The United States is finding itself in violation of the United Nations Convention on the Rights of the Child — ratified by every country in the world except the U.S. and Somalia — in the case of a 12-year-old boy in Indiana. Paul Henry Gingerich was tried as an adult in a homicide case earlier this year and was given 30 years in an adult prison for assisting the killing of a friend’s step-father.
As the Paul Henry Gingerich Trust Fund explains the crime, “what began simply as a runaway plan was at the last minute switched to murder by the older boy, and Paul Henry found himself out of his depth in the wrong place at the wrong time.”
The presiding judge, Duane G. Huffer, decided that there was no hope for the boy, declaring, “Our laws do not afford effective rehabilitation for a child charged with murder.” The boy was thrown into adult prison, in breach of the Convention on the Rights of the Child, a legally binding instrument spelling out the basic human rights of children everywhere, in particular setting standards in health care; education; and legal, civil and social services.
Article 37 of the Convention states that:
(a) No child shall be subjected to torture or other cruel, inhuman or degrading treatment or punishment. Neither capital punishment nor life imprisonment without possibility of release shall be imposed for offences committed by persons below eighteen years of age;
(b) No child shall be deprived of his or her liberty unlawfully or arbitrarily. The arrest, detention or imprisonment of a child shall be in conformity with the law and shall be used only as a measure of last resort and for the shortest appropriate period of time;
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
While the case of Paul Henry Gingerich has received quite a bit of attention, it is by no means unique. Trying and sentencing young children as adults occurs with alarming frequency in the U.S. according to a 2009 report by the Lyndon B. Johnson School of Public Affairs.
The report, “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” finds that more than half the states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.
The report notes that the United States stands nearly alone in the world in its harsh treatment of young children:
Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.
Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.
If the United States hopes to be considered a civilized democracy, it must start by respecting the rights of children as spelled out in international agreements, beginning, hopefully, with Paul Henry Gingerich.
To donate to Paul Henry’s legal defense, click here.
With rebels entering Tripoli over the weekend, five months after U.S. and NATO allies began bombing Libya in support of rebel forces fighting to topple Muammar Gaddafi, NATO Secretary General Anders Fogh Rasmussen walked a fine line in his choice of words — skillfully choosing between nuanced legalism and unbridled triumphalism.
“Our goal throughout this conflict has been to protect the people of Libya, and that is what we are doing,” Rasmussen said on Monday. “Because the future of Libya belongs to the Libyan people.”
He seemed to have a hard time, though, towing NATO’s line of emphasizing its specified role in carrying out a limited UN mandate to protect civilians, and resisting the urge to celebrate a victory as a general of a triumphant international army.
“NATO wants the Libyan people to be able to decide their future in freedom and in peace,” he said. “Today, they can start building that future.”
Despite indications that the fighting is far from over, much of the Western media has adopted a celebratory tone in its coverage. In an August 23 editorial, the Boston Globe acknowledged that Gaddafi’s “compound in Tripoli was still being defended by well-armed bitter-enders” and that the dictator’s whereabouts remain unknown.
“But it’s not too early,” the Globe opined, “to credit the leadership of British Prime Minister David Cameron, French President Nicolas Sarkozy, and President Obama for the NATO mission supporting the rebellion, protecting Libya’s civilians, and – after some hesitation about adopting regime change as an explicit goal – driving Khadafy from power.”
The Globe pointed out that NATO fighters flew nearly 20,000 sorties over Libya, severely degrading Gaddafi’s military capabilities. “Without NATO’s support from above, the rebels on the ground would have stood no chance of success,” said the Globe.
It remains to be seen, however, how much of a “success” the rebels on the ground have achieved.
STRATFOR warns that “the fight is not over in Libya, as strongholds of government loyalists remain within Tripoli and elsewhere in the country.” As the global intelligence service reported on Aug. 22:
Gadhafi’s remaining forces will continue fighting. [Mustafa] Abdel-Jalil, [head of Libya’s National Transitional Council (NTC)], said Aug. 22 that the Gadhafi era was over and that the rebels control almost all of Tripoli. However, he conceded that the Gadhafi compound at Bab al-Aziziya “and the surrounding areas” remain unpacified. The NTC has admitted that the fight is not over — not only in Tripoli but in other areas of the country as well.
