to criminal justice in order to gain support and win the presidential elections. 

Under Bill Clinton, sixty new capital offense punishments were also added to the law, and the 1994 Federal Crime Bill led to the massive expansion of the prison system through increase in funding and personnel such as police officers. This bill then also meant the expansion of the prison industrial complex, and hence the benefit of certain corporations as well as the political progression of Clinton through similar means to Raegan and Nixon. 

As seen in the figure above, extracted from The Sentencing Project: Fact Sheet: “Trends in U.S. Corrections,” state expenditure on corrections has dramatically increased over time. This attests to the use of mass incarceration as a political strategy that perpetuates racial discrimination as politicians have increasingly utilized a hardline criminal justice approach in order to gain public support. This is especially evident with the election of Clinton and the expansion of the prison system which included increase in funding.  

It also asserts the influence of the American Legislative Exchange Council (ALEC) on policy bills. ALEC is a lobbyist group that advocates for limited governance, free markets, and federalism. Importantly, ALEC claims the membership of many organizations and legislators. Previous member, Correction Corporations of America (CCA), has benefited as the leader of private prisons as a result of such influence over federal spending. The CCA has had a role in shaping crime policy across the country, including the increase in criminalization of communities of people of color. More so, there is now a move towards the privatization of probation and parole by the American Bail Coalition, a system in which people could be incarcerated within their own communities.  

In prison, incarcerated individuals experience a process of immediate sensory deprivation and dehumanization, followed by disenfranchisement that essentially removes their rights as citizens, such as the right to vote or get a job as the right to vote excludes previously incarcerated people. The racial caste then seen during the Jim Crow era has been redesigned. Not only has there been incessant criminalization and disenfranchisement of black people, but convict leasing has also risen as a new form of slavery. Convict leasing, which started as early as 1844 in Louisiana, means the leasing of the labor of those incarcerated, often without compensation and in poor conditions, in order to increase profit in a certain sector.  The legal inheritances from times of slavery in the United States have become the foundations for the modern prison industrial complex, in which black men make up 40.2 per cent of the prison population while only making up approximately 6.5 percent of the U.S. population. 

The above chart is from The Sentencing Project: Fact Sheet: “Trends in U.S. Corrections”

Ta-Nehisi Coates deems reparations to the black community a question of citizenship. When the history of mass incarceration is looked at with the recognition that members of colored communities have consistently been treated as second class citizens, this is undeniable. Coates makes the claim that slavery and past plundering cannot be separated from today’s context of mass incarceration and the “logic of enslavement respects no such borders.” This enslavement which overarches over private and public spheres presses  the question: how should the U.S. go about institutional reform when politicians and corporations have weaponized racial discrimination in veiled lines to gain political prowess? Could an unofficial form of truth-telling and truth-seeking place the pressure necessary for institutional reform and justice? Questions of employing transitional justice mechanisms such as truth commissions and reparations in a consolidated democracy then suggest a new approach to these mechanisms to encourage institutional reform. Political strategies have begun to shift and so we must ask “do we feel comfortable with people taking a lead on a conversation in a moment where it feels right politically?”

What the Democratic Candidates Say

With that in mind, as well as the events of the recent presidential debate in New Hampshire, it’s important to note the political stances of the democratic presidential candidates to ask of the intentions and the applicability of criminal justice policies and policies on mass incarceration. The Marshall Project outlines the stances of these candidates. 

Significant to this discourse is the recognition that all democratic presidential candidates oppose the death penalty. Bernie Sanders and Peter Buttigieg would like to eliminate mandatory minimums while Elizabeth Warren and Joe Biden would prefer reducing them. All candidates would like to legalize marijuana while Biden would vote on decriminalizing it instead. Likewise, Sanders believes that those incarcerated should have the right to vote while Biden, Buttigieg, and Warren believe that those incarcerated should only have the right to vote when they have left prison.

 Other topics to consider include the reform of the bail system, use of clemency, and use of private prisons at a federal level. With these stances noted, one must contextualize and recognize how such policies would affect the communities of those most implicated as a result of the systemic racism in place. One must also question why there hasn’t been more discourse on reparations for the years of weaponized racial discrimination that have been enacted through the prison industrial complex and the mass incarceration of people of color.

