Archive | June, 2013

Pride and Prejudice: Human Frailty and the Irreversibility of Capital Punishment

30 Jun

On Friday, June 28 the UN held its second annual event to highlight key elements of efforts to eliminate the death penalty as a viable punitive option for states.   The event sought to call specific attention to the problem of wrongful convictions, a problem impacting many attempts to punish violators of the law, but especially in instances of capital crimes, as there is simply no way to reverse punishment which results in loss of life.

As UN Secretary General, Ban ki-Moon noted in his opening remarks, there have been welcome efforts in several countries (and in some US states) to reduce and/or eliminate the practice of capital punishment.   However, the practice still exists in a number of member states, and there is concern that others might be tempted to roll back hard commitments to eliminate this practice, something that this event was designed to help avoid.  The SG wisely called for a “series debate” on capital punishment in those states that have so far refused to abolish capital punishment.

The event was organized by the Office for the UN High Commissioner for Human Rights and provided an excellent case study as to why wrongful convictions are so problematic in countries that sanction at least the possibility of executions. The event featured a film clip of “West of Memphis,” the critically acclaimed documentary that follows the events of the so-called “West Memphis Three,” who were arrested for the murders of three 8-year old children in 1993 and imprisoned more than 18 years, before being released with the introduction of new DNA evidence. One of those wrongfully convicted, Damien Echols, who was actually sentenced to death, was among the experts on the panel, along with his attorney.  His reflections on treatment he received at the hands of Arkansas prosecutors, prison guards and others was a chilling reminder of how sloppy police work leads to wrongful convictions and a host of subsequent abusive practices.

One of the important contributions of this event is the degree to which legal prosecutions are potentially compromised by a host of factors – including the careers of judges, prosecutors and law enforcement officials, persons occupying important professional positions who maintain uncomfortably ‘cozy’ relationships in some US states and other countries.  “We’ve never sent an innocent person to prison,” we have heard from law enforcement officials,” a refrain that continues even after DNA evidence contradicts original judicial findings.  Especially in high profile cases, the emotional and political pressure to convict often exceeds the evidence with which to convict.  As more than one speaker at the event noted, judges and prosecutors don’t get re-elected because they set people free.  They get re-elected by putting people behind bars — whether they deserve to be there or not.

In many life circumstances, we encounter people who have strong convictions based on flimsy evidence.  The need to ‘make up one’s mind’ trumps the need to make the best judgment possible based on existing evidence.   A corollary to this is the unwillingness to allow judgments once made to adapt to changing circumstances.   Parents, for instance, often make good decisions about the way to raise their pre-school child, but some of these decisions will inevitably and rightly evolve as the child moves through stages of development.  Mature judgments are held hostage neither by pride nor prejudice, but by the need to make the best possible choices based on shifting circumstances.

This tendency to ‘rush to judgment’ coupled with a compelling need to defend such judgments and maintain career reputations make for a shaky circumstance when it comes to any policy work, but even more when it comes to capital punishments. The more any punishment approaches irreversibility, the higher the guarantees we must offer regarding the objectivity and integrity of trials.   All relevant evidence gathering must be encouraged and then heeded even once an initial judgment is rendered.   In criminal matters, it seems ironic that opportunities for identifying and overturning wrongful convictions were provided not so much by jurists but by scientists working on DNA coding.  Some of that scientific discipline – specifically the ability to resist reaching past the limits of available, credible evidence – should be mandatory for criminal justice professionals as well.

GAPW remains deeply concerned about the trend in so many areas of policy to blatantly taint sound judgment with personal pride and institutional prejudice.  In the case of capital punishment, we will continue to engage strong partners – especially FIACAT and the World Coalition against the Death Penalty – as part of broader efforts to ensure that flexible, evidence-based policy becomes the norm in both domestic and international contexts.

 

Dr. Robert Zuber

 

Luis Fernando Carrera: “Drug Trafficking Needs to Become Subject of the Public Debate”

25 Jun

Latin and Central American states have been displaying newly gained self-confidence when it comes to addressing a very pressing issue, that is, International crime related to drug trafficking and consumption, to the detriment of this region of the world for the past four decades. The recent political pathway demonstrates the will and the capacity to find solutions within the Latin and Central American context, and with it the political and ideological departure from the War on Drugs. The latter, a campaign waged under the aegis of the U.S. government over the last four decades. The present campaign is based on a combination of prohibition, military aid and military intervention in alliance with participating countries. Unfortunately it has generated often questionable results, and has become a larger target for external, as well as internal criticism.

