Submission to the UN Office of the High Commissioner for Human Rights: Resolution 43/1

Human Rights Watch
Submission to the Office of the High Commissioner for Human Rights
Resolution 43/1 Report on the Promotion and Protection of the Human Rights of Africans/People of African Descent against Excessive Use of Force
March 9, 2021

Human Rights Watch is pleased to offer this submission to the Office of the High Commissioner for Human Rights (OHCHR) as background information for the preparation of OHCHR’s report on the Promotion and Protection of the Human Rights of Africans/People of African Descent against Excessive Use of Force. We have compiled published reports of our investigations and legal analysis, congressional testimony, and related materials beneath each of the relevant headings from the OHCHR’s request for information. 

OHCHR has requested information on, “measures taken to identify, address, reform and remedy systems, institutions, structures, mechanisms, legislation, policies and/or practices that give rise to, perpetuate, entrench and/or reinforce systemic racism, racial discrimination and associated human rights violations against Africans and people of African descent, including those resulting from historical legacies, as relevant.”

Human Rights Watch would like to draw OHCHR’s attention to current efforts to provide reparations to people of African descent within the United States. Human Rights Watch, alongside several local and national activists and groups, has been a part of efforts to call for reparative justice for racial discrimination and human rights violations against people of African descent, including those resulting from historical events, such as the Tulsa Race Massacre of 1921 and from the legacy of slavery in the United States.

As we have noted in our reporting,

No one has ever been held responsible for the crimes associated with the Tulsa Race Massacre, the impacts of which black Tulsans still feel today. Efforts to secure justice in the courts have failed due to the statute of limitations. Ongoing racial segregation, discriminatory policies, and structural racism have left black Tulsans, particularly those living in North Tulsa, with a lower quality of life and fewer opportunities.

Under international human rights law, governments have an obligation to provide effective remedies for violations of human rights. The fact that a government abdicated its responsibility nearly 100 years ago and continued to do so in subsequent years does not absolve it of that responsibility today—especially when failure to address the harm and related action and inaction results in further harm, as it has in Tulsa. Like so many other places across the United States marred by similar incidents of racial violence, these harms stem from the legacy of slavery.

There are practical limits to how long, or through how many generations, such claims should survive. However, Human Rights Watch supports the conclusion of the Oklahoma Commission to Study the Tulsa Race Riot of 1921 (recently renamed the Tulsa Race Massacre Commission)—a commission created by the Oklahoma state legislature in 1997 to study the massacre and make recommendations—that reparations should be made.

The Tulsa Race Massacre occurred in a broader context of racist violence and oppression stemming from slavery, which continues to impact black people in the United States today. Human Rights Watch has long been supportive of the development of broader reparations plans to account for the brutality of slavery and historic racist laws that set different rules for black and white people. Accordingly, Human Rights Watch supports US House Resolution 40 (H.R. 40), a federal bill to establish a commission to examine the impacts of the transatlantic slave trade and subsequent racial and economic discriminatory laws and practices. H.R. 40 has been circulating in Congress for 30 years but recently gained renewed momentum given a growing public understanding about the harms of slavery and its continuing impact today.[1]

For more information, please see:

• The Case for Reparations in Tulsa, Oklahoma: A Human Rights Argument | A report describing the 1921 Tulsa Race Massacre and its connections with modern day systemic racism; and outlining the case for reparations under international human rights law.
• H.R. 40: Exploring the Path to Reparative Justice in America | Congressional testimony submitted by Human Rights Watch to the US House Committee on the Judiciary Subcommittee on the Constitution, Civil Rights, and Civil Liberties
• An Innovative Approach to Police Violence in New York City | Commentary describing an innovative attempt by civil society groups in New York City to seek reparations for victims of police violence.

OHCHR has requested information on, “the impact of such measures on the enjoyment of civil, political, economic, social and cultural rights, including, but not limited to, measures, mechanisms and procedures taken to identify, address and provide effective remedy and redress for systemic racism and racial discrimination experienced by Africans and people of African descent within law enforcement and the criminal justice system. Please also identify or include related public reports in this regard.” Human Rights Watch has not identified effective national measures, mechanisms and procedures taken to provide remedies for systemic racism and racial discrimination in the United States. Instead, we, alongside many others, have identified several ways in which systemic racism and racial discrimination continue to plague the country. For example,

[R]acial disparities in illness and death from Covid-19 are inextricably linked to failures at all levels of government in the United States to fully protect the human rights of people of African descent, as well as government policies over generations that have directly contributed to racial disparities across multiple systems—health, education, housing, and criminal justice, among others. These disparities compound each other in ways that exacerbate the vulnerability of people of color to Covid-19.[2]

In other contexts, including as documented by Human Rights Watch in Tulsa, Oklahoma, poverty and racial discrimination in policing are interlinked.

For more information, please see:

• Covid-19 Disparities Reflect Structural Racism, Abuse | Human Rights Watch testimony submitted to US House of Representatives Ways and Means Committee on the ways in which Covid-19 racial disparities reflect structural racism and racial discrimination in the United States.
• Policing, Poverty, and Racial Inequality in Tulsa, Oklahoma |An interactive feature showing the correlations between poverty, policing, and race in Tulsa, Oklahoma.
• Articles in The Root, Washington Post, New York Times, and NBC News | These articles describe a lawsuit on behalf of the Tulsa race massacre survivors, citing Human Rights Watch’s findings.
• Poverty, the Pandemic and Police Violence in the US | This essay discusses the interrelationship between poverty, the pandemic and police violence in the US.

OHCHR has requested information, “regarding specific incidents of alleged violations of international human rights law against Africans and people of African descent by law enforcement agencies, especially those incidents that resulted in the death of George Floyd and other Africans and people of African descent.”

