Wednesday, April 18, 2018

The Long Arc of Human Rights: A Case for Optimism, Part II

Prof. Bettinger-Lopez continues her thoughts on a case for optimism in these difficult times. Her reflection addresses Evidence for Hope, authored by Kathryn Sikking. Part I was posted yesterday.  

Among Kathryn Sikkink’s aims is to defend the institutions and movements that have supported the concept of human rights, which together are often described as “the human rights regime.” Sikkink takes issue with scholars and activists who fault the human rights regime for failing to produce a “maximum ideal of justice” but who do not offer alternative approaches that are “within the realm of the possible.” The human rights movement should be praised, she contends, for “widening the limits of the possible,” thereby changing what is probable. In an earlier book, The Justice Cascade, Sikkink showed how that process can work by tracking how the idea of individual accountability for human rights violations gained a foothold and led to an increase in criminal prosecutions for such wrongdoing. In her new work, she traces the diverse origins of the modern human rights movement and the pivotal contributions of people and organizations from the developing world, especially Latin America. For instance, she describes the successful efforts of Latin American jurists and diplomats to include seven references to human rights in the 1945 UN Charter, including one that describes the promotion of human rights as one of the basic purposes of the organization, in spite of resistance from the great powers. This history, she contends, contradicts common critiques of human rights law as a tool of Western imperialism

Sikkink’s main goal, however, is to identify and quantify the improvements that she argues have come about as a result of the human rights regime: a decline in genocide and “politicide” (which Sikkink defines as politically motivated murder by a government), fewer international and civil wars, a reduction in battle deaths and civilians killed in war, less frequent use of the death penalty, and dramatic gains in women’s rights. Some of her arguments are more convincing than others. In one of the book’s most compelling passages, she charts the undeniable correlation between the campaign that Amnesty International launched against the death penalty in the late 1970s and the global trend toward the abolition of capital punishment. In 1977, only 16 countries had abolished the death penalty; today, that number has increased to 140—nearly two-thirds of the countries in the world. However, she does not explicitly connect the dots between Amnesty International’s campaign and the abolitionist trend, leaving the reader wondering whether the move away from capital punishment may have stemmed from other sources—for instance, the effect of DNA science in exposing wrongful convictions.

Sikkink’s attribution of worldwide declines in genocide, politicide, and other acts of violence to the human rights regime at times feels even more forced. Although she acknowledges that “explanations for improvements in core human rights issues like genocide are complex,” she suggests that human rights ideologies and criminal prosecutions—rather than, say, improvements in medicine or more targeted weaponry—best explain the worldwide decline in war crimes. More plausibly, she cites research that suggests “that the rise in improved military medicine is in itself an aspect of the humanitarian ideals that some authors argue have contributed to the decline in war.” Indeed, states have arguably developed more targeted weapons in order to avoid civilian casualties—a concern that derives, in part, from the rise of the human rights movement.

Part of what distinguishes Evidence for Hope is Sikkink’s thoughtful examination of the role that data and quantitative research play in debates about progress on human rights. In the information age, people know and care more than ever before about human rights—but, she contends, that does not necessarily lead to a better understanding of the state of freedom in the world. Activists, by disseminating information about human rights abuses, often inadvertently create the impression that things are getting worse. Owing to the greater availability of information, it is easier than ever to conclude that the world faces graver human rights problems today than in the past. But the fact that people can now see more easily when, where, and how human rights have been violated does not mean there is more suffering today, Sikkink contends. Drawing from political psychology, she also argues that certain cognitive biases make humans prone to pay more attention to negative than positive information. Activists capitalize on that tendency—understandably, Sikkink concedes—by “naming and shaming” bad actors far more frequently than they praise governments or highlight progress. 

“Perhaps,” she suggests, “human rights activists should rely less on information politics, less on so-called ‘naming and shaming,’ and more on what we might call ‘effectiveness politics’—identifying techniques and campaigns that have been effective at improving human rights.” In other words, organizations might have a greater impact by putting together a letter-writing campaign, staging a concert, or piggybacking on existing legislative initiatives, rather than releasing yet another report or press release. 

