Lives on the Line: Will Supreme Court Hold U.S. Accountable for the Death Penalty?

Video excerpting questions about the administration of the death penalty in the United States from the United Nations Human Rights Committee, as well as the responses from the United States delegation.

The United Nations Human Rights Committee took an important step last week in holding the United States accountable for its human rights record, and Friday the ball is in the Supreme Court’s court. In a March 27 press conference, the Committee issued its Concluding Observations, following analysis of the United States’ self-report on its human rights record, shadow reports from The Advocates and other civil society organizations, and an interactive dialogue between the Committee and a 32-member government delegation on March 13 and 14 in Geneva, Switzerland.

On Friday, the Supreme Court has a chance to take up one of the Committee’s key issues.

One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva
One of our U.S. civil society briefings with the UN Human Rights Committee in Geneva (I am seated on the right.)

I helped author The Advocates’ shadow reports, and I was in Geneva to participate and observe, representing The Advocates. Our shadow reports, submitted to the Committee in October 2013, held the United States’ feet to the fire on the death penalty, rights of non-citizens, immigration and asylum, and violence against women. The Committee’s Concluding Observations were long and detailed, delving into a wide variety of concerns, including the issues The Advocates and its partners raised.

Two lives were on the line

We were particularly excited when the U.S. State Department announced the delegation, because it included Mississippi Attorney General Jim Hood. This is the first time a U.S. delegation for a treaty-body review has included representatives from state and local governments. They are an important piece of the accountability puzzle because many of our country’s human rights obligations need to be implemented at the state and local level.

Mississippi retains the death penalty, and Attorney General Hood had just asked the Mississippi Supreme Court to schedule two back-to-back executions for March 26 and 27–for Charles Ray Crawford and Michelle Byrom. We knew that two lives were on the line.

Committee highlights key death penalty issues

The Committee’s examination of the United States on March 13-14 and its Concluding Observations mirror some of the issues we raised in our shadow reports. They devote much attention to the death penalty, including the associated issues of exonoree compensation, racial disparities, and sourcing of drugs used for executions.

While welcoming the overall decline in the number of executions and the increasing number of states that have abolished the death penalty, the Committee shares The Advocates’ concerns about its continued use. The Committee is concerned by the high number of people wrongly sentenced to death, despite existing safeguards, and it is concerned about the racial disparities in the death penalty’s imposition—disparities that disproportionately affect African Americans and that are exacerbated by the rule that discrimination has to be proven case-by-case.

As I discuss below, just this week there have been some developments on the issue of wrongful convictions.

Committee urges federal and state governments to ensure fair compensation for people who are wrongfully convicted and sentenced to death

The Committee also notes, as we observed in our shadow report, that 16 states retaining the death penalty do not provide compensation for people who are wrongfully convicted; other states provide insufficient compensation or impose barriers to obtaining it. Consider Glenn Ford. Wrongfully convicted in Louisiana, Ford spent almost 30 years on death row for a crime he didn’t commit. As Committee expert Professor Walter Kaelin noted during the review, he was exonerated and released just days before the Committee’s review. He would have been about 34 years old when he entered death row, and was 64 when he was released. Louisiana’s compensation law allows him to collect only a maximum $330,000 for the three decades he spent on death row for a crime he didn’t commit.

The Committee also notes with concern reports that states administer untested, unregulated drugs to execute prisoners, and that state authorities withhold information about the drugs from those to be executed. There have been some late-breaking developments around the country on these drug-sourcing issues.

Committee hits hard on Mississippi’s sourcing of lethal drugs

Mississippi Attorney General Jim Hood, March 14, 2014, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions.
Mississippi Attorney General Jim Hood, March 14, 2014, Geneva, waits to respond to questions from UN Human Rights Committee experts about the sourcing of lethal injection drugs his state plans to use for two upcoming executions. (Photo by the author.)

 

We were really fortunate that Mississippi Attorney General Hood was part of the U.S. delegation in Geneva. I was there on the ground, so my colleagues at The Advocates and I were able to quickly collect facts about the upcoming executions of Crawford and Byrom that Hood had requested and fed hard-hitting questions about Mississippi’s lethal injection policies directly to the Committee experts.

Mississippi was just one week away from executing Crawford and Byrom with drugs from a compounding pharmacy. As our shadow report explains, compounding pharmacies are not regulated by the U.S. Food and Drug Administration, and Mississippi’s drugs had likely expired. These kinds of drugs carry a high risk of causing excruciating pain; one of the more recent executions to use compounded drugs resulted in the prisoner crying out during his execution, “I feel my whole body burning.”

Drug-sourcing has become a problem for states seeking to execute inmates, because many European drug manufacturers have stopped selling drugs like pentobarbital to the United States, fearing they will be used in executions. States are therefore scrambling to come up with alternative ways to concoct their execution drugs.

It was instructive that an official from a state government was part of the U.S. delegation—a first—because state governments conduct the overwhelming majority of executions. And the Committee experts repeatedly pressed Attorney General Hood on the sources of Mississippi’s lethal drugs.

You can see the questioning in the 17-minute video at the top of this post, which excerpts the relevant questions on the death penalty from the Committee and responses from the U.S. delegation.

