Human Rights Cartoon (83)

habeas corpus guantanamo

(copyright http://www.washingtonpost.com/wp-srv/opinions/cartoonsandvideos/toles_main.html)

habeas corpus guantanamo

(copyright http://www.ucomics.com/patoliphant/)

This post gives some more detail about one element of our system of “fair trial” which I discussed here.

It’s the very important principle of Habeas Corpus, litterally (from Latin) “(We command) that you have the body”. This is an important legal tool to defend oneself against arbitrary or unlawful arrest. Habeas Corpus is a legal action undertaken to seek relief from arbitrary or unlawful arrest, either by the person arrested him or herself, or by a representative. The court should then issue a writ (a writ is a formal written order issued by a court) ordering the custodian,  i.e. the person or institution imprisoning a person, to bring this person to the court so that the court can determine whether the custodian has lawful authority to hold the person. If not, the person should be released from custody.

Any prisoner, in a well functioning judicial system, may petition the courts or individual judges for a writ of Habeas Corpus. (A petition is a request to an authority, more specifically in this case it is a legal pleading that initiates a case to be heard before a court. The purpose of a pleading is a correction or repair of some form of injustice, e.g. arbitrary arrest).

Habeas Corpus does not determine guilt or innocence, merely whether the person is legally imprisoned or not. It can also be a writ against a private individual detaining another, for example in slavery.

It has historically been and still remains today an important tool for safeguarding of individual freedom against arbitrary state action. Currently, the US is trying to set very strict limits to the writ, limits previously unheard of in democratic societies. The current US administration believes restrictions on Habeas Corpus are necessary in the war on terrorism.

Article 9 of the Universal Declaration of Human Rights states that “No one shall be subjected to arbitrary arrest, detention or exile”. One can therefore claim that the writ is an important means to make this right real.

Human Rights Cartoon (82)

A few cartoons about overpopulation. I’ll try to show in this post how this is related to human rights.

overpopulation

(copyright http://www.claybennett.com/)

overpopulation

(copyright http://www.offthemark.com/)

overpopulation

(copyright http://www.greenberg-art.com/)

overpopulation

(copyright unknown)

Some blame overpopulation for many of the world’s problems such as poverty, famine and war (which are obviously rights violations). There are supposed to be too many people for peaceful coexistence and sustainable food production. The areas of the world which are inhabitable and useable for agriculture are too small compared to the number of people living in them. These people are followers of Thomas Malthus or of malthusianism, and often even predict major catastrophes which will reduce the population significantly. They also advocate some quite draconian measures for limiting the human population.

In scientific terms: overpopulation occurs when an organism’s numbers exceed the carrying capacity of its habitat; carrying capacity = [available sustainable resources > current and projected needs of the organism].

For example, imagine a population of 10 living in a habitat of 10 square kilometers. These 10 square kilometers can produce food, drinking water, shelter etc. for 15. Then there is no overpopulation. But if the population grows or is expected to grow at a rate of 10% annually, without an equal or superior growth in resources, then overpopulation threatens. There would also be overpopulation if the material resources are adequate but other needs such as space, privacy etc. are not met. For example if the available space is too small to guarantee peaceful co-existence.

So overpopulation can result from changes in the population (increased births, reduced deaths, better healthcare, migration etc.) or from changes in the resources - material or psychological - in the habitat (for example desertification, natural disasters, technological innovations etc.), or from a combination of both.

The current state of the world’s population is the following:

  • Present world population - 6,500,000,000 but unequal distribution of world population (see graphs below). The main population clusters are East Asia, South Asia, Southeast Asia and Europe.
  • Average world growth rate - 1.4% annual, but also unequal distribution of growth rates: fastest growing areas are the Middle East - over 4.0% annual - and the slowest growing areas are Central and Eastern Europe - 0% or less. Southern Africa even sees negative growth rates as a result of the HIV epidemic.
  • Forecasts are notoriously difficult but the world’s population is expected to rise by 40% to 9.1 billion by 2050.

world population map west

world population map east

Blaming everything on overpopulation is misguided and reductionist. Problems such as poverty and war have a complex set of causes, including in some but not all cases overpopulation, government policies, cultural factors, repercussions from colonialism, religion etc.