Virgin Group founder and investor Richard Branson wrote in an Op-ed piece for CNN in December last year, “About 40,000 people were in U.S. jails and prisons for drug crimes in 1980, compared with more than 500,000 today. Excessively long prison sentences and locking up people for small drug offenses contribute greatly to this ballooning of the prison population. It also represents racial discrimination and targeting disguised as drug policy. People of color are no more likely to use or sell illegal drugs than white people — yet from 1980 to 2007, blacks were arrested for drug law violations at rates 2.8 to 5.5 times higher than white arrest rates.”

Today, Latin American countries face more severe problems related to drug trafficking than before the U.S. initiative began. The prisons are overpopulated with small-scale drug offenders, meanwhile high-level traffickers roam free due to lax law enforcement or corruption.

A recent panel at the United Nations, organized by the Permanent Mission of Guatemala and the International Drug Policy Consortium (IDPC), disclosed a number of new insights on possible future guidelines. Guatemala’s Foreign Minister Luis Fernando Carrera analyzed the status quo of the movement and presented fresh experiences in the field by Human Rights Watch.

A report in 2009 by the Latin American Commission on Drugs and Democracy, and a regional meeting in Columbia in April 2012, defined the political U-turn, or the new approach of taking-matters-into-own-hands. The meeting included President Barack Obama, the presidents of Guatemala, Colombia, Costa Rica, Argentina, Brazil, and Ecuador. For the first time in history the violence and the misery brought to Latin and Central American countries by the War on Drugs was openly criticized.

“There is an urgent need to bring drug policy to the international public debate,” Guatemala’s Foreign Minister Carrera explained. He referred to the recent Declaration of Antigua from June this year, adopted by the Organization of American States (OAS). The declaration recognizes the complexity of the world drug problem, its effects on  health, social relations and the integrity of democratic institutions, and urges for individual approaches, tailored to the different needs member states face. “A few weeks ago, we had a real discussion on drug policy for the first time,” Carrera explained, “But the declaration still needs adjustments, and I clearly can’t tell you where we are going to be with this debate in ten years from now.”

Rebecca Schleifer, Advocacy Director at the Health and Human Rights Division at Human Rights Watch, presented a disturbing fact, related to Guatemalan handling of drug addicts. She explained, “The treatment provided in some states often violates basic human rights standards.” At the moment around 6000 people that are charged for drug violations are detained in evangelical prayer camps. “They can’t leave voluntarily, they are behind barbed-wire and are absolutely at the mercy of some pastor who might release them at his good will.”

It is much hoped that once more rhetoric is turned into action, rather sooner than later.

Lia Petridis Maiello

Cyber Security and the U.N. – A Panel at the German Mission

12 Jun

According to an Internet Complaint Report compiled by the Federal Bureau of Investigation (FBI) from 2010, a total of 14,689 offenses were filed in the state of New York. The top three crimes were the non-delivery of merchandise despite payment, identity theft, and auction fraud on Internet portals, such as eBay. The financial loss in 2010 for the state of New York alone was over twenty-six million dollars.

Congruent with three, week-long sessions by the UN Group of Governmental Experts (GGE) on cyber security issues, the German embassy to the UN in cooperation with the EastWest Institute hosted an expert panel, entitled Cyber Security – Uncharted waters for the UN. Yes, the group maintained, international law and even the UN Charter apply to cyberspace. However, the path to consensus among member states on a global framework will be, not surprisingly, long and arduous.

The terms cyber terrorism, cyber crime and cyber security, seem insufficiently clear to describe to the general public a scenario that might more likely appear in a scene from a chilling science fiction movie. The German-based Global Economic Symposium from 2013 commented on this dilemma, “Sadly, public ignorance of the threats of cyber crime is all too frequent.”

The Center for Strategic and International Studies (CSIS) defines a cyber terrorism as, “The use of computer network tools to shut down critical national infrastructures (e.g., energy, transportation, government operations) or to coerce or intimidate a government or civilian population.”

The US Federal Bureau of Investigation (FBI) generally sums up cyber crime as the following offenses: computer and network intrusions such as bots, worms, viruses, spyware, malware, hacking and identity theft.

