From Charleston to Newtown to Human Rights, US Failing its Legal Obligations

Jul 29, 2015   //   Politics, Tolerance, Top Story

 

There’s been a lot of talk recently, by our President and others, about gun violence prevention (GVP) and racial discrimination.  Yet both can be simultaneously addressed by having our government live up to its legal obligations under ICERD (the “Race Treaty”) by putting a National Plan of Action in place – something it has failed to do.   Major GVP organizations have spent millions of dollars in attempting to get lawmakers to address gun violence.  A fair question is how does a private citizen, with an outlay of less than $20,000, place our government in the position of having to provide, by 2017, ‘detailed information’ on ‘concrete steps’ it has taken to implement a number of important GVP measures including universal background checks, increased transparency on gun use in crime and illegal gun sales, banning concealed guns in public venues, and re-evaluating Stand Your Ground laws ‘to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when deadly force is used for self-defense’.   Simply, the issue was successfully reframed into one that violates US obligations under a ratified treaty that becomes US law under our Constitution’s Supremacy Clause – and the implications in preventing millions of premature deaths go well beyond that of gun violence each year. 

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The day following the posting of my last article, the UN Human Rights Council’s June 29, 2015 resolution on Human Rights and the Regulation of Civilian Acquisition, Possession and Use of Firearms was forwarded to my attention.   Contained in the communication was that the Council had adopted the resolution by a vote of 41 in favor, none opposed, and six abstentions.  The resolution is brief, spanning only two pages.  Excerpting from the second page:

“[The Human Rights Council] calls once more upon all States to do their utmost to take appropriate legislative, administrative and other measures, consistent with international human rights law and their constitutional frameworks, in order to ensure that civilian acquisition, possession and use of firearms are effectively regulated with the aim of enhancing the protection of human rights, in particular the right to life and security of person, of all.”(emphasis added)

This resolution was the result of individuals such as Sybrina Fulton (Trayvon Martin’s mother) and Ron Davis (Jordan’s father) who travelled to Geneva, Switzerland to give statements before a human rights committee about the loss of their sons to gun violence.  And the efforts of activists and organizations, including but not limited to, this writer, Amnesty International-USA and the Dream Defenders (a Florida-based minority activist group), that wrote and submitted reports.  The human rights committee overseeing US obligations under the International Covenant on Civil and Political Rights (ICCPR) declared early last year that rampant gun violence in the US constituted a violation of rights, especially its disparate impact on women, children, and minorities (reference paragraph 10).

This writer’s report, joined by Amnesty International-USA (that also addressed gun violence in its own separately filed report) and the Violence Policy Center, was confined to the International Convention on the Elimination of all forms of Racial Discrimination (ICERD – hereafter sometimes referred to as the “Convention” or “Race Treaty”).  The data and arguments contained in the report swayed the committee to conclude (see paragraph 16) that gun violence in the US that disproportionately affects racial/ethnic minorities, “particularly African-Americans”, constitutes a violation of one of our government’s most fundamental duties (to protect life), and led to the following recommendations (all of which were contained in the filed report):

” The Committee urges the [US] to take effective legislative and policy measures to fulfill its obligations to protect the right to life and to reduce gun violence including:

*  By adopting legislation expanding background checks for all private firearm transfers;

*  Prohibiting the practice of carrying concealed handguns in public venues;

*  Increasing transparency concerning gun use in crime and illegal gun sales, including by repealing the Tiahrt Amendments; and

*  Reviewing Stand Your Ground laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when deadly force is used for self-defense.”

(Note: the only report recommendation not adopted by the committee was a request to repeal or modify the Protection of Lawful Commerce in Arms Act (PLCAA) to limit the existing broad-based immunity granted to the firearms industry -” industry” includes manufacture, distribution and sale).

Additionally, the Race Treaty committee stated that the gun violence recommendations were of “particular importance” and requested the US “to provide detailed information in its next periodic report (2017) on concrete measures taken to implement these recommendations” (reference paragraph 34, emphases added).