Failing to Protect Human Rights: The United States and the Asylum Cooperation Agreements

By: Jacquelyn Sieck, RightsViews Staff Writer 

In 2019, the United States forced countries in the Northern Triangle – a region composed of Guatemala, El Salvador, and Honduras – to sign Asylum Cooperation Agreements by withholding over $500 Million in aid. These threats of aid suspension echo Cold War-Era proxy war interventions in Central America, during which the United States blocked the Guatemalan government from receiving “much-needed” development loans from the World Bank because it did not approve of the Arévalo Government. During these proxy wars, the United States offered “support for a coup in Guatemala, brutal government forces in El Salvador, and right-wing rebels based in Honduras known as the Contras.” This U.S. support led to gross human rights abuses, and demonstrated to the region that the United States is willing to act on threats and suspend aid to governments in need in order to further its foreign policy objectives. This sentiment and realization forced the Northern Triangle to respond swiftly to the aid suspension by signing the formal Agreements, after which over $143 Million in aid was released to the countries. 

The Asylum Cooperation Agreements were each signed bilaterally between the United States and the respective Northern Triangle country. The Agreements allow for the transfer of asylum seekers who arrive in the United States without having applied for asylum in at least one third country. Most alarming about the Asylum Cooperation Agreements, however, are that they designate Honduras, El Salvador, and Guatemala as “safe.” This is in spite of the fact that in 2018, El Salvador had 51 murders per 100,000 people, and Honduras had 40. Further, the U.S. Department of State’s yearly Country Reports on Human Rights Practices have recognized human rights violations, violence, and impunity in the countries of the Northern Triangle. The United States’ 2017 National Security Strategy explicitly states: “transnational criminal organizations—including gangs and cartels— perpetuate violence and corruption, and threaten the stability of Central American states including Guatemala, Honduras, and El Salvador.” These government reports show that the United States has, in fact, recognized the violence in the region; the United States government is attempting to argue these countries are safe while having produced numerous documents which argue the exact opposite.

This recognition of violence in the region can be found in the numbers of asylum grants and applications from the region in recent years. In August of Fiscal Year 2019, the United States Citizenship and Immigration Service published statistics that 72% of the migrants apprehended at the U.S. Southern border were from the Northern Triangle countries. Another report, authored by Nadwa Mossad in the DHS Office of Immigration Statistics, published statistics that in FY 2016, 27.1% of all asylum grants were from El Salvador, Honduras, and Guatemala. This number was met by 31.9% of all asylum grants being from the Northern Triangle in FY 2017, and 19% of all asylum grants in FY 2018. In order to be granted asylum, the applicant must meet the Immigration and Nationality Act definition of a refugee – have a well-founded fear of persecution on account of race, religion, membership in a particular social group, or political opinion –  and be inside the United States. 

There has been a large pushback to the newly signed Agreements from civilians and legislators in all countries involved. Guatemalan media began recognizing that their Congress had not passed the Agreement and El Salvadoran Elected Representatives talked about how the Agreement contradicted the laws on migration and foreigners. Moreover, the President of El Salvador, Nayib Bukele, discussed how El Salvador did not have the capacity to maintain a humane environment for asylum seekers. This lack of capacity is shown by statistics the government of El Salvador published, which stated they only processed 87 refugee applications and zero political asylum applications between June 12, 2014, and June 12, 2019. Guatemala received 262 asylum requests in all of 2018 and only has four asylum officers to manage them. In the United States, civil society organizations sued the Trump Administration, but the U.S. Supreme Court stated the policy could be enforced while lower courts continue their adjudications. Justices Sonia Sotomayor and Ruth Bader Ginsburg dissented and stated that the Agreements  “upend longstanding practices regarding refugees who seek shelter from persecution.”

The effects of the aid suspension have already been experienced by the region, as projects remain at risk because the State Department “reportedly reprogrammed $404 million (82%) of the $490 million of FY2018 assistance Northern Triangle.” The Congressional Research Service has said that this lost aid “could jeopardize recent improvements in security conditions in the Northern Triangle,” noting that “homicide rates are reportedly increasing once again in some neighborhoods in Honduras from which USAID withdrew due to a lack of funds.” 

The risks, however, have already begun for asylum seekers: the first Honduran asylum seeker arrived in Guatemala on November 22, 2019. The asylum seeker was reportedly offered asylum in Guatemala, a job, and a place to live, but decided to return to Honduras. Less than two weeks later, two more Honduran asylum seekers and the first El Salvadoran asylum seekers were transferred to Guatemala, and Alejandra Mena, the spokeswoman for the Guatemalan migration institute “did not specify whether the migrants from Honduras and El Salvador would seek asylum in Guatemala or return to their countries.” The uncertainty as to whether the migrants will return to the country from which they fled shows the dangers of the Agreements in providing protection to asylum seekers.

