death penalty news June 2, 2004
CANADA: Harper's crime package Conservative Leader Stephen Harper is proposing to erase the liberal tinge from Canada's justice system. A three-strikes-and-you're-out law, greater recourse to jail and less to house arrest, and an end to statutory release are tough without being extreme. Wisely, he has steered clear of capital punishment. The state-sanctioned killing of convicted killers is pointless and destructive; another debate would achieve nothing. Instead, he proposes to abolish the faint hope clause, which lets convicted killers apply to a jury for permission to seek parole after 15 years, rather than the 25 they would otherwise have to wait when given a life sentence for killing. That is just one part of Mr. Harper's attempt to take on a justice system that conservatives have portrayed as more concerned about criminals than victims since the 1982 Charter of Rights and Freedoms took effect. His simplest proposals are to scrap the federal gun registry and use the savings to hire more RCMP officers and expand the federal sex-offender registry recently created by the Liberal government. The gun registry has been a colossal failure. Its net cost was initially projected to be $2-million; by 2005, it is expected to have cost $1-billion. The savings would be spent in part to try to stop the flow of smuggled guns over the U.S. border. Good. As for the sex-offender registry, Mr. Harper would need provincial consent for his changes. The toughest plank may be his three-strikes proposal. Anyone who committed three violent crimes or three sexual offences would automatically be declared a dangerous offender. In practice, this would mean at least seven years in jail before the first parole review was held (as the current law provides for); another review would be held every two years after that. This is not the Draconian law of California, where a third felony -- say, stealing a few videotapes -- can land someone in jail for life. But Canada has a flexible set of responses to repeat criminals: both a dangerous-offender law and a long-term offender designation, which allows for intensive monitoring for 10 years after a jail term ends. The deterrent value of Mr. Harper's more rigid response is unclear. In abolishing statutory release (near-automatic freedom after two-thirds of a jail sentence), Mr. Harper would add an undetermined cost to the system, largely for symbolic value. He would also insist on jail instead of house arrest for serious or violent crimes, sex offences or major drug trafficking. There have been some misguided uses of house arrest. Clearer direction to judges would be a good idea. Whether Mr. Harper's reforms would cause the already declining national crime rate to drop any faster is an open question. As well, he hasn't yet provided an estimate of how much all this would cost. But the proposals are smart enough to merit a thorough debate. (source: Comment, Globe and Mail) =================== WORLD: Think Again: Human Rights By Richard Falk The concept of human rights is the mother?s milk of the international community. Problem is, these days human rights come in more flavors than coffee or soft drinks. Would you like the Asian, Islamic, indigenous, economic, European, or U.S. version? And how would you like your human rights served: with sanctions, regime change, corporate window dressing, or good old-fashioned moral suasion? Here?s a look at the most effective?and most misguided?recipes for promoting human dignity around the world. ?All Persons and Peoples Aspire to the Same Human Rights? No. The 1948 Universal Declaration of Human Rights may be formally accepted around the world, but its generalized framework allows for almost limitless interpretations. Even the supposed global consensus on, say, the prohibition of torture as a ?human wrong? is deceptive: In the aftermath of the terror attacks of September 11, 2001, the prominent U.S. legal scholar Alan Dershowitz argued in favor of legalized torture as a counterterror measure. If anything, the postcolonial period since the writing of the declaration has witnessed an erosion of the belief in the universality of human aspirations. In part, this erosion stems from a widespread conviction that human rights are a Western invention being shoved down non-Western throats. Though such attitudes are partly a propaganda ploy by leaders who seek to shield their abusive behavior from criticism, they also reflect the views of many non-Westerners who believe that the highly individualistic declaration does not adequately balance rights with responsibilities?witness the emergence of ?Asian Values? or ?Islamic Values.? The assertion of value-based and cultural variations also represents a regional backlash against the unwanted aspects of globalization, including the fear of U.S. dominance and related concerns about consumerism and the loss of tradition. One important way to establish regional identity has been to emphasize the distinctiveness of human rights, whether Asian or African, Islamic or Christian. Another example of this trend has been the greater prominence of representatives of indigenous peoples? rights. Their sense of difference is so strong that, operating under U.N. auspices, a worldwide network of indigenous representatives is developing its own framework for human rights, known as the Declaration on the Rights of Indigenous Peoples. Even unity on human rights within the West is overrated. There is an important mainstream confusion in thought about international human rights that arises from their dual origins within the Western experience of the late 18th century. From the French Revolution, with its affirmation of the ?Rights of Man? (liberty, equality, and fraternity), arises a sense of universality, that all persons by virtue of being human have certain common entitlements that transcend the specifics of context. In contrast, from the American Revolution comes the Bill of Rights, appended to the U.S. Constitution, applicable only to the United States, and subject to interpretation by domestic courts, which themselves are depositories of