These recommendations read as a dream list of gun violence prevention (GVP) initiatives that the movement has been attempting to get at, or complaining about for years – and, with the US being a party to the treaty, our government is obligated to respond.  That the US took the review seriously is evidenced by the large and relatively senior delegation that it sent to Geneva including the likes of Loretta Lynch (preceding her appointment to US Attorney General), Mark Kappelhoff, Keith Harper and many others – about 30 in total.  And it was through the actions of concerned activists and organizations that, for the first time, gun violence has been incorporated into this committee’s recommendations, cementing it as a rights violation following the same opinion issued by the ICCPR committee earlier that same year.

For those who think that this is just international law with little ability to enforce here in the US, not so.  Both ICERD and ICCPR have been ratified and as such become US law under the Constitution’s Supremacy Clause.  This opinion has been published by Majorie Cohn (human rights activist and law professor Thomas Jefferson School of Law and former president of the National Lawyers Guild) as well as others, such as the ACLU: “The Supremacy Clause of the US Constitution makes the Constitution, Federal Statutes, and US treaties ‘the supreme law of the land’ ” (reference pp. 3-4).   And this writer takes great exception, as have others, to Reservations, Understandings, and Declarations (RUDs), reviewed in the last reference, as it is preposterous to ratify a treaty without the intent to follow it unless there is a clear conflict with our own Constitution – and none of the listed GVP recommendations do.  The Race Treaty also came to light in the much publicized opposition to Arizona’s racial profiling law (SB1070).    The Senate’s role in treaties as law is summarized here; as explained by Alexander Hamilton in Federalist no. 75 “the operation of treaties as laws plead strongly for the participation of the whole or portion of the legislative body in the office of making them.”  Thus, as explained in the reference, the Senate must approve a resolution of ratification by a two-thirds majority before the instruments of ratification are formally exchanged between the US and the foreign powers(s).

The US government’s failure to live up to it’s legal obligations has been a source of much frustration with the human rights movement.  The Race Treaty committee specifically addressed the failure to fully implement the Convention, which is poorly known and understood by the public, under paragraphs 5 and 6 of its Concluding Observations.   The US Human Rights Network (USHRN) called for a National Plan of Action to implement the treaty both during the review in Geneva as well as following Charleston, as did this writer in the recommendations issued in the filed report (see paragraph 18.2) and a recent article.  So, in order to pursue the committee recommendations on gun violence, it becomes necessary to invoke the Convention – it’s what gives the matter teeth and places pressure on Congress to live up to its legal obligations.

And for those who got their knickers in a twist about the last article, let there be no doubt about this writer’s full support for background checks and other initiatives, contained in his report, that have been served up on a platter here.   Unlike many others in major GVP organizations, this writer receives no compensation – the work was donated, personally financed including the costs of domestic and international travel.  The stance here is that background checks alone are inadequate regarding hate crimes like Charleston unless the shooter just happens to share one of the identifiers (which wound up being the case with Charleston – and activity to mobilize the families of victims in Charleston to support background checks occurred prior to the publicized resolution of the gun purchase).

So, for the first time, there is a basis for the GVP movement to pursue a course of action, grounded in law, rather than just pleading with Congress about how terrible gun violence is – compliments of the human rights movement.

But in addressing hate crimes such as Charleston, the GVP movement must move beyond just product-based interventions and place the debate into a framework that embraces both near-term and long-term initiatives.   With over 40% of this nation’s gun violence victims being African-American, that includes addressing the issue of racial discrimination, the underlying cause of this disparity – for that effort will result in a reduction of gun violence (and a whole lot more), lead to more powerful initiatives, and elevate the cause to higher moral ground.  Anything less would be akin to placing a patch over the issue of minority gun violence victimization.

Understanding the Tactics and Strategy

What was achieved above was intentional and involved both global and competitor-specific tactics which are grounded in this writer’s business background.

Global

*  Framework.  What has been missing in the fight for gun violence prevention is an overarching framework that guides the underlying initiatives.  Recalling a news analyst’s comments, the 2013 attempt at GVP legislation in the US Senate was like throwing a lot of stuff at a wall and seeing what sticks – none of it did.  Placing the matter into a rights framework gives a purpose to each initiative – enhancing the protection of rights, most specifically the right to life and security of person, which is a fundamental duty of government.