Due Process revived: Michelle Byrom granted new trial; Charles Ray Crawford’s appeal to proceed

Soon after the Committee’s examination, Attorney General Hood’s office asserted that he asks for execution dates only “once due process has occurred.” The Mississippi Supreme Court this week twice disagreed with his characterization of due process. The court reversed Michelle Byrom’s conviction and granted her a new trial with a new judge. In its two-page order, the court emphasized that its action was “extraordinary and extremely rare.”

Seemingly oblivious to his own role in nearly executing someone the court determined was entitled to a new trial, and to the extraordinary nature of the court’s decision, Hood responded, “Our citizens can once again take comfort in the fact that we have a legal system that works for all parties involved.” And rather than accepting the court’s decision, a motion from Hood’s office complained that “[e]ach and every claim that Byrom presented to this Court had been addressed on the merits either by this Court or the federal courts on habeas corpus review,” and asked for the court to explain its decision.

On the same day, the Mississippi Supreme Court denied Attorney General Hood’s request to execute Charles Ray Crawford. The court noted that during the sentencing phase of Crawford’s trial, the prosecution introduced as an aggravating factor evidence that he had previously been convicted of rape. The court noted that Crawford’s appeal of that rape conviction was currently pending, so Hood’s request to execute Crawford was premature.

Challenges to sketchy lethal drug sourcing multiply

Last week, before the Mississippi Supreme Court rejected Hood’s requests, attorneys for Byrom and Crawford filed a lawsuit challenging the drugs that the State of Mississippi had purchased for their executions. The state had initially refused to tell Byrom and Crawford where it had obtained pentobarbital, the first drug in Mississippi’s execution procedure.

But some clever detective work by Byrom and Crawford’s legal team uncovered the source–a compounding pharmacy called Brister Brothers in Grenada, Mississippi. Judging from Brister Brother’s facebook page, the outfit specializes in “herbal dietary supplements,” including a “specially formulated men’s tonic” called “Man Up.”

Brister Brothers co-owner Ward Brister says the company is a “third-party supplier” and did not compound the pentobarbital. According to an NBC report, “Byrom’s legal team presumes Brister purchased the raw ingredients for the drug and that the state intends to have it compounded for the executions.”

The lawsuit alleges that the State of Mississippi will secretly compound the drugs at an unknown time and place, by people with unknown training and credentials. The danger, a lawyer for Byrom and Crawford explains, is that “[i]f the state’s pentobarbital is contaminated or sub-potent, prisoners will be conscious when the second and third drugs are administered, and they will experience a torturous death by suffocation and cardiac arrest.”

U.S. Supreme Court could act soon

Front doors of the U.S. Supreme Court
Front doors of the U.S. Supreme Court (Photo by the author.)

Also last week, Missouri executed a man using secretly sourced pentobarbital. His attorneys sought a stay from the U.S. Supreme Court, arguing that Missouri’s “secretive process prohibited the public from knowing exactly how the drug was made and whether it could cause pain and suffering for the inmate.”

The Supreme Court denied the motion for a stay on a 4-5 vote. A similar challenge garnered three votes in February. And a federal judge in Texas just yesterday issued two stays of execution over challenges to that state’s drug secrecy laws. But just hours later, an appeals court vacated her order, allowing the executions to proceed.

Tomorrow, the U.S. Supreme Court will consider for the second week in a row whether to review a case raising similar drug-sourcing issues in Louisiana. And it will also consider another Missouri execution case raising a similar challenge. Five Justices must vote to issue a stay of execution, but four votes is all it takes to grant certiorari, so last week’s close vote on the Missouri execution might be a signal of hope for the Louisiana case and others like it.

(Here’s a tidbit for readers interested in the obscure, perplexing Supreme Court “arithmetic of death.” In pending execution cases in which four Justices vote to grant review, there apparently had been an informal practice of a fifth Justice granting a “courtesy” vote for stay, so that the execution wouldn’t render the case “moot.” Supreme Court watchers say this practice ended by 1990. As a result, an inmate may be executed despite the Court’s decision to hear the case, which seems to be what happened last week.)

Committee issues strong recommendations on lethal drug sourcing

In its Concluding Observations released last week, the UN Human Rights Committee urges the United States to

“ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution.”

If the Supreme Court grants cert. in the Louisiana case, it will be the first body of the U.S. government to take action consistent with the UN Human Rights Committee’s recommendations issued last week, upholding our country’s human rights treaty obligations. It would be a great start to the long process of working on implementation of the Committee’s recommendations.

Committee issues further recommendations on the death penalty

The Committee also recommends that the United States consider establishing a moratorium on the death penalty at the federal level, and, on the 25th anniversary of the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty, consider acceding to the Protocol.

In summary, the Committee recommends that in addition to establishing a moratorium, acceding to the Protocol, and ensuring that legal drugs come from transparent, regulated sources, the United States:

1. take measures to effectively ensure that the death penalty is not imposed as a result of racial bias;

2. strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage;

3. ensure that retentionist states provide adequate compensation for the wrongfully convicted; and

4. engage with retentionist states with a view to achieving a nationwide moratorium.

As litigation challenging the death penalty around the country continues, The Advocates for Human Rights will work with civil society organizations and state and federal governments to press the Committee’s recommendations and work on implementation. We will continue to raise these and other issues during upcoming United Nations reviews, such as those scheduled by the UN Committee on the Elimination of Racial Discrimination in August, the UN Committee Against Torture in November, and the UN Human Rights Council’s Universal Periodic Review of the United States next January.

