Calculus: Deal Doggedness and Human Rights Diplomacy

As the issue of denuclearization in the interest of global peace and security continues to be of pressing concern to the world, there is a growing tendency to prioritize such matters of international import above concerns around the problematic human rights records in countries like Iran and North Korea. However, concerns regarding the human rights situation within a country’s borders should not be relegated to the backburner while negotiating deals regarding international peace and security owing to two broad, interconnected reasons.

First, egregious violations of human rights within national borders – by their very nature – cut across these national borders and thus merit international anxiety. In particular, repressive regimes foster instability, dissatisfaction, violent conflict, and frequently, radicalization. While it is tempting to call for an emphasis on America’s “softer” side in response to human rights concerns beyond American borders, it may be prudent to acknowledge instead that the way a country treats its people can be of consequence to polities the world over. Accordingly, if Azadeh Moaveni’s conclusion that any substantial improvement in Iran’s human rights situation demands larger, structural reforms from within is accurate, any gains consolidated by finalizing deals such as the Joint Comprehensive Plan of Action are necessarily of limited value for international peace and security. In fact, regimes that mete out systematic repression to their own people, such as Iran and North Korea, are “inherently destabilizing”; their volatile internal dynamics, posited against the background of nuclearization, present huge risks to international security, which merit due investigation, analysis and response. In such a scenario, allowing horrific internal conditions to play second fiddle while negotiating sweeping arrangements for global peace is to miss the forest for the trees.

Secondly and more specifically, acknowledging that both these concerns are relevant to the all-pervasive ‘international security’ problem could also be helpful in selling negotiations and engagement with an adversary state such as Iran to domestic constituencies. By emphasizing its potential to raise Iran’s profile in the world order and bring economic relief within Iranian borders, President Rouhani, for instance, garnered some measure of domestic support for a deal which – on the face of it – seemed like a massive concession of sovereignty. In an increasingly polarized international order, where domestic forces operating within one of the negotiating parties may view the very act of approaching the negotiating table as an admission of weakness, acknowledging that there are costs to peace and security on both sides of the coin may be a wiser move.

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Applying the death penalty to drug dealers is never ‘appropriate’. It violates international law.

On Wednesday, March 21, Attorney General Jeff Sessions issued a memo implementing President Trump’s plan to “get tough” on the opioid epidemic: the death penalty for drug dealers. Session’s memo “strongly encourage[s]” prosecutors to seek the death penalty in drug cases “when appropriate.” While this strategy comes as no surprise from a president who has lauded Philippine President Duterte’s approach to drug policy, it’s not “appropriate”. And it violates international law.

Lots of ink has been spilled arguing that Trump’s proposal will violate the Constitution, drive drug use underground, benefit large-scale drug dealers, and grind the federal judicial system to a halt. Less has been said about the international legal implications of the proposal.

Article 6(2) of the International Covenant on Civil and Political Rights (ICCPR), to which the United States is a party, limits the application of capital punishment to the “most serious crimes.” The UN Human Rights Committee emphasizes that this category must be “read restrictively,” and the Economic and Social Council of the UN cautions that its “scope should not go beyond intentional crimes with lethal or extremely grave consequences.” Further clarifying the category, the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions explained that the death penalty can only be imposed when “there was an intention to kill which resulted in the loss of life.”

According to Harm Reduction International (HRI), 33 of the 55 states that retain the death penalty apply it to drug-related offenses. These statistics, it might surprise you, already count the United States as one of those 33 countries. Though the United States has never executed anyone under the provision, 18 U.S.C. §3591(b) authorizes the death penalty for trafficking in large quantities of drugs and remains in force according to the Cornell Center on the Death Penalty Worldwide.

This might be less surprising when one realizes that the United States reserved the right “to impose capital punishment on any person [. . .] duly convicted under existing or future laws” when it joined the ICCPR. This reservation does not give the U.S. the right or ability, however, to opt out of existing customary international law. And that is precisely how international human rights lawyers and scholars increasingly view the abolition of the death penalty, particularly for drug-related offenses. Giving credence to this view, of the 33 countries that retain the death penalty for drug offenses, 17 of them have never executed anyone pursuant to those laws.

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Trump Inauguration Events Jan 19, 2017

President Elect Donald Trump’s only tweet in the last seven hours (as of about 3pm EST, Jan 19th), is the relatively inoffensive, “Getting ready to leave for Washington, D.C. The journey begins and I will be working and fighting very hard to make it a great journey for..the American people. I have no doubt that we will, together, MAKE AMERICA GREAT AGAIN!”

This restraint is remarkable, given what the citizenry has grown to expect. The legal issues raised by Donald Trump and his incoming administration are almost too many to enumerate, so we can be glad at least for this slight pause in his output.

Let’s take stock briefly.

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Talking with women about community healing in Uganda and Sierra Leone

Dear Friends,

I last blogged with IntLawGrrls in 2012 about my book on transitional justice in Sierra Leone, Uganda, and Burundi (Humanitarian Law in Action within Africa, OUP 2012).  I am now researching a second book that builds upon a vision of transformational justice with retributive, reconciliative, and redistributive strands, focusing on the perspectives of non-elite women engaged in grassroots peacebuilding work.  I ask women what these concepts of justice mean to them, and whether they relate to their daily lives and involvement in community development activities.

In March I conducted focus group interviews in Sierra Leone, meeting with women in Moyamba and Koinadugu Districts.  In two days I will fly to Kampala to start the Uganda phase of my research, entailing interviews with women civil war survivors in Gulu and Kitgum Districts of Northern Uganda.  I wished to reach out to our network of women active in international law as I prepare to interact with networks of women in another region. I am grateful for the solidarity between women and men in so many places, whether elite or non-elite, whether we work in academia or in various conceptions of “the trenches,” whether we are friends, family, colleagues, or still strangers.  Reflecting on the Brexit outcome in the UK on June 24; Trumpism as we in the US proceed towards November; and recent decisions on abortion, immigration and affirmative action by our Supreme Court –   the strands of life are indeed starting to feel inter-connected.

My sister and her Irish husband, who live in London, recently shared a June 24 blog entitled “Thoughts on the “Sociology of Brexit” by Will Davies.  The piece resonated with me on several levels, including the connections between Brexit in the UK, on one side, to presidential politics in the US, on another, and finally with women’s community engagement on the African continent.  Davies writes about the long-term impact of Thatcherism in the UK, and what he sees as the interplay between global neoliberal economic forces and post-1970s welfare polices of Labour government.  He talks about the surprise of Labour politicians and others at the lack of political loyalty on the part of working people towards the political elites who “gave the handouts.”

Davies identifies a problem in the heartland that has something to do with a yearning for “the dignity of being self-sufficient, not necessarily in a neoliberal sense, but certainly in a communal, familial and fraternal sense.” That idea of community self-sufficiency resonates with what my early research in Sierra Leone has already revealed.  I have a growing sense that at least some rural women in post-conflict societies in Africa are empowered when they are organized and self-sufficient on a subsistence level, as much as when there are “pro-women” policies and political rhetoric at the national level.  There is much to learn and to share on both sides of the Atlantic and across our various continents.  I will hope to continue the conversation with as my research and your own projects continue.

 

28 June 2016

Jennifer Moore

Professor of Law

University of New Mexico School of Law

Albuquerque, NM