Another mark of progress on human rights is the way in which the movement has expanded beyond its traditional boundaries to address a growing number of abusive and criminal behaviors that infringe on basic liberties and freedoms. Take domestic violence, a seemingly intractable problem that, until relatively recently, few recognized as a human rights issue. That has changed in the past decade as activists and lawyers, including me, have used human rights advocacy to improve how law enforcement authorities respond to domestic violence. My principal avenue for doing this work has been through representing a Colorado woman named Jessica Lenahan (formerly Gonzales), whose tragic story has become a landmark human rights case. In 1999, Lenahan’s three young daughters were abducted by her abusive estranged husband (and the girls’ father), Simon Gonzales, in violation of the terms of a judicial restraining order that severely limited his access to them. Although Lenahan repeatedly called the police, telling them she feared for her daughters’ safety and at one point identifying their location, the police ignored her. The dispatcher who took her call even chided her for being “a little ridiculous,” a sentiment subsequently echoed by the town’s police chief in an interview with 60 Minutes. Nearly ten hours after the abduction, Gonzales, armed with a semiautomatic handgun, drove his truck to the police department and opened fire. The police shot him dead and subsequently discovered the deceased bodies of the three girls inside his truck. But local authorities did not conduct a proper investigation into the children’s deaths, resulting in uncertainty about when, where, and how they died.

Lenahan filed a lawsuit against the town of Castle Rock, Colorado, in federal court, claiming that the police violated her constitutional due process rights when they failed to meaningfully respond to her calls for help. The case eventually landed at the Supreme Court, which ruled in 2005 that she had no constitutional right to have her restraining order enforced by the police. Having exhausted her domestic remedies, Lenahan filed a petition later that year with the Inter-American Commission on Human Rights (IACHR), an organ of the Organization of American States. She alleged that the United States, whose criminal justice system had failed to protect her and her daughters from acts of domestic violence, had violated her human rights under the American Declaration of the Rights and Duties of Man, which is a source of international obligations for the 35 members of the OAS (including the United States). Lenahan’s was the first international human rights case brought by a victim of domestic violence against the United States.

In many respects, the Lenahan story fits what Sikkink, in Activists Beyond Borders (an earlier book she co-wrote with Margaret Keck), dubbed “the boomerang effect” of human rights advocacy, which holds that when civil society groups and activists fail to persuade their government to take action or change its policy, they often find international allies who can exert external pressure and contribute to at least a partial victory. In Jessica Lenahan (Gonzales) v. United States of America, the IACHR found that the local authorities were “not duly organized, coordinated, and ready to protect these victims from domestic violence by adequately and effectively implementing the restraining order,” which the commission declared was a violation of the American Declaration of the Rights and Duties of Man. The commission went on to recommend that the United States investigate the systemic failures that took place, adopt legislation at the federal and state level to protect women and children from imminent acts of violence, and continue to adopt public policies aimed at shattering stereotypes of domestic violence victims. 

 In the years since, the Lenahan case has been cited in international and domestic case law and legislation throughout the world. And although the U.S. government, which has not ratified most major international human rights treaties, officially rejected the IACHR’s decision on technical and jurisdictional grounds, the decision has had an undeniable effect on U.S. federal policy and law enforcement. Beginning in 2011, the U.S. Department of Justice began stepping up its investigations into discriminatory law enforcement responses to domestic violence and sexual assault in several cities—the exact type of government action that the IACHR had called for—without ever explicitly connecting this work with the Lenahan case. Then, in 2015, U.S. Attorney General Loretta Lynch released official guidance to law enforcement agencies on how to prevent gender bias in their response to such crimes—a step originally proposed by advocates who supported Lenahan’s lawsuit. A year later, the Department of Justice established a nearly $10 million grant program to implement the guidance nationwide. The boomerang that Lenahan had tossed had returned to the United States, even if the government did not explicitly acknowledge it.

This essay concludes tomorrow with a look at hope.  This essay was first published in Foreign Affairs.

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