Rights Wire

The Human Rights Blog of the Leitner Center for International Law and Justice


The nuclear obsession and human rights: how human rights abuses are swept under the rug during peace talks with Iran

By Zahava Moerdler

Iran. Nuclear weapons. Diplomacy. Sanctions. Peace. These words have been in the news almost every day for the past two months. With a potential nuclear accord is on the table and President Obama working on finding a consensus with Congress, the lifting of sanctions and a “sort-of” peace with Iran is finally within reach. Yet as these words circle in the air and press, it seems that policymakers and diplomats are consistently sweeping Iranian human rights infringements under the rug, with negotiations failing to factor in human rights at all.

Iran executed 544 people in 2012, second only to China, according to Amnesty International. At least 63 of the executions were carried out in public. Most of the individuals were executed for drug-related crimes following “flawed trials in revolutionary courts,” Human Rights Watch (HRW) said. Additionally, Iran executes children for various criminal offenses, allowing capital punishment for those who have reached puberty, meaning age nine for girls and age fifteen for boys. Many believed that under President Hassan Rouhani, who assumed office in August 2013, the executions would relax, but the contrary has proved true. 773 individuals were executed during Rouhani’s first year in office, which was a marked increase from President Ahmadinejad’s administration, according to statistics from the Iran Human Rights Documentation Center. In 2013, Iran had the highest execution rate per capita. While Iranian media sources report 200 executions in 2014, opposition leaders claim the number is closer to 400 people, HRW said. These numbers alone are staggering. When placed in context, they are even more disturbing. For example, sixteen people were executed in 2013 for crimes of “enmity against God” because of connections to opposition groups. In 2014, at least nine people were executed for this crime. How can the contrasting images of Iranian Ministers shaking hands with Western Diplomats in Geneva and bodies hanging in public squares in Tehran be reconciled? With a nuclear deal on the horizon, the world cannot continue to keep silent about Iranian human rights abuses.

Another major human rights issue is gender discrimination in Iran. According to a report published by Amnesty International, women in Iran face increased restrictions on their use of contraceptives and exclusions from the labor force unless they have a child, if two proposed laws will be passed. The bill also reinforces discriminatory stereotypes about women. Other bills that will be discussed in Parliament in the coming months could further isolate and discriminate against women in Iran, the report said. For example, the Bill to Increase Fertility Rates and Prevent Population Decline (Bill 446) outlaws voluntary sterilization and the Comprehensive Population and Exaltation of Family Bill (Bill 315), discriminates against women who choose not to marry or are unable to have children.

Though some human rights organizations have launched campaigns to stop or counter these bills, these groups face incredible pushback from the Iranian government. Amnesty International has a global campaign, My Body My Rights, that aims to stop governmental “control and criminalization of sexuality and reproduction rights.” Additionally, grassroots organizations like the One Million Signatures Campaign, which seeks to work within the law to collect signatures to support the repeal of laws that discriminate against women, are targeted by security officials in Iran and individuals from these groups are detained on “national security” grounds. Anyone who does not heed these warnings faces severe reprisals.

Critics of the Iran deal also accuse President Obama of turning a “blind eye” to Iran’s proxy wars in the Middle East and its motives for providing funds and arms for these wars. These critics believe that President Obama is too focused on a “legacy-enhancing push” that could “lift his presidency’s historic potential” after years of tension between Washington and Tehran. Unfortunately, regional conflicts and tensions have created an environment that promotes radical groups like the Islamic State of Iraq and Syria (ISIS) who threaten both American and Iranian interests. Yet, Iran continues to foster breeding grounds for these radical groups. In Syria, Iran continues to support President Assad, even when the U.S. has supported the opposition. In Iraq, Iran’s support of Shiite proxy groups continues to stir up trouble for the U.S., even while both countries fight the Sunni ISIS. Iran also has connections to Hezbollah in Lebanon and rebels in Yemen and Bahrain. Although these examples do not point to direct Iranian human right infringements, Iran’s continued support of rebel groups, militias and terrorist organizations in the Middle East is destabilizing the region and fostering human rights abuses. Thus, Iran’s abuses extend beyond homegrown discrimination, persecution and rampant executions and into regional abuses by proxy.

By contrast, many Iranian dissidents fear that a breakdown in the nuclear talks could bring about a wave of repression. So although human rights might be a rallying point for why the Iranian nuclear discussions are problematic, the deal could potentially promote increased human rights within the country. Some believe that the lifting of sanctions would combat economic suffering and thus take away one of the major arguments hardliners in Iran use when infringing on the population’s basic rights. Thus, a nuclear deal could lead to more opportunities for activists in Iran to push for increased human rights, while those who oppose such rights will no longer be able to respond with cries against the evils of the West.

The important nuance is that while there is a clear need to promote an end to sanctions and democracy, and all that it entails, there is also a need to address the clear human rights violations in Iran. According to Akbar Ganji, Iran’s most prominent dissident, imposing sanctions and threats of war rarely promote more human rights in developing countries for a number of reasons. First, dictators often use the threat of war as a way to delegitimize their opponent’s arguments and ideals, Ganji argues. Second, sanctions hurt the entire country, including the rising middle class and thus affect all socioeconomic strata. And third, he pointed out that American wars often threaten human rights on their own. These points clearly articulate the need for peace, for on its heels trail the seeds of democracy and human rights.

Today, however, at a governmental level, there is no accountability for human rights abuses. Despite a number of organizations working to promote human rights in Iran, the nuclear peace talks have not had a rights-based approach. The American government should encourage reform in Iran as an important component of the agreement. At the very least, a conversation about ongoing abuses must occur. If local human rights groups in Iran see global support for their movements, it could help promote their work and push for more discourse between the organizations and the government. Furthermore, with human rights on the agenda, the American government will be more conscious of how a breakdown in negotiations and continuing sanctions will directly impact the Iranian people. Human rights are not an excuse for bullying; they are important and fundamental to human freedom, liberty and happiness. With a heightened focus on human rights, perhaps real change can finally come in Iran.

Zahava Moerdler is a Staff Writer for Rights Wire.

Photo credit: U.S. Department of State/Creative Commons

Leave a comment

Colombia: the peace talks hit a bump, but move forward

By Guillermo Farias

On April 15, the Revolutionary Armed Forces of Colombia (FARC) attacked a group of Colombian army soldiers in the department of Cauca, in the southwest of the country. 11 soldiers died and another 20 suffered injuries, according to official reports. The attack broke the unilateral truce implemented by the FARC since last December.

At first glance, it would be easy to interpret this development as catastrophic or even fatal to the peace process. That is not the case. While the attack by FARC and the government’s subsequent decision to restart airstrikes against the rebels will have serious consequences and might change the dynamics in Havana, Cuba, where peace talks are taking place, the talks will go on. In fact, the government will likely be in a stronger negotiating position going forward.

In the immediate aftermath of the attack, both sides sought to frame the events in a favorable way by using the language of human rights and the laws of war. So far, the government’s version of events seems to have gained more traction with public opinion in Colombia and the international community.

FARC attempted to frame the events as a defensive action, and were quick to point out that the government has continued offensive actions even after the guerilla group declared a unilateral ceasefire. FARC negotiator Félix Antonio Muñoz, who goes by the nom de guerre Pastor Alape and is in Havana for the negotiations, repeated FARC’s claim that the flare-up showed the need for a bilateral ceasefire.

The government, on the other hand, has presented some evidence that the soldiers were ambushed. Relying primarily on forensic reports, the government claims that the soldiers were attacked with explosives and high velocity rounds fired from various angles, all of which point towards offensive action on the part of the guerillas. The Attorney General, Alejandro Montealegre, said that the soldiers were attacked while they were resting and that the attack qualifies as a war crime due to the use of unconventional weapons.

So far, it seems like the government has succeeded in discrediting FARC’s claims that its fighters were defending themselves from offensive action by the military. As a result, FARC has fallen back to claiming that its high command, which has representatives in Havana, did not play a role in planning the attack.