Jibril warned Aug. 22 that the rebels needed to be aware that some of Gadhafi’s forces were approaching from the east. This was likely in reference to the forces that have been holding the line at Zlitan for several weeks in the face of a westward advance by Misurata-based rebels. During the simultaneous move toward the capital from Zawiya on Aug. 21, the Misurata rebels were able to push Gadhafi’s men out of Zlitan but did not advance much farther west than that. With the capital under siege and Tripoli’s eastern districts experiencing a rash of uprisings, the NTC is concerned that the loyalist forces previously in Zlitan will return to the capital to fight.
Most of Libya is under NTC control, but Gadhafi strongholds remain in Sirte and the Fezzan Desert city of Sabha. Abdel-Jalil addressed this issue directly in an Aug. 22 interview. Sirte is Gadhafi’s hometown and, like Sabha, is a bastion of the Gadhafi tribe, which has relied upon the Libyan leader’s reign for its privileged position. These likely will be the last groups of loyalists to surrender. Abdel-Jalil acknowledged that these areas remain unpacified and voiced an expectation that the inhabitants of both cities would “rise up from within” as the regime’s position continues to weaken. Later in the day, he claimed that Sirte was under siege, while Al Jazeera reported that electricity to the city had been cut and communications disrupted. Multiple senior Gadhafi officials have reportedly taken refuge in Sirte.
According to varying reports from rebel fighters in Tripoli and also Italian Foreign Minister Franco Frattini, Gadhafi’s forces retain control of 10-20 percent of Tripoli. The exact amount of territory under loyalist control is almost as much of a mystery as what became of the Libyan army’s Khamis Brigade.
The International Crisis Group (ICG) has criticized the West’s approach to the conflict, arguing that by insisting on Gaddafi’s departure at such an early stage, NATO allies may have ensured a drawn out, life-or-death struggle that precludes a peaceful political settlement.
In a June 2011 report on the situation in Libya, the ICG warned that insisting on Gaddafi’s departure as a precondition for any political initiative would prolong the military conflict and deepen the crisis.
“To insist that he both leave the country and face trial in the International Criminal Court is virtually to ensure that he will stay in Libya to the bitter end and go down fighting,” said Hugh Roberts, ICG’s North Africa Project Director. “That would render a ceasefire all but impossible and so maximize the prospect of continued armed conflict.”
As the ICG explained in its report “Popular Protest in North Africa and the Middle East: Making Sense of Libya,”
Unlike events in neighbouring Tunisia and Egypt, the confrontation that began in mid-February between the popular protest movement and Qaddafi’s regime followed the logic of civil war from a very early stage. This owes a great deal to the country’s history and chiefly to the peculiar character of the political order Colonel Qaddafi and his associates set up in the 1970s. Whereas Egypt and Tunisia had been well-established states before Presidents Mubarak and Ben Ali came to power in 1981 and 1987 respectively, such that in both cases the state had an existence independent of their personal rule and could survive their departure, the opposite has been true of Libya. As a result, the conflict has taken on the character of a violent life-or-death struggle.
Eight years after overthrowing the monarchy in 1969, Qaddafi instituted the Jamahiriya (“state of the masses”) that is very much a personal creation largely dependent on his role. A constitutive principle of the Jamahiriya is the axiom, proclaimed in Qaddafi’s Green Book, that “representation is fraud” and that no formal political representation is to be allowed. Whereas all other North African states have at least paid lip-service to the right to political representation and have permitted political parties of a kind, however unsatisfactory, in the Jamahiriya there has been none at all, and attempts to create parties have been considered treason. The consequence of this radical refusal of the principle of representation has been to stunt the development of anything approaching effective, formal institutions or civil society. Notably, the articulation of diverse ideological outlooks and currents of political opinion, which other North African states have allowed to at least some degree, has been outlawed.
A corollary of this low level of institutionalisation has been the regime’s reliance on tribal solidarities to secure its power base. Strategic positions within the power structure – notably command of the security forces’ most trusted units – have been held by members of Qaddafi’s own family, clan and tribe and of other closely allied tribes. At the same time, and especially since the late 1980s, the regular armed forces have been kept weak, undermanned and under-equipped, the object of mistrust.
These various features of the political order help explain why the logic of civil war set in so quickly after the first demonstrations.
It could also be said that these various features not only help explain why the logic of civil war “set in so quickly,” but also why it could very well drag on for some time. This would explain why world leaders are urging the rebels and the NTC to show restraint if and when they finally succeed in toppling Gaddafi.