This post is one in a series of posts on the UN Human Rights Committee’s review of the United States.

More posts in this series:

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights.

Ablog-iceabuse-500x280my Bergquist, staff attorney with The Advocates for Human Rights, is in Geneva this week for the United Nations Human Rights Committee’s review of the United States’ human rights record.

She is part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States.

The following post, which originally appeared on the ACLU Blog of Rights, is just one of the blog entries that network members plan to write about the U.S. review.

By Vicki B. Gaubeca, ACLU of New Mexico, at 12:15pm

Sixteen-year old Jose Antonio Elena Rodriguez was walking near the U.S.-Mexico border in Nogales, Sonora, Mexico to meet his brother for a late-night snack when he was fatally shot by U.S. Border Patrol agents. An autopsy later showed the body of the teenager had been riddled with 10 bullets that had entered his back and head. Mexican officials also said it seemed there were two agents who shot at least 14 times. More than a year later, the U.S. government has yet to issue a public explanation of what happened, or to release stationary video footage, except to allege that he was part of a group throwing rocks at Border Patrol agents who were up on a hill, behind the 60-foot tall border fence.

This week, the ACLU of New Mexico Regional Center for Border Rights is joining an ACLU delegation and participating as a civil society member in a review of the U.S. record on human rights under the International Covenant on Civil and Political Rights, in Geneva, Switzerland.

A chief concern presented to the U.N. Human Rights Committee has been the rash of lethal use-of-force incidents at the border, including the death of Elena Rodriguez. Since January 2010, at least 28 civilians have died following an encounter with U.S. Customs and Border Protection (CBP) personnel; 27 = died as the result of use of force. These deaths include numerous cases of individuals being shot in the back, across international borders, and in response to alleged rock throwing. One-third of the deaths are of U.S. citizens and one-third of minors, including three boys aged 15, 16 and 17, who were fatally shot while standing on the Mexican side of the border.

CBP’s fundamental lack of oversight, accountability and transparency has created a culture of impunity for agents who violate agency policy or their domestic and international legal obligations. In addition, Border Patrol rejected some core changes to its use-of-force policies recommended by national law-enforcement experts at the Police Executive Research Forum (PERF), including how to respond to rock and vehicular assaults, and has refused to release those recommendations publicly.

In addition to providing testimony at informal and formal briefings, we hand-delivered the Human Rights Committee a letter signed by more than 75 border-wide and national organizations and individuals that demanded, among other key items, that CBP’s use-of-force policy and practice fall in line with the highest professional law enforcement standards and comply with international human rights standards on law enforcement conduct, with particular emphasis on improving accountability and increasing transparency with the general public and directly impacted families and individuals.

It is our hope that international pressures will result in closure for the family of Elena Rodriguez and that improved use-of-force policies and training will prevent further unnecessary deaths.

 

U.S. Human Rights Record Undergoes International Scrutiny

Amy Bergquist, staff attorney with The Advocates for Human Rights, is in Geneva this week for the United Nations Human Rights Committee’s review of the United States’ human rights record. She is part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States.

After more than a year of preparation over the phone, email, and even in webinars, Bergquist and her delegation colleagues got together Sunday to finally meet face to face. “Wow what a crowd!” Bergquist said. “More than 60 of us crammed into a hotel conference room (and the adjoining hallway) for a 3-hour meeting to finalize our preparations. The room was full of energy and excitement!”

Group members spent the evening polishing 2-minute working group statements, which were delivered in a formal briefing to the Human Rights Committee on Monday. And they plotted out their additional informal briefings with the committee and side events that target a broader audience in Geneva. They have an action plan for blogging, live-tweeting, and doing other social media outreach, too.

The following post, which originally appeared on the ACLU Blog of Rights, is just one of the blog post series that network members plan to write about the U.S. review.

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U.S. Human Rights Record Undergoes International Scrutiny

By Jamil Dakwar, Director, ACLU Human Rights Program
(This post and accompanying image originally appeared on the ACLU Blog of Rights on 03/09/14)

This week, the United Nations Human Rights Committee will review U.S. compliance with its obligations under the International Covenant on Civil and Political Rights, ratified by the U.S. in 1992. The review will cast light on a dark underbelly of American exceptionalism — our refusal to acknowledge that human rights treaties have effect overseas. Unlike most of the world (the only other exception being Israel), the United States continues to claim that human rights treaties don’t apply to U.S. activities overseas.

The review is a rare spotlight on human rights issues inside the United States, one of the few occasions where our government is forced to speak the language of human rights – rather than its usual constitutional and civil rights rhetoric – and explain its own violations. It is also attracting worldwide attention—so much so that the committee had to reserve a bigger hall to accommodate the sizable U.S. government delegation and more than 70 human rights advocates and observers who will be in attendance at the six-hour session. The entire U.S. ICCPR review will be broadcast live on UN TV and take place on March 13 and 14.

The review will shine an international spotlight on significant human rights issues in the United States: the rights of indigenous peoples, the death penalty, solitary confinement, voting rights, migrant and women’s rights, NSA surveillance and targeted killings.

The ICCPR protects basic human rights, such as freedom from torture and abuse, freedom from discrimination, the right to life and effective remedy, the right to privacy and freedom of expression, and many more. Since ratifying the treaty in 1992, the U.S. has been bound to uphold these fundamental protections and must undergo periodic reviews. The last time the United States appeared before this committee was in July 2006, when the Bush administration denied participation in numerous acts of torture while operating a web of secret CIA detentions abroad.