These Agreements show a continued U.S. influence in Central America, and put the safety of Asylum seekers at risk by forcing the Northern Triangle governments, all of whom have a mass exodus of citizens each year who seek asylum in the United States, to sign Asylum Cooperation Agreements and begin accepting transfers of asylum seekers. The transfer of tens of thousands of asylum seekers to these Northern Triangle countries will place an extreme burden on underdeveloped asylum systems that have only handled hundreds of cases in the past few years. With over 59,000 migrants on the U.S.-Mexico border awaiting U.S. immigration hearings, the failure to protect asylum seekers remains evident. As of February 4, 2020 the United States has transferred 378 Honduran and El Salvadoran asylum seekers to Guatemala, the majority of whom are women and children. In order to protect human rights, the United States must stop the transfer of asylum seekers to dangerous countries which have underdeveloped asylum systems and cannot offer protection to those the transfers which arrive.

Truth, Reconciliation, and Reparations…But What About Justice? An Interview with Nana-Jo Ndow

RightsView contributor James Courtright recently sat down with Nana-Jo Ndow to discuss Gambia’s transitional justice process. For 22 years, Yahya Jammeh ruled The Gambia through widespread corruption, repression of media, torture, enforced disappearances and extrajudicial killings. He was voted out of office in December of 2016, and fled after a political impasse at the end of January 2017. At the beginning of this year the Truth, Reconciliation and Reparations Commission (TRRC) began hearing testimony in The Gambia from victims and perpetrators of Jammeh’s regime. 

The interview has been edited for clarity.

Nana-Jo Ndow, daughter of disappeared and murdered Gambian buisnessman Saul Ndow. ©Jason Florio

Can you introduce yourself?

My name is Nana-Jo Ndow and to put it simply I like to say I’m from Ghana – Gambia – UK. My Dad was a business man, he went wherever there was opportunity. 

What brought you to human rights work?

I had a father who was very into human rights and politics, so we’d always have debates and conversations. I volunteered with Amnesty International about 12 years ago in London. I thought I wanted to be a doctor, but at Amnesty I realized I didn’t necessarily want to treat people, I wanted to understand the root causes of why these things are happening. 

Regarding transitional justice in The Gambia, which is what I’m working on now, that was sparked by what happened to my father (Saul Ndow). He was a fierce critic of Yahya Jammeh, the former president of The Gambia. In 2013 he was forcibly disappeared on the orders of the former president. At first, I thought my father was just being kept somewhere, so I was trying to find his whereabouts and trying to get him freed. It really had a devastating impact on me physiologically, physically, and also in the family. I don’t want anyone else to go through that. If I can help one person not go through that, I would have done what I’m meant to do on this earth. 

You’ve never heard anything from the Gambian government?

The government kept silent, that’s the whole thing with enforced disappearances. It’s the silence. It’s another way of torturing people because you’re not sure if you’re moving in the right direction. Am I making that person be tortured more if I speak up? Am I putting myself in danger? There’s this constant fear, this constant guilt. We never spoke up, but we reached out various individuals, groups and institutions including the UN, the working group on enforced and involuntary disappearances, the Senegalese, the UK, the Red Cross, and Amnesty International. We were frantic but also relentless. I knew who to reach out to because of my work for Amnesty, but even knowing who to turn to, it was still very … I wouldn’t even say frustrating, it was debilitating. Now imagine all these others who are not connected to the internet or are completely isolated, what they go through in their heads, how powerless they feel. 

I want to take a few steps back. Can you talk a little about your experiences in Latin America?

I moved to Argentina in 2001 because I liked the idea of moving to South America. In Argentina I really got to understand more about what Argentinians went through with the dictatorship. When I found out about my father it was easier for me to speak about it with my Argentinian friends because to them this was not a new concept. They probably knew someone who knew someone whose father’s sister’s uncle’s father’s uncles’ brothers had been forcibly disappeared. The military there tried to impose some kind of amnesty so no one would be held accountable, but Argentinians got up in arms. You see the Madres de Plaza de Mayo saying they want answers, and they still haven’t given up. It was very inspiring to see how they pushed back.

Do you think The Gambia can learn anything from Argentina?

The Gambia is different in many ways. It’s in West Africa and it’s a tiny country, while Argentina is a Latin American country and is very big. That being said, it was bizarre [for the organizers of the Gambian truth commission] to go to South Africa and Sierra Leone, because the context was completely different. In South Africa they had apartheid, in Sierra Leone it was a civil war. In The Gambia you had a repressive state. It started with a junta, which it what you had in Argentina. In both countries there was a small group of people terrorizing society and completely ripping families apart, so for me there’s so much to learn from Argentina.