One can also question whether there is indeed a problem of overpopulation. Per capita food production has risen the last 50 years, and poverty (expressed as the number of people living on less than 1$ a day) has decreased while the population has increased. So poverty and war may not have anything to do with the size of the world’s population. However, ecological problems may have something to do with it. If so, the solution would surely not be population control, which is much too difficult and often dictatorial. Changes in consumption patterns are a much more promising route.

Human Rights Facts (14)

In 2007, an estimated 33.2 million people lived with AIDS/HIV worldwide, and it killed an estimated 2.1 million people, including 330,000 children. Over three-quarters of these deaths occurred in sub-Saharan Africa, retarding economic growth and destroying human capital. From Wikipedia

AIDS has become the leading cause of death in Sub-Saharan Africa where approx. 1 in 4 deaths is caused by AIDS:

causes of death africa aids

Obviously, life expectancy in many countries hardest hit by AIDS has fallen dramatically:

life expectancy africa aids

AIDS has also worsened some existing problems such as poverty, lack of education etc. It is estimated that 11.4 million AIDS orphans live in the region. Some predict that AIDS will even lead to economic collapse in some African countries. Ostracism, rejection and discrimination are other consequences. Homosexuals patients must now suffer a double stigma, their AIDS reinforcing the pre-existing prejudices against their homosexuality.

In the 1990s in the US, it also became the leading cause of death in adults aged between 25 and 44, but the introduction of more effective drugs has reduced the mortality of the disease quite effectively:

causes of death US aids

(A) Annual AIDS deaths in sub-Saharan Africa (population 640 million) compared with those in USA (population 273 million). (B) Deaths in the USA in more detail, showing the five leading causes of death in men and women 25–44 years old. Over the course of ten years, AIDS came to be the leading cause of death in this generally healthy age group. The sharp decline in mortality followed the introduction of highly active anti-retroviral therapy, although the prevalence of HIV infection has not decreased. (Data obtained from UNAIDS and the US Centers for Disease Control and Prevention.). Robin A. Weiss

However, the same progress has not occurred in Africa because drugs are expensive and routine access to antiretroviral medication is not easily available. Efforts to prevent the infection from occurring, such as the promotion of safe sex and needle-exchange programmes, encounter cultural or religious obstacles. As a result, we are turning what could be a manageable chronic illness into a death sentence for many, thereby also encouraging the spread of HIV to others.

aids map of the world

Human Rights Facts (13)

Some facts about gay rights (or LGBT/Lesbian, Gay, Bisexual, and Transgender Rights).

This is a problem of discrimination and unequal treatment, both in law (legal discrimination) and in social life (homophobia and hate crime). It’s not about special rights or special treatment for homosexuals as some kind of minority group with a separate identity, but about their equal rights and treatment. Of course, attempts to change gay, lesbian and bisexual people into heterosexuals (so-called “reparative therapy”) should be opposed, but this can be done on the basis of normal human rights. No special group or identity rights are necessary. Changing people’s behavior through force is in general a human rights violation.

The underlying question in the debate over reparative therapy is whether homosexuality is a choice or an innate characteristic with which people are born. But this question is irrelevant with respect to the human rights of gays or LGBTs. These rights should be unconditionally respected, as all human rights, whether or not the people who have these rights choose a certain life style, whether or not they are born with certain characteristics. It’s not as if people who are born with certain characteristics have more human rights than people who choose to adopt these characteristics.

Article 2 of the International Covenant on Civil and Political Rights states:

“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Sexual orientation is not mentioned but it is accepted that the list given here is a list of examples and not complete. “Without distinction of any kind” is clear enough.

Article 3 states:

“The States Parties to the present Covenant undertake to ensure the equal right of men and women to the enjoyment of all civil and political rights set forth in the present Covenant”.

And Article 26:

“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status”.