The ACLU submitted a shadow report to the committee highlighting examples of accountability gaps between U.S. human rights obligations and current law, policy, and practice. Although the U.S. human rights record has shown marked improvement since its last review by the committee in 2006, most notably in the areas of LGBT rights and enforcement of civil rights by the Department of Justice, U.S. laws and policies remain out of step with international human rights law in many areas. In addition, the ACLU provided an update to the issues covered in our September submission to the committee, which addresses serious rights violations that have emerged in recent months. The report covers:

Anti-Immigrant Measures at the State and Federal Levels

U.S.-Mexico Border killings and Militarization of the Border

Solitary Confinement

The Death Penalty

Accountability for Torture and Abuse During the Bush Administration

Targeted Killings

NSA Surveillance Programs

More than ever, the U.S. is facing an uphill battle to prove its bona fides on human rights issues. The United States is not only seen as a hypocrite, resisting demands to practice at home what it preaches abroad, it is now increasingly seen as a violator of human rights that is setting a dangerous precedent for other governments to justify and legitimize their own rights’ violations.

While addressing United States’ breaches of privacy rights last January, President Obama said:

And I also know that in this time of change, the United States of America will have to lead. It may seem sometimes that America is being held to a different standard. And I’ll admit the readiness of some to assume the worst motives by our government can be frustrating. No one expects China to have an open debate about their surveillance programs, or Russia to take privacy concerns of citizens in other places into account. But let’s remember: We are held to a different standard precisely because we have been at the forefront of defending personal privacy and human dignity.

The ICCPR review process presents the administration with an opportunity to put President Obama’s words into action, not only in the context of privacy rights, but all other rights guaranteed by the ICCPR. This review will be the last in his term as president and will, in part, determine his human rights legacy. We look forward to briefing the committee members and observing the U.S. government review later this week, and hope that the concerns and recommendations raised by the ACLU and other groups will be meaningfully addressed by the U.S. government. The world will be watching.


Watch for blog posts about these subjects:

  • Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record
  • Human rights and mental health in the U.S.
  • Anti-immigrant measures, U.S.-Mexico border militarization, solitary confinement, death penalty, torture and abuse during the Bush administration, targeted killings, NSA surveillance program
  • Human rights defenders
  • Voting rights, Stand Your Ground laws
  • Human Rights Committee review of the U.S. (March 13-14)
  • Wrap up and overview of the week

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record

Live from Geneva! It’s Crunch Time for the UN’s Examination of the U.S. Human Rights Record

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The Advocates for Human Rights has a booth at the Minnesota State Fair every year. We have a wheel that fairgoers spin to take a shot at answering a question on a human rights topic. Last year, one question was a real stumper: “When will the United Nations next review the human rights record of the United States?” “Never” was the common response. The correct answer? Now. This week, a 32-person delegation of U.S. officials will appear before the UN’s Human Rights Committee in Geneva, Switzerland, to discuss human rights here at home.

I’m in Geneva this week as part of a delegation coordinated by the U.S. Human Rights Network, a network of organizations and individuals working to build and strengthen a people-centered human rights movement in the United States. After more than a year of preparation over the phone, email, and even in webinars, we all got together Sunday to finally meet face to face. And wow what a crowd! More than 60 of us crammed into a hotel conference room (and the adjoining hallway) for a 3-hour meeting to finalize our preparations. The room was full of energy and excitement!

US civil society groups and tribal nation leaders preparing Sunday evening for the Human Rights Committee's review of the United States
US civil society groups and tribal nation leaders preparing Sunday evening for the Human Rights Committee’s review of the United States (Photo credit: Jamil Dakwar, ACLU)

It’s crunch time for our network. We spent the evening polishing 2-minute working group statements, which we will deliver in a formal briefing to the Human Rights Committee Monday around noon. And we plotted out our additional informal briefings with the committee and side events targeting a broader audience here in Geneva. We have an action plan for blogging, live-tweeting, and doing other social media outreach, too. This post is just one of the first in a series that network members will be posting this week.

UN badge 002
My UN badge

With the help of some teachers and their students, I’ll field some questions students have about how the international human rights system works. Here are the questions they’ve sent me, and my answers.

Switzerland? Isn’t the UN in New York?

The United Nations’ headquarters is in New York City. That’s where the Security Council and General Assembly meet. But the UN has three regional offices: Vienna, Austria; Geneva, Switzerland; and Nairobi, Kenya. The Geneva office is the largest of the three, and it hosts most of the UN’s human rights work.

Does the United States have to do what the UN says?

Kind of. The UN’s human rights bodies don’t have a police force to send to the United States to enforce human rights laws. Instead, these UN bodies ask our government questions and then publish “Concluding Observations.” It’s a politely worded report that describes “Positive aspects” and then presents “Principal subjects of concern and recommendations.” For example, one of these bodies in 2006 recommended that the United States “ensure the right of residents of the District of Columbia to take part in the conduct of public affairs, directly or through freely chosen representatives, in particular with regard to the House of Representatives.”

Why do these UN bodies get to tell the United States what to do?

