Redistributing Punishment: The Limited Vision of Coercive Human Rights

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In an eloquent blog post written in June 2020, the United Nations Special Rapporteur on extra-judicial, summary or arbitrary executions Agnes Callamard acknowledged the structural racism and systemic injustice that breed the ‘state-sponsored racial violence’ which the brutal killing of George Floyd so painfully exemplified. She asked:

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. (Callamard 2020)

These remarks suggest a readiness to re-consider human rights’ role in countering the widespread inequality, oppression and injustice proliferated within hyper-securitised States in which persons racialised or otherwise treated as ‘Other’ are pervasively dehumanised and ill-treated. They promise a push towards a redistributive human rights agenda: one that actively seeks to foster welfare, equality and inclusion, and in this way also to stem widespread inhumanity and violence. The radical and redistributive vision characterising these remarks is, however, frustrated by what has gradually become an unshakeable commitment within human rights: countering ‘impunity’. The coercive and carceral ‘turn’ (Engle 2015) in human rights law has now crystallised into a state of affairs whereby, as Karen Engle, Zinaida Miller, and D.M. Davis explain, ‘it has become almost unquestionable common sense that criminal punishment is a legal, political, and pragmatic imperative for addressing human rights violations’ (Engle, Miller and Davis 2016). The anti-impunity agenda permeates Agnes Callamard’s sensitive and reflective blog post, in which – as Mattia Pinto points out in a comment to the post – she frames wrongs against black persons as ‘crimes’ (‘crimes ranging from the slavery of centuries ago, to the crimes of today such as housing discrimination and the racialised violence of the police’), and decries the ‘impunity’ with which such wrongs have been met. In this way, while Agnes Callamard rightly traces the continuities between the racialised wrongs of the past and those of the present moment, she also implicitly endorses the criminal law and its enforcement mechanisms – notably the police, the prison – even as she acknowledges the legitimacy of calls to defund the police and to stem penal expansion.

The relationship between human rights and the criminal law (enforcement) is complex. Over many decades, human rights actors have been vocal in highlighting, condemning and seeking to counter the many manifestations of individual and systemic brutality inflicted by States’ coercive and carceral apparatus. Yet, as Agnes Callamard acknowledges, the core of the human rights movement, including that most critical of the violence inflicted by the police and the prison, seems to be characterised by an (unduly) unyielding optimism which treats this apparatus – and the continuing injustice and violence it inflicts on ‘Others’ within our societies – as reparable and reformable. Nonetheless, what is more troubling is that human rights not only tolerate – at a fundamental level – the existence of the police and the prison, but that they compel it. International and regional human rights law and doctrine is replete with positive obligations to criminalise, criminally investigate, prosecute and (adequately) punish (alleged) human rights violations. Indeed, key international and regional human rights bodies such as the European Court of Human Rights have over time ‘transformed criminal law into the primary instrument of human rights protection’, as Mattia Pinto highlights (Pinto 2020), and have treated criminal law enforcement as a key protector of human rights, demanding that the police take protective action in circumstances of certain real and immediate risks to life and bodily integrity (Lazarus 2020).

There has been an egalitarian dimension to this alliance between human rights and coercive and carceral tools. Substantial mobilisation around creating, bolstering and interpreting human rights norms in ways that better address hitherto under-recognised and under-addressed wrongs (such as gender-based violence) and under-protected persons (such as racialised minorities) has put a premium on criminal law tools as means of protection and redress (Pinto 2020), and as the strongest expression and symbolic acknowledgement of the gravity of the wrongs inflicted (Balta 2020). ‘Coercive human rights’ therefore have a redistributive dimension, but one that is limited in vision: they seek to redistribute protection primarily by redistributing punishment. This egalitarian driver of coercive human rights is premised on the accurate observation that, while all too many marginalised persons are under-protected, over-policed, and harshly punished for any (perceived, alleged or actual) wrongdoing, those who wield power and privilege often receive little or no sanction for their wrongdoing, particularly when their conduct harms the under-protected persons most regularly confronted with the sharp edge of the carceral State. Hadar Aviram labels this mobilisation towards ‘turning the cannons of the punitive machine against the powerful’ progressive punitivism (Aviram 2020).

Yet advancing a solution to inequality and injustice whereby justice for, and protection from, wrongs against the hitherto ‘Othered’ foregrounds criminal law (enforcement) and punishment means that States’ coercive and carceral tools are bestowed with a cloak of legitimacy and indeed necessity (see Bernstein 2012; Tapia Tapia 2018; Pinto 2020), even as they continue systemically if not systematically to perpetrate human rights violations against those ‘Others’. While the punitive, hyper-securitised State continues to pose critical or even existential challenges to human rights norms, the centrality of criminal tools in prominent human rights treaties as well as in a substantial and growing corpus of human rights bodies’ jurisprudence (see Malby 2019; Pinto 2020) entails that – as a matter of human rights law – the protection and even the emancipation of marginalised persons and groups is indelibly bound up with State penality.

Treating criminal law and punishment as indispensable instruments of human rights protection has the implication of foreclosing abolitionist thought within human rights. If the police and prisons are – authoritatively – deemed primary protectors of human rights, a future that involves neither is difficult to imagine within the human rights frame. At the current moment, when police and prison abolition are – for good reason – gaining more and more prominence within progressive movements in the fight for black lives, for equality and justice in the United States and beyond, this foreclosing should be an at least sobering observation for those who see human rights as holding the promise of a fundamentally better, more just and equal world (cf Kapur 2018).

The coercive and carceral ‘sting’ (Lazarus 2012) can also obscure and side-line less radical responses to human rights violations that nonetheless prioritise effective protection over coercion. Such approaches include root-and-branch reform of racist, sexist or otherwise systemically inadequate law enforcement institutions (targeting the ‘rotten orchard’ (Punch 2003) rather than merely the ‘bad apples’); policies and practices that provide core socioeconomic support and alleviate social exclusion (such as ‘public programmes for health, education, employment’, to quote Agnes Callamard), thereby reducing the incidence of violence and empowering (potential) victims; meaningful legal and practical support of (potential) victims, including by means of adequate legal aid provision in non-criminal proceedings; and the insulation of protection mechanisms from immigration control. In other words, the anti-impunity agenda’s emphasis on redistributing punishment can limit our vision and divert us from more effective tools, to which a redistribution of attention and of resources is warranted. As Agnes Callamard herself laments, the persistent relegation of economic, social and cultural rights to second-class status within dominant human rights discourse undermines the meaningful systemic and structural pursuit of equality and empowerment that the current moment calls for.

Conclusion

In the growing elaboration of and emphasis on duties to criminalise, prosecute and punish, human rights actors operate to prop up the carceral apparatus whose abuses they so frequently condemn, often at the expense of more potent tools of protection and empowerment for (potential) victims of human rights violations. The anti-impunity agenda sits in growing tension with progressive movements mobilising around new redistributive and abolitionist visions, and restricts the human rights imagination. Acknowledging this should be the first step towards reversing human rights’ coercive and carceral turn, and re-imagining a truly redistributive human rights future.

Image: A protester with a sign reading “Prosecute Killer Cops, No Justice, No Peace, Defund the Police” protests in downtown Los Angeles on June 5, 2020. Jay L. Clendenin / Los Angeles Times via Getty Images.

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