The attacks complicate life for both sides. FARC must address the uncomfortable reality that it is not in complete control of its forces. Further, with the government going on the offensive and restarting air-strikes, the rebel group does not have time on its side.

The government, for its part, once again finds itself having to defend its decision to negotiate with FARC in the face of a public whose patience was running low even before the attack. The political opposition, including former President Alvaro Uribe, lost no time accusing the government of being soft on the guerrillas and falling into a trap by negotiating with them. However, President Santos seems to have found a way to turn the situation in his favor.

On April 18, three days after the attack and immediately after attending a ceremony for the fallen soldiers, President Santos gave an impassioned speech in which he made clear that he understood the rage Colombians felt towards FARC and put pressure on the guerrilla group to speed up the peace process. President Santos also called for the imposition of a clear time frame on the negotiations.

The implications of a demand for a time frame are clear. The government is not willing to remain at the negotiating table indefinitely, and FARC needs to seize the moment and end the conflict now, while it still has a chance to gain concessions from the government.

Guillermo Farias is a Staff Writer for Rights Wire.

Photo Credit: n.karim/Creative Commons

Leave a comment

One last in memoriam: the Oslo Accords

By Chris Beall Oslo

Since the reelection of Israeli Prime Minister Benjamin “Bibi” Netanyahu’s Likud party in Israel’s Knesset election on March 17, there’s been a lot of talk about what these results mean for whatever still exists of a “peace process.” For many commentators and onlookers—human rights advocates among them—five more years of a Likud government brings a deep pessimism concerning the likelihood of foreseeable peace between Israel and Palestine. I, myself, tend to share this pessimism, and I don’t think it very hard to buy into the premise that, in some abstract way, a vote cast for Likud is kind-of-sort-of a vote for extremism on all sides of the battle lines.

Seriously, imagine the jubilee that must be sounding from the yellow-bannered bunkers of Dahiyeh and South Lebanon, or the under-reconstruction tunnel networks in Gaza, right about now. Rather than facing the domestic scrutiny and credibility crises that groups like Hezbollah and Hamas certainly deserve among their own constituents (and the world, for that matter), these groups may instead cite Netanyahu’s particularly ugly campaign tactics, and get back to business as usual. Whether they point to the Prime Minister’s reversal of his 2009 Bar-Ilan speech, his rejection of a two-state solution under his watch, or his fear-mongering warnings of Arabs “voting in droves,” it seems that at least in the short term, Bibi’s bought them some time.

Violent non-state actors like Hezbollah and Hamas justify and publicly legitimize their own acts of violence and/or terrorism under the politically calculated assumption that actual coexistence alongside Israel is not, and has never actually been, on the table. With campaign comments like the above, Netanyahu has single-handedly provided a great deal of weight to the skepticism that asks whether such coexistence is possible, in the absence of external pressure. And external pressure, in its vilest form, is exactly what groups like Hamas are selling.

To be clear: nothing justifies terrorism or the indiscriminate killing of unarmed civilians. Even stripped of such moralism, there’s a million pragmatic flaws in the idea that such violence can ever accomplish these sorts of groups’ espoused political goals. But any analysis would be remiss if we overlooked a certain problem of democracy here. Without diving too deeply into my fuzzy undergraduate memory of Rousseau and social contracts, there’s something especially depressing in the fact that Netanyahu’s revolting, xenophobic green light comes with the backing of a democratic majority (technically a plurality, but you get what I’m saying). On the last days of the campaign trail and behind in the polls, Bibi stood ideologically naked, exposing to the world how he actually feels, or at the very least, how he strategically would have needed to feel in order to get reelected in Israel—and it worked.

There’s real hazard in talk like this. When the workings of representative government mutate a toxic elected official or political party into a toxic body politic writ large, then, at least in this conflict, it becomes dangerously easy to casually slip into overblown common denominators: the essentialized and “inherently” dichotomous fictions of Israeli v. Arab or Muslim v. Jew. Stated differently: What is undoubtedly a century-old political problem—surely one with a political solution—suddenly starts to feel a lot more explainable and readily understandable in terms of the binary narratives offered by the extremist opponents of that exact, hoped-for political solution. These sorts of groups, which have existed on both sides in various forms well before 1948, are the ultimate antagonists of lasting peace in the region.

Instead of accepting such narratives, which can only exacerbate the Israeli-Palestinian conflict, the question right now should become, “How else might we make sense of all this?” As discussions about the status of a two-state solution heat up internationally, we must revisit the political circumstances that have birthed this Likud reelection—a victory fueled by ethnic tensions and toxic dichotomous language.


Palestinians, Israelis and the international community alike have all grown increasingly frustrated and wary of the Israeli-Palestinian peace framework first adopted under the 1993-1995 Oslo Accords. At risk of bulldozing the nuances, a crude summary: The Oslo I Accord, negotiated in Norway in 1993, established mutual recognition between the State of Israel and the Palestine Liberation Organization (PLO), and created the Palestinian Authority to semi-autonomously govern some of the occupied territories for an intended interim period. The Oslo II Accord, signed in Taba, Egypt in 1995, created the current Areas A, B and C jurisdictional schema in the West Bank, which is still in force today, and established a degree of economic and security cooperation between Israel and the Palestinian Authority.

Collectively, neither plan promised Palestinian statehood, but created a procedural apparatus for hashing out an embryonic prototype of an eventual two-state solution. By showing tangible and immediate acts of goodwill on both sides, the goal was to build a negotiating relationship that would foster a final-status agreement. The Oslo Accords promised mutual-recognition and small steps towards peace, with the ultimate goal of reaching a final agreement based on UN Security Council Resolutions 242 and 338 within five years of the Accords’ adoption.

To some, the degree of step-by-step conditionality structurally built into the Oslo Accords meant that they never realistically stood a chance from the start. Perhaps. But it is also true that both Israel and the Palestinian Authority did take tangible measures—sometimes at great political cost—to meet and exceed their obligations under Oslo. Indeed, Prime Minister Yitzhak Rabin paid for Oslo with his own life, assassinated by a Zionist fanatic just weeks after signing Oslo II. And yet, by and large, the Accords were met with popular support from both Israel and Palestine. Although Hamas and Islamic Jihad boycotted Palestine’s post-Oslo 1996 elections, the results do represent a high-water mark for hopes of peace and mutually negotiated Palestinian sovereignty. Yasser Arafat’s landslide victory with 88 percent of Palestinian presidential votes represented more than tacit approval for the PLO’s peace efforts, and a popular mandate for Oslo itself.

Things fell apart, of course. A brutal terrorism campaign launched by Hamas, combined with Israel’s own lackluster implementation of Oslo initiatives (settlement freezes, to take just one example), would mean that by the end of that five-year Final Settlement deadline in 1999, both parties had largely forgotten those mutual acts of goodwill first birthed by the process. The failure of the Camp David peace attempt in 2000, the Second Intifada and Israel’s launch of Operation Defensive Shield in 2002 represented the first major death of the Oslo Process.

In the 2006 Palestinian parliamentary election, Hamas’ radical Islamist coalition won a shocking 74/132 seats in Palestine’s interim-legislature, causing a subsequent civil war between Fatah and Hamas. This election, the lasting rift between Gaza and the West Bank and monolithic statements made about Palestinians being untrustworthy partners in peace could easily be said to represent a second deathblow to Oslo. The loss of popular support for the formalized peace process among Palestinians would mark a much more difficult derailment of peace, not easily fixed by any forced-sit down among the parties.

As hinted above, such a loss of popular support should not have surprised anybody. The Palestinian disillusionment with the Oslo Accords was entirely reasonable, in the face of ongoing Israeli colonial projects, renewed direct occupation, shattered optimism at sovereignty and the Palestinian Authority’s own crippling corruption and gross maladministration. With a constricted Bantustan economy (or an outright blockaded economy in Gaza, post-2007) and unceasing loss of dignity under the brutalities of occupation, ordinary Palestinians failed to ever see any tangible and concrete benefits stemming from the political trust-building process that was the Oslo Accords.


