‘Racism will not pass’…

In her excellent recent post, Sejal Parmar takes us through the UN Human Rights Council’s ‘urgent debate’ on racism in US law enforcement that took place in the wake of the police killing of George Floyd in May. That debate was initiated by a draft resolution from Burkina Faso (on behalf of the Group of African States), Palestine and Iran calling, inter alia, for the establishment of an independent international commission of inquiry:

‘to establish the facts and circumstances relating to the systemic racism, alleged violations of international human rights law and abuses against Africans and people of African descent in the United States of America and other parts of the world recently affected by law enforcement agencies, especially those incidents that resulted in the deaths of Africans and of people of African descent, with a view to bringing perpetrators to justice’.

As Parmar sets out so well, that original draft came to be watered down significantly as a result of the pressure from some, particularly western states. The result is a resolution stripped of individual reference to the US in its operative paragraphs and replacing the planned commission of inquiry with a call for the UN High Commissioner for Human Rights to prepare a report on systemic racism by law enforcement agencies, ‘especially those incidents that resulted in the death of George Floyd and other Africans and of people of African descent’. This is not the first time western states have pushed back against attempts to place racism and racist violence in the US on the UN’s agenda (see, e.g., the ‘We Charge Genocide’ campaign in 1951, discussed in Anderson and Meiches). 

One of the main arguments made before the HRC by those western states against the original draft was that racism is a global problem, such that singling out a particular state was counterproductive. This was argued, for example, by Germany, Australia, Brazil, Israel, the UK, and the Czech Republic on behalf of the EU. Australia took the opportunity to support the US government’s response to George Floyd’s murder, adding that: ‘[t]he United States is an open, liberal democracy, governed by the rule of law … Open and transparent democracies are well-placed to tackle such issues.’ Israel, too, suggested that the HRC should not focus on ‘strong’ democracies like the US, but instead on dictatorships where open criticism is not available. (The US, in its response to the final resolution, made the same point.) Such statements do not sit entirely easily with the facts before the HRC. And, of course, many have pointed out the insufficiency of formal, liberal democracy for safeguarding equality and anti-racism (Leach; Marks; Fitzpatrick).

The UK representative, after expressing his ‘deepest condolences’ to George Floyd’s family and friends, stated:

‘However, for this Council to do justice to the subject we cannot ignore the scale of the challenge. We have an opportunity today to reshape the debate on racism at the UN, in a way that brings us together, rather than dividing us further. Such opportunities are rare. Racism is a scourge that knows no borders, and is not limited to any one country. We all have work to do to tackle racism.’

One might applaud such a statement from a former colonial power were it not argued as the basis for burying the issue in existing Special Procedures. In their joint statement following the conclusion of the debate, the ACLU and other NGOs perfectly summed up what this argument by the UK and other western states really meant:

‘Shifting the resolution from being specific to the U.S. to being generic has served to subvert the debate into an “all lives matter” discussion which has rendered invisible those who needed to be at the very centre of the Council’s action.’

Indeed, the idea underlying these arguments from mostly western states sets up a false dichotomy between concrete responses to instances of racist violence in particular states and addressing racism and xenophobia on a global scale. There is not a zero-sum relationship between the two, as the UK and other states suggested. On the contrary, seriously addressing racism globally must include responding to particular acts in particular states. Equally, individual cases of racist killings by police forces should not be treated as isolated, contingent incidents that can be tackled by prosecution of perpetrators alone – asking why this happens, what domestic and global forces perpetuate this, and in what other ways this manifests beyond police violence, such as socio-economic inequality, is also essential (Marks).

These points were clearly set out in one of the opening statements by E Tendayi Achiume, Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance, made jointly with other Special Procedures mandate holders. In their statement, the experts urged the HRC to establish both a country-specific commission of inquiry into racism in US law enforcement and ‘a thematic commission of inquiry or other mechanism empowered to investigate systemic racism in law enforcement globally’. The urgent task facing the HRC, which statements such as that from the UK served to obfuscate, was made clear in the intervention from Achiume and others:

‘What is required here today is the creation of Commissions of Inquiry or related mechanisms with the requisite resources to actually make a difference in the lives of the millions of people in the United States and around the world who are subject to systemic racism in law enforcement.’

