C. Individual Racism
International law has long addressed the rights of individuals in certain contexts. From the laws of war, to the protection of diplomats abroad, to state responsibility for injury to foreigners, international law has within it protections for individual people. The United Nations Charter captures this rationale that international law is for the benefit of people and not just for nations. Similarly, the UN Declaration of Human Rights enumerates the key human rights afforded to peoples that nations agreed upon at that time. Among them, the right of equality (the “right to be born free and equal in dignity and rights” (Art. 1)), and of non-discrimination (“these rights are to be held without discrimination of any kind” (Art. 2)) form the basis upon which later laws addressing racial discrimination would be founded. Starting with the UN Charter and the UN Declaration of Human Rights, modern international law governing human rights has sought to create obligations owed by states to each other, to individuals, between individuals, and to the international community as a whole. Later human rights treaties created specific legally binding obligations upon states.
When indigenous people in North Dakota are targeted by laws that seek to limit or remove their right to vote, their rights are affirmed by Article 7 of the UDHR. When the Myanmar military targets Rohingya people through expropriation of lands and forced labor, their rights are affirmed by Articles 4 and 17. However, state-sponsored or supported racism belies an additional, deeper problem: the acceptance of racism within societies and by individuals. For all of its successes in promoting dignity, legal rights, and normative shifts in the world, the international human rights movement has not, to date, effectively reached the problem of racism by and between people. But it is difficult to imagine a world in which racism is effectively eliminated through state obligations alone.
Here, international law is presently ill-equipped to provide remedy as it only creates obligations owed by the state, not by individuals therein. Yet, the challenge of racism must also be met by and between individuals. When the United States ratified ICERD in 1994, it acknowledged this in its admission that “[r]acial discrimination by public authorities is prohibited throughout the United States, and the principle of non-discrimination is central to governmental policy throughout the country” but “... even though U.S. Law is in conformity with the obligations assumed by the United States under the treaty, American society has not yet fully achieved the Convention's goals.” How, then, might international law shape individual behavior regarding racism?
The prevailing model is found in international criminal law, which has established that aggression, genocide, crimes against humanity, and war crimes are illegal. Herein, international law establishes that states owe certain obligations to prevent and punish these crimes, namely establishing legal mechanisms to investigate and adjudicate alleged perpetrators at the domestic level or international level. In Belgium v. Senegal, for example, the I.C.J. found that Senegal had an international responsibility to fulfill its obligations under the Convention Against Torture to investigate and prosecute allegations of crimes against humanity and torture without delay. International criminal law also creates individual responsibility for these crimes, to varying degrees. Here, law governs not only the behavior of states but also the behavior of individuals wherever they reside. Individual responsibility for the crime of genocide is well-recognized. For example, in Prosecutor v. Akayesu, the International Criminal Tribunal for Rwanda (“ICTR”) found that Mr. Akayesu bore individual responsibility for committing the crime of genocide and crimes against humanity. There is evidence, albeit less strong, of individual responsibility with regard to crimes against humanity.
One path forward would be to link racism to an existing international crime, as was done with apartheid. The International Convention on the Suppression and Punishment of the Crime of Apartheid, which entered into force on July 18, 1976, names apartheid as a crime against humanity. The Convention defined apartheid to include “acts of racial segregation and racial discrimination committed for the purpose of establishing and maintaining domination by one racial group over people of other racial groups.” In this way, the Convention offers early guidance on the criminalization of racism under international law.
Should racism be understood, like apartheid, as an international crime? The Tadi test, applied by the International Criminal Tribunal for the former Yugoslavia (“ICTY”) to determine the existence of an international crime, offers a potential, albeit imperfect, model.
There are four criteria: “(1) the infringement of a rule of international humanitarian law, (2) the customary or treaty law character of the crime, (3) the ‘seriousness' of the violation of humanitarian law, and (4) the establishment of individual criminal responsibility by the rule in question.” A good case can be made that racism infringes upon the peremptory norm against racial discrimination and constitutes a serious violation of humanitarian law. However, at present, I do not advise this path. Racism has elements both criminal and not. It occurs in peacetime and war time. It is exercised by states and by individuals. It poses a grave risk to international peace and security. It is antithetical to the fundamental purpose of international law and the purposes of the United Nations, as established by Article 1 of the Charter. It is morally reprehensible. It is politically dangerous. Racism ought to be, as a normative matter, illegal under international law. But, at present, there are no legal pathways to allow for its prosecution and punishment as an international crime.
To push the law in such a bold direction, the Convention linked its purpose, authority, legitimacy, and validity to the prior expressions of state consent found in the UN Charter, UDHR, ICERD, the Genocide Convention, the Declaration on the Granting of Independence to Colonial Countries and Peoples, and the practice of the UN General Assembly and the UN Security Council. Article III assigns international criminal responsibility to individuals in addition to states and their representatives. The 109 state parties to the Convention agreed to prevent and to punish apartheid as well as to abide by any Security Council resolutions on the matter. No one has ever been prosecuted for the crime of apartheid. However, accusations of apartheid have been made by the Han people against the Chinese government and by the Zaghawa people against the Sudanese government. In addition, writing about Israeli occupation of Palestine, then-UN Special Rapporteur for Palestine John Dugard named Israeli activities as a form of apartheid contrary to international law.
A different approach would be to push for national laws that criminalize racism. An imperfect example of such is the Matthew Shepard and James Byrd Jr. Federal Hate Crimes Prevention Act under U.S. law. Take, for example, a recent case involving ten white teenagers in Mississippi who murdered a forty-seven-year-old black man named James Craig Anderson in June 2011. The teenagers attacked Mr. Anderson in the parking lot of his workplace and stole his valuables before fatally hitting him with their truck, all while yelling “White Power.” The accused teens were prosecuted under the Federal Hate Crimes Prevention Act. This federal law provides more robust authority to prosecute crimes motivated by racial hatred, in addition to crimes motivated by discrimination based on religion, gender, disability, and sexual orientation.
The idea of criminalizing racism in this way has been raised at the Ad Hoc Committee of the Human Rights Council on the Elaboration of Complementary Standards. The Committee has focused on xenophobia, national mechanisms, special measures including affirmative measures, prevention and education, protection for migrants and for refugees, and remedies for victims. In 2017, the Committee was tasked by the UN General Assembly and the UN Human Rights Council with ensuing “the commencement of the negotiations on the draft additional protocol to the Convention criminalizing acts of a racist and xenophobia nature...”
In conclusion, when human-to-human behavior is the cause of mass injustice or threatens international peace and security, it has entered the domain of international law. Yet international law provides few tools for regulating the private behavior of a nation's citizens. The challenge international law now faces is how to govern and constrain the behavior of individuals, not just states. Nations and their governments get stuck in eliminating racism in society and among individuals. Here, employing international law's normative power as a force for change is the tool best fit for attending to the problem of individual racism. International law can address racism between individuals through its norms when they prompt socio-economic and cultural shifts. Naming racism as a violation of human rights under international law would offer both legal and symbolic protection to those threatened by racism around the world. It would increase normative pressure on institutions, public and private, to pursue real solutions and on individuals to recognize our role in perpetuating racism. Thus, naming the problem--human rights racism--is deeply connected not only to manifesting and enforcing legal rights and dismantling old structures but also to promoting individual self-awareness and change.