Until recently, little had changed in the lives of Palestinians. The period since 2006 has been marked by continual settler expansion, the demolition of Palestinian homes and agricultural crops, restricted access to resources and sources of Palestinian livelihood and intermittent periods subjected to direct and disproportionate Israeli Defense Forces (IDF) violence. Whether one supports or condemns the Palestinian Authority’s recent efforts to pursue heterodox, perhaps even quasi-unilateral solutions to their ongoing plight, what we are seeing today is a logical ending and a final release from the paralyzing aftermath of the Oslo Accords.

Truthfully, nobody knows where this leads us. And it is this exact renewed sense of wilderness that in large part explains Netanyahu’s latest electoral miracle: a development that will likely position him as Israel’s longest serving Prime Minister since David Ben-Gurion. Change is scary. With Abbas pursuing justice in international forums entirely beyond the horizons of the traditional peace process, and with Palestinian nods toward ending security cooperation in the West Bank (the definitive ending of Oslo), the political utility of Bibi’s cheap resorts to xenophobic provocation isn’t exactly surprising. For a man who has furiously opposed the Oslo Accords since their inception, Bibi now finally gets to be the political leader who will steer Israel beyond whatever remains of their grasp. He’s finally won.

Granted, the immediate outlook of peace under Netanyahu is unsurprisingly bleak, and will almost certainly get worse before things can get better. But as we collectively watch the Oslo Accords die one last death in Israel/Palestine, there is still immense hope to be shared that all parties involved will learn something from the Accords’ presently unwinding failed legacy.

Above all else, Oslo’s last shot at a noble death would entail the recognition that, while this century-old conflict’s solution will surely be political in nature, this does not mean that peace can exist solely as some gentleman’s agreement, between politicians. Rather, a future peace must address the immediate and tangible concerns of the conflict’s most direct stakeholders, those that have suffered most viscerally and shed the most blood: ordinary Palestinians and Israelis alike. People actually have to care about peace, or at least be shown its rewards and its benefits. Political goodwill is important, but cannot survive in the absence of popular support. While the failure of Oslo reveals that public patience is a limited resource, it is also, thankfully, a renewable resource. We shouldn’t lose sight of that.

Whatever comes next, Oslo should haunt us and influence how we approach peace in the future. Otherwise, the Oslo Accords will be remembered as little more than a photograph in our children’s history textbooks—two guys shaking hands on the White House lawn, and none of it meant a damn thing at all.

Chris Beall is a Staff Writer for Rights Wire.

Photo credit: Vince Musi/The White House/Creative Commons

Leave a comment

Tom, Jerry and the Beijing Five

By Jennifer Li

Sometimes, lawyers are most effective when using cartoon analogies. “The Chinese government is a like cat,” explained Liu Wei, a lawyer from China, on a recent afternoon in New York. “And NGOs in China are like a small mouse. The cat will humor the mouse and sit quietly while watching the mouse play. The cat is not worried about losing control of the mouse. But if that mouse grows too large, the cat will no longer just sit by.”

In the two days preceding International Women’s Day on March 8, 2015, five prominent women’s rights defenders were detained by Chinese authorities in the cities of Guangzhou, Hangzhou and Beijing. These activists – Li Tingting (also known as “Li Maizi”), Wu Rongrong, Zheng Churan (nicknamed “Datu,” or “Big Rabbit”), Wang Man and Wei Tingting – are young, prominent women’s rights activists who, at the time of their detention, were preparing to launch a nationwide campaign on raising awareness about sexual harassment aboard public transportation. According to reports, the activists were initially detained under suspicion of “picking quarrels and provoking troubles” – an oft-cited basis for detaining political dissenters. After failing to secure approval for formal arrest from the prosecutor’s office before the legal limit of 30 days, the police attempted to even further prolong the detention of the women under the charge of “gathering crowds to disrupt order in public places.” On April 13, after 37 days in detention, all five women were granted a “release on guarantee pending further investigation,” a bail-like procedural measure that places constraints upon their freedom of movement and communications, and subjects them to future summons for additional interrogation. All criminal charges against the activists remain.

The unlawful detention of the five women activists garnered widespread attention outside China, drawing calls for their release from foreign governments and officials, including Samantha Power, U.S. Ambassador to the U.N., and Hillary Clinton, former U.S. Secretary of State. Indeed, the circumstances and conditions of their detention were plainly inconsistent with not only international legal norms and standards, but also Chinese domestic law. At the time of their detention, several women were not shown proper warrants; none had access to counsel until nearly a week after they were all transported from their respective cities to Beijing; and at least one of the activists, Wu Rongrong, was not provided immediate access to critical medical care and treatment. These and other actions by the Chinese authorities were in violation of China’s constitution and other domestic laws, including the Criminal Procedure Law and Law on Lawyers. The conditions of the activists’ detention were also inconsistent with international treaty and customary laws on the freedoms of opinion and expression and the treatment of persons in detention, as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the UN General Assembly resolution on women’s human rights defenders, among other instruments.

The recent detentions reflect an energized effort by the Chinese government to crack down on perceived political dissent. Liu, who has worked for years on women’s rights and children’s issues in China, describes the activists’ detention as a bellwether of the government’s renewed suppression of civil society in the country. “There will be a before [the Beijing Five],” she predicted, “and an after.” Liu described the three short years between 2010 and 2013 as a period of relative relaxation for NGOs inside China – when the Chinese government was merely mouse-sitting, so to speak. Whether organizations worked on issues relating to labor rights or women’s rights, they operated in a culture of relative stability – or, as the Chinese like to say, crossed the river by feeling the stones (摸着石头过河).

Starting in late 2013, however, the government under President Xi Jingping began to demonstrate an increased vigilance to realizing a “socialism with Chinese characteristics” system of governance, which, according to an August 2013 Chinese Communist Party (CCP) directive, includes a rejection of certain “universal values.” Among the seven-fold perils of universal – but, specifically, “western” – values that the CCP pledged to purge are the promotion of civil society, press independence and “universal values” that take the form of freedom, democracy and human rights.

As Liu explained, the end of 2013 signaled the beginning of some mafan (麻烦) for Chinese NGOs. Mafan is a Chinese term that can be broadly used in several ways, for example as an innocuous noun (“inconvenience”) or as slightly more serious adjective (“troublesome”). It can also be used as a verb (for example, “Would it mafan the Chinese authorities if I asked for my lawyer?”). In the case of NGOs and human rights defenders, that mafan has taken the form of increased censorship, intimidation, harassment and arbitrary detentions, all simultaneous to the diminishing of space to engage in advocacy work. As a further reflection of official hostility toward civil society in China, last December the government introduced a draft law that would greatly restrict the funding and operations of foreign NGOs, as well as domestic NGOs that work with foreign organizations, within China. The draft law claims to be intended to bolster “national security and social stability,” but activists fear it will be used as a tool to further the harassment of NGO workers and place restrictions on their activities, as well as to further the expulsion of foreign NGO workers.

Indeed, the detention of the women activists seem arbitrary and the activities for which they were detained – to put up posters and join a march to raise awareness about sexual harassment – innocuous. All five activists were affiliated with Yirenping Center, a non-profit that promotes gender equality and provides services to individuals with H.I.V., hepatitis, and physical disabilities. On March 26, security agents raided the Beijing offices of Yirenping, the second time it has raided a Yirenping office in less than a year. Liu speculates that the detention of the activists for their activities – combatting sexual harassment and disease – have been merely a means to an end, the government’s way of going to extreme and disproportionate lengths to silence alleged political agitators.

The increased government measures forcing Chinese civil society underground also coincided with two politically sensitive periods last year – the 25th anniversary of the 1989 Tiananmen Square protests (known inside China as the June Fourth Incident) and the Hong Kong student protests. When asked whether the government’s tightened restrictions on NGOs might have been a response to the Hong Kong protests, Liu expressed skepticism, observing that the protests actually drew little attention from people inside China. By the same token, few in China today are aware of the detention of the women activists. But if more people become aware of their detention, she warned, the government would face significant backlash. “These are educated, Chinese girls in their 20s and 30s who were fighting sexual harassment,” she said. “Can anyone actually say they are not in support of fighting sexual harassment? The Chinese community would no doubt be very sympathetic to theses girls.”

