The Urgent Debate is more than opportunity for discussion—it’s an opportunity for meaningful action. In a letter to the President of the UN Human Rights Council, I, along with the UN Working Group of Experts on People of African Descent, have urged the Human Rights Council to ensure the following outcomes from the debate: (1) the creation of an international commission of inquiry to investigate systemic racism in law enforcement in the United States; and (2) the creation of a thematic international commission of inquiry to investigate systemic racism in law enforcement globally, with a focus on systemic racism rooted in legacies of colonialism and transatlantic slavery.

UN-mandated commissions of inquiry are designed to respond to situations of serious violations of international human rights law. They establish facts, assess these facts in light of the applicable international human rights law, make recommendations, and can play a crucial role in promoting accountability for past violations and preventing of future ones.

Why an international commission of inquiry for the United States?

Because the systemic racism in law enforcement in the United States is a human rights crisis of existential proportions, and the domestic legal and policy regimes that ought to be relied upon to put an end to this crisis have never been able to do so. For Black people in the United States, the domestic legal system has utterly failed to acknowledge and confront the racial injustice and discrimination that is so deeply entrenched in law enforcement. An international commission of inquiry would be a valuable, and much needed complement to national and local efforts to undo racially discriminatory structures in US law enforcement.

As an independent expert appointed by the Human Rights Council, it is an important part of my job to sound the alarm in the face of grave human rights violations. The situation in the United States has prompted myself and many others within the UN system to do exactly this. I issued a statement joined by 47 UN independent human rights experts condemning systemic racial injustice in the United States, and expressing grave concern at the divisive and racially charged responses of the President to anti-racism protests. We issued another, calling for an end to, and accountability for, what amounts to modern-day racial terror lynchings in the United States. Other UN experts have condemned militarization of the police, and the violent crackdown against peaceful protesters and journalists in the United States, which has included law enforcement firing tear gas into peaceful crowds.

On Friday, the UN Committee on the Elimination of Racial Discrimination (CERD) issued a statement under its Early Warning and Urgent Action Procedures, expressing alarm at the killing of George Floyd and the recurrence of and impunity for police killings of people of Black people in the United States. The Committee noted that in the United States:

“systemic and structural discrimination permeates State institutions and disproportionately promotes racial disparities against African Americans, notably in the enjoyment of the rights to equal treatment before the tribunals, security of person and protection by the State against violence or bodily harm, and other civil, economic, social and cultural rights enshrined in the International Convention on the Elimination of all Forms of Racial Discrimination.”

In a telling move, the family members of George Floyd, Breonna Taylor, Philando Castile and Michael Brown have joined over six hundred human rights organizations in requesting a commission of inquiry for the situation in the United States.

The point is not that an international commission of inquiry will solve the problem of systemic racism in law enforcement in the United States. Instead, it is that victims of systemic racism in the United States, who face the daily, unabated and genuine risk of death in encounters with law enforcement deserve the assistance and expertise of an international human rights investigative body to chart a just path forward.

Image credit: The president of the Human Rights Council, Austrian Ambassador Elisabeth Tichy-Fisslberger, wearing a protective facemask attends a press conference during the resuming of a UN Human Rights Council session on June 15, 2020 in Geneva – Fabrice Coffrini/AFP/Getty Images

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A now widely articulated criticism or concern is that the legal and policy frameworks that are supposed to provide accountability for and prevent racially discriminatory police misconduct are themselves part of the problem. As Fourth Amendment expert Devon Carbado has highlighted, U.S. constitutional doctrine, for example, “expressly authorizes or facilitates the very social practice it ought to prevent: racial profiling.” Law will not end structural racial injustice — but it can and should play an important part in the process. At the very least, law should not be part of the problem, and in the United States it clearly is. Part of the thought and action to chart solutions to this problem should include greater attention and commitment to the United States’ existing racial justice and equality legal obligations under international human rights law.