As Fred Abrahams, a special adviser at Human Rights Watch, coordinating the organization’s coverage of the Libya crisis, wrote today:
Daunting tasks face the transitional leadership, the National Transitional Council, in the days and weeks ahead, particularly in the area of human rights. How they tackle those challenges will set the tone in Libya for years to come.
First is the responsibility to avoid revenge. Fighters with the council should treat all of their detainees humanely, from members of the Gadhafi family to captured fighters on the streets. They should turn the page on the old regime’s standard use of torture and abuse. …
Government arms depots also need securing to ensure that Gadhafi’s vast military arsenal does not fall into private hands, fueling an insurgency and perhaps get smuggled outside the country. In other parts of Libya, Human Rights Watch has seen large, unguarded depots with land mines, Grad rockets, anti-tank missiles and handheld SA-7 Grail surface-to-air missiles capable of shooting down a civilian airplane.
The concerns expressed by the international community and civil society do not take place in a vacuum. As this blog has pointed out since the intervention began last spring, the UN-mandated intervention has overstepped its legal boundaries nearly from day one.
When Resolution 1973 was adopted by the UN Security Council, it was pitched to the public as the “establishment of a no-fly zone.” The Security Council’s press release on March 17 began,
Demanding an immediate ceasefire in Libya, including an end to the current attacks against civilians, which it said might constitute “crimes against humanity”, the Security Council this evening imposed a ban on all flights in the country’s airspace — a no-fly zone — and tightened sanctions on the Qadhafi regime and its supporters.
Initially, it appeared that Muammar Gaddafi was complying with the resolution’s first demand, “the immediate establishment of a ceasefire and a complete end to violence and all attacks against civilians,” as he instantlydeclared a ceasefire following the vote.
Gaddafi’s son, Saif al-Islam, further promised that government troops would not try to enter the rebel stronghold of Benghazi, backing away from earlier threats, Agence France-Presse reported.
The United States, however, called the ceasefire announcement insufficient, demanding that the regimeimmediately pull all of its forces out of eastern Libya, which apparently Gaddafi failed to do in time.
The next day, the bombing began. In announcing the attacks, President Obama said,
Today I authorized the armed forces of the United States to begin a limited military action in Libya in support of an international effort to protect Libyan civilians. That action has now begun.
In this effort, the United States is acting with a broad coalition that is committed to enforcing United Nations Security Council Resolution 1973, which calls for the protection of the Libyan people. …
Even yesterday, the international community offered Muammar Gaddafi the opportunity to pursue an immediate cease-fire, one that stopped the violence against civilians and the advances of Gaddafi’s forces. But despite the hollow words of his government, he has ignored that opportunity. His attacks on his own people have continued. His forces have been on the move. And the danger faced by the people of Libya has grown.
The Arab League, which had tentatively lent support to Resolution 1973, promptly objected to the bombing campaign. “What is happening in Libya differs from the aim of imposing a no-fly zone, and what we want is the protection of civilians and not the bombardment of more civilians,” said Arab League Secretary General Amr Moussa on March 20.
Despite the narrow limitations placed on the U.S. and NATO forces by the Security Council to enforce a no-fly zone in order to protect civilians, the Western powers soon made clear that their objective was not simply to protect civilians, but to aid the rebels in the their efforts to overthrow Muammar Gaddafi.
As the L.A. Times reported on March 24, leaders of the rebel opposition were making regular contacts with allied military officials to help commanders identify targets for the U.S.-led air assault.
“There is communication between the Provisional National Council and UN assembled forces, and we work on letting them know what areas need to be bombarded,” rebel spokesman Ahmed Khalifa said.
Less than a month later, President Obama and his French and British counterparts made public their objective of regime change, which was specifically not authorized by Resolution 1973. In a joint op-ed published on April 15, Barack Obama, David Cameron and Nicolas Sarkozy wrote:
So long as Gaddafi is in power, Nato and its coalition partners must maintain their operations so that civilians remain protected and the pressure on the regime builds. Then a genuine transition from dictatorship to an inclusive constitutional process can really begin, led by a new generation of leaders. For that transition to succeed, Colonel Gaddafi must go, and go for good.
The U.S., for its part, has said that it will not be sending ground troops to Libya, but that it supports the decision to do so by European allies.
“The President, obviously, was aware of this decision and supports it, and believes it will help the opposition,” White House Press Secretary Jay Carney said on April 21. “But it does not at all change the President’s policy on no boots on the ground for American troops.”