Foreign lawyers and organizations seeking to help alleviate the pressure on Chinese NGOs and human rights defenders may face internal resistance. “The Chinese have always been of the mindset that one must solve one’s own problems,” Liu explained. Regardless, the critical problem remains that Chinese people are not aware of the ways their freedoms have been suppressed, and the concept of human rights can be difficult to understand and internalize when there is little basis for comparison.

But that seed of recognition can take root quickly. Liu offered her mother as an example, “This is my mother’s first time outside of China. She does not speak English and does not socialize with Americans. But after only a year, she has gained enough exposure from day-to-day life here to understand that the Chinese government is oppressive. She was surprised at the way the American authorities were open to criticism after the Ferguson case. The way people protested on the street without any interference from the police officers, who just stood by and let them!”

Jennifer Li is a Staff Writer for Rights Wire.

Photo credit:  Z4nclr4/Creative Commons

1 Comment

The human rights implications of gun regulation in the United States

By Shruti Banerjee

The United States has more firearm ownership and gun-related deaths than any other developed country in the world, according to a recent study conducted by cardiologists Sripal Bangalore of NYU Langone Medical Center and Franz Messerli of St. Luke’s Medical Center. Compared to developing countries, the U.S. has more gun-related homicides than Pakistan, and the gun-related death rates in major U.S. cities are on par with some of the most dangerous places in the world. For example, Atlanta had the same gun related homicide rate as South Africa and Phoenix’s rate was equal to Mexico’s, according to the Atlantic.

Despite of tragic events like Sandy Hook and the 346,681 gun-related deaths recorded by the Center for Disease Control (CDC) from 2003 to 2013, the majority of our elected officials voted against legislation that would require background checks prior to purchasing a firearm, despite a 90 percent public approval rating for such measures. On the federal level, refusal by U.S. politicians to pass more restrictive gun regulations has allowed numerous human rights violations, including violations of the right to life and the security of person, to continue unabated. By looking at the prevalence of gun ownership and gun-related deaths, as well as the implications of our legal response to tragedies such as Newton, it becomes clear the United States’ lack of gun regulation poses a serious threat to safety and public health.


With 88 firearms per 100 people and 10 gun-related deaths per 100,000 people, the U.S. has the highest rate of gun ownership and firearm-related deaths compared to 27 other developed countries, according to Bangalore and Messerli’s study. Conversely, Japan had the lowest rate of guns per capita and fewest gun-related deaths with only .6 firearms per 100 persons and .06 gun-related deaths per 100,000 persons.

Gun related deaths can occur in many ways, including gang violence, accidental death (i.e. thinking the gun is unloaded or a toy), suicide and domestic violence. The two most prevalent sources of gun fatalities in the United States are from gang violence and suicides often correlated with mental illness. A study by Columbia University also found that African-Americans are disproportionately affected by gun deaths. On top of the death toll caused by guns, there are also serious non-fatal crimes perpetuated by the use of firearms, such as rape and aggravated assault, which accounted for 799,760 crimes between 2003 and 2013, according to the CDC. Academics have found that these numbers are lower than the actual rate of guns and gun deaths per capita because compiling accurate data is difficult due to the prevalence of illegal and unregistered firearms as well as the severe underreporting of gun related deaths and shootings by police officers. Legal regulations that make it impossible for the government to track and punish unregistered or missing guns in certain states also attribute to this data collection problem.

Tragic incidents like the Sandy Hook and Aurora shootings, as well as the high level of gun-related suicides linked to mental illnesses, prove that gun related deaths are a prevalent issue in the U.S. that requires multifaceted regulation to properly address the social costs of our gun policies.


While we see little action on the federal level, states have passed at least 114 bills related to gun regulation and deregulation since the Newton tragedy, according to Mother Jones and the Law Center to Prevent Gun Violence. Not surprisingly, the gun bills passed in most states fall squarely within political lines, where blue states have passed more restrictive gun laws and red states have passed more laws to deregulate gun ownership. Certain states, including Colorado, Connecticut, Maryland, New York and the District of Columbia, have passed laws to strengthen gun regulation in four major areas: restricting conceal and carry permits; making it harder to own guns by utilizing background checks; enhancing the government’s ability to track guns and punish the tampering of the manufacturers’ identification marks on firearm; and mental health regulations, according to Mother Jones. One hundred and eighty-nine million people are affected by the 41 new laws in 21 states strengthening the regulation of guns and the 15 new laws in 15 states establishing mental health reporting/limits, Mother Jones reported.

Conversely, 29 states have passed 75 laws that make it easier to own guns, conceal and/or carry firearms in public places, including in churches, bars and schools, and making it harder for the government to track and punish stolen or unregistered guns, according to Mother Jones. It is troubling that the same study found nearly twice as many laws deregulating gun ownership passed—impacting over 185 million people—when these states are the most likely to be affected by gun violence and gun-related deaths. For example, Texas, which had the highest number of gun related child deaths in 2013, enacted 12 laws deregulating gun ownership after Newton. (It is important to note there is some overlap in these numbers since certain states passed laws in both directions.)

The discrepancies in state-by-state gun laws pose a major problem for areas trying to thwart gun violence through legislative action. This is clear in Chicago, which has restrictive gun laws but high rates of gun violence because it’s neighboring states have more lax gun policies and residents of Chicago are able to easily carry firearms across state lines. In areas with restrictive gun laws that are also predominantly surrounded by states with stricter gun regulations, such as New York, there are lower rates of gun-related homicide. A study by Boston Children’s Hospital found an association between more gun laws and lower rates of gun-related deaths in states. Specifically, laws requiring universal background checks and purchase or carry permits were most clearly associated with decreased rates of gun-related homicides and suicides. Other studies reinforce this by finding that states with higher gun ownership and less restrictive gun laws also have the highest rates of gun related deaths. This indicates a greater need for advocating on a federal level for stricter gun regulations to prevent cross-state gun trafficking from deteriorating the impact of gun regulation.


A report by Amnesty International found that the United States’ gun policies have allowed serious human rights violations to impact the youth and communities of lower socioeconomic standing. This study points out the long term consequences of allowing these human rights violations to continue. For example, almost half of Chicago’s homicide victims between 2008 and 2012 were individuals under the age of 25 and youth exposed to this level of violence often display the same psychological traumas of children growing up in urban war zones. This ultimately leads to victims of gun violence turning into perpetrators themselves, propagating the cyclical nature of violence. Gang violence, the leading cause of gun related deaths, predominantly plagues lower income communities, posing a serious threat to international laws ensuring the protection of life and the right to non-discrimination, the report said.

Despite the fact we have seen over one million instances of death and serious non-fatal injuries caused by guns in the last decade—a blatant threat to public safety and health—many of our political leaders continue to push for weaker gun laws. Conservatives and supporters of the National Rifle Association frequently make arguments promoting the proliferation of guns to protect communities because, apparently, more guns keep people safer since criminals tend not to attack areas where they know there are firearms. This is a baseless and contradictory argument since this same author, a “conservative politics expert,” wrote an article admitting that gang violence is the leading cause of gun fatalities. Gang violence typically involves groups who are fully aware that the other possess firearms, proving that the most prevalent criminal tendencies do not prevent them from attacking areas where they believe firearms are present.