*  Synergy: Both Organizational- and Issue-based.  The approach capitalizes on unrealized synergy between the human rights movement and the GVP movement.  The issue of gun violence represents an overlapping interest and the two bring different but complementary assets to the table that will prevent far more premature deaths due to discrimination than just gun violence alone.  There is no other singular human rights infraction in the US that attracts the level of media attention as well as millions of dollars in financing than does gun violence.  The two movements become more powerful together than they are apart, one providing the framework, the other the connections and financing – the same sort of synergy we look for in business mergers and acquisitions.  Regarding issue-based synergy,  gun violence as a stand-alone issue has proven to have little political clout as it is almost off-radar as a reason why people cast a vote for Congress.  However, when placed into a rights framework, synergy is found with many other issues that motivate voters.

*  Cost Effectiveness.  Without the benefit of financial contributions, the approach had to be cost effective.  Whereas millions of dollars have been spent on trying to get GVP initiatives before lawmakers, several important initiatives were incorporated into existing documents where the US is now obligated to give “detailed information” on “concrete measures” taken to implement these initiatives.  This involved only a computer, telephone and travel for research, presentation, defense and solicitation of advocates – all for under $20,000 in direct expense.  Having created a multi-million dollar corporation with an international client base, started over a garage with one contract and no outside investors, one quickly learns the importance of strategically and judiciously deploying capital.

Competitor-Specifc

To defeat a competitor, it takes understanding the competitor.  The following tactics were born of approaches used in corporate warfare, such as S.W.O.T. analysis and Art of War.

In analyzing where the resistance lies in addressing gun violence, it is in the conservative wing of our politics.  There is no denying this as the Republican Party, through use of the filibuster, effectively blocked every attempt at gun violence prevention legislation following Newtown.  This party has also admittedly exploited racial conflict for political gain and is continuing to do so.  The overwhelming majority of the NRA’s political contributions are directed to that party as well.  Note that following Charleston, prominent US Senator Chuck Grassley, still argues against the need for additional gun violence prevention legislation in a July 10th statement: ”The facts undercut attempts to use the [Charleston] tragedy to enact unnecessary gun laws.”  Newtown revisited.

A characteristic of this wing of our politics is that it places ideological positions (and no doubt special interest funding) on higher ground than life.  This is seen not only in the area of gun violence, but with many other issues including healthcare reform, financial deregulation, tax and economic policy, gutting support systems for the needy – all of which contribute to premature death.  So, in assessing this competitor, it becomes necessary to pursue approaches other than just talking about the number of lives lost to gun violence because such pleas have historically fallen like water off a duck’s back.  And as previously written, legislators can vote with impunity against GVP legislation as the issue falls almost off-radar as a reason people cast their vote for Congress.

In assessing the weakness (the W in SWOT) of the competitor, it clearly has a diversity problem.  This is reflected by what it elects to office and what votes for it as evidenced in the last presidential election year (2012, 90% white, dominated by males).  The ICCPR committee conclusions (also a ratified treaty) on gun violence included the disparate impact on minorities, women and children.  Women and minorities (specifically African-Americans and Hispanics) just happen to represent powerful voting blocks that, despite the white majority and predominately male vote on the Republican side, carried the Democratic Party (where gun violence prevention and human/civil rights support largely lies) to gains in both the upper and lower Houses in 2012 as well as a wide margin of victory for Mr. Obama.  So including gun violence as a violation of rights in women and minorities (and children clearly being an emotional issue) throws fuel on the fires of the already existing discontent with the party that obstructs gun violence prevention initiatives – thus giving rise to a political strategy that hurts the opposition where it counts – their jobs.  This is a reason this writer is high on the Moms Demand Action organization – it is mobilizing a key voting block that can impact the political landscape.

Regarding Art of War, the NRA and its donation-recieivng cronies in Congress have been declaring that their position is based on rights – what is clearly an over-reach of the Second Amendment.  The strategy developed here counters that argument in that gun violence itself is held to be a violation of rights and lawmakers reluctance to address it constitutes a failure in one of their most fundamental duties, protecting the right to life and security of person.  That is an argument any politician supporting GVP prevention should be willing to take on.  For it was certainly never the intent of the Second Amendment to obstruct intervention regarding thousands of criminal homicides each year through intentional (not accidental) product misuse.

