Wednesday, December 23, 2015

Human Rights Hat-Trick

by JoAnn Kamuf Ward, Associate Director, Human Rights in the U.S. Project, Columbia Law School Human Rights Institute, and lecturer-in-law, Columbia Law School


December has been a unique month for human rights in the United States.  In the past weeks the federal government has demonstrated the impact, and relevance, of human rights advocacy on federal policy.  Not once. Not twice. Three times.  And in some unlikely places.

I have written previously on the importance of human rights language as a foundation for changing the way the government operates, focusing on the state and local level.  Today, I shift the gaze to the federal government.  

The Department of Justice is responsible for perhaps the most public invocation of human rights.  The DOJ’s much anticipated guidance on gender bias in policing emphasizes that its goal is “to reflect and further the department’s partnership with the police leaders, line officers and detectives who work tirelessly to ensure that policing is free from bias and to uphold the civil and human rights of the communities they serve.”

Advocates have been pushing for affirmative DOJ guidance to address gender bias in policing for years, and this work has human rights roots.  As the ACLU blog noted last week, the landmark decision by the Inter-American Commission in the case Lenahan (Gonzales) vs. the United States was an important catalyst for advocacy to reform the criminal justice response to gender-based violence. 

The Guidance examines how gender bias undermines law enforcement’s efforts to respond to sexual assault and domestic violence, and offers a set of principles to advance awareness of the factors that can lead to bias (including implicit and explicit bias).  It underscores that gender bias in policing constitutes discrimination. The Guidance further emphasizes law enforcement accountability as critical to prevent gender bias from occurring.  These are welcome steps.  But there is a large caveat in the Guidance as well:  a clear statement that the document “is not intended to, and does not, create any right, benefit, trust or responsibility, whether substantive or procedural, enforceable at law or equity by a party against the United States, its departments, agencies, instrumentalities, entities, officers, employees or agents, or any person.”  Nevertheless, the explicit reference to human rights sends a strong signal about how DOJ conceives of its own work, as well as the Department’s expectations partner agencies working at the local level.  It also opens the door to assess future law enforcement actions in light of international human rights standards related to gender based violence

The Department of Health and Human Services has also been doing its human rights homework.   In an interesting development that flew largely under the human rights radar, the Administration of Children and Families included the right to be free from violence and abuse in a new proposed rule.  The background section of the rule quotes President Obama's 2014 Presidential Proclamation on Domestic Violence: 

“Domestic violence affects every American. It harms our communities, weakens the foundation of our Nation, and hurts those we love most . . . we acknowledge the progress made in reducing these shameful crimes, embrace the basic human right to be free from violence and abuse, and recognize that more work remains until every individual is able to live free from fear.

The section goes on to note that the Family Violence Prevention and Services Act (FVPSA) is critical in the Administration's fight to end domestic violence.  This rule aims to codify a number of existing standards, definitions, and practices to guide implementation of the Act. 

Notably, the FVPSA was raised during the review of U.S. compliance with the ICCPR in 2014, where the Human Rights Committee called for “full and effective implementation of the Violence Against Women Act and the Family Violence Prevention and Services Act” to strengthen the U.S. approach to eradicating domestic violence.  Several elements of the proposed rule align with the Committee’s recommendations to the U.S., including the call to fund prevention and assistance programs, and to take steps to increase survivor access to temporary shelters.  The rule further underscores the priority on violence prevention programs and addressing, in particular communities that face disproportionate levels of violence and are historically underserved, including Native American communities and communities of color, something that U.N. experts have voiced concern over.  Whether the rule will actually fulfill human rights in practice rests with its implementation.

Last, but certainly not least, the U.S. Inter-Agency Council on Homelessness continues to raise awareness of human rights and build the record on criminalization of homelessness as a human rights issue among federal counterparts.  Earlier this month, USICH’s Executive Director published a brief piece in a federal agency newsletter highlighting U.S. participation in the U.N. Universal Periodic Review.  The piece notes that the U.S. received a recommendation to  “amend laws that criminalize homelessness,” and that the U.S. is taking action consistent with the recommendation.

This means that USICH, a 100% domestically-focused entity, is drawing attention to human rights recommendations to the U.S., as well as the government’s response, as evidence that the U.S. is working to break the cycle between incarceration and homelessness. 

This is exactly the kind of dialogue that should be happening as a result of human rights reviews.  Federal agencies should be talking about the recommendations, their relationship to current policies, and areas for improvement.  The pivotal role of USICH in surfacing these issues is perhaps unsurprising.  In 2011, USICH incorporated human rights into a policy-focused reports on criminalization and has also worked closely with human rights advocates to integrate human rights into its messaging.

These are small but important steps toward governance based on human rights principles.  Yet, simply calling something a human right does not make it so.  It is critical to breathe life into the DOJ Guidance, the HHS rule, and the actions of the U.S. Inter-Agency Council on Homelessness, and to ensure they are interpreted and applied consistent with human rights standards.  As human rights advocates, the onus is on us. 

[Author’s Note: Thanks to Eric Tars, the Director of Human Rights & Children’s Rights Programs at the National Law Center on Homeless and Poverty for sharing the DOJ COPS newsletter where the USICH piece was published].

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