Moreover, there are very few studies with concrete numbers attempting to support the argument that more guns make communities safer, and the studies that are out there are full of holes. For example, the authors of one such study in the Harvard Journal of Law and Public Policy conceded that they cannot conclude that more restrictive gun laws lead to more violent crime, since areas dealing with high crime rates tended to implement stricter firearm regulations as a reactionary measure, while areas with lower crime rates did not feel the need to pass strict gun laws. This study also admits that other factors outside an increase in individual gun ownership have had in impact in lowering crime rates (i.e. higher rates of incarceration and higher rates of abortion). The authors themselves argue that banning guns would not decrease murder or suicide. Using their logic, we can immediately conclude that the only way to properly prevent suicide is through better public health measures. On the topic of murder, it is pretty obvious that one can do a lot more damage in significantly less time with a rifle or handgun than with a knife. Case in point: on the same day of the Newtown tragedy in which 26 children and adults were killed, a man attacked 22 children and one teacher with a knife in a school in China—all the victims survived. This same study argues that we should not only analyze the prevalence of gun-related violence, but violent crime as a whole. While they find that the U.S. is a unique country in that we have higher gun ownership and a lower rate of overall crime (a point we should be critical of since many crimes in the U.S. go unreported), this does not mean we can ignore the upwards of one million firearm-related injuries and deaths in our country over the past decade. This study distracts us from the main issue, which is that the prevalence of gun ownership and a lack of regulation in our country has created a faster and more efficient way to commit violent crimes.

Data has consistently supported the conclusion that more guns per capita are linked with higher gun related homicide rates, indicating that gun proliferation would not make society safer. To effectively impede the threat to human rights posed by our gun policies, we must advocate on the federal level for more uniform gun regulation across states that fully protect our citizens from this public health hazard. Our failure to do so renders us incompliant with international laws designed to protect us from the human rights violations perpetuated by a lack of gun regulation.

Shruti Banerjee is a Staff Writer for Rights Wire.

Photo Credit: Thomas Hawk/Creative Commons

Leave a comment

A scathing UN report, backlash and the urgent need to tackle rampant torture in Mexico

By Guillermo Farias

A recent report on Mexico by Juan Mendez, the United Nations Special Rapporteur on Torture, paints a bleak picture of the country’s human rights record and its generalized use of torture. Practiced by a wide range of actors, from doctors to ministerial agents, torture usually starts as soon as someone is detained and tends to be used with the goal of getting confessions related to organized crime. Its victims often belong to marginalized groups.

The modus operandi portrayed in the report is disturbing. Arresting officers arrive in civilian clothes, sometimes with their faces covered by ski masks, drive unmarked cars, lack proper warrants and don’t explain the motives for an arrest. Those arrested are “blindfolded and driven to unknown locations, including military bases, where the torture continues, consisting of a combination of: punches, kicks and beatings with sticks; electric shocks through the application of electrical devices such as cattle prods to their bodies, usually their genitals; asphyxiation with plastic bags; waterboarding; forced nudity; suspension by their limbs; threats and insults.” Victims of torture are often presented to the media as criminals without having been convicted, itself a form of degrading treatment, the report notes.

Moreover, this torture takes place in a context of almost complete impunity, according to the report. Between 2005 and 2013, there were only five convictions for torture. Even recommendations from the National Human Rights Commission have failed to lead to accountability: not one of its 223 recommendations has resulted in a criminal conviction, the Special Rapporteur critically noted. The panorama is similar at the state level. In Mexico City, officially known as the Federal District, 388 preliminary investigations into allegations of torture have been opened since 2008. Criminal proceedings have been brought in only two cases and 121 cases are still pending. Since 2005, there have been only been three convictions, and the penalties imposed, according to the Special Rapporteur, were not commensurate with the seriousness of the crime. In Chiapas, the state that forms the border with Guatemala, the four torture cases that reached the verdict stage from 2007 to 2013 resulted in acquittals.

To improve the situation, the Special Rapporteur recommended two controversial changes to Mexico’s security strategy and legislative framework. First, ending the use of the military in security operations. The Mexican military has been deployed to combat organized crime groups since the administration of President Felipe Calderon, who was in office from 2006 to 2012. At its apex, in 2012, the military-centric offensive against organized crime groups called for the deployment of 50,000 soldiers, the report said. The deployment of the military, the Special Rapporteur’s report points out, correlates with a massive increase in the numbers of complaints of torture and ill-treatment. From 2001 to 2006, the National Human Rights Commission registered 320 such complaints per year on average. Between December 2012 and July 2014, the Commission received 1,148 complaints related to the armed forces alone.

Second, the Special Rapporteur recommended the elimination of a controversial form of pre-charge detention known in Spanish as arraigo. The measure allows the authorities to detain someone for up to 40 days, with the possibility of an extension, in the course of an organized crime investigation. In the course of those 40 days, authorities are supposed to determine whether to bring formal charges against the detained suspect. In practice, however, arraigo violates the presumption of innocence and creates perverse incentives for torture. There is a marked tendency to use arraigo to “detain in order to investigate, rather than investigate in order to detain,” the report said. Additionally, the Special Rapporteur pointed out that the practice is ineffective: only 3.2% of the more than 8,000 people that have been subject to the measure since 2008 have been convicted.

As if the reports findings were not enough to send chills down one’s spine, the government of Mexico responded to the report by going on the offensive, attempting to discredit the report rather than face its findings.

Government officials were quick to accuse the Special Rapporteur of being unethical and unprofessional.  Mexico’s Foreign Minister, José Antonio Meade, went as far as saying that Mexico would no longer cooperate with the Special Rapporteur. Juan Manuel Gomez Robledo, undersecretary of foreign affairs, argued that generalized torture would be considered a crime against humanity and require the intervention of the International Criminal Court, thus putting the accusation outside the scope of the Special Rapporteur’s mandate. The government was also critical of the report’s methodology, specially its reliance on a small number of cases. As tensions grew and broke standard diplomatic protocol, the Special Rapporteur made clear that he was not accusing the Mexican government of crimes against humanity. However, he made clear that he had gathered enough evidence to sustain the report’s conclusion that torture is generalized.

The government’s strongly defensive reaction makes sense only in the context of a country that lacks a cohesive human rights strategy. Rather than admit that there are serious human rights problems, the government tries to minimize and dismiss criticism in the hopes of avoiding the spotlight of international mechanisms. Given the magnitude of the problem, this strategy is untenable. Instead of attempting to discredit the Special Rapporteur’s scathing report, the government should seize the moment as an opportunity to address the human rights consequences of a security strategy centered on the use of military force and call on the international community for support.

Over a week ago, Mexico’s Foreign Ministry said it considered its disagreement with the Special Rapporteur to be “concluded.” While the government said it stood by its criticisms of the report, it made clear that the country is open to “international scrutiny,” thus walking back some of its more inflammatory remarks. The Special Rapporteur, while standing firmly behind the findings contained in the report, has offered a follow-up visit to Mexico in 2015 or 2016. This is a good first step. Let’s hope cooler heads prevail going forward.

Guillermo Farias is a Staff Writer for Rights Wire.

Photo credit: Eneas De Troya/Creative Commons

1 Comment

Domestic violence: ensuring protection and accountability

By Shruti Banerjee Domestic violence

The Inter-American Commission on Human Rights ruled in the 2014 landmark case Jessica Gonzales v. The United States that the United States is in violation of international human rights law by failing to protect women and children from the threat of domestic violence. The drastic need to address these issues was also recently discussed at Fordham University’s 19th annual Forum on Domestic Violence in March 2015, where I spoke with Yi-Jen Chang, Deputy Director of The Matrimonial/Economic Justice Project at Sanctuary for Families, who organized a panel on ‘Risk Assessment and Lethality Factors’ in domestic violence cases. She explained that the most important factors that must be determined in a domestic violence case are safety planning and risk assessment. This needs to be done on multiple levels in cooperation with law enforcement, legal counsel, psychologists and educators, who may discover a violent threat, Chang said. Unfortunately, many victims of domestic violence face major roadblocks when trying to access assistance and aid. By examining the lack of uniform collection of data on domestic violence incidents, the cultural and social factors preventing victims from seeking help and the way our legal system and law enforcement have dealt with threats of domestic violence, it becomes evident that significant improvements are necessary on all levels.