But while claiming to exclude the possibility of “boots on the ground,” the New York Times reported on March 30 that the U.S. has “small groups of C.I.A. operatives [that] have been working in Libya for several weeks as part of a shadow force of Westerners that the Obama administration hopes can help bleed Colonel Qaddafi’s military.”
The UK and the U.S. seemed from the beginning to be parsing words very carefully regarding how an “occupation” is defined. Under international law, a territory is considered occupied when it is placed under the authority of a foreign power.
Article 42 of the 1907 Hague Regulations (HR) states that a “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”
The International Committee of the Red Cross cites common Article 2 of the four Geneva Conventions, which apply to any territory occupied during international hostilities.
The ICRC, which is considered the world’s foremost authority on the Geneva Conventions, says,
The rules of international humanitarian law relevant to occupied territories become applicable whenever territory comes under the effective control of hostile foreign armed forces, even if the occupation meets no armed resistance and there is no fighting.
The question of “control” calls up at least two different interpretations. It could be taken to mean that a situation of occupation exists whenever a party to a conflict exercises some level of authority or control within foreign territory. So, for example, advancing troops could be considered bound by the law of occupation already during the invasion phase of hostilities. This is the approach suggested in the ICRC’s Commentary to the Fourth Geneva Convention (1958).
An alternative and more restrictive approach would be to say that a situation of occupation exists only once a party to a conflict is in a position to exercise sufficient authority over enemy territory to enable it to discharge all of the duties imposed by the law of occupation. This approach is adopted by a number of military manuals.
Regardless of whether one accepts the more narrow view of how an occupation is defined or the broader view embraced by the ICRC, the decision to send ground forces into Libya – even as advisers – appears to violate the letter and the spirit of Resolution 1973, which excludes “a foreign occupation force of any form on any part of Libyan territory.”
For the moment, President Barack Obama continues to insist that no U.S. boots will be placed on the ground in Libya. Standing by his earlier pledge that “we will not – I repeat – we will not deploy any US troops on the ground,” the White House says that the president’s position that there will be no U.S. boots on the ground in Libya is unchanged.
Only time will tell.
Last week, the transit authority in San Francisco shut down cell phone communications in order to prevent protests against a series of killings by the San Francisco Bay Area Rapid Transit (BART). The most recent incident was the shooting of Charles Hill on July 2. As described at the blog No Justice, No BART,
On July 2, while drunk and barely able to stand up, Charles Hill was gunned down on the civic center BART platform by a BART Police Officer. This marked the third officer involved shooting since Oscar Grant was shot, and the sixth in BART police history.
Right away, we knew not to believe BART’s version of events. They have lied to the public and attempted to cover up the facts following every single one of the officer-involved shootings that made it into the press. We saw this process play out in painstaking detail following the shooting of Oscar Grant (not to mention the murders of Jerrold Hall and Bruce Seward), so we know their routine. …
When BART released the video our fears about the incident were confirmed. Also, we learned details about the shooting that DIRECTLY contradicted claims BART police chief Kenton Rainey had made at press conferences. Which means we caught him in a bald faced lie, defending wrongdoing by his officers. Which is the same thing that happened with then BART Police Chief Gee and the Oscar Grant shooting. Like Chief Gee, Rainey has defended the officers, claiming that they had followed police procedure and he wanted to get them back on the job. Even though we can see from the video, and we know from the eye witnesses, that there was no real threat posed to the officers on the platform when Charles Hill was shot.
At this point, as far as we know, both officers (like the ones who stood by while Oscar Grant was gunned down) are back on the job, undisciplined, and the shooter, whose identity has been discovered, is actually trying to negotiate a job with the FBI so he can resign quietly from BART! This is astonishing and unacceptable. …
In response to the shooting, the group called for “protests to pressure BART and the SF District Attorney to take action and produce some accountability and justice in this situation.” Demonstrators gathered on July 11, shutting down several BART stations and evading police for hours.
Another protest was called for August 11, and in response, the BART authorities preemptively cut cell phone service in the subway stations in order to prevent demonstrators from communicating with each other. BART police Lieut. Andy Alkire said that the move to kill cell phone service was “a great tool to utilize for this specific purpose,” i.e., preventing demonstrators from exercising their First Amendment rights of assembly and free speech.