national values and evolving policy priorities. The ongoing friction between the United States and Europe on such issues as capital punishment and the relevance of international law can be partly explained by important differences in outlook that evolved from this dual revolutionary heritage. ?Human Rights Are Violated More Today than Ever Before? Wrong. The clash here is between perceptions and realities. As with cancer and other diseases, the ability to identify human rights abuses more accurately and treat their symptoms more effectively creates the illusion that the disease itself is more prevalent. Every reliable human rights indicator suggests progress in the direction of self-determination and democratization in all parts of the world, which means more participation by individuals in their own destiny and more restraint on the part of governments. About two thirds of the world?s population, or 4 billion people, now live in countries that Freedom House judges to be ?free? or ?partly free?; overall, these nations account for 94 percent of the world?s gross domestic product. Moreover, one of the truly notable achievements of the U.N. system over the past six decades has been the creation of a significant human rights architecture consisting of treaties on discrimination against women, racism, children, religious beliefs, and refugees, as well as institutional innovations such as the establishment in Geneva of the Office of the High Commissioner for Human Rights. Much of the credit for this upgrading of human rights should be given to nongovernmental organizations (NGOs), which took the promise of minimum standards seriously several decades ago when governments regarded such matters as either harmless pieties or as purely voluntary directives. Although human rights NGOs began as a Western phenomenon, by the end of the 20th century, they had proliferated to all parts of the world and were active even in many otherwise authoritarian countries. Yet there is a paradox inherent in their success: The more effective they are at shining a spotlight on human rights abuses and drawing support for their work, the more likely the public imagination is to be fixed on the persistence of failure. ?Human Rights Are Irreconcilable with the War on Global Terrorism? On the contrary. In some instances, the protection of human rights must be qualified, or perhaps even suspended, because of the peculiar urgencies of meeting the challenge of global terrorism?but such instances are relatively few. Due to the secret nature of al Qaeda operations and targets, information enjoys the highest premium, and one of the few sources of potentially useful information is the interrogation of detained terrorist suspects or operatives. Such a reality may justify some relaxation of the customary treatment of prisoners of war, but it certainly does not validate the sort of humiliating and vindictive conditions of confinement associated with Camp X-Ray on the U.S. Naval Base Guant?namo Bay, Cuba, or the transfer of prisoners by U.S. officials to Egypt and other countries that have few inhibitions about relying upon torture to extract needed information. The war against global terrorism is far more a political and moral conflict than it is a military one. Adherence to human rights, even for those accused or suspected of terrorist involvement, would signal Washington?s respect for life and human dignity. To act otherwise?holding people without pressing charges or access to lawyers, or mounting vague charges without supporting evidence?discloses a kind of secular fundamentalism that blurs the nature of the conflict. Part of what should be defended is precisely a respect for human rights. Departures from that standard in legislative enactment, judicial action, and administrative policy should bear a heavy burden of persuasion. So far, since September 11, the U.S. Congress, media, and public have been reluctant to challenge the exercise of executive power in a display of excessive deference that has weakened human rights without strengthening national security. ?Human Rights Abuses Worsened Worldwide After September 11, 2001? Yes, but not for most Iraqis and Afghans. Especially in the United States, the enactment of antiterror laws has raised genuine concerns about restrictions on human rights. Governments in nations such as Israel, Russia, Pakistan, and Egypt have seized upon the terrorist issue as a pretext for intensifying the repression of national opposition movements and individuals. And the U.S. preoccupation with security concerns and alliance relations has also taken precedence over human rights, especially in U.S. dealings with critical frontline states such as Pakistan as well as several highly authoritarian Central Asian countries. But those losses must be set against some important gains. The pressure to respond to the al Qaeda challenge, and to pursue U.S. geopolitical goals, led to wars that produced regime changes in Afghanistan and Iraq, which had two of the worst governments in the world from the human rights perspective. True, millions of people in both countries must confront the prospect of civil strife in the years ahead, accompanied by some risk that cruel forms of authoritarianism will reemerge. Yet, for the moment at least, they are much better off than they were?even if respecting the prohibitions of international law on the use of force remains more important than military intervention to promote human rights around the world. ?Corporations Have a Moral and Legal Obligation to Uphold Human Rights? Not now. Multinational corporations are essentially profit-making actors without established moral obligations beyond their duties to uphold the interests of their shareholders. In some cases, the constituencies of corporations have grown to encompass so-called ?stakeholders,? including those groups affected by corporate activity. And to some extent, corporations have an interest in not alienating consumers and public interest groups by ignoring fundamental human rights concerns. Civil society leaders can organize boycotts against corporations with high-profile