Domestic violence encompasses physical, emotional, sexual, psychological and financial forms of abuse. Gathering concrete numbers to fully gauge the prevalence of domestic violence cases is difficult due to numerous socioeconomic, cultural and legal factors. But by looking at multiple reporting sources in New York, and by using New York as a case study, it can be seen that instances of domestic violence are common and need to be addressed adequately and immediately. According to the Annual Reports of the NYC Domestic Violence Fatality Review Committee (FRC), the New York Police Department (NYPD) responded to 284,660 domestic violence incidents in New York City in 2013. In that same year, there were 62 family-related homicides, which only accounted for a tiny portion of domestic violence cases that year. Since less than one third of domestic violence homicide victims had prior contact with the NYPD, according to the report, this indicates that the number of domestic violence incidents responded to by the NYPD is lower than the actual number of cases in the city.

Since over half of family-related homicide victims had contacted at least one City agency prior to the homicide, looking at other resources can help gauge the prevalence of domestic violence in New York. For example, city-run domestic violence hotlines received 87,374 calls in 2014 and domestic violence shelters received 11,108 requests for housing in the same year, according to official statistics. In 2014, there were 54,667 client visits to all family justice centers in NYC, official statistics reported. And since 2005, family justice centers and legal resource providers have aided over 97,000 clients in domestic violence cases, according to a Mayor’s Office report on domestic violence in New York.

The discrepancies in these numbers indicate that domestic violence is underreported in New York, perhaps largely due to the many barriers faced by victims of domestic violence when it comes to reporting these incidents and finding sources of aid. These barriers are reinforced by many socioeconomic and cultural factors that prevent women and children from finding legal assistance or reaching out to law enforcement for help. Chang explained that many victims financially rely on their abusers, worry about familial instability from reporting the crime and fear retaliation from their abuser if the police are unable or unwilling to help. She also identified many layers of unique barriers for immigrant women including cultural norms of victim-shaming and blaming, dependence on their abuser for immigration documents, language barriers, misinformation from the abuser about available resources, unsuccessful interactions with law enforcement and fear of being expelled from their community for exposing the violence.

Recognizing the difficulties faced when reporting and collecting data on instances of domestic violence, The New York State Division of Criminal Justice Services implemented changes to its crime reporting system for domestic violence incidents by enforcing more uniform reporting policies and by expanding the definitions of domestic violence relationships in 2008. While this was a step in the right direction to help the City fully gauge the physical threat domestic violence poses, there is still much to be done in order to combat domestic violence and its detrimental societal consequences in communities.


United States courts, from the state level to the Supreme Court, have consistently ruled against victims of domestic violence who have filed lawsuits against law enforcement agencies for failing to protect them against threats of domestic violence. A tragic example of this in New York is the 1968 case, Riss v. City of New York, in which then 21-year-old Linda Riss contacted the police numerous times complaining about violent threats from her ex-lover. The New York Police Department (NYPD) ignored her complaints until her fears culminated in an attack by a thug hired by her ex. This attack caused permanent facial injuries and blinded her in one eye. Riss filed a suit against the NYPD, arguing that they had a duty to protect her against a known threat. But the courts rejected this argument and ruled that police do not have a duty to protect individual members of the public. This ruling leaves women and children who have reported a domestic violence threat unable to file lawsuits against law enforcement when they fail to protect them. Women and children are thus placed in an even more vulnerable position, unable to push for accountability or justice.

The Supreme Court ruled in a similar way in Castle Rock v. Gonzales. In this case, Jessica Gonzales called the Colorado police over four times in one evening, reporting that her three daughters (ages 7, 8 and 10) were missing and that their father had taken them. Jessica had filed a restraining order against her ex-husband after he began acting abusively towards her and her daughters. He was court-ordered to stay away unless it was a scheduled visit. Since no visit was scheduled and her young daughters were missing for hours, Jessica began to panic. Law enforcement officials kept telling her to wait to see if her daughters return. Early the next morning, the father began shooting outside the police station and was gunned down. After the shoot-out, law enforcement found the three dead bodies of her children in the back seat of their father’s car. Despite the gruesome outcome, the Supreme Court held that the presence of a restraining order did not create a mandatory requirement for police to act. The majority opinion, written by Justice Antonin Scalia, argued that, regardless of the mandatory language of the Colorado statute and restraining order, the need for police discretion makes this type of mandatory enforcement impossible. However, the dissent, written by Justice John Paul Stevens, intelligently points out that the Colorado statute purposely chose this ‘mandatory arrest’ language precisely to take away police discretion in analyzing the threat since the presence of a domestic restraining order is indication enough that a threat was present and a law was being broken.

Furthermore, Scalia chose to completely disregard the legislative history of the statute, which pointed out that in specific instances of domestic restraining orders, police are not meant to stop and discern a threat which a court has already discerned. In other words, law enforcement officials are meant to follow the language printed on the restraining order, clearly stating that they are to arrest anyone in violation of it. Ultimately, if law enforcement is not held liable for stopping physical threats, there is no real mechanism to enforce restraining orders. Readings of the law in this manner renders the 300,236 orders of protection issued by New York State Courts in 2013, as documented by official statistics, useless pieces of paper.

In recognition of this, the Inter-American Court of Human Rights held the United States government accountable for human rights violations against Jessica and her three deceased daughters in October 2014. They found that the U.S. violated its obligation to not discriminate and to provide equal protection under Article II of the American Declaration by ‘failing to act with due diligence’ to protect Jessica and her children from violence. The IACHR also concluded that the US is in violation of Article I, VII, and XVIII of the American Declaration for failing to take reasonable measures to protect the life of Jessica’s three daughters.


Since U.S. courts have ruled that victims of domestic violence—even those with restraining orders or orders of protection—rely on the discretion to police officers, in the immediate future, we must have greater training programs for law enforcement, such as the program implemented in Maryland that uses a two-pronged approach to protect and reach out to domestic violence victims. Other solutions include improving social programs in low-income neighborhoods to combat domestic violence, since 42 percent of domestic violence incidents occur in socioeconomically disadvantaged neighborhoods (i.e. those with high rates of unemployment, low high school graduation rates, low median household income and high rates of poverty), according to official statistics.

Ignoring the threat of domestic violence has had detrimental consequences on society as a whole, including a direct negative impact on economic productivity, higher crime rates, cyclical abusive behavior and weaker communities. Long-term advocacy should work towards guaranteeing that victims of domestic violence are ensured protection by law enforcement when they report it, as is required under international human rights law.

Shruti Banerjee is a Staff Writer for Rights Wire.

Photo Credit: Hibr/Creative Commons

Leave a comment

Q&A: Law professor Deborah Denno discusses the death penalty and upcoming Supreme Court case on lethal injection protocols

By Jennifer Li

In 2008, United States Supreme Court examined its first death penalty case on execution methods in decades when it upheld Kentucky’s lethal injection protocol in Baze v. Rees. In Baze, the Court held that the three-drug combination widely used in lethal injections across the country did not pose a “substantial” or “objectively intolerable” risk of harm that qualified as cruel or unusual when compared to available alternatives. Since 2008, however, most states have modified their lethal injection protocols by either substituting the drugs examined in Baze, or eliminating one or even two of the drugs altogether. The changes were spurred by drug shortages and challenges to states’ lethal injection protocols, factors that have also led many states to turn to compounding pharmacies – which are outside of FDA oversight – as well as secrecy laws that conceal state protocols from public knowledge. These changes to state practices have essentially rendered Baze moot.

Later this month, the Supreme Court will revisit the issue in Glossip v. Gross and review whether the use of the sedative midazolam violates the Eighth Amendment’s prohibition against cruel and unusual punishments. The case emerged out of Oklahoma, following the botched April 2014 execution of Clayton Lockett, an inmate who was administered midazolam and suffered for an excruciating 43 minutes before dying of a massive heart attack. On January 15, 2015, Charles Warner, another Oklahoma death row inmate and one of the original petitioners in the case – then called Warner v. Gross – was executed after the Court denied him a stay of execution. Days later, on January 23, 2015, the Court agreed to hear the appeal of the remaining petitioners challenging Oklahoma’s lethal injection protocol, and subsequently stayed the executions of the three remaining petitioners, Richard Glossip, John Grant and Benjamin Cole.