Because the United States agreed to let them! Most international human rights law is based on treaties, which are kind of like contracts. If a government signs and ratifies a treaty, it agrees to follow the treaty. It’s just like if you sign a lease, you agree to pay your rent on time and follow the other terms of your lease. And human rights treaties typically say that any country that ratifies the treaty has to report to the UN from time to time to show that the country is following the treaty. The UN calls a country that has ratified a treaty a “State party” to the treaty.

What exactly are these “UN bodies”?

There is a committee for each human rights treaty . For example, the UN’s Committee Against Torture oversees the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UN’s Human Rights Committee is responsible for the International Covenant on Civil and Political Rights. Each committee is made up of independent experts from around the world.

How does it all work?

Every 4-5 years, each State party has to file a written report with the relevant committee. The report is supposed to show how the State party is following the treaty. It’s kind of like a “self-evaluation.” As you might expect, these self-evaluations sometimes ignore or gloss over human rights problems. So the committee identifies some issues and questions it is concerned about, and the State party then files written responses to those issues and questions. Then, a delegation from the State party’s government travels to Geneva to go head-to-head with the committee. The committee experts ask questions for six hours, or even longer. And then a few weeks later, the committee issues “Concluding Observations.” The State party is then supposed to implement the committee’s recommendations, and report back again in 4-5 years on how things are going.

Do State parties actually do what the Committee says?

Sometimes. The committees really have to rely on the power of persuasion. In some cases, the State party just says it can’t do what the committee recommends. For example, even if the U.S. Federal Government wanted to follow that 2006 recommendation and give residents of the District of Columbia a voting member of the House of Representatives, it’s not clear that it could do so under Article I, Section 2 of the Constitution. In other cases, a State party may disagree with the Committee’s interpretation of the treaty’s obligations–just like you might disagree with your landlord about some language in your lease. But in many cases, the State party makes a genuine effort to implement the committee’s recommendations.

Can regular people participate, or is it just between the government and the UN?

Efia Nwangaza of the Malcolm X Center for Self Determination, at the Sunday planning meeting
Efia Nwangaza of the Malcolm X Center for Self Determination, at the Sunday planning meeting

There are many ways that ordinary people can get involved in human rights at the UN. In fact, “civil society” plays a critical role. If a State party files a sugar-coated report, civil society groups can flag important issues for the committee. Civil society groups can also write their own independent reports to share their own views and experiences about the human rights situation on the ground. And civil society groups meet with committee members before they meet with the government delegation in Geneva. The Advocates for Human Rights has “special consultative status” with the United Nations, which means that staff members like me can get UN grounds passes to attend sessions in person.

Speaking of Geneva, what’s going on there this week?

Palais Wilson
Palais Wilson

This is the time human rights nerds like me have been waiting for!

  • First up, on Monday civil society organizations and leaders of tribal governments have a “formal briefing” at the Palais Wilson with all of the members of the Human Rights Committee. We’ll talk with them about our concerns, they’ll share what they’re most interested in and any questions they have. The purpose of this meeting is to make sure the Committee experts are ready to grill the U.S. Government delegation with six hours of tough questions later this week.
  • Next, on Tuesday morning we’ll have a longer informal briefing with the committee where tribal leaders can have more opportunity to dialogue with the Committee. We’ll also give the Committee answers to any questions they raised on Monday, and some people who have been personally affected by human rights violations will be there to testify.
  • On Wednesday afternoon, we’re all invited to the U.S. Embassy to the United Nations in Geneva for a “civil society consultation.”

    Palais des Nations
    Palais des Nations
  • On Thursday, the action moves up the road to the Palais des Nations. The Committee has a quick “informal briefing” with civil society groups, and then from 3-6 pm, it starts asking the U.S. Government Delegation questions. You can watch a live webcast of the questioning, or check out the video archives later.
  • On Friday, from 10-1, the questioning continues. If the Committee doesn’t have time to cover everything it wants to discuss, it may take a break and then ask the United States to come back for a few more hours after lunch.
  • Then we all go home and wait for about two weeks for the Committee to publish its Concluding Observations.

Why are you there?

The Advocates is part of civil society, and we submitted three independent reports to the Human Rights Committee. The first is about the detention of non-citizens, the second is about the death penalty, and the third is about domestic violence and “Stand Your Ground” laws. So I’m in Geneva to meet with the Committee and raise awareness about the issues we covered in our reports. I’ll answer any questions Committee members have, and I’ll encourage the U.S. Government delegation to accept and implement any recommendations the Committee makes that relate to our reports.

Could you recommend reading materials, videos, or other learning tools that will expose my students to human rights issues all over the world?

Sure! First, be sure to take a look at all of The Advocates’ great human rights education resources for teachers and students. There are some good videos on the UN Human Rights Youtube channel, including, relevant to my time in Geneva, What is a Human Rights Treaty Body? and What is a Human Right? The UN also maintains information on a long list of human rights issues. The UN also offers live and archived webcasts of its proceedings, including sessions of treaty bodies like the Human Rights Committee. The UN also publishes training and education materials.

How can we learn more?

I’ll be in Geneva all week, and members of the U.S. Human Rights network will be livetweeting and updating with new blog posts as soon as we can. If you have questions or want us to talk about certain things, please send me an email at abergquist@advrights.org. We hope to hear from you!

This post is one of the first in a series of posts by U.S. civil society groups in Geneva this week for the UN Human Rights Committee’s review of the United States.