The United States has ratified the most comprehensive global anti-racial discrimination treaty—the International Convention on the Elimination Against Racial Discrimination (ICERD). It only did so in 1994, almost thirty years after the treaty came into effect. National human rights organizations and even local social movements in Los Angeles have pushed for U.S. compliance with ICERD in their advocacy to bring an end to racial injustice in the policing context. In its last review of the United States, the body tasked with monitoring compliance with this treaty reiterated its longstanding concern that the very definition of racial discrimination in U.S. federal law and judicial doctrine does not comply with the comprehensive approach required by the treaty. The monitoring body also criticized racial profiling and excessive use of force by the police in the United States, and the “Stand Your Ground” laws that have been implicated in racially discriminatory unlawful killings such as that of Trayvon Martin.

The point is that as momentum builds to rethink and reform law and policy in order to achieve more racially just and equitable outcomes, U.S. policymakers and lawyers should treat international human rights law as a resource, as well as a source of binding legal obligations. Recent events in the United States’ engagement with global anti-racism norms and institutions do not bode well. The United States has failed to comply with its obligations to report back to the monitoring body of ICERD, and recently refused to support the reappointment of leading human rights antiracism expert, Gay McDougall, to serve on this body. At least one avenue going forward should be to push back against the sort of exceptionalism that implicitly treats existing domestic law as a high watermark for achieving justice and equality, when this law falls short even of global human rights anti-racism standards that U.S. civil rights leaders helped establish.

Image: Demonstrators denouncing systemic racism in law enforcement and the May 25th killing of George Floyd by a Minneapolis Police officer gather at a press conference in the borough of Brooklyn calling for the passing of bills to increase police accountability throughout New York state on June 4, 2020 in New York City. (Photo by Scott Heins/Getty Images)

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Ryan Goodman, Just Security‘s co-editor-in-chief, recently posed a series of questions to E. Tendayi Achiume, U.N. Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance.

1. Many people hope that the world will emerge from the coronavirus pandemic with a stronger sense of solidarity and interconnectedness both across national borders and within society. At the same time, the EU Agency for Fundamental Rights and experts including you have identified a rise in racial discrimination including xenophobia and hate crimes in different parts of the globe. What gives you hope and what gives you pessimism about how the world will emerge from the pandemic?

It’s been terrifying to bear witness to a rise in xenophobic and racist conduct during a time when solidarity and cooperation within and across nations are so sorely needed. Reports of violence, discrimination and exclusion on the basis of race, ethnicity, national origin and religion all over the world paint a grim picture. For some Indigenous Peoples, the threat is existential. Reports have also laid bare the meaning and persistence of structural racism—everywhere in the world, racial, ethnic and national minorities are hardest hit by the pandemic. These groups are disproportionately represented in employment sectors classified as essential services, and among those living in the sort of economic precarity that means “sheltering in place” denies them the only means they have to put food on the table. These groups are also disproportionately excluded from access to healthcare and housing under the best of circumstances. As a social construction, so much of what race does in contemporary society is shape access to fundamental rights, and the current pandemic makes this crystal clear.

In light of all this, it’s difficult to find causes for optimism, but there are some. The UN condemnation of racism and xenophobia has been forceful. For example, the UN Secretary-General António Guterres decried the ‘Tsunami’ of Xenophobia Unleashed amid COVID-19 and called on political leaders, educational institutions, the media and civil society to unite and fight in solidarity against the COVID-19. Similarly, the International Organization for Migration issued a statement titled “COVID-19 does not discriminate, and nor should our response,” acknowledging at least that equality and non-discrimination are vital to migration governance even in the context of a global pandemic. Repudiation of intolerance may seem too elemental or basic to warrant optimism, but in my work as Special Rapporteur it has been disheartening to find that even within the global human rights system, attention to racial and ethnic inequality is limited. Currently, multilateral and non-governmental human rights actors are paying greater attention to racism and xenophobia, and many among them are calling attention to the way that both intersect with discrimination on the basis of gender, sexual orientation, disability status and class. I want to be hopeful that this will result in greater, longer-term commitment to strengthen international human rights engagement with racial and xenophobic discrimination and intolerance.