The point here is not to suggest that commissions of inquiry would necessarily achieve this (see  e.g. Becker and Nouwen). But by handing this task to existing, already over-burdened Special Procedures, genuine progress here becomes ever more distant. In Achiume’s opening statement, the independent experts specifically urged the HRC not to delegate this responsibility to existing procedures. And at the conclusion of the debate, the representative from the Office of the High Commissioner for Human Rights noted that no budget existed for this new mandate and that full implementation would not be possible without additional funding. One would be forgiven for being skeptical of the UK’s lofty ideal of ‘reshap[ing] the debate on racism at the UN’. This looks more like silencing the debate.

But there’s also another consequence of invoking the problem of racism in all states so as to shift the attention away from the concrete experience of George Floyd, his family, and other victims of racist police violence in the US. The ability to frame truly systemic problems, such as racism and xenophobia, as well as their root causes, using international law is very limited. As Anna Spain Bradley has recently written, the concept of racial discrimination in CERD, for example, speaks to a specific positive act of discrimination but not to the underlying racism and its root causes (similarly, see Marks and Clapham who refer to the ‘overriding preoccupation’ of international human rights law with discrimination as a ‘limiting factor’ in its ability to tackle racism more broadly). Indeed, in a 2018 study, the political scientist Zoltán Búzás showed that there are clear gaps between the legal norms in CERD and even a conservative interpretation of the social norm of racial equality. What is more, it is not merely that international law is ill-equipped at dealing with systemic problems. One of the core contributions of the rich field of critical international legal scholarship is the insight that international law is, in many ways, the system that reproduces such problems. In the specific case of racism, the constitutive role of international law in (neo-)colonialism and racialisation is now well-established (Anghie; Pahuja; Knox; Gaffield; Pitts).

At this point, it might be argued that the refocusing of the resolution from the specific case of police racism in the US (with the clear goal of ‘bringing perpetrators to justice’), to police racism globally (with the less prescriptive goal of ‘contribut[ing] to accountability and redress for victims’), is helpful. The mandate has, in a way, been freed from the constraints of what might have otherwise been a specific and legalistic approach that is unlikely to cognise the broader problem of racism in law enforcement and its root causes (on the dark sides of the legalized approach of commissions of inquiry, see Krebs).

But we know very well that states often exploit legal silences and present legal argument as normatively exhaustive. What is not illegal becomes justified. In Búzás’ study, he showed how particular states had relied on the law-norm gap as a basis for violating the social norm of racial equality whilst complying with CERD, thus benefiting from the veneer of legitimacy conveyed by technical legality. At the 2001 World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, held in Durban, the United States and Canada objected to the paragraph in the draft declaration on reparations, with Canada arguing that ‘the paragraph does not properly reflect international law’ (p 52). Similarly, in 2014, in response to CARICOM’s growing calls for reparations for the transatlantic slave trade, it was reported that a UK Foreign Office spokesperson stated:

‘No legal claim has been made against the UK government in relation to reparations for slavery. We do not see reparations as the answer… We regret and condemn the iniquities of the historic slave trade, but these shameful activities belong to the past. Governments today cannot take responsibility for what happened over 200 years ago.’

And just two years ago the UK defended its continued colonisation of the Chagos archipelago and expulsion of the islands’ inhabitants on the basis that its detachment of the islands from Mauritius was consistent with international law; the language of paragraph 6 of UNGA Res 1514, referring to detachment as incompatible with the UN Charter, was said by the UK to ‘indicate[…] the highly political nature of the paragraph, which is at most a statement of policy, not law’ (para 8.36). The claimed absence of illegality (subsequently rejected by the Court) became the reason for not ending the continuing injustice of blocking Chagossians from returning to their home. As Philippe Sands has recently commented:

‘For Britain … what mattered was not these black lives, but its right to have detached Chagos from Mauritius and then lease a part to its US ally … The UK vigorously opposed the idea of an advisory opinion from the International Court. The Chagos matter was a territorial dispute with Mauritius, not a question of decolonization.’