More posts in this series:

Lives on the Line: Will Supreme Court Hold U.S. Accountable for Death Penalty? (The Advocates Post)

Access to Justice and the Bringing Human Rights Back Home Challenge (Human Rights At Home Blog)

Decades Later, No Justice for Kent State Killings (ACLU)

U.S. Human Rights Record Undergoes International Scrutiny (ACLU)

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights

Moving Forward: Four Steps and Six Strategies for Promoting LGBTI Rights Around the World

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While viewers across the United States watched the Olympic closing ceremonies, Jason Collins became the first publicly gay male athlete to compete in a major North American professional sports league as he took to the basketball court in Los Angeles.

NBC’s coverage of the Olympic Games over the past two weeks dedicated less than two hours to LGBTI issues. It’s a critical moment in the fight for LGBTI rights in Russia.

But first–just for a moment–let’s talk hardware. Openly bisexual Dutch speedskater Ireen Wüst was the most decorated competitor at the Sochi Games, with two gold and three silver medals. She’s only the eighth athlete ever to win five medals at a Winter Olympics, and with plans to compete in 2018, she’s only two medals away from the career record for female competitors at the Winter Olympics. When Austrian ski jumper Daniela Iraschko-Stolz took silver, she commented, “When you are in the media, many people maybe knew my name and also knew that I am married with a woman. And now the Olympic Games are here in Russia and . . . . I hope for the future that the people now can see the sport as a chance to change something.”

Athletes spend years training, practicing, and building strength and skills before they are ready for the Olympics. In a sense, human rights work is much the same. We have to take the long view on achieving success. LGBTI activists around the world may see the recent successes in the United States and think they happened overnight. But the first U.S. lawsuit for marriage equality was filed here in Minnesota in 1970–it took 43 years for our state to recognize the right of same-sex couples to marry.

What can we do to help with Russia, and other countries that do not respect LGBTI rights? It can seem overwhelming, but there are a variety of strategies that human rights advocates can use to push for reform. And each strategy can be a piece of an overall solution. But human rights victories–like Olympic athletes–don’t happen overnight.

In the run-up to the Olympics, activists suggested a variety of strategies to promote LGBTI rights in Russia: showing solidarity with LGBTI Russians, holding perpetrators of anti-LGBTI violence accountable, challenging laws in court, engaging in advocacy at the United Nations, and pressing businesses to condemn the propaganda law and send a message of tolerance.

Which strategies are best? When The Advocates for Human Rights works on human rights issues, we use a set of steps to identify effective strategies. Let’s take a look at four of those steps, and see how six strategies measure up. (And even though this post is specific to LGBTI rights in Russia, this same analysis applies to LGBTI rights in other parts of the world, or to other human rights issues.)

Step 1: Understand the context

We need to look closely at the context in which the human rights violations occur. For example, much of the anti-gay sentiment in Russia is fueled by nationalism. So direct diplomatic advocacy from other countries may backfire. For example, journalist and free expression advocate Cathal Sheerin “interviewed a number of Russian journalists, filmmakers, writers and activists,” some of whom “suggested that protests made by cultural groups, students, artists and NGOs have much more influence than demands made by governments. This is partly because Putin switches into defensive ‘Cold War Mode’ when foreign governments criticise him. Pleas made by non-governmental groups, however, are much harder to dismiss as self-interested, political machinations. And for that reason, they have more chance of influencing the hearts and minds of Russian citizens.”

But even direct collaboration with international organizations may backfire. In October, Russian authorities bugged a private strategy meeting between Russian LGBTI activists and several international human rights organizations. The state-run television channel broadcast audio from the meeting, presenting it as an expose of western “homosexualists who attempt to infiltrate our country.”

In addition, LGBTI people in Russia are vulnerable, facing discrimination, bullying, threats, and physical attacks. The first principle of human rights work is “Do no harm.” We need to make sure that our actions don’t put LGBTI Russians in more danger.

In Russia, there are additional legal considerations. Russia’s Foreign Agents law requires groups that receive foreign funding and engage in “political activities” to register as “foreign agents.” Another law bans funding from the United States that supports “political” activity by non-governmental organizations, and bans NGOs that engage in work that is “directed against Russia’s interests.” The Russian Government also recently expanded its definition of treason to potentially criminalize participation in international human rights advocacy. So groups in Russia might not be able to collaborate directly with their counterparts in other countries. The Russian groups who were victims of bugging last year fear they may now be sanctioned under the Foreign Agents law.

Step 2: Work in partnership

The Advocates for Human Rights works to promote human rights in the United States and around the world. When we do human rights work concerning other countries, we work in partnership with either local, in-country groups or with diaspora groups that want to influence human rights in their country of origin or ancestry. These partnerships are critical, because our partners understand the local context–they have a good sense of what types of strategies would be effective, and which ones might backfire. They also have a clearer understanding of the legal context in which they operate and the types of actions that may result in fines or other penalties for violating Russian law.

Step 3: Identify goals and strategies

It is important to set goals before deciding on a human rights strategy. An over-arching human rights goal might be that all LGBTI people in Russia are safe and live with dignity. We look at a variety of strategies to achieve this goal, such as:

  • Showing sympathy and support for LGBTI Russians
  • Getting the “gay propaganda” law repealed
  • Stopping violence and persecution based on actual and perceived sexual orientation and gender identity
  • Holding perpetrators of violence and persecution accountable

Our Discover Human Rights training addresses in greater detail how to identify goals and the steps to achieve them.

