On August 16 the Equal Justice Initiative (EJI) of Montgomery Alabama announced plans for two projects honoring victims of U.S. racial lynchings and injustice.
One is the Memorial for Peace and Justice to honor the over 4,000 black victims of lynchings that will sit on six acres, the highest spot in Montgomery, the first capital of the Confederacy. The memorial will be a large, four-sided gallery of 801 six-foot columns hanging in the air as if from trees like a lynching. Each column will represent a U.S. county where a lynching took place and be etched with the name(s) of the person(s) lynched. Here is a rendering of the memorial and a map showing the locations of the lynchings.
An adjacent field will have duplicates of those columns, which will be offered as a challenge to be moved to the home counties of the lynchings; those that remain will be silent rebukes to the places that refuse to acknowledge their history of lynching.
The other project is a museum, “From Enslavement to Mass Incarceration,” which is scheduled to open completely next April in EJI’s 11,000-square-foot headquarters in Montgomery. Tracing the country’s racial history from slavery to the era of mass incarceration, it will contain high-tech exhibits, artifacts, recordings, and films, as well as a comprehensive database and information on lynching and racial segregation. Its virtual reality stations will enable people to understand what it was like to be in the cargo hold of a slave trafficking ship, to endure angry taunts during a lunch counter sit-in and to sit in a contemporary overcrowded prison. Below are photographs of one part of the museum and of jars of dirt from sites of lynchings.
As reported by Montgomery’s newspaper, the founder and Executive Director of EJI, Bryan Stevenson, said, “Our nation’s history of racial injustice casts a shadow across the American landscape. This shadow cannot be lifted until we shine the light of truth on the destructive violence that shaped our nation, traumatized people of color, and compromised our commitment to the rule of law and to equal justice.”
Stevenson is a widely acclaimed public interest lawyer. (To the right is a photograph of Stevenson and the cover of his highly acclaimed book, Just Mercy.) His work fighting poverty and challenging racial discrimination in the criminal justice system has won him numerous awards including the ABA Wisdom Award for Public Service, the MacArthur Foundation Fellowship Award Prize, the Olaf Palme International Prize, the ACLU National Medal Of Liberty, the National Public Interest Lawyer of the Year Award, the Gruber Prize for International Justice and the Ford Foundation Visionaries Award. He is a graduate of the Harvard Law School and the Harvard School of Government, has been awarded 16 honorary doctorate degrees, and is a Professor of Law at New York University School of Law.
As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and certain events preceding the Committee’s evaluation.
Now we look at the hearings that lead up to that negative evaluation. The evaluation itself will be the subject of another post.
On March 13 and 14, 2014, the Committee held sessions or hearings in Geneva, Switzerland regarding the U.S. report and other information.
The Committee’s questions focused on racial disparities in the criminal justice system; racial discrimination and profiling; police brutality; treatment of the homeless population; the death penalty; gun violence (including stand-your-ground laws); detention of immigrants; drone attacks; “enhanced interrogation techniques” including water boarding; National Security Agency surveillance; treatment of detainees held in Guantanamo; and transfers or renditions of detainees to third countries that practiced torture. Other covered issues were restrictions on voter registration and alleged mistreatment of mentally-ill and juvenile prisoners.
The Committee encouraged the U.S. to disclose a Senate investigative report on a Central Intelligence Agency (CIA) interrogation program that reportedly involved torture. The U.S. delegation’s insistence that the NSA’s mass collection of data was lawful and subject to substantial oversight was disputed by non-governmental groups that attended the sessions.
One Committee member, Walter Kälin, was especially critical in his comments and questions. Here a few of those comments:
He attacked the US government’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders. He said if the U.S. position were adopted universally, it would foster “impunity and lack of accountability” for human rights violations.
Kälin said, “One hundred and forty-four cases of people wrongfully convicted to death [in the U.S.] is a staggering number.” He pointed out the “disproportional representation of African Americans on death rows . . . ‘Discrimination is bad, but it is absolutely unacceptable when it leads to death.’”
Kälin pointed to another “‘staggering figure’ – that there are 470,000 crimes committed with firearms each year, including about 11,000 homicides. . . . [M]uch more needs to be done to curb gun violence.”
The Committee’s Chairperson, Sir Nigel Rodley of the United Kingdom, addressed the issue of legal opinions in the George W. Bush Administration that provided a purported legal justification for the “enhanced interrogation” methods. Sir Nigel said, “When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” He added, “Of course we know that so far there has been impunity.”
Chairperson Rodley also zeroed in on the issue of extraterritorial application of the ICCPR. He said at the conclusion of the hearings, it “was difficult . . . to understand what principles underlay the [U.S.] non-acceptance of the extraterritorial application of the Covenant.” Indeed, he immediately followed this statement with his exposition of the Committee’s contrary view. In diplomatic language, Rodley was saying the U.S. position was absurd. Here is Sir Nigel’s exposition:
“The relevant applicable principles were the canons of interpretation contained in the Vienna Convention on the Law of Treaties, . . . [which] stated that a treaty should be interpreted in the light of its text, its context, and its object and purpose.”
“Consequently, it was difficult to see how the words of article 2 of the Covenant regarding a State party’s undertaking to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized therein [] were only capable of interpretation as meaning that they applied solely to people who were both within the territory and subject to its jurisdiction. An ordinary, grammatical reading of the article in question supported the interpretation that it applied to everybody in either of the circumstances provided for.”
“Furthermore, the idea that the object and purpose of the treaty was met by saying that its application stopped at the frontier, whatever effective control any State might have over certain individuals, was one that was hardly consistent with the treaty’s object and purpose. That was the position not only of the Committee  but also of the International Court of Justice and very many States.”
The Committee’s negative comments at the hearings were a preview of its very critical comments about U.S. human rights in the Committee’s concluding report or “observations.” Another post will discuss that report.
Walter Kälin is a preeminent Swiss humanitarian, constitutional lawyer, international human rights lawyer, activist, advocate, legal scholar and law professor. He has been published extensively on issues of human rights law, the law of internally displaced persons, refugee law and Swiss constitutional law. Since Since 2004, Kälin has served as the Representative of the United Nations’ Secretary-General on the Human Rights of InternallyDisplaced Persons, and In 1991-1992, he served as the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Kuwait under Iraqi occupation. He holds degrees from the University of Bern (Dr. Jur.) and the Harvard Law School (LL.M.)
Sir Nigel Rodley since 2001 has been a Committee member and since 2003 has served as its Vice Chair and now its Chair. He also is a Commissioner of the International Commission of Jurists and a trustee of the NGO Freedom from Torture. Since 1990 he has taught law and human rights at the University of Essex and since 1994 has been its Professor of Law and Chair of the Human Rights Centre. Formerly he was Amnesty International’s Legal Advisor and Head of the Legal and Intergovernmental Organisations [sic] Office (1973–1990) and U.N. Special Rapporteur on torture (1993-2001). He is a founding member and former Executive Committee Vice Chairman of INTERRIGHTS (the International Centre for the Legal Protection of Human Rights). He is the author of books and articles about international human rights and holds degrees from the University of Leeds (LLB), New York University (LLM), Columbia University (LLM) and the University of Essex (PhD). In 1998 Queen Elizabeth awarded him the Knight of the British Empire (KBE) for his “services to human rights and international law.”
 The complete text of Article 2(1) of the ICCPR states: “Each State Party to the . . . [ICCPR] 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.”
 The Committee publishes “general comments” setting forth its interpretation of various provisions of the treaty, and its interpretation of Article 2(1) is set forth in General Comment No. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), which was issued on March 29, 2004.