This post has taken a long time to write.
First, I had started researching something completely different. Corporate liability in international crimes. It’s an interesting and important topic, which I’ll get back to in a later post, but my thoughts kept flying elsewhere.
To the imagery of a black man, pinned to the ground, an officer’s knee on his neck. “I can’t breathe”, he pleaded. 16 times.
But the officer, slowly asphyxiating the man on the ground, didn’t flinch. Neither did the other officers present. They showed no emotions.
They let the life of 46-year old George Floyd, father of 6-year old Gianna Floyd, ooze out. As if he was a thing, a container they needed to empty.
The murder of George Floyd is yet another example of racist police brutality in the US, and it has sparked protests and righteous anger all across the United States – and across the globe.
I can’t get the image out of my head. And you know what? I don’t think I should.
I think the image needs to stay with me, and with all whites living in the US or elsewhere, because whites, no matter how progressively we define ourselves, need to face the age-old fact that we stand on a gruesome foundation of debunked, outrageous and self-serving ideas of racial supremacy.
We stand on the idea that some human beings are superior to other human beings. That some human beings are less human than others.
The dehumanizing idea which have laid the groundwork for the worst atrocities in the history of mankind.
Colonialism. The genocide of indigenous people in North, Central- and South America, the Arctic, Australia and Africa. The Transatlantic Slave Trade. The Late Ottoman Genocides, The Holocaust, the genocides committed during the Cold War (i.e. East Timor, Cambodia, Anfal). Segregation and Apartheid. The Rwandan genocide, the Bosnian genocide, the genocide committed against the Yazidis and the Rohingyas. The list is not exhaustive.
The dehumanizing idea which led straight to officer Derek Chauvin’s knee on George Floyd’s neck.
Yeah, that’s a lot to take in. I see myself as anti-racist, and I could easily protest and say that I had nothing to do with all this. I didn’t do it. It’s not my fault.
And while it’s true that I was far from born when German Christoph Meiners defined the “beautiful white” and the “ugly black” races back in 1785, or when French Arthur de Gobineau in the 1850’s claimed that the mix of races would lead to the “downfall of great civilizations”, or when American doctor Samuel Morton in the 19th century filled human skulls with pepper seeds and fathered scientific racism based on cranial capacity, the fact remains that I, as a white European, benefited from the racist injustices committed against blacks and other people of color around the world, no matter how I feel about it.
The fact is that today I still enjoy many privileges, of which I am more or less ignorant, because of the color of my skin.
One of the privileges is that when things get too rough or uncomfortable, when I can’t stomach all the hurt and injustice in the world, I can just ignore it. I can ignore it, because it doesn’t affect me or my family directly.
But if I ignore it, I’m part of the problem. And I don’t want to be. I’ve therefore taken a closer look at racism, international law and human rights. It’s something I should have done a long time ago.
Biological race still haunts
First of all, let’s make it absolutely clear. Race is a social construct. There is no biological evidence for race. Our genes do not divide us into distinct racial groups. There may be geographical variations, but studies point to a “fundamental similarity of all people around the world”. All humans alive today have common ancestors, and yes, they were African.
Variations in skin color are simply adaptive traits developed over thousands of years to deal with more or less sun exposure in different parts of the world.
However, present racism springs from the myth of a biological hierarchy of races, with whites on top, blacks at the bottom, and other skin-colors in between. This line of thought was used to justify colonialism and slavery.
Though we’ve come a long way in the fight against it, biases and systemic racism is still a global problem.
Disproportionate incarceration rates, lack of justice, police brutality, hate crimes, racial discrimination in employment, credit offerings, wealth, health and education are just some examples of injustices faced by blacks, latinx, Asians, Arabs, Jews and indigenous people around the world.
According to the Group of 77, a UN coalition of 135 developing countries and China, the “legacy of slavery in particular, is at the heart of situations of profound social and economic inequality, which continue to affect people of African descent.”