links to human rights violations, as has occurred with Shell, Nestle, and others. Campaigns by these and other corporations to improve their public image in relation to human rights are a matter of self-interest that does not reflect the existence or acceptance of a moral obligation. Of course, to the extent that a human rights culture takes hold, corporate officials and their shareholders will likely become more receptive to moral imperatives associated with treating workers decently, in accordance with human rights standards. In that respect, voluntary initiatives such as the United Nations? recently established ?Global Compact,? which certifies corporations as good global citizens if they agree to abide by a checklist of standards, may pay off. And if such voluntary processes go on for a long time and are widely practiced, they could ripen into a moral obligation at some point, but that is a long way off. Also, virtually no legal obligations are effective outside the protection of property rights such as trademarks and copyrights in international business activity. Almost all human rights regulation of corporate actors is based on national laws and their implementation. Some countries, especially the United States, have tried to extend their standards to the foreign operations of corporations headquartered in their countries, but usually in the context of business activity (bribes, monopolies) rather than human rights. Efforts by U.S. state courts to ban business deals in response to severe human rights abuses in places such as Burma have been struck down by the U.S. Supreme Court as an interference with the foreign affairs powers of the Executive Branch. To the extent that U.S. corporations are legally restricted from dealing with certain foreign countries for human rights reasons, such as Cuba, the underlying motivation is political, reflecting ideological hostility. After all, why not restrict business with other countries that engage in severe violations, such as Saudi Arabia and Pakistan? A framework of international legal obligations would doubtless help protect human rights, especially in countries with minimal or nonexistent human rights regulation. But to ensure that multinational corporations from some countries would not benefit from a competitive advantage, such a framework would require widely endorsed regional and global treaty regimes. And given the clear benefits of foreign investment in mitigating poverty, imposing international standards that reduce the economic attractiveness of countries with minimal regulation would, in the short term at least, likely accentuate human suffering. ?Human Rights Are Primarily About Political Freedom? No. Human rights should be understood as covering both political and economic concerns. It is true that human rights efforts have been most successful with political abuses. Yet, to create the sort of solidarity needed to promote the dignity of persons throughout the world, it is crucial to address economic deprivations associated with poverty as human rights issues. Indeed, there are two authoritative international covenants governing human rights: the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights, both adopted by the United Nations in 1966. The United States has never ratified the second covenant, and U.S. political leaders are skeptical about its moral claims and status as law. But regardless of such doubts and any quibbles about the wording of covenants, the bottom line is that a country that fails to address the basic needs of its entire population is guilty of human rights violations. This approach puts a lot of pressure on poor countries and the economically disadvantaged in various ways. It also exerts pressure on the United States and other prosperous nations that practice a form of market economics that does not take responsibility for homelessness, hunger, and other manifestations of poverty. An estimated 840 million people suffer from chronic hunger around the world. At the end of 2002 in the United States, there were 34.9 million people living in hunger or lacking sufficient food, 1.3 million more than a year earlier. A human rights approach, based on morality and law, would ensure every human being the basic necessities of food, shelter, health care, education, and employment at least to the extent of the material capabilities of a particular society. It is only by shutting out these issues of economic well-being that the United States can be proud of its human rights record. Indeed, given the remarkable level of U.S. wealth and might, the existence of such deep pockets of poverty is nothing short of a human rights obscenity. ?Human Rights Abuses in One Country Can Justify Military Intervention by Others? Yes. This issue arose in the 1990s in relation to genocide in the former Yugoslavia and Rwanda and failed states elsewhere in Africa. The international community faced a nasty dilemma: Either abandon populations to humanitarian catastrophe, or override the fundamental principle of territorial sovereignty to rescue them. The U.N. record was mixed at best. U.N. Secretary-General Kofi Annan, who bears some responsibility for the widely criticized U.N. non-response to the unfolding Rwandan genocide of 1994, later made amends by urging the United Nations to balance its respect for sovereignty against its duty to protect vulnerable populations. The duty of the international community to act now seems clear, not least because of greater global awareness of human rights emergencies. But such action is hampered by a weakness of political will on the part of Security Council members. This weakness arises from two sources: a reluctance by some members, including the United States, to endow the United Nations with sufficient capabilities to be effective, and the unwillingness of others, most notably China and Russia, to erode sovereign rights. There is great suspicion among developing nations, especially in Asia, that claims of humanitarian intervention are concealed ways for former colonial powers and the West generally to override their countries? political independence. Although