The International Telecommunication Union defines cyber security as a “Collection of tools, policies, security concepts, security safeguards, guidelines, risk management approaches, actions, training, best practices, assurance, and technologies that can be used to protect the cyber environment, including organizations’ and users’ assets.”

Meanwhile global news stories on cyber security and the breach thereof by committing cyber crimes, are becoming more frequent and therefore are increasingly centered in the perception of the public eye.

With the growing concern of these generally unpredictable threats, what options does the international community have to prevent cyber attacks from occurring? How realistic is it to achieve international consensus on the matter, and what institution should be the hub for international law enforcement regarding the Internet? And is cyber terrorism a real threat after all? Peter Warren, chairman of the Cyber Security Institute in the UK explained in a recent interview that terrorist networks that seek to carry out an attack over the Internet, “are running a risk to be tracked and found because such organizations are quite heavily monitored by the intelligence agencies all over the world.” Warren stated further that the likelihood of a capable state carrying out an attack against another state seems more likely.

Examples of cyber warfare (or cyber conflict) already exist in many forms. In addition to ongoing cyber tensions between the US and China, there was the extensively documented cyber attack launched by the U.S. and Israel aimed to substantially hurt Iran’s nuclear program in 2009. The latter operation, known as the Stuxnet computer worm, was deemed by NATO as “an act of force” and likely “illegal under international law.”

There is also last week’s leaked Presidential Policy Directive 20. According to The Huffington Post’s author Gerry Smith, it represents “the latest sign that the US is preparing for cyber war.”

The panel assembled by the German embassy and the EastWest Institute was comprised of leading cybersecurity experts, represented three different variations of national interest and ideologies. They found an interesting balance between doom and cautious optimism regarding future cyber security solutions.

Sandro Gaycken, researcher at the Institute of Computer Science at the Freie Universität in Berlin, Germany, unsurprisingly represented the heavy-hearted fraction. Gaycken, also a bit of a moral finger-wagger, preferably lectured his US-American colleague James Lewis from the Center for Strategic and International Studies in Washington about US-American shortcomings related to regulatory policies and an almighty Internet industry, supposedly impossible, admittedly difficult to regulate.

Cherian Samuel, representing the Institute for Defence Studies and Analyses in New Delhi, India, and also the largest Internet community in the world, voiced concerns that the U.N. might not be “fast enough” in addressing the global security matters related to the Internet. “We are moving on a very slow scale, while the problems are expanding much faster,” he said. Lewis reminded the audience that while U.N. processes indeed tend to take some time, he believed in the possibility of positive outcomes, specifically referencing the arms trade treaty (ATT) process, a global effort to regulate the international arms trade that had started back in 1997. “I’m very optimistic. It will take years, but we will get there,” Lewis commented.

The panel agreed, with constraints, on basing global cyber security on the U.N. charter and international law. A recent U.N. study, titled “Comprehensive Study on Cyber Crime” from February 2013, is addressing the legal framework in order to put sufficient, international regulation in place, with the following key results:

The technological developments associated with cybercrime mean that – while traditional laws can be applied to some extent – legislation must also grapple with new concepts and objects, such as intangible ‘computer data,’ not traditionally addressed by law.
Legal measures are crucial to the prevention and combating of cybercrime, and are required in all areas, covering criminalization, procedural powers, jurisdiction, international cooperation, and Internet service provider responsibility and liability.

At the national level, cybercrime laws most often concern criminalization – establishing specialized offences for core cybercrime acts. Countries increasingly recognize the need, however, for legislation in other areas. Compared to existing laws, new or planned cybercrime laws more frequently address investigative measures, jurisdiction, electronic evidence, and international cooperation.

While both Samuel and Lewis stressed the importance of securing the Internet through binding international regulation, Gaycken framed doubts that this process might result effectively in the end of Internet privacy, a prospect not well received in Europe. He repeatedly stressed that strong economic interests by large Internet firms, such as Google, will prevent or significantly slow down the movement for global web regulation.

Clearly, establishing a worldwide regulatory framework for Internet security will require staying power, juridical skill and a strong belief in the need to protect both the integrity of vital Internet resources and the lives of those threatened by cyber insecurity.

Lia Petridis Maiello

 

The article was originally published with The Huffington Post and re-posted by the EastWest Institute.