Professor Deborah Denno, Arthur A. McGivney Professor of Law at Fordham Law School, has written extensively on the death penalty and use of lethal injections, most recently in the Georgetown Law Journal, where she presented the results of an empirical study of over 300 cases that have cited Baze between 2008 and 2013. In the following edited interview, she discusses the death penalty, changes to lethal injection protocols since 2008 and the upcoming Supreme Court case, Glossip v. Gross.

JL: You have stated on many previous occasions that the death penalty and lethal injections are two very discrete issues, and that lawyers in particular should be careful to not muddy the waters by conflating the two. Can you explain why?

DD: It’s inevitable that discussions about the execution process are going to make us question why we even have a death penalty. It seems to have an impact on opinion polls, and it certainly has an impact on litigation as well as how people view the death penalty. From that perspective, any issue involving the execution process will make us reflect on the death penalty.

The reason I don’t like to conflate the two is because we’re a country that has always identified itself with having a death penalty. And if you’re going to have the death penalty and execute people, then that should be done in a humane way. But once the death penalty becomes conflated with the execution process, then the process itself gets lost in the shuffle. I think it hinders our ability to look at this process clearly when we start fogging it up with whether or not we should have the death penalty. I think there is a humane way of executing people; I just don’t think it’s by way of lethal injections. Firing squads would be more humane.

JL: In Baze, the Court only reviewed the three drugs that were being used in 2008: sodium thiopental, pancuronium bromide and potassium chloride. But the Court did not set a uniform standard across the country by limiting lethal injections to those three drugs. Do you think Glossip or any future cases will be able to address the current lack of consistency in lethal injections protocols?

DD: It may be possible that Glossip will set a safety standard for lethal injections, but I can’t see the Court applying a uniform standard to all states. There’s such a strong state’s rights issue, and there always has been with the death penalty.

In 2008, when Baze was decided, the use of other drugs outside of the three-drug protocol wasn’t even on the horizon. The Court wasn’t aware of the problem because there wasn’t even a thought that states would be going to other drugs. In Baze, one of the arguments was that states could just use one drug, not all three, and anesthesiologists in that case suggested that the best thing to do would be just to pump in a lot of sodium thiopental. As it turned out, Ohio went that route almost immediately, within months of the Baze decision.

JL: What propelled states to change their lethal injection protocols?

DD: One of the reasons that Ohio and other states modified their protocols was due to lethal injection challenges and concerns with the second drug, pancuronium bromide, which paralyzes the inmate. Everyone agrees that the sole reason that drug is used is so that people don’t twitch during the execution. I have interviewed Dr. Jay Chapman [who concocted the three-drug formula in 1977] at great length, and I asked him in three different ways and three different times about why he included the paralytic. He eventually conceded that it was for the benefit of the witnesses, for the people viewing the executions.

Although it may hasten death by just a little, it’s really the third drug, the potassium chloride, which induces cardiac arrest and causes death. So the only reason for having the paralytic is to paralyze a person so they don’t twitch around, for better optics – which is why a common misconception of lethal injection is that it induces a deep sleep. In reality, the inmate is sedated by the first drug, paralyzed by the second, and then induced into irreversible cardiac arrest by the third. And the third drug is horrifically painful. People have said it’s like putting a hot poker in your stomach.

JL: What is the standard for determining whether lethal injections constitute cruel and unusual punishment?

DD: Until Baze, the standard for executions was whether there was a heightened risk, a likelihood of wanton death, or cruel or painful death. Baze introduced some new strands to the Eighth Amendment. One, that it was incumbent – and this might be a focus of Glossip – on the attorney to show that there is an alternative, better method of execution. We’ll see if the Court chooses to address this argument in Glossip. The petitioners are questioning an interpretation of Baze that essentially imposed a burden on the defendant to come up with a better way of executing someone. The second matter raised in Glossip is whether a constitutionally-sound method would have to be substantially similar to the three-drug method presented before the Court in Baze. Currently, no state uses the three-drug method anymore because sodium thiopental is no longer available. In Baze, the Court also made it harder, actually, to show the severity of pain and harm to an inmate under the Eighth Amendment.

JL: Would midazolam satisfy the four-factor Furman test from the 1970s: whether the drug is degrading to human dignity; inflicted in an arbitrary fashion; totally rejected throughout society; and patently unnecessary?

DD: This is a great question. I think it’s safe to say that midazolam is a highly problematic drug to use in executions because it has been the source of some botches, and the circumstances of those botches are “degrading to human dignity.” Midazolam is also “inflicted in an arbitrary fashion” because it has been used only by some states, and in some executions, primarily because of its availability. Therefore, one could argue that it is “patently unnecessary” because states would prefer to use other drugs if they could access them – for example, sodium thiopental, pentobarbital, or even propofol. That said, midazolam has not been totally rejected throughout society because it is an approved anti-anxiety sedative that is used for medically-acceptable purposes. On the other hand, midazolam was not created for the purpose of executing human beings and there are many in the medical community and beyond who would “totally reject” its use in that context.

JL: What will the Court look at in the Glossip case this month?

DD: That’s hard to predict. It will probably be a narrow opinion and much of it will focus on Oklahoma’s selection and use of midazolam as the first drug in the state’s three-drug protocol. The second issue that might come up before the Court is also going to be pretty narrow – this question of whether defense attorneys have to come up with alternative methods, and what that means. The Court never actually explained that so-called requirement. Is the burden on the defendant to come up with an alternative method of execution?

JL: Even if the Court finds that midazolam isn’t a viable alternative drug to sodium thiopental, and that there are in fact no other alternative drugs to sodium thiopental, do you believe that it would still be unlikely for the Court to rule that lethal injections are now unconstitutional because there are no alternatives?

DD: I can’t imagine the Court rendering lethal injection generally unconstitutional. The Baze standard is whether the three-drug combination poses a substantial and objectively tolerable risk of serious harm compared to known and available alternatives. That’s a pretty high standard. And we aren’t able to run out and test these drugs on a hundred volunteers and conduct a survey on their level of pain before dying.

Battles of the experts rest on really fragile foundations, with experts coming in and projecting on how these drugs operate. In addition to the substantial risk standard that was used in Baze, in order to constitute an Eighth Amendment violation, a risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” That’s very bizarre language and it would be helpful for the Court to clarify it so that courts would have a greater opportunity to review some of these lethal injection protocols.

JL: In Baze, Chief Justice Roberts emphasized that the fact that one drug may be marginally better is not enough to satisfy the substantial risk requirement. But how different or similar must this alternative drug be to pose a substantial risk?

DD: I think that’s a great question and it would be helpful for the Court to clarify the meaning of “substantial similarity,” the language that the Court used in Baze. Interestingly, “substantial similarity” is not a criminal law or criminal procedure term. I was very surprised to see it when I first read Baze, and I later discovered that it’s an intellectual property term. For example, in the IP context, a question may be “is this drawing ‘substantially similar’ to the other drawing?” There is no precedent in determining what the term means outside of that context.

JL: With state secrecy provisions in place, how do we know which drugs each state actually uses?

DD: For the most part, we really don’t know. Usually, we discover facts through litigation. It was only because the Clayton Lockett execution was so terribly botched, for example, that we found out the details of how that execution was conducted – what drugs they used, how much was injected and who was participating. Journalists have also been very helpful about trying to uncover the manufacturer or the pharmacy involved in providing the drugs. Sometimes, journalists find out this information in indirect ways, for example when someone who’s close to the process reveals that kind of information to them. But it’s been difficult uncovering these secrets. We know that in a number of cases, departments of corrections have traveled across state lines to get a drug from a pharmacy which they then purchase with cash, thereby going to extreme lengths to cover up what they’re doing. And finally, there are some amazing human rights groups – for example, Reprieve in London – that eke out significant details about executions. But the discoveries are hit or miss, bits of pieces of information here and there.

JL: Can oversight and regulation come in the form of federal regulation of pharmacies?