Many objections to gay rights have religious roots (recall the story of the people of Lot and Sodom and Gomorrah, which, by the way is also mentioned in the Qur’an). Most major religions oppose homosexuality. In the US, conservative, white evangelicals that attend their places of worship weekly are more likely to oppose gay marriage and gay rights (see http://pewforum.org/docs/index.php?DocID=150). Opponents of homosexuality or equal rights for homosexuals also point to human anatomy and reproduction as proof that same-sex intercourse is unnatural. However, if we start branding all unnatural activity as immoral, we may as well stop living. 

In a 2003 decision striking down anti-sodomy laws, the U.S. Supreme Court ruled that gays and lesbians have a right to sexual privacy and are “entitled to respect for their private lives.”
Over the last centuries and especially the last decades, acceptance of homosexuality by people in the West and in Asia has increased, as is shown by this graph (figures for the US):

public acceptance homosexuality 

(source: http://andrewsullivan.theatlantic.com/the_daily_dish/2007/02/the_next_genera.html)

However, in large parts of Africa and the Middle East this is not yet the case. The following graph shows the status of homosexuality laws in the world. I know one cannot deduce public opinion from laws in non-democratic countries, but there must be some correlation:

world homosexuality laws wikipedia

But even in the countries with the most liberal legal systems and the most favorable (or least unfavorable) public opinion, there is still discrimination based on sexual orientation. Areas where most work still needs to be done are:

  • Protection against discrimination in employment and housing
  • Domestic partner benefits similar to those granted to married couples, or
  • The right to marry or have their relationships recognized in “civil unions”
  • The ability to serve in the military without hiding their sexuality.

My latest art

dark eyes filip spagnoli

Human Rights Cartoon (81)

zimbabwe mugabe

One of the arguments against democracy and in favor of authoritarian forms of government turns to the economy. Economic development requires consistency, coherence, long term and central planning, all of which is said to be incompatible with democracy. The rotation in office typical of a democracy puts always other people in power, with other priorities and laws. Democratic governments, laws and policies change continuously. This goes against the interests of long term planning, as well as the interests of companies that need stability for their investments. 

Furthermore, the constant pressure of public opinion and the next election, forces governments to sacrifice long term benefits for short term advantages that may even have negative consequences in the long term.

However, it is difficult to deny that the democratic procedures for changing governments create stability because they help to avoid revolt. Opposition movements do not have to resort to extreme measures to gain some influence. In addition, if the people decide to change something, this is because they believe that it ought to change, that it is not good as it is. Consistency is not the only value.

Review of my latest book

making human rights real, filip spagnoli

[T]here is an urgent need for an updated, sophisticated restatement of human rights. These core principles embody timeless norms, permanent values, and instrumental principles founded upon secular convictions and historical experience, but continue to evolve.

What is and what /should be the practical core and the actual meaning of human rights? Do they transcend politics, identities, and cultures? Should human rights constitute a claim for the rights of the needy and the vulnerable, a conduit to maximize individual liberties, a protection from the power of states? Based on the past, are human rights nurturing aspirations of goodwill or concrete and operational principles to address atrocities? What ought to be the future agenda of human rights advocacy? How do we distinguish myth from truth, hopes from reality? Could good intentions result in harmful actions to vulnerable individuals and needy people?

Some answers to these questions are available in a new book [Making Human Rights Real]…. The volume’s themes focus on civic liberties more than social justice, typical of Western thought….

[T]his book could inspire authors, advocates, scholars, politicians, advanced students, undergraduates, concerned citizens, and lonely, vulnerable, and threatened victims who wish to effectively redress wrongs committed against them, alike.