How does the Gambian Truth, Reconciliation and Reparations Commission (TRRC) fit into this?

In The Gambia it’s the Truth, Reconciliation, and Reparations Commission – but reconciliation between whom and whom? Is this meant to replace justice? What really bothers me is this narrative that if you’re seeking justice, which means holding someone accountable for their actions, it’s portrayed like you’re asking for revenge. This is not what we’re asking for. In Argentina people insisted accountability was their right, and Argentinians pushing back set a precedent for other cases in Latin America. When you say let ‘bygones be bygones’, you’re giving license for others to do the same thing. Some of those who were involved in my father’s case had been mercenaries in Liberia and were given amnesty. Then they moved to Gambia. What does that say? In Liberia they also went through a truth commission, but up to this day not a single person has been prosecuted.

Are you worried about that in the Gambia?

I’m very worried about that. Some people in government are trying to portray victims who are asking for justice as being unreasonable or as being selfish by saying we’re stopping society from moving on. But you don’t just sweep this under the carpet. Maybe I can forgive you, but you still have to be held accountable. The truth commission is to have a historical record of the human rights violations that happened in the last 22 years. But for me somehow it looks like it’s a way for society to accept it. The burden is always placed on the victims and I think that’s why I’m so inspired by the Argentinians.

What is reconciliation for you?

To begin with, it’s having people know your story. But it’s also listening to what victims say they want. I feel like so much emphasis in The Gambia has been placed on those who’ve committed crimes. The focus has been on the perpetrators, and again the victims are forgotten. The government cannot come in and say “this is how we’re going to reconcile.” They must listen to those who’s suggestions they don’t necessarily agree with or like. As a government they’re serving the country, they have to listen to people, it has to be an inclusive process. The Gambia is such a small country, someone’s brother’s uncle’s cousin killed that person. There could be tensions, but you have to make it clear that with reconciliation you also have to be accountable for your actions. It’s very important for future generations. 

What are you working on now?

I’m the founder and the executive director of the African Network against Extrajudicial Killings and Enforced Disappearances (ANEKED). We’re a small organization led by victims of the former regime. My cousin went through the emails back when we were trying to find my dad in 2013, and she said it made her realize that ANEKED actually started back then. That for me was like wow, everything we learned back then, we brought it with us when we officially launched. 

We have quite a number of protects, one of which is the TRRC Digest, which is a repository of the truth-seeking process in The Gambia. People need to know what’s being said at the commission, but many don’t have time to sit in front of the screen all day, so we’re summarizing as accurately as possible. We then have it translated into the four main local languages, Fula, Jola, Wolof, and Mandinka, and we air it on the radio. We’ve received great feedback. Information is so powerful, people need to know what witness said happened in their community and in other communities. It’s easy with so many things coming out every day to lose track, but with the Digest we can go back and say this one person killed x number of people, what are we going to do about it? It falls into the four principles of dealing with the past: right to know, right to justice, right to reparations, and guarantee of non-recurrence. We need to have this out there so no one can come along and decide to re-write history. 

We also got funding to do a memorialization project. We want to have a place where there will be a memorial center where you would have the stories of witnesses and objects. What inspired us is the Argentinians with the Museo Sitio de Memoria ESMA where you have this former detention center where they show you what people went through and give you names of missing people. I think this should be out there for people to visit and for schools to take students because it’s part of the history. 

Also, again the name says it all, it’s a network for young activists. It’s very easy to feel alone doing this work, to feel isolated. You need to know there are other activists out there and share good practices and tactics. But safely! 

I’m also involved in ongoing litigation. I filed against the government of The Gambia for the failure to conduct proper judicial investigations and prosecute those who were accountable. My case, well that of my fathers, is very clear. Names were out there before the truth commission. Why don’t they conduct a judiciary investigation? There’s already a lot of evidence out there and we’ve given that evidence to the government. So, it’s sort of trying to make them understand there needs to be accountability, and hoping this sets a precedent for other people. 

How do you stay centered and healthy doing this difficult work?