 

Signature Moment: A Final Thought on the ATT

2 Jun

On Monday June 3, the Arms Trade Treaty (67/234B) will be officially open for signature at UN Headquarters by all Member States.

On that day, there will be a special event to mark the opening as well as a large celebratory reception that evening. The amount of diplomatic and civil society energy that went into this treaty was considerable and certainly is worth at least a bit of cheer.

Like many others, GAPW devoted considerable amounts of program time to ATT-related matters.  Primarily through the ATT Monitor which we developed and distributed with Reaching Critical Will, we gave what we believed to be thoughtful and attentive analysis to diplomats about the ways in which treaty negotiations could function more smoothly and identified (red) ‘base lines’ that separated a nominally successful treaty from one that, in our view at least, was as likely to do more harm than good.

Those baselines in our view were barely exceeded. The treat that was adopted on April 2 was considerably better than the version which had (thankfully) dodged consensus in July 2012.   The new version boasts many improvements, all of which have been chronicled on our website (www.globalactionpw.org) as well as on the more robust and comprehensive web presence of Reaching Critical Will.

That said, we have many issues with this treaty which we have also enumerated in various publications and policy briefs.   It is not necessarily a ‘game changing’ document, either on substance or on form.   Formally, the treaty does not adhere to the formula of other treaty processes engaged under UN auspices.  It is, as we suggested and as some key diplomats (and even the chair) noted, more like a ‘resolution on steroids’ than a document that has any real prospect of holding arms exporting states accountable to the full range of obligations listed within the ‘criteria’ and other sections of the treaty.

Moreover, this treaty was oversold from the beginning, a function more of the logistics of funding provided to select NGOs by certain states than of sustained, sober reflection on how this process could actually impact armed violence, the precedents it might establish, or the ways in which the UN might once again, rightly or wrongly, be held up to scrutiny as a body resigned to branding over substance.   Enthusiasm has its place but is no substitute for hard, sustained reflection on gaps to be filled and consequences to be anticipated.

Let us be clear once again.  The desire to create and pursue a framework for regulating arms transfers came from a good and caring place.   But that is not the end of the story. That this treaty process has created a legal framework that de facto endorses weapons transfers and which likely served as a distraction from concrete work on transfers policy over the past ten years are, from our standpoint, quite problematic.  That the treaty process also cost us so much – in political capital, in NGO relationships, in institutional credibility, in energy that could have been spent on other important, security-related issues – is a debt load that might take us quite some time to service.

Indeed, the greatest of these challenges for us is that, in pursuing a treaty in this way, we have inadvertently provided a gloss of international law sanction to the practice of weapons transfers, a practice that many of us find inherently problematic despite the UN Charter’s recognition of the right of self-defense.  We may find, assuming that we can eventually find our way back to our proper business of disarmament, that we have undermined any leverage we might otherwise have had to roll back a system that continues to pump millions of weapons into global regions that are not properly equipped to control their uses or trace their movements throughout what are often long life cycles, and with multiple iterations of use.

Weapons diversion is a critical issue for the planet and the treaty does well to highlight this, far better than the July version.   But weapons don’t divert themselves, nor is diversion likely to be as large a problem in situations where weapons transfers have been reduced or even eliminated. It will take much more than a treaty and some enthusiastic branding to build political commitments to eliminate diversion and build security based on the least possible levels of armament. As one diplomat said to us, ‘now that there appears to be legal sanction for transfers, maybe we should get in the arms business ourselves.’  We can only hope that his proverbial tongue stays in his cheek, and that other states are not thinking what he was saying.

To the sponsoring governments, the conventional arms branch of UNODA and funded (and unfunded) NGOs who have all worked hard for this treaty, please enjoy a toast to yourselves on the 3rd.   Given all the uncertainty around long-term costs and consequences, however, GAPW prefers to maintain the more sober approach.  As much as we might be tempted to think otherwise, we are not nearly ‘out of the woods’ on sound policy and practice related to transfers.   Nor have we yet had those difficult conversations with global constituents who were led to expect a treaty that will significantly impact levels of armed violence and reduce levels of transferred weaponry, only to learn that this treaty will be hard pressed to make a dent in either of those noble goals.

There are things to celebrate now, to be sure, but also much for us remaining to do and especially much for us to account for.

Dr. Robert Zuber