The scope of this timely inquiry is aptly broad, the method of research is academically rigorous, and the style of writing is challenging. Its focus on an interdependent world is on providing a comprehensive framework to support the moral and political desirability of applying and observing human rights, simultaneously, everywhere, equally, to everybody, in all conditions, ethnically and nationally, including troubled situations such as armed conflicts. As a universal creed, as an ethical proposition, and as a practical agenda, a duty to respect and implement the promotion and protection of human rights standards in their broadest scope is the lesson imparted by this nuanced study that reads like a series of erudite, contemplative lectures.…

The author, Filip Spagnoli, is … comfortable in various cultures, versed in much literature, and at ease with several languages, especially French. In short, Spagnoli is truly a Renaissance Man. His essays and comments in newspapers, and his personal blog, exude a deep interest in public policy and a suspicion of globalization. As an economist, his style and substance is reminiscent of the persuasive, educational style and the views of The Economist.…

H-NET BOOK REVIEW by Itai Nartzizenfield Sneh, Dept of History, CUNY-John Jay College of Criminal Justice. Published by H-Human Rights@h-net.msu.edu, April 2008

You can find out more about it here. You can buy it there as well.

Human Rights Quote (49)

roger moore

The saddest sight these days is the image of hundreds of thousands of children kidnapped and lured into being child soldiers from the age of eight. Sir Roger Moore

According to The Coalition to Stop the Use of Child Soldiers  

“a child soldier any person under the age of 18 who is a member of or attached to government armed forces or any other regular or irregular armed force or armed political group, whether or not an armed conflict exists”. 

The plight of child soldiers is similar to albeit even worse than the one suffered by child workers (see this post). Their rights, and especially their right to education, are violated in a similar way and in addition they have to endure the very specific and horrendous rights violations inherent in armed conflict. Physically vulnerable and easily intimidated, they have to participate in every sordid aspect of modern warfare. Although many are abducted or recruited by force, some probably also “volunteer” because of poverty, religious indoctrination etc. Violent conflict cuts off access to school, drives children away from their homes or families. Children may see enlisting in an army or rebel group as a strategy for survival. They may believe that the group will offer food, protection or security.

From Human Rights Watch:

“Children are sometimes forced to commit atrocities against their own family or neighbors. Such practices help ensure that the child is “stigmatized” and unable to return to his or her home community,” thereby ensuring that they remain loyal to the group. 

The numbers of child soldiers are constantly fluctuating given the evolution of different armed conflicts. So it’s difficult to estimate, a difficulty compounded by the secrecy of the often shady recruiters and the wartime conditions. Human Rights Watch estimates that 200,000 to 300,000 children are currently serving as soldiers for both rebel groups and government forces in armed conflicts. This graph shows the countries where there were child soldiers active in armed conflict in 1998:

child soldiers world

And this graph is a bit more specific on the African situation since Africa has without any doubt the largest number of child soldiers (Myanmar in Asia also does it’s “best”):

child soldiers africa

The main human rights declarations and treaties do not specifically mention child soldiers, but the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict sets 18 as the minimum age for direct participation in hostilities, for recruitment into armed groups, and for compulsory recruitment by governments. States may accept volunteers from the age of 16. The definition of war crimes of the Rome Statute of the International Criminal Court of 1998 includes “conscripting or enlisting children under the age of fifteen years into armed forces or groups or using them to participate actively in hostilities”. 

Child soldiers are undoubtedly victims of armed conflict, but can also commit war crimes, in which case there may be a case for a prosecution respecting the rules of juvenile justice. 

Human Rights Cartoon (80)

Three cartoons about child labor:

child labor

child labor

child labor

(copyright Fredrikke Palmer & unknown & Robert Minor respectively)

Child labor not only keeps children from attending school. It often harms them physically and mentally. It is therefore a double problem from the point of view of the human rights of children. 

  1. It denies them the education that they need for the exercise of and struggle for their human rights. Without education the freedom of thought and opinion becomes rather academic since thought and opinion requires a certain level of education. Political participation without literacy is also quite difficult. Without education people will find it difficult to struggle against rights violations and to find meaningful work when they are adults. So child labor can have lifetime consequences for human rights.
  2. The conditions in which children have to work often lead directly to violations of their rights, such as the right to good health. Moreover the kinds of jobs children have to do are often extremely stultifying, creating feelings of insignificance and hopelessness, with disastrous consequences for their personality and future development.