So, rather than responding to the protesters’ concerns over the lack of accountability of BART police officers, the response of the authorities was instead geared towards trying to prevent public criticism altogether. It’s difficult not to draw the obvious parallels to authoritarian regimes that have taken similar steps in countries such as Syria, Iran and Egypt, a point made cogently by the hacktivist movement known as Anonymous:
The ACLU of Northern California also weighed in, making a similar point:
All over the world people are using mobile devices to organize protests against repressive regimes, and we rightly criticize governments that respond by shutting down cell service, saying it’s anti democratic and a violation of the right to free expression and assembly. Are we really willing to tolerate the same silencing of protest here in the United States?
So far the transit agency is mum on exactly how they blocked cell service. Did it ask the cell provider to shut off service? Did it simply shut off the service itself? Or did it illegally use a jammer? Either way, when the government responds to people protesting against it by silencing them, it’s dangerous to democracy. The government shouldn’t be in the business of cutting off the free flow of information.
Shutting down access to mobile phones is the wrong response to political protests, whether it’s halfway around the world or right here in San Francisco.
The Electronic Frontier Foundation, an organization devoted to freedom of speech in the digital age, asked on its website,
Was pulling the plug on people’s phones a quick, on-the-spot decision, or part of a protest-response plan vetted by BART’s lawyers? Who decided that blocking all cellphone calls at these BART stations was the right response to news that there might be a protest? Were the carriers ever in the loop about this plan or action? Who decided that the news of this planned protest justified the shutdown? How do we know this isn’t going to happen again?
Indeed, BART said today that it had instituted the following rules, including: “No person shall conduct or participate in assemblies or demonstrations or engage in other expressive activities in the paid areas of BART stations, including BART cars and trains and BART station platforms.”
What does that mean? We can’t talk?
“BART officials are showing themselves to be of a mind with the former president of Egypt, Hosni Mubarak,” said the EFF.
When the Egyptian authorities cut off cell phone and internet service in an attempt to quell the growing demonstrations against the rule of Hosni Mubarak, they came under intense international criticism, with particularly strong words from U.S. Secretary of State Hillary Clinton:
As we have repeatedly said, we support the universal human rights of the Egyptian people, including the right to freedom of expression, of association, and of assembly.
We urge the Egyptian authorities to allow peaceful protests and to reverse the unprecedented steps it has taken to cut off communications. These protests underscore that there are deep grievances within Egyptian society and the Egyptian government needs to understand that violence will not make these grievances go away.
In its crackdown on protesters in Hama, the Syrian government imposed an almost complete communications blackout earlier this month.
“Syrian authorities suspended cell phone services, land lines, electricity, and water when tanks rumbled into the city center,” reported the Washington Post, “drawing an international outcry and the first UN statement condemning the brutal suppression of protesters since the revolt began in March.”
In response to anti-government demonstrations in Iran in 2009, the authorities there took similar measures. “One opposition newspaper has been closed down and BBC websites also appear to have been blocked by the Iranian authorities,” reported the BBC. “The AP news agency reports that mobile phone services have been blocked in Tehran.”
For its crackdown on the opposition, Clinton has said that Iran is pursuing “tyranny at home,” and has rejected Tehran’s criticism of the Libyan regime’s violence as hypocritical. “Iran, for example, has consistently pursued policies of violence abroad and tyranny at home,” she said.
“In Tehran, security forces have beaten, detained, and in several recent cases killed peaceful protesters even as Iran’s president has made a show of denouncing the violence in Libya,” she said, dismissing Iran’s stated condemnation of violence in Libya as hypocrisy.
Yet, the irony appears to be lost on U.S. authorities that they also forfeit the right to criticize other governments when the same tactics are utilized by the authorities in the USA. For the sake of basic consistency, obviously, the same standards need to be applied at home.
While the Federal Communications Commission is apparently investigating the BART incident, it seems to be doing so quietly, with no mention of it on its website. FCC spokesperson Neil Grace did, however, send the following statement to the press:
Any time communications services are interrupted, we seek to assess the situation. We are continuing to collect information about BART’s actions and will be taking steps to hear from stakeholders about the important issues those actions raised, including protecting public safety and ensuring the availability of communications networks.
Considering the relevance of the developments in San Francisco to U.S. credibility on the international stage, however, it might behoove the Obama administration to weigh in more directly. The silence on the matter is just one more strike against the United States in its ability to exert pressure on human rights abusers without being rightfully accused of double standards.