history lends credence to these concerns, if the facts demonstrate an impending humanitarian catastrophe and enough political will exists to provide real protection or help, then the world community should act even if it means the erosion of sovereignty. The policy issue is more difficult. In the case of Kosovo, for example, the U.N. Security Council could not reach consensus, despite the evidence that another instance of Balkan ethnic cleansing was likely imminent. The 1999 NATO intervention in Kosovo rescued the Albanian Kosovar population from catastrophe, but at the expense of international law governing the use of force. Unlike the Iraq intervention of 2003, however, a regional consensus supported the action taken in Kosovo and the facts validated the moral claim of urgency. As such, while the intervention may have been illegal, it was politically and morally legitimate. This gap is not desirable, but it is better than ignoring principles altogether or adopting a rigid posture of unconditional nonintervention. ?Economic Sanctions Help Improve Human Rights Worldwide? Rarely. If applied with the genuine backing of the world community, economic sanctions can be effective, both symbolically and substantively. But such backing is rare. The case of sanctions imposed on South Africa during the last stages of apartheid is a rare success story, and those sanctions worked as much by delegitimizing the government in Pretoria as by their adverse effects on the South African economy. Most other instances of relying on sanctions for these purposes have failed. Between 1990 and 2003, the U.S.-led U.N. economic sanctions on Iraq indiscriminately killed hundreds of thousands of civilians without reforming or unseating the repressive Baath Party regime. Citing this disastrous humanitarian impact, two widely admired U.N. administrators of the sanctions program in Iraq resigned on principle in 1998 and 2000, respectively. In Bosnia, half-hearted sanctions directed at the Yugoslav government in Belgrade served as an excuse for not taking more energetic protective action on behalf of a severely abused Bosnian Muslim population. For more than 40 years, the U.S. government has maintained economic sanctions against Cuba in defiance of the majority of the U.N. General Assembly; indeed, in recent years, only Israel and the Marshall Islands have backed Washington?s stance. These sanctions have led to great hardships for the Cuban people without contributing to an improved human rights record, though they have helped successive administrations in Washington court Cuban exile communities that exercise political leverage in such key states as Florida and New Jersey. Sanctions are a policy tool that should be used most sparingly, and then only with the overwhelming support of the international community. If the situation is serious enough to warrant sanctions, humanitarian intervention might well be more appropriate, not least because it has a far better chance of addressing the direct causes of human suffering. ?Human Rights and Democracy Will Never Take Hold in the Middle East? Wrong. Not one among the 17 Arab countries has a government respectful of basic human rights, but is this reality a matter of cultural and religious destiny? I think not. There are important democratic movements in civil society in several of these countries, including among the Palestinians and Moroccans. Whether these movements can immediately wrest power from authoritarian and repressive elites is questionable. But the idea that outside force can impose a quick-fix government respectful of human rights is tragically risible. Iraq, and to some extent, Afghanistan, are current test cases, and the prognosis is not favorable. Looking back, the democratization of Germany and Japan after World War II are shining examples of what has been and might be achieved, but only under specific conditions. These countries were defeated after lengthy wars, lacked memories of colonization, and possessed coherent and successful social, economic, and bureaucratic structures. The surviving elites in Germany and Japan could easily identify with their occupiers and seek their protection against dangers from potentially hostile neighbors, especially the Soviet Union. In contrast, Iraq and Afghanistan are ethnically and politically fragmented, and, if soon left alone, would likely degenerate quickly into civil war or a return of authoritarian rule. Besides, both societies have terrible memories of Western domination, and many among their citizenry harbor deep suspicions that the current motives of outside occupiers are exploitative rather than emancipatory. U.S. President George W. Bush has gone on record as believing that the promotion of democracy and freedom in the Middle East is feasible. But the United States cannot promote human rights in the Middle East by the tactic of regime change exemplified in the Iraq War. The United States might move the region in a more moderate direction if it could resolve the contradictions in its policies toward, say, Saudi Arabia, and achieve greater balance regarding the Israel-Palestine conflict, promoting a truly fair solution for both peoples that takes into account Palestinian rights under international law. The Middle East, as is true for most of the world, is constituted by sovereign states, meaning that the respect of human rights must be achieved primarily by means of internal struggle. External factors, especially the spread of a human rights culture, including by the United Nations Educational, Scientific, and Cultural Organization and other educational programs, can exert a benevolent influence. A coercive approach to the establishment of human rights and democracy, particularly if promoted by Western might and wealth, is almost certain to backfire. Richard Falk is Albert G. Milbank professor emeritus of international law and practice at Princeton University and visiting distinguished professor of global studies at the University of California, Santa Barbara. His most recent book is "The Great Terror War". (source: Foreign Policy, March / April 2004)