The Universal Declaration of Human Rights, in article 26, includes the right to education and hence, implicitly (not explicitly), the prohibition of child labor since the two are incompaible. Article 10 of the International Covenant on Economic, Social and Cultural Rights states, rather carefully in order not to frighten away developing countries who might otherwise not have accepted the treaty:

“Children and young persons should be protected from economic and social exploitation. Their employment in work harmful to their morals or health or dangerous to life or likely to hamper their normal  development should be punishable by law. States should also set age limits below which the paid employment of child labour should be prohibited and punishable by law”.

The Convention on the Rights of the Child provides the strongest legal language prohibiting illegal child labor but does not make child labor illegal.

The International Labor Organization estimates that 246 million children between the ages of 5 and 17 currently work (or about 15% of the world’s children, about 35% of children in Sub-Saharan Africa).

They work in very different industries but mostly in commercial agriculture, fishing, manufacturing, mining, parents’ business and domestic service either at home or in other homes, in factories, sweatshops, fields, tourist attractions etc. Some children work in illicit activities like the drug trade and prostitution or as soldiers. Often their situation is aggravated by child slavery, child trafficking, debt bondage and forced labor.

In Western countries, child labor has gradually died out. It was common during the industrial revolution (and before) when children as young as four were employed in factories with dangerous working conditions, but labor laws, education laws and technological progress (and some say colonialism) have caused its disappearance. 

From Unicef (http://www.childinfo.org/areas/childlabour/education.php):

“Sub-Saharan Africa is the region with the worldwide highest share of child labourers. In the 18 countries in this region with data on child labour, 38 percent of all children between 7 and 14 years of age are engaged in work that can be considered harmful to their development. Among these children, slightly more than half (20 percent of the total) also attend school while another 18 percent are only engaged in labour. Overall, 60 percent of all children between 7 and 14 years attend school. 21 percent of all children are neither in school nor do they engage in labour. These children may, however, perform work that is not considered labour, for example household work for less than 28 hours per week… [T]he share of child labourers among girls is the same as among boys, about 38 percent. On the other hand, the area of residence is strongly associated with child labour: rural children (43 percent) work much more than urban children (25 percent).”

child labor world

Child labor undermines the general economy because it lowers general labor standards and wages for all workers (adult workers often suffer from unfair competition since they normally would be paid more and are generally more vocal about their labor conditions). It may have a beneficial effect on a countries international competitiveness because it allows countries to produce at lower costs and with fewer regulations, but internally in the country it affects the general labor standards and work force. 

It’s often the poverty of their parents that forces millions of young children out of school and into work. But companies obviously also have an interest in hiring children. Children earn less, are less vocal defenders of their rights, are more easily forced to accept certain “work procedures” etc. For some professions, the anatomy of children also gives them an advantage compared to adults (mining for instance). Many companies, including Western multinationals, often find the temptation too hard to resist, and the consumers engage in moral complicity when purchasing products assembled or manufactured in developing countries with child labor. Consumer boycotts of such products, however, without compensating measures such as the provision of education for the children in question or benefits to poor families, may simply result in an even worse situation when children are forced into other labor activities, often more hasardous or detrimental.

A child may sometimes consent to work if, for example, the salary is relatively attractive, but such consent may not be informed consent. Child labor may still be an undesirable situation for a child in the long run.

Human Rights Cartoon (79)

fair trial lynching mob rule

(unknown artist)

A characteristic element of modern democratic states is their ability to offer fair trials to those accused of crimes. We try to treat everyone, even suspected criminals, with fairness, and we have two principal reasons for this:

  1. We only want to punish real criminals. A fair trial is one in which everything is done to avoid punishing the wrong persons. We want to avoid miscarriages of justice.
  2. We want to use court proceedings only to punish criminals and deter crime, not for political or personal reasons, as is often the case in dictatorships.