A human rights gap
There are several instruments in the international human rights-regime created to deal with racial discrimination. Most known is the United Nation’s International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) from 1965. It has gained almost near-universal acceptance, with 182 state parties.
Other relevant human rights instruments include the UN Charter, the Universal Declaration on Human Rights, and the International Covenant on Civil and Political Rights.
But, probably because I’ve had the luxury of not having to think about it, I was surprised when I read Professor of Law Anna Spain Bradley’s paper “Human Rights Racism”, which taught me that no international treaty or convention, including ICERD, mentions or defines racism as a human rights violation. Wait, what?
While ICERD talks of racial discrimination, it does not define racism. Neither does it acknowledge the fact that race is a social construct.
A few declarations do define it, including UNESCO’s Declaration on Race And Racial Prejudice from 1978. It defines racism as “racist ideologies, prejudiced attitudes, discriminatory behavior, structural arrangements and institutionalized practices resulting in racial inequality as well as the fallacious notion that discriminatory relations between groups are morally and scientifically justifiable…”
That’s all well and good, but a declaration is just that. A declaration. It’s not legally binding.
With racism at the core of numerous human rights violations and international crimes, it is problematic that it, in and of itself, is not clearly defined in international human rights law. This hampers nations’ attempts to eliminate it, and it offers excuses to those who do not wish to face it.
As Professor Bradley points out, racism is a very much under-researched topic in mainstream international legal scholarship:
“The international human rights curriculum in many places is devoid of meaningful engagement with racism and many of the leading human rights law casebooks do not include it in their coverage.”
And why is that? Well, time to face the fact that international law, and the human rights regime of which I think so highly, was built on a racist world order. As Professor of Law Antony Anghie lays bare in his book “Imperialism, Sovereignty and the Making of International law“, the base of international law is Eurocentric, with colonialism and neo-colonialism in the mix.
That doesn’t mean that the idea of all human beings being born free and equal in dignity and in rights is a racist, colonial concept. The point is that we have to acknowledge that international law is not race-neutral, and that explicit and implicit biases influence its character.
E. Tendayi Achiume, Professor of Law and the UN Special Rapporteur on Racism, Racial Discrimination, Xenophobia and Related Intolerance, points to one of those effects: The lack of representation of people of color in the global organizations and institutions “that wield the most power within the field of human rights.”
How are we ever going to change the world, and move toward true human equality, if there’s no equality in the “halls of power” where human rights instruments are developed?
Back in the 1980’s, Professor of Law, and leading scholar in critical race theory, Mari Matsuda, argued that “those who have experienced discrimination speak with a special voice to which we should listen”, and that “looking to the bottom” for ideas about law would tap “a valuable source previously overlooked by legal philosophers.”
Apparently the source is still, largely, overlooked.
Let us not overlook the Black Lives Matter-movement. A movement gone global, with anti-racist protests in North- and South America, Europe, the Middle East, Africa and Asia.
We need to listen to the protesters. We need to acknowledge our own biases and privileges. Last but not least, we need to acknowledge our racist history.
As the Group of 77 argues: It is important that the fight against racism recognize the social and economic dimensions of the injustices of the past and seek to redress them appropriately.
Otherwise humanity will be trapped in a chokehold forever.
Black Lives Matter.
Sources: ICERD, G77.org, UNESCO’s Declaration on Race and Racial Prejudice, International Journal on Human Rights, Scientific American, Mappingpoliceviolence.org, The New York Times, Revealnews.org, Sonia Kanga et al.: Whitened Résumés: Race and Self-Presentation in the Labor Market, Administrative Science Quarterly 2016, Anna Spain Bradley: Human Rights Racism, Harvard Human Rights Journal / Vol. 32 2019, Terence Ball et al.: Ideals and Ideologies: A reader, Pearson 2014, Mari Matsuda: Looking to the Bottom: Critical Legal Studies and Reparations, Harvard Civil Rights-Civil Liberties Law Review/Vol. 22 1987, Antony Anghie: Imperialism, Sovereignty and the Making of International law, Cambridge University Press, 2012.