Learning from US Streets / A moment of reckoning

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Around the world, people are following in the steps of the US street, protesting in the aftermath of the killing of George Floyd against racism and police violence.  The anguish, outcry and anger that started in Minneapolis resonate globally, reaching into the corridors of multi-lateral institutions too. How are we international human rights experts to respond?

Our response has begun, of course. Thanks to the leadership of our colleagues working against racism and for the rights of persons of African descent, in an unprecedented effort the UN human rights special procedures came together to stress that police violence in the United States sits within a complex history of racial terror and that it is systemic racism that breeds state-sponsored racial violence, giving license also to its impunity. Placing police violence within its economic, political and social contexts, they have supported calls for the rollback of the staggering scale of police and military budgets and for urgent reparative intervention to address racial injustice.

But will current public protest and human rights demands convert to more meaningful transformation? Political establishments have failed past protests and human rights demands in support of those protests have fared no better. So, what can we do — what must we do — so that this time the radical change called for by protestors is delivered? So that resources are redistributed away from the hyper-securitization policies and practices that have seen millions flow to surveillance, policing and prisons and away from public programmes for health, education, employment.   

The calls to “defund the police” have been deemed controversial by some, particularly within the political establishment but also within the African-American community itself. But there is much to be learned from the protests on US streets, from the Black Lives Matter movement and from other calls for racial justice.

Covid-19 has already laid bare for all to see just how current and unresolved are the deep connections between historical deprivation, contemporary inequality and greater vulnerability to such as a deadly virus. In the US alone, African Americans are three times more likely to die of Covid19 than those who are white. But along with this George Floyd moment, will that trigger what is so clearly needed – a fundamental rethinking of the relationship between history and the exercise of rights, between systems and institutions on one hand, respect and protection of human rights on the other.

In my initial response to the George Floyd protests, I offered a familiar human rights analysis of the police violence that led to Mr Floyd’s killing and of the relevant  obligations US has under international human rights law. I highlighted the many problems with police use of so-called “less lethal” weapons and set out the key principles that should guard police use of force.  But it was far from the first time those messages have been issued.

Indeed there are far deeper questions here. The key one is whether the Police can be effectively reformed without addressing its history, that is the practices and intentions that produced it?  The related one is how do we reform institutions whose normal functioning is inherently unjust?  

The “Defund” Calls

The call to “defund the police” will have many incarnations and undergo much analysis. But it is not a new call. Its roots can be traced to the “abolitionist democracy” movement of W. E. B. DuBois who argued that comprehensive abolition of slavery, once rendered illegal and black people released from their chains, could only be achieved by creation of new institutions to incorporate black people into the social order. Transposed onto the 20thcentury, and in the analysis of Angela Davis, the achievement of meaningful freedom requires building new institutions in and through the abolition of old ones. Today’s demands for defunding of the police can be situated in that historical search for that more “meaningful freedom” which is realized only through structural reforms that reduce the power of an oppressive system and shrink its capacity for violence.  

Practically, the “defund” demands are for a rebalancing of divestment and investment: demands for divesting from systems that harm communities, such as current policing systems, and for investing in systems that uphold communities  – such as housing, education, and other social safety net and resilience programmes.  It also meansinvesting in resources that are community driven. As Alicia Graza, an original founder of the Black Lives Matter movement, stresses: “So much of policing right now is generated and directed towards quality-of-life issues, homelessness, drug addiction, domestic violence, and conflict … What we do need is increased funding for housing, we need increased funding for education, we need increased funding for quality of life of communities who are over-policed and over-surveilled”. And she adds, establishing the universality of injustice: “It’s time for us to address the pandemic in our communities and that pandemic is not having the resources to live well. It is not just a black problem, it’s everybody’s problem.”

A “refound” human rights agenda?

At so many levels, the “defund” demands match the international human rights agenda, whose origins are in the fight against slavery and whose modern incarnation involved the fight against apartheid, and against disappearances and killings by law enforcement. The first ever international treaty to flow from the Universal Declaration of Human Rights was the Convention on the Elimination of All Forms of Racial Discrimination. And, in 1954, the first ever mandates given to UN appointed human rights Special Rapporteurs were focused on slavery and on the rights of persons belonging to ethnic, religious and linguistic minorities. In 1976, the anti-slavery mandate was expanded to include the slavery-like practices of apartheid and colonialism. In the meantime, international standards on the use of force in law enforcement were also developed, including the 1979 United Nations Code of Conduct for Law Enforcement Officials and the 1990 Basic Principles on the Use of Force and Firearms for Law Enforcement Officials.

Yet, the modern human rights system has not found it easy to grapple with the issues that the George Floyd movements also raise about history, institutions and the present reality of rights. The splintering of  human rights over these last 70 years has not helped: dividing into different “generations of rights” – mirroring ideological contests between the “west and the rest”, including through fabled contests for the primacy of civil and political rights on one hand and economic and social and cultural on the other. The implications for the field of State and Police violence is a case in point. The principle of universality has been interpreted through a narrower emphasis on non-discrimination while the full implications of interdependence and indivisibility as they relate to State violence and Police have been insufficiently considered, if at all.