One important condition for a fair trial is publicity. Justice must not only be done, it must also be seen to be done, not only to deter other criminals and to give consolation to victims, but also because publicity makes it more likely that the real perpetrator is punished. Every trial is therefore a “show trial”. The publicity of a trial makes it possible to judge the judge and hence to correct mistakes if necessary.

The secret trial is typical of authoritarian regimes because it allows for abuses of power. It makes it easier to use the justice system for other purposes than the identification and punishment of proven criminals. It is very hard to use a public trial for power games or oppression.

On top of that, false accusations or false testimonies are more likely to remain undiscovered in a secret trial. After all, it is not only the state that can gain from a secret trial. Interested third parties can also benefit from an unfair trial.

However, publicity alone does not guarantee that trials and verdicts are fair and just (which is clear from the phenomenon of communist show trials). The following elements are just as important (as with publicity, most of them are included in the main human rights instruments, for example articles 9, 10, 14 and 15 of the International Covenant on Civil and Political Rights):

  • No punishment or imprisonment without an indictment and without swift information on the nature of the indictment. If the purpose of the justice system is to punish criminals, it’s very easy to tell the suspect who we want to imprison before his or her trial about the crime he or she is suspected of having committed. After all, the crime has been committed and the accusers surely must know the nature of this crime. It must be awful to be imprisoned without knowing why. The absence of indictments indicates that the authorities merely wish to use the justice system to terrorize the population, not to punish crime.
  • No excessively long detention on remand (detention without a lawful and fair trial and conviction). We do not want to incarcerate innocent people.
  • The possibility of an appeal to a higher court. Mistakes can be made.
  • A competent and impartial judge; fairness, according to the dictionary, means impartiality. A partial judge is an absurdity. Such a judge would be completely useless, and people would be better off fighting their cases amongst themselves, one against one instead of one against two.
  • The possibility to defend yourself and to receive free legal assistance. The possibility to argue and to give counter-arguments, to call witnesses for the defense and to question witnesses for the prosecution. This requires time, hence this must be balanced with the point mentioned earlier about the excessively long detention without a trial. “Swift justice” can be as unjust as detention without a trial.
  • Innocent until proven guilty. The burden of proof rests on the accusers. This is necessary to discourage wrongful accusations and also because the purpose of the trial is precisely the establishment of guilt. If guilt is assumed beforehand, then why have a trial in the first place?
  • No forced confession, because that would defeat the purpose of convicting the real perpetrator. And no obligation to incriminate yourself (the right to remain silent), which is linked to the rule that the burden of proof rests with the accusers.
  • No excessively tough penalties. The purpose is to punish, to prevent repetitions of the crime by the same criminal and to deter other criminals, not to balance the wrong that has been done by an equally painful punishment.
  • “Ne bis in idem”: no two trials for the same offense. If people can be retried continuously for the same crime, then the purpose is obviously not the punishment of proven criminals, but punishment per se. Anyway, if all the rules listed here are respected, there is no need for a retrial. This rule is also called double jeopardy.
  • “Nulla poena sine lege”: no crime or punishment without a law voted and published before the criminal deed. In other words, no retroactive laws, no laws with retroactive effect (laws which make deeds punishable after they have been committed). One cannot punish people for acts that were not a crime at the time when they were committed, because people should know what is or is not allowed so that they can plan their lives as law-abiding citizens.
  • For the same reason, laws should be predictable and should not change all the time. Nobody is responsible for a violation of a law if the law changes from day to day, because if the law changes constantly, then nobody knows the law and then nobody can respect the law. Predictability and permanence of the law are prerequisites for obedience, just as knowledge and publicity.
  • There should not be too many rules, otherwise the judges and the police will not have enough time to enforce them all or to punish all violations of all rules, which leads to injustice. Too many rules also leads to involuntary violations of rules, because citizens do not know what they are or are not allowed to do. The purpose of the justice system is to punish crimes, not mistakes; criminals who knowingly violate rules, not law-abiding citizens who unknowingly do what they shouldn’t.

All these elements put together make the justice system just, and protect the citizens against the state or against fellow citizens that want to abuse the justice system. If one element is missing, then all the others may become useless.