DD: Despite states relying heavily on compounding pharmacies, they’re very lightly regulated. We may be seeing more changes and more federal regulation in the future but it hasn’t fully come into play yet. Even though information about the types and sources of lethal injection drugs is important for the public to know, states have been very successful with secrecy statutes. Georgia, for example, has a very tight secrecy statute, whereby the state can protect the identities of both the manufacturer and the pharmacy. And if states are protecting the manufacturer and the pharmacy, then they are hiding some very important components of the lethal injection process.

JL: What do you think the impact of Glossip will be on legal injection protocols and perhaps the death penalty, if any?

DD: We always want to know what influence a case like Glossip may have. But attempting to answer such a question is really like reading tea leaves. That said, just the mere act of the Court granting cert in Glossip can start to have reverberating effects on other kinds of decisions because it shows that the Court thinks the lethal injection issue is very important and that the Justices may want to change or clarify present practices. For example, both Oklahoma and Florida, which also uses midazolam, have held off all executions until the Court renders a decision in Glossip. Other states, such as Utah, have already adopted a fallback method of execution [the firing squad] in the likely event the state runs out of lethal injection drugs. The influence of a cert grant becomes all the more pronounced because the Court just handed down a decision concerning lethal injection [Baze] only seven years ago. Granting cert indicates that Baze has not been effective. There is also increased press attention and public discourse about the execution process. To sum up, the pending Supreme Court decision in Glossip will bear on one of this country’s most important governmental functions – the taking of a life – and what it says about us and our collective identity. We need to think about not only how we want other countries to perceive us, but also about how we want to perceive ourselves.

Jennifer Li is a Staff Writer for Rights Wire.

Photo credit: California Department of Corrections and Rehabilitation/Creative Commons


Self-fulfilling propaganda: the effects of arming Ukraine

By Chris Beall

Did you know that in November 2013, Ukrainians overthrew their legitimate and democratically elected government in a violent, Western-supported coup? Did you know that later in April, the Kiev military launched a brutal campaign against the nation’s “independence supporters” in Donbass, or that, through a sophisticated Western propaganda campaign, the U.S. has maliciously and wrongfully painted Russia as the conflict’s aggressor?

How about the “very likely” belief that most weapons possessed by the independence supporters are, actually, locally sourced? Or the fact—substantiated through multiple neutral inspections—that no indication of Russian military activity has yet to be detected along the Ukrainian border? That “Canada, Britain, the U.S. and the boys with their toys in NATO headquarters are looking for a fight with Russia,” and that these Western nations are implementing policies in the region based on “imperial hubris instead of science and expertise?”

So goes the discourse, under the Russian propaganda machine. This is what journalism looks like when the Kremlin handles your payroll.

Of course, as a preface, let’s not oversell this. Our own media system is no stranger to questionably selective cherry-picking. It’s rare even in the West to find a truly nuanced treatment of the Ukraine crisis: one which takes seriously Russia’s real geostrategic interests in the region, or, for example, the important role played by Ukrainian gas debts in explaining Russia’s reaction the above-noted coup.

And yet, without myself being on the ground in Donetsk, I’ll go out on a limb here and say that the bulk of the above amounts to utter absurdity. Amnesty International has highlighted the mounting evidence of direct Russian involvement in Ukraine, and a recent report by the Royal United Services Institute, a British security think-tank, confirms the same.

Writing for Foreign Policy, Peter Pomerantsev argues that Vladimir Putin’s greatest political success in recent years has been his construction of a truly modern Russian propaganda apparatus: a selective information machine marked by glitz and innovation beyond the scope of its stale Soviet predecessor. According to Pomerantsev, Putin has created a willingly captive audience for the narratives disseminated out of the Kremlin—claims like Ukraine’s new government being run by neo-Nazis or the borderline-paranoid assumption that the United States and NATO are constantly plotting to weaken and undermine Moscow. This partially explains Putin’s extraordinary 86 percent approval rating as of late, despite the virtual collapse of the ruble and Russia’s increasingly repressive domestic police measures.

But what is perhaps the most remarkable in all of this post-Soviet propaganda regarding the Ukraine crisis is how badly certain elements of our own government in Washington apparently seek to legitimize these exact narratives.

As the less-than-optimistic Minsk II peace treaty between Kiev and Ukraine’s Eastern Provinces limps onward, conversations have already resurfaced in Washington encouraging President Obama to arm the Ukrainian government with lethal aid and military assistance, aimed at countering Putin’s aggressive foreign policy actions. Just on March 4, a bipartisan mix of eleven U.S. Representatives brought a new letter to President Obama, urging the “transfer of lethal, defensive weapons systems to the Ukrainian military.” Meanwhile, Director of National Intelligence James Clapper, U.S. Army General Martin Dempsey and our new Defense Secretary Ashton Carter have each displayed some willingness to adopt such a policy.

Needless to say, there is some logic to arming Kiev. These sorts of arms shipments are an all too familiar form of asymmetrical hard power, employed by nation-states all over the globe. The basic idea is to put Ukraine in a position where it may drastically increase the strategic costs of Russian intervention in the region. Put bluntly, the goal is to kill increasing numbers of Russians fighting alongside Eastern Ukrainian separatists, and thereby erode Putin’s domestic approval as casualties mount. Or, as Jeremy Shapiro of the Brookings Institution summarizes, “The government supposedly fears the ire of Russian mothers whose devotion to the well-being of their soldier-sons can move political mountains even in authoritarian Russia. Rather than face a growing number of aroused and organized Russian mothers, the thinking goes, President Vladimir Putin will avoid escalation in Ukraine.”

However, while this form of containment policy can be implemented cheaply and easily by the United States, this hardly means that it will actually solve anything. As Shapiro wisely recognizes, “Unfortunately, one of the few more powerful forces than mothers in Russian politics is anti-Americanism.” Given President Putin’s current approval ratings and the complex and multifaceted propaganda machine he has built for himself, it would be impossible for the United States to arm Kiev without providing support and credibility to the Kremlin’s U.S.-imperial narrative.

Furthermore, while it’s easy for members of the House to romantically sympathize with the ongoing struggle of the bullied Ukrainian government—as we should—it’s quite another leap entirely to think that sending guns will actually aid in their plight. Paternalistic as it may sound, it is crucial to consider the realpolitik backdrop of this conflict. Nobody doubts that geopolitically, Ukraine is far more important to Russia than to the United States. Likewise, it is clear that short of direct U.S. military intervention and open combat with Russia, nothing is really stopping the Russian military from storming Kiev and devouring the whole country, if that’s what the Kremlin actually wanted.

The risk, then, is turning this into a post-Cold War chicken match, in which the United States is almost certain to blink first, and the result of which will only reinforce the American imperialism framework that Russia has utilized to rationalize and build domestic support for this conflict. Statesmanship starts to get silly as one approaches universal approval ratings. By placing ourselves in a position where the U.S. actually does play a hand in killing Russian servicemen, Putin would have all the fuel he needs to make a real mess of things in the region.

This, ultimately, raises questions regarding the human rights concerns of this policy. By upping Putin’s stakes in Ukraine and escalating this conflict beyond the last year’s six-thousand casualties, the real losers of U.S.-Ukrainian arms shipments will be those exact victims who would benefit the greatest under a diplomatic close to hostilities. This includes future victims of Kharviv-style terrorist attacks, in Kiev and elsewhere, as well as the civilians on both sides of the conflict, currently caught in the crossfires of Donbass. An escalation of hostilities, absent some realistic end goal of peace, will simply drag out this crisis.

There’s a reason that the U.S.’s own allies are warning us not to arm the Ukrainian government. France and Germany, the brokers of the current Minsk II peace treaty, recognize that this conflict only ends diplomatically. The fact that we will rely on these nations, in any attempt to place further economic pressure or Russia, goes without saying. But the U.S.’s relationship with its allies aside, if we truly want to promote rights, democracy and peace in Ukraine, then there seems little choice here other than at least temporarily placing our bets on Minsk II. Shaky as this treaty as started, sending U.S. arms to Kiev can only cripple its efforts, and further delay a diplomatic peace in Ukraine.

Chris Beall is a Staff Writer for Rights Wire.

Photo Credit: People in Need/European Commission/Creative Commons