Tactical map Photo credit: aniquenyc, flickr
A tactical mapping exercise
Photo credit: aniquenyc, flickr

Step 4: Use tactical mapping

In looking at these goals and strategies, we need to figure out who we need to influence, such as:

  • Concerned individuals and groups around the world
  • Russian lawmakers
  • Russian civil society
  • Russian courts
  • Russian law enforcement officials and prosecutors
  • Companies that do business in Russia

How do proposed strategies measure up?

August 2013 protest in Berlin calling for boycott of the Sochi Olympics Photo Credit Adam Groffman, flickr
August 2013 protest in Berlin calling for boycott of the Sochi Olympics
Photo Credit: Adam Groffman, flickr

When Russia passed its propaganda law last summer, some of the first responses were calls for boycotts. LGBTI activists in Russia responded with requests not to boycott the Olympic Games. In the context of the Olympics, boycotts can do more harm than good, because they cause the most harm to athletes–people who are not in a position to change a country’s laws. An effort to boycott Russian vodka had some limited success. It helped raise awareness about the propaganda law, and prompted one vodka maker to speak out against the law and donate to the cause.

Although boycotts can sometimes be powerful tools to promote human rights, but it’s important to think broadly and listen to the in-country advocates to evaluate which strategies will be most effective. Last month, The Advocates published Paving Pathways for Justice and Accountability: Human Rights Tools for Diaspora Communities. It’s a 400+ page toolkit of resources for human rights advocacy. We developed these resources in response to requests from diaspora groups, but they are equally valuable for other individuals and groups who want to be more effective advocates for human rights. Paving Pathways explores many strategies that have been proposed for promoting LGBTI rights in Russia:

Image courtesy of Wikimedia Commons
Image courtesy Wikimedia Commons

1. Showing solidarity with LGBTI Russians: When asked what people around the world can do to support LGBTI people in Russia, Дети-404 founder Elena Klimova suggested, “we are always very pleased when we receive letters and photos from abroad . . . . Then we understand that we are not alone, and that gives us strength and hope for a better future.” You can reach the Deti-404 team at 404deti@gmail.com. You can like Дети-404 on Facebook, or set up a VK.com account and join the Дети-404 community there. If you don’t speak Russian, you can read some translated Deti-404 submissions here.

Image courtesy Wikimedia Commons
Image courtesy Wikimedia Commons

Openly gay Olympian Australian snowboarder Belle Brockhoff has denounced Russia’s propaganda law, and openly gay Dutch snowboarder Cheryl Maas displayed a rainbow and unicorn glove to the cameras after one of her runs in Sochi. Several athletes are part of the Principle 6 Movement, using the non-discrimination language of the Olympic Charter to show solidarity with LGBTI Russians without violating the Olympic ban on political speech.

Brian Boitano, one of the openly gay Olympians who was part of the U.S. delegation to Sochi, reported that during a press conference, “[m]ost of the questions that were posed to me were about Obama’s message” in including him in the delegation. “Everywhere we went, people knew our message, and they were congratulating us,” he continued. “It was amazing: everyone in Russia knew exactly why we were there.”

Social media can be a great advocacy tool. On Twitter, you can follow Russian LGBTI groups and individuals like RUSA LGBT, the Russian LGBT Network, Gay Russia, Rainbow Association, Straights for LGBT Equality, Elena Kostyuchenko, and Nikolai Alexeyev. And you can monitor developments on Queerussia and Gay Russia and check out Mads Nissen’s striking photo essay of LGBTI activists in Russia.

Kirill Maryin is a 17-year-old from Novosibirsk who tweets about his personal experiences as well as the Russian propaganda law and how it is being enforced:

“I wanted people who live abroad to hear the true story of life for LGBT teenagers from Russia,” Maryin told the Guardian. “I am an ordinary LGBT teenager, and in this country, that is incredibly dangerous.” You can follow Maryin on Twitter and send him a message of support.

The It Gets Better Project has a campaign to show support for LGBTI youth in Russia; people can submit their own videos and add their names to a message of support.

It’s important to understand how critical our expressions of solidarity and support can be. Over the last two weeks, eight LGBTI Ugandans have attempted suicide over that country’s harsh new law. Russia has the highest teen suicide rate in Europe.

“I don’t like being an activist,” journalist Elena Kostyuchenko told a reporter. But “[i]t’s a long time until there will be some kind of magical Russian Harvey Milk who will defend my rights. I have been waiting, but he is not coming.” If you know a human rights defender or LGBTI person in Russia like Kostyuchenko who may be at risk, show them support on social media and give them a link to our Resources for Human Rights Defenders.

2. Shutting down vigilante groups: My fourth post in this series described how vigilante groups use social media to hunt down LGBTI youth and publicize their attacks. Sometimes their activities violate the terms of service of these social media providers. After inquiries from the Guardian ealier this month, В Kонтакте (VK.com) pledged to remove violent content and delete the accounts of offenders, but five days later only one video had been removed. If you use Instagram, Youtube, Facebook, or VK, report these violations and help get the groups shut down. Instagram recently pulled the accounts of two Occupy Pedophilia leaders. One activist is asking for help to use social media to track down the identity of people involved in anti-gay violence in order to prompt Russian authorities to bring charges.