In its modern history of human rights reporting on police violence around the globe, including in the context of disappearances and killings of  thousands, across dictatorships and democracies, on how many occasions has defunding of the police been recommended or its abolition? I personally can recall recommendations for abolition of specific police squads (e.g. death squads) but not an entire police force. Local grass root human rights organisations, human rights defenders, academics may well have made such demands in any number of countries, but I doubt these were ever translated into calls by the international human rights movements or the human rights system. 

Some may suggest that by supporting reform rather than disestablishment of the police, the human rights system adopted a constructive and legally sound position. But did we? Did we really consider the programmatic and practical implications when we found systematic and structural problems with the police, year after year? Did we consider the linkages between history (injustice and violations), institutions (established in that history), and current rights protection? If not, what stopped us from joining these (human rights) dots?  

But that is what the US streets are hammering for today – when they demand that resources used now to fund police be shifted to support community services; when they call not for more police in schools, but more teachers; when they demand not more policing of vagrancy, but more affordable housing. And, when they insist on an end to over-policing of misdemeanors and under-policing of serious crimes.  In black communities, for example, the police seemingly focus on petty crimes that they ignore in white neighbourhoods, and for which whites are given at most only citations. Linked to the policies of the “war on drugs” which have festered vast disparity in incarceration rates for marijuana possession by blacks as compared to whites, the prevalence of arrests for petty crimes in black communities drives a whole racially biased cycle of incarceration to poverty to incarceration.  

Running throughout the demands of today’s protests is a major theme – a call for what the human rights community knows as “truth, accountability and reconciliation”. This is evident, for example, in stated frustrations with such as “bias training”, human resources policies on non-discrimination and the like. The point is that such efforts are but window dressing given they will never take us to the core of the problem.  Indeed, what is at stake today is the truth about the place of racism in the history and formation of the US and US police and far beyond it too. This is a demand for long overdue proportionate attention to, and admission of, the historical crimes committed against black communities and about the ways in which those wrongs have led us here, to today: crimes ranging from the slavery of centuries ago, to the crimes of today such as housing discrimination and the racialised violence of the police.

In other words, the killing of George Floyd began long before he was born. His death cannot be answered through ahistorical framing of today’s anguish and nor will reforms of the police focusing on regulation of the use of force and accountability for failure to abide by these regulations be sufficient. First, such reforms are and have been thoroughly and effectively resisted by too many within the police force itself and the political establishment. Secondly, they are inherently failing to join the dots – from social services to health programmes, from the war on drugs to the war on crime and the war on “terrorism”.

But the human rights system is not outside either that frame or those reforms. Its time – past time – to refound the human rights project so that it more powerfully, authoritatively and with consequence applies universality, indivisibility and interdependence. It should take to heart the demands and challenges of the George Floyd protests – translate them into action, policies, programmes, justiciability. Get energized by the demands from the streets of towns and cities across the US and far beyond – absorb the richness of their proposals. And spread them or some further – to other countries and other regions. Defund the police. Refound rights.

Editor’s Note: This post forms part of our ongoing symposium on Black Lives Matter. All posts in this symposium will be available, as they are published, to read here.

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Mattia Pinto says

June 19, 2020

This post is very interesting and welcome. The relationship between the human rights movement and penal power (from policing to imprisonment) has always been ambiguous. On the one hand, human rights have arguably humanised penality (see abolition of the death penalty in Europe, the protection of prisoners' rights, the prohibition of indefinite detention, the decriminalisation of homosexuality, etc). On the other hand, not only has the human rights movement at times hesitated to counter expansive national penal policy, but in some other cases it has backed or even promoted the introduction of new criminal offences (e.g. hate crimes or human trafficking), more policing powers, the institution of criminal proceedings (e.g. ICL) and harsher punishment. Agnes Callamard’s clear, unambiguous, recognition that ‘defund the police’ should gain more prominence in the human rights project is certainly refreshing. However, I still see an incapacity to turn away from penal structures, as if the fight against police brutally could be separated from a broader critique of national and international criminal justice as the instrument for dealing with complex and multifaceted social problems. Agnes Callamard welcomes ‘defund the police’, but then she denounces the ‘under-policing of serious crimes’ or she terms ‘crimes’ the violence committed against black communities. ‘Defund the police’, on the contrary, calls us to avoid criminal law solutions not only for misdemeanours but also for serious wrongdoings (https://www.nytimes.com/2020/06/12/opinion/sunday/floyd-abolish-defund-police.html with the case of sexual violence). It also invites us to stop reproducing the idea that violence is grave only when called ‘crime’, which in turn reinforces carceral logics.

Nicolas Boeglin says

June 19, 2020

Dear Professor Callamard

Many thanks for this very valuable note.

Taking into consideration your current position at UN as Special Rapporteur, it is also important to recall that CERD Committee, in 2014, when examining US official report, adopted several concluding observations related specifically to US police practices: see in particular, among many others, concluding observations 8 (Racial profiling and illegal surveillance) and 17 (Excessive use of force by law enforcement officials) available here:

https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/CERD_C_USA_CO_7-9_18102_E.pdf

It would be very interesting to see how many police forces and internal regulations of security forces changed since 2014 in order to comply with CERD Committee´observations. As well as to know if these observations have been largely diffused among the different authorities of US police forces.

It would be also interesting to observe if follow-up measures by CERD Committee (and many others UN human rights mechanisms) have been implemented in recent years.

Sincerely yours

Nicolas Boeglin