None of this augurs well for western states’ likely engagement with the UNHCHR’s broad new mandate. Perhaps we are in for a repeat of the UK government’s response to last year’s highly critical UK report by the UN Special Rapporteur on Extreme Poverty and Human Rights, in which the government objected that it ‘regret[s] the inflammatory language and overtly political tone’ (para 2). In response to the Special Rapporteur’s specific concern that Black, Asian and Minority Ethnic families bear a disproportionate burden from inequality and poverty in the UK (para 81), the government commented that ethnic minority employment had risen since 2015 (para 51).

So where does this all leave us? More importantly, where does this leave the family and friends of George Floyd and other victims of racist police violence in the US and elsewhere? In a different context, Robert Knox has proposed invoking international law for progressive ends where the substance might allow for it, whilst being cautious of the limits to this potential arising from the legal form (making a similar argument for human rights, see O’Connell). I wonder if a version of this might be helpful here. Whatever body does take responsibility for this mandate, whether it is the UNHCHR or, in the future, a commission of inquiry like the one that the Group of African States had called for, it should use the language of international law where this can help to recognize, contextualize and make reparation for the experience of victims of racist police violence. But it must also call out those instances where international law fails to do this, for example, because particular primary rules have been interpreted in a way that restricts their reach or because certain doctrines are too closely intertwined with international law’s colonial past (and present).

A particularly excellent example of such a project is the recent report on reparations from the Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia and Related Intolerance. In this report, Achiume offers two responses to the barrier often said to be posed by the intertemporal law principle to reparations for slavery and colonialism. First, she demonstrates that the principle cannot bar reparations for continuing violations. Second, she states:

‘To the extent that the intertemporal principle is understood to bar reparations for colonialism and slavery, States must recognize that the very same international law that provides for the intertemporal principle has a long history of service to both slavery and colonialism … international law itself played an important role in consolidating the structures of racial discrimination and subordination throughout the colonial period, including through customary international law, which was co-constitutive with colonialism. Part of the problem, then, is that international law has not fully been “decolonized” and remains replete with doctrines that prevent the reparation and remediation of the inequality and injustice entrenched in the colonial era.’ (para 50)

Going back to the HRC debate and the new UNHCHR mandate, the immediate priority must be to review the killings of George Floyd and other victims of racist police violence against the clear legal standards under international human rights law. But the broader issues – the root causes of such violence and of racism more generally, as well as its other manifestations, such as extreme socio-economic inequalities – must also be examined. Where these broader issues are thought to be beyond the peripheries of international law, due to doctrines such as intertemporal law, or due, for example, to the supposedly weaker commitments by states regarding socio-economic rights, this must be called out, not as the end of the matter but as evidence of international law’s complicity (and that of the states that bear a particular responsibility for these issues).

‘Racism will not pass’ were the translated closing words of France’s representative in his intervention on the first day of the HRC debate. In light of the outcome of the debate, such sentiments, like those of the UK, are revealed as empty rhetoric that thinly veil the silencing of the debate. Indeed, France was one of the examples employed in Zoltán Búzás’ study of a state exploiting the gap between CERD and the social norm of racial equality in its expulsion of Roma immigrants. And the passing of President Macron’s strict new immigration bill in August 2018 makes the rhetoric of anti-racism appear even more hollow (a few months after the bill passed, President Macron gave a speech lamenting the rise of nationalism as immoral). The HRC’s ‘urgent debate’ did not live up to that description. The words of the representative from the Central African Republic, on behalf of the Group of African States, at the opening of the debate were sadly prescient:

‘numerous recommendations have been published over the years by various treaty bodies … for states, that is, all states without any distinction, to take appropriate measures to meet the concerns about brutality and excessive use of force by law enforcement personnel, as well as numerous allegations of poor treatment inflicted on people of African descent … It is unacceptable that we must still negotiate for the equality of rights of certain people seventy-two years after the adoption of the Universal Declaration of Human Rights, which proclaims that all people are born equally in rights and dignity.’