I want this to be out there because there’s so much stigma about it – I see a therapist. Therapy has really allowed me to put boundaries, to know when I’m reaching my limit because I hear stories that are so heavy and make me go all over what I went through. Sometimes I have to pull back because I’m no use if I burn out or have a breakdown. Therapy allows me to really share how I feel. It’s difficult, and I have to constantly re-center myself, but I was given tools through therapy. I’ve been very blessed to be surrounded by great people. My husband is amazing and has been incredibly supportive. My cousin I work with is amazing. I have another cousin who is fantastic, I can share my feelings and my frustrations with them. My mother has also been trying to be very supportive of the work ANEKED does. In this work I’ve come across a lot of people who have complexly lost their ability to empathize. I constantly remind myself you have to have empathy. It’s OK to be irritated, but you have to let it go. Don’t hold onto that feeling, its unhealthy. It doesn’t serve you. 

Decoding India’s Faltering Extradition Track Record: A Human Rights Approach

Guest Contributor: Tanishk Goyal is a second year law student at the West Bengal National University of Juridical Sciences, Kolkata. 

On July 2 2019, The U.K refused to extradite a couple who were accused of murdering their adopted Indian boy and his brother-in-law in order to receive a life insurance payout. The UK’s reasoning for this refusal took place against the backdrop of the inhumane and degrading human rights conditions prevailing in India. This discharge added on to the intractably dismal extradition track record of India, despite it having ratified the 1949 Geneva Conventions and The U.N Convention Against Corruption which adopt the framework for extradition and mutual legal assistance between countries for an expedited and effective extradition process. One of the fundamental reasons for this situation is India’s international perception as a country which cannot ensure the safety of the offenders it extradites. 

Although India has ratified the International Covenant on Civil and Political Rights, which lays down a human-rights based framework against torture, the country has still not been able to convince the international community that it can ensure the protection of the civil rights of the accused. 

The UK has justified its actions based on the ruling from a 1989 case in the European Court of Human Rights, Soering v the United Kingdom. This ruling argued that on the basis of Article 3 of the European Convention on Human Rights, before extraditing an individual, the requested state must conduct a strict judicial scrutiny of the extradition process in order to assess for any potential human rights violations against the accused which might take place in the requesting state. This reasoning is primarily intended to ensure the fulfillment of jus cogens norms as a part of the international obligation to protect human rights. Moreover, before the requested state can commence extradition proceedings, it needs to ensure compliance with its treaty obligations. Particularly, it ought to examine the compliance with the United Nations Convention Against Torture, which has been ratified by 166 state parties of which India is not one of them. Thus, as the ECHR understands it,  jus cogens and treaty obligations in fact do override state sovereignty if there is a possibility of the violation of an accused’s human rights in the requesting State.

 

The international community tends to perceive India as a country which continues to have a relatively higher capital punishment rate. This is amply illustrated by the fact that, in the year 2018, India had as many as 162 persons who were sentenced to death by the trial courts. The absence of provisions dealing with the human rights of the accused in the Indian Extradition Act, and the recent Criminal law (Amendment) Act, 2018, which favours a pro death penalty approach to sentencing, also drastically reduces India’s chances for conducting successful extraditions. The overcrowding of Indian jail cells, the lack of proper medical facilities, and the lawlessness and highhandedness of the police in India are oft cited reasons for refusing the extradition of its offenders. 

The appalling conditions of Indian jail cells and ill-treatment of individuals in custody is tremendously infamous internationally. This was illustrated by the 1990 case of Gill v Imundi, when a US District Court, on the basis of evidence offered to it from India, noted that sending the accused to India would lead to gross violations of human rights and the treatment that he would receive would shock the court’s “sense of decency.” Come 29 years later, the precedence of this case still evokes the same international sense that India disregards the human rights of its prisoners, which is one of the fundamental reasons why, even today, India faces the questions of the violation of due process and human rights before it can commence extradition proceedings. 

Beyond formal treatment of prisoners in custody, India also has a demonstrated history of vigilante justice, with vigilantes lynching people on mere suspicion and hearsay. India’s lack of any substantial jurisprudence or case law taking active steps to curb these lynchings also does not help it enhance its extradition numbers.

If India wishes to have success in future extradition requests, Indian Extradition Law needs to be amended to include provisions which ensure the protection of human rights of the extradited individuals. In practice, India must display appropriate precedence which shows that extradited individuals are treated as per international human rights obligations, and protected from unjust and inhumane conditions. Undoubtedly, India should accede to the  UNCAT in order to build a more persuasive case for extradition in the times to come. 

It is imperative to note that, while India assures the international community that an accused person, after being extradited, would be treated according to international humanitarian standards, it can only add weight to these assurances by carving out certain inroads into the Indian Extradition Law. This allows India to address its human rights issues by actively setting precedence which fundamentally transforms its misconceived perception in the international realpolitik.