My optimism exists alongside some pessimism, however. This pandemic is laying bare just how dangerous climates of intolerance, and of racialized and religious suspicion and fear, can be to the social fabric required to sustain prosperous and safe communities. It is also laying bare just how dangerous intolerance, suspicion and fear of this kind can be to the multilateral institutions and processes that are essential for a globally coordinated response to the pandemic. My first report to the General Assembly focused on the threat of ethnonationalist populism to racial equality. It highlighted the direct threat to racial, ethnic and religious minority communities, but it also highlighted the corrosive effect of ethnonationalist populism on the very pillars of liberal democracy. In many countries, the United States included, populist regimes are exploiting (and fueling) national anxieties about the pandemic, doubling down on demonization of racial, ethnic and religious minorities, while flouting or eliminating checks and balances on their power. I worry that liberal institutions and politics—which have an outsized influence on the global human rights systems, and which have suffered serious blows in the last five or so years especially—may be irreparably eroded. It’s not to say that liberal democratic discourse and practice prior to the contemporary illiberal resurgence has catered on an equal basis to racial, ethnic and religious minorities. The racial and ethnic disparities in the impact of this pandemic in the liberal democracies of the global north are, among other things, testaments to structural racism that liberal regimes have failed to address. Rather, my concern is that if global politics remain on the current trajectory, the worst is still to come, especially for racial, ethnic, religious and national minorities all over the world (refugees and migrants included). The fallout of the expansion of government and private surveillance technologies being heralded as essential to fighting the pandemic, for example, will reliably disadvantage these communities on a disparate basis.

2. What are the human rights obligations of news media and social media firms in addressing racism that arises in response to the coronavirus pandemic? For example, you have referenced “entrepreneurs of intolerance” who have exploited the coronavirus pandemic, and you have criticized the U.S. president for use of rhetoric such as the “China virus.” How should news media and social media firms address these sources of racial discrimination on their platforms?

The dominant framing of the human rights responsibilities of social media platforms such as Facebook, Twitter and YouTube has primarily been anchored in freedom of expression and privacy concerns. Equality and non-discrimination principles as they relate to racism, xenophobia and discrimination are typically secondary considerations added to a balance already weighted in favor of, or on the basis of, other values and commitments. In this pandemic, we are reaping the harvests of this approach. The spread of intolerance and disinformation online is costing lives, it’s shaping electoral outcomes, and in my upcoming July 2020 report to the Human Rights Council I map more broadly how the design and use of different emerging digital technologies result in individual and structural forms of racial discrimination. One thing that is clear in all this is that debates about content moderation and protected speech online cannot be the full extent of or primary site for human rights equality and non-discrimination concerns in engagement with social media firms.

Under international law it is states that bear human rights obligations, but these obligations entail corporate regulation and corporate responsibility including in relation to combating racial discrimination and intolerance. Social media firms—and media firms more broadly—have human rights responsibilities to ensure at the very least that they are not complicit in propagating or fueling discrimination and intolerance. I want to be clear that social media platforms in particular have also been a powerful resource in this pandemic—they give us the ability to stay connected with loved ones across borders we can no longer physically cross; they allow us to share life-saving information quickly; they provide sanity-preserving levity and entertainment. But these platforms are also among the most effective tools in the arsenal of “entrepreneurs of intolerance,” actors who actively seek benefit and profit from dissemination of intolerance and mistrust of minorities. So, to answer your question—what should news media and social media firms do to respond to racial discrimination on their platforms? I’m afraid there is no easy fix. Of course, they should take active steps to stop racial discrimination on their platforms and in their publications. But at a more fundamental level, they need to engage in processes of transformation that place racial, ethnic and religious community members in positions of meaningful decision-making authority within these firms. They need to prioritize racial equality in the design and operation of their platforms and not just in the rules about how their platforms are used by the public. They need to engage equality and non-discrimination principles at least as much as they have engaged concerns regarding privacy and freedom of expression. This is true of the business and human rights community, which has not really done enough to entrench racial equality and non-discrimination norms in their work. The international human rights framework has a critical role to play in this report and my July 2020 does some work to outline the nature of this role.