3. Accountability: Russian authorities have been slow to take on the vigilante groups that are largely responsible for violence against LGBTI Russians. But last week, a Russian court sentenced three Russian men for killing and robbing several gay men in Moscow in 2012. And authorities have brought charges against at least two participants in the Occupy Pedophilia vigilante group. Advocates can work with their Russian counterparts to determine the most effective ways to encourage further prosecutions for these crimes.

There are also opportunities to hold the U.S.-based architects of Russia’s anti-LGBTI laws accountable. As I noted last week, Scott Lively is being sued under the U.S. Alien Tort Statute for his work on anti-gay legislation in Uganda. The Center for Constitutional Rights is considering bringing a similar suit against Lively for his work in Russia.

4. Litigation: Domestic courts and regional human rights mechanisms can be effective avenues for advocacy. Russian LGBTI activists Nikolai Alexeyev and Yaroslav Yevtushenko are setting up a legal challenge to the propaganda law. They have been fined 4,000 rubles each for picketing a children’s library in Arkhangelsk while holding up banners saying, “Gay propaganda doesn’t exist. People don’t become gay, people are born gay.” “The verdicts open the way for appealing the ban on gay propaganda at Russia’s Constitutional court and later at the European Court of Human Rights,” Alexeyev told GayRussia. Russia’s courts have shown some signs of independence, throwing out charges against Deti-404‘s Klimova and rejecting some prosecutions for violations of the Foreign Agents law. But the Constitutional Court has upheld convictions of regional anti-propaganda laws, and the Russian Supreme Court has rejected similar appeals.

ch10 european courtEven though the prospects for success in Russia’s courts aren’t promising, activists first need to exhaust their remedies in their own domestic legal system before taking their case to the European Court of Human Rights. Paul Johnson at the University of York has done a thorough analysis of the prospects for a challenge to the propaganda law in the European Court of Human rights. The European Court is already considering a case challenging a local propaganda law, and the court has expressed interest in adding consideration of the newer federal law to that case.

UN flags_HighRes-25. Advocacy at the United Nations: Most of the UN human rights treaty bodies have “communications mechanisms” that individuals can use to bring a complaint alleging that their government has violated the treaty text. In 2010, Irina Fedotovna submitted a communication to the UN Human Rights Committee to challenge a local law banning “gay propaganda” in Ryazan, Russia. She had been charged under that law after displaying signs saying “Homosexuality is normal” and “I am proud of my homosexuality” near a secondary school. In 2012, the Human Rights Committee concluded that her conviction amounted to a violation of her rights under the International Covenant on Civil and Political Rights, and found that Fedotovna was entitled to compensation. Yet despite this ruling, in 2013 Russia adopted its federal propaganda law.

UN advocacy may pose risks to Russian organizations; Russian authorities have cited advocacy with the UN Committee Against Torture as evidence that the St. Petersburg anti-discrimination group Memorial is a “foreign agent.” Moreover, Russia routinely ignores the resolutions and findings of UN human rights bodies, so it’s important to weigh the potential positive effects of successful UN advocacy with potential risks and costs at the national level.

6. Corporate influence: Some Olympic sponsors have faced sharp criticism in social media for not condemning Russia’s propaganda law. Activists have generated visibility for those issues by spinning social media promotions by Olympic sponsors Coca-Cola and McDonald’s to raise visibility about human rights. Activists transformed McDonald’s #CheersToSochi campaign into a social media tool to raise awareness about the propaganda law. And these campaigns had impressive spillover effects, prompting other major companies like AT&T and Chobani to show their support for LGBTI rights. Chevrolet and Coca-Cola also committed to broadcast television advertisements during the Olympics with diverse casts, including gay families. Advertising can help shape public opinion in other countries, too. Advocacy targeting businesses is also a particularly important tool when business practices themselves are directly responsible for human rights violations.

The games are over, the fight goes on

Russia will host the FIFA World Cup in 2018. Over the next four years, we have a lot of work to do to ensure that the next major international sporting event in Russia takes place in a climate of safety and dignity for competitors, fans, and for all LGBTI Russians.

What will you do to promote LGBTI rights? Which strategies do you think would be most effective? How would you tailor strategies to combat LGBTI persecution in other parts of the world, like Cameroon, India, Jamaica, Nigeria, and Uganda? Are there in-country or diaspora partners you can work with? Will you spread the word and help build a movement to promote LGBTI rights around the world?

This post is the last in a five-part series in The Advocates Post about LGBTI rights in Russia and the Sochi Olympics. Part 1 took a look at why the Sochi Olympics in 2014 are important to LGBTI rights in Russia and the rest of the world.  Part 2  examined the provisions of Russia’s propaganda law, its effect on children, and its origins. Part 3 explored how Russian authorities are enforcing the propaganda law. Part 4 examined the societal effects of discriminatory laws such as those in Russia and other countries.

More posts in this series:

Out in the Cold: LGBT Visibility at Olympics Key to Ending Homophobia

Russia’s “Gay Propaganda” Law: How U.S. Extremists are Fueling the Fight Against LGBTI Rights

Locking the Iron Closet: Russia’s Propaganda Law Isolates Vulnerable LGBTI Youth

The Wild East: Vigilante Violence against LGBTI Russians

By: Amy Bergquist, staff attorney with the International Justice Program at The Advocates for Human Rights

Top photo courtesy Ludovic Bertron, Wikimedia Commons (modified).