Concluding Remarks and Recommendations

This country, and the major national-level players in the GVP movement, specifically those that bring millions of dollars to the table and have the media attention to direct the debate, have some serious soul-searching to do if they intend to use Charleston in support of their initiatives.

There’s no denying the horrific nature of the Charleston church shooting.  But when nine African-American citizens lose their lives in a hate crime born of racial intolerance (Aurora, Newtown, V Tech, etc. were not hate crimes), groups mobilize to go to Washington with pleas that such has to stop – this while ignoring that gun violence is but the visible end of the spectrum regarding a staggering loss of life in our African-American population, totaling into the millions, attributable to racial discrimination.  And those lives are cut short, ranging from infants to the elderly, every bit as effectively as if by a bullet.  But those premature African-American deaths are just not spectacular enough to come across our TV sets at night – they are silent, out-of-sight, out-of-mind.  Our country, and those in the GVP movement who were aware of this and had the chance to do something beyond their own cause (without affecting their objectives), need to check their moral compass.  It is just not possible to address a crime like Charleston, or the disproportionate loss of life in our African-American community to gun violence, without addressing racial discrimination as part of the prevention plan.  It’s time to capitalize on the synergy between the movements.

This writer, as I believe is the case with most, is tired of hearing the same hackneyed phrase “Our thoughts and prayers are with the victims and the families”,  as well as tragedy after tragedy falling prey to our 24/7 breaking news cycle that Jon Stewart once said has the attention span of the dog in [the animated film] ‘Up’.   Rather than seeking incomplete solutions to the issue of gun violence, this writer is looking to expose and impale the soft underbelly of the beast – and that soft underbelly is that our government is failing in one of its most fundamental duties, as well as its legal obligation, to protect the right to life and security of person, most notably with our women, children, and racial/ethnic minorities.

The human rights movement just served up on a platter a number of important GVP initiatives to which our government is obligated to respond.   It would be nice to return the favor, especially since the GVP movement needs the votes of women, African-Americans and Hispanics to shape Congress into an entity more prone to address its cause.  Here are some suggestions.

*  Use the GVP movement’s extensive media reach to reframe the gun violence debate into one of rights violations, and draw attention to ICERD, the Race Treaty, calling for a National Plan of Action to fully implement the treaty that is poorly known to the public – for that is the instrument that carries the above GVP initiatives.  Also cite the ICCPR committee recommendations (another ratified treaty) as they contain the disparate impact of gun violence on women and children.  There is no downside in doing this – it could only help the GVP movement achieve its objectives while laying the groundwork to address a staggering number of premature deaths due to racial discrimination.

*  Have lawmaker allies bring forth GVP legislation consistent with the recommendations issued by the Race Treaty committee – the recommendations on racist hate speech and hate crimes should also be included (see paragraph 9); Dylann Roof admitted to such speech awakening his racist beliefs and driving him to commit the crime.  Our country is obligated to provide “detailed information” on “concrete steps” taken to implement these recommendations.  Make it a very public fight, and expect it to be a nasty one as it is attacking a bread-and-butter tactic of the opposition, exploiting racial/ethnic conflict for political gain (lest their be doubt here, examine the rhetoric of several Republican presidential candidates on immigration).  None of the GVP recommendations are in conflict with this country’s Constitution – so there is no basis to not live by the rule of law under a ratified treaty.  Let the opponents lay bare their lack of willingness to protect the rights of women, children and racial/ethnic minorities.  With that Segway…

*  Regarding the tough talk out of some groups about making lawmakers pay the price at the polls, the above plays favorably with important voting blocks that have already shown the capability of having political impact – and a presidential election year is coming where this base is usually at it strongest.  Just as the GVP movement can capitalize on synergy with the human rights movement, the issue itself can also capitalize on synergy with many issues that do carry weight at the polls, e.g., healthcare, voting rights, ‘War on Women’, etc., thus making it part of a broader picture rather than a stand-alone issue that has historically carried little weight.

There’s a fight brewing to reframe the GVP issue, likely in the US senate, that will be driven by the human rights movement, unless major GVP organizations step out of their sandbox and play with the rest of their siblings.

 

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