3. What areas of concern should state officials scrutinize to ensure that “public health” fully attends to the needs of all people within society? By way of example, should states ensure the membership on public bodies that address the virus represent different groups within society? What concerns do you have about how public institutions respond to the virus — for example, in how life-saving interventions are rationed, in deciding what tradeoffs are made between public health and reopening economic sectors, in where the risks are placed on different workers?   

The key here is simple but not trivial—in order to ensure equitable and non-discriminatory public health responses, states must include racial, ethnic and religious minority communities in public health decision-making and resource allocation. This means more than surveying these populations, and considering their needs in the implementation phase of policies. It means ensuring they have a meaningful seat at the table from the very start, from framing the nature of the problem to developing and implementing appropriate solutions. Diversity tokenism will not be enough. Additionally, states should actively ensure that human rights equality and non-discrimination principles are articulated in public health (and all other) government policy. The Vienna and Durban Declarations includes a commitment by UN member states to adopt national action plans (NAPs) to combat human rights violations, including racism and xenophobia. Many states have not developed NAPs, and many that have keep these plans on shelves (or their digital equivalents). The racially disparate impacts of this pandemic would be better mitigated by proactive rather than purely reactive strategies, and it is the obligation of states to equip public health officials to deploy a human rights approach. In some European countries, collection of any disaggregated racial or ethnic data is prohibited, for example. This makes it very difficult to diagnose the extent and nature of discriminatory public health outcomes.

Unfortunately, in too many countries, public health responses to the pandemic have been securitized and militarized. In a conversation I had with a government official from a country I won’t name, they expressed concern at the deployment of that country’s counterterrorism apparatus and personnel to play a greater role shaping that country’s response to the pandemic. Logics governing counterterrorism policy—policy that is racialized all over the world—are different from those required to tailor an effective public health response to a global pandemic. The public needs to pay close attention to which actors and institutions are in the driver’s seat, determining public health responses, and to the economic and political incentives shaping these responses.

4. You have emphasized the importance of education in combating racism — both in terms of public resources as well as individual commitments to self-educate. Could you elaborate on why education matters?  

Given your readership—policymakers, legal academics and practitioners, and human rights advocates among others—I think it’s worth mentioning the need for greater and more substantive education in law school and elsewhere on racial and xenophobic discrimination as human rights problems subject to a comprehensive international human rights legal framework. A survey of the leading international human rights textbooks and courses would reveal neglect, and in some cases the absence of substantive engagement with the prohibition on racial discrimination in customary international law or under the comprehensive equality framework embodied in the International Convention on the Elimination of Racial Discrimination (ICERD). I recall during consultations with a group of minority university students in the Netherlands, one of their biggest complaints was the absence of substantive legal education on international human rights racial equality and non-discrimination norms, which they believed denied all graduating students exposure to vital human rights understanding of discrimination and intolerance, and concrete measures for challenging it. A similar critique would apply in the United States and many other places, and to human rights legal scholarship. Teaching law students ICERD isn’t going to end racial discrimination. At the same time, combatting racial discrimination requires a shared understanding of the problem, its history, its contemporary implications and the broad spectrum of legal and policy tools that can be brought to bear on this problem. Similarly, if public officials have no real understanding of the meaning and requirements of international human rights racial equality and non-discrimination principles, it’s less likely they can fully leverage the potential of these principles.

Image: UN Photo/Leoy Felipe

The post A Conversation With U.N. Special Rapporteur E. Tendayi Achiume: COVID-19, Racism, and Xenophobia appeared first on Just Security.