Human Rights Watch has reported that:

Too often police reform discussions in the United States focus on tactics that contribute to killings. Killings are only the tip of an iceberg of much more common daily interactions between police and Black, Latino, Native American, poorer people, and people with disabilities, that are coercive and often violent, even if they do not result in death or serious injury. Such interactions result in high rates of arrest and criminalization, again disproportionately impacting people from these communities, contributing to mass incarceration and devastating long-term consequences for those convicted and those close to them.

These patterns are themselves a product of generations-old systemic racial inequalities, laws, and policies that have prioritized policing and criminalization as the primary state response to a range of societal problems. They are also the result of an approach to policing in the United States that has too often relied on coercion and force and failed to ensure accountability for abuse. Reform efforts need to address these fundamental problems to be effective.[3]

For more information, please see:

• US: House Should Not Pass Policing Bill Without Changes | In this press release, we outline our concerns with the proposed Justice in Policing Act in the US Congress, which passed in the US House of Representatives on March 3, 2021.
• “Get on the Ground!” Policing, Poverty, and Racial Inequality in Tulsa, Oklahoma | In this report, we describe how abusive policing in Tulsa, Oklahoma that targets Black people and poor people, diminishes the quality of life in all communities.
• A Roadmap for Re-imagining Public Safety in the United States | This report provides 14 recommendations on how jurisdictions in the United States need to reduce investments in policing as a means to solve social problems such as poverty and substance use; and instead invest in robust forms of police accountability and community support.
• Video Report Regarding Re-imagining Policing in the United States | This video report discusses a vision for investing in economic, social, and cultural rights that actually promotes public safety in the United States and moving away from over-resourcing a law enforcement response to problems.
• Defunding the Police is a Reparations Issue | This commentary describes how moving resources away from policing and investing instead in communities can be a form of reparative justice.
• Why Police Shoot People in the Back | This commentary describes some elements of the legal and policy context that lead to police shooting people in the back.
• US: Address Structural Racism Underlying Protests | In this press release, Human Rights Watch connects the killing of George Floyd and the resulting protests to the failure to address structural racism in the United States.

OHCHR has requested information on, “measures taken to ensure accountability, remedy and redress and address any impunity for human rights violations against Africans and people of African descent, particularly by law enforcement agencies; and the outcomes and effectiveness of such measures. Please also share information about the functioning of accountability mechanisms and associated decision-making processes addressing human rights violations, and identify any patterns or trends in the outcomes of these mechanisms and processes that show or suggest differential experience of Africans and people of African descent with respect to accountability for violations suffered by them. Please also identify or include related public reports in this regard.”

Human Rights Watch has not compiled information responsive to this category of inquiry.

OHCHR has requested information “concerning laws, regulations, policies and other measures taken to prevent and address alleged human rights violations by law enforcement officials against Africans and people of African descent, as well as contribute to accountability, remedy and redress, and the outcomes and effectiveness of such measures.”

Human Rights Watch has recently commented on proposed legislation in the US Congress, known as the Justice in Policing Act.

For more information, please see:

• Human Rights Watch Recommendations for the Justice in Policing Act | In this letter, we outline our concerns with key provisions in the Justice in Policing Act.
• House Should Not Pass Policing Bill Without Changes | In this press release, we explain that the proposed legislation, touted as significant reform, contains some positive provisions, but it funnels excessive amounts of federal funds to law enforcement that would be better spent on investments for communities in need.

OHCHR has requested information “concerning Government responses to anti-racism peaceful protests, within the meaning of resolution 43/1, including the alleged use of excessive force against protesters, bystanders and journalists, as well as applicable laws, regulations, policies, practices and other measures, and their impact and effectiveness.”

Human Rights Watch draws OHCHR’s attention to our recent investigation into the New York City police department’s (NYPD) planned assault and mass arrests of peaceful protesters in the Mott Haven neighborhood of the South Bronx, a low-income Black and brown community that has long faced systemic racism and police brutality. As we have reported, the Mott Haven:

“[O]peration was among the most aggressive police responses to protests across the United States following the police killing of George Floyd in Minneapolis, Minnesota on May 25.

About 10 minutes before the 8 p.m. curfew, scores of police officers surrounded and trapped the roughly 300 protesters, not allowing them to disperse. Just after 8 p.m., the police, unprovoked and without warning, advanced on the protesters, whaling their batons, beating people from car tops, and firing pepper spray into people’s faces before rounding up about 250 of them for arrest. Clearly identifiable legal observers and street medics were also targeted.

Our investigation, based on interviews or written accounts from 81 protesters and observers and analysis of 155 videos recorded during the protest, reveals how the police action in Mott Haven was deliberate, planned and in violation of international human rights law. The operation illustrates a culture within the New York police force, modeled by top commanders, that encourages and condones violence and abuse. The report describes the government’s ineffective accountability mechanisms that protect police officers, shows the shortcomings of incremental reforms, and makes the case for structural change.”[4]

For more information, please see:

• “Kettling” Protesters in the Bronx: Systemic Police Brutality and Its Costs in the United States | In this investigation, Human Rights Watch describes a planned attack by the NYPD against protestors seeking racial justice in New York City’s South Bronx neighborhood.
• Kenosha Police Turned a Blind Eye to US Vigilantes | Commentary discussing the links between responses to protestors in the US, white supremacy, and abusive policing.

OHCHR has requested information “regarding systems of collection by State authorities of disaggregated data based on race, colour, descent, or national or ethnic origin, and processes for the analysis of such data. In relation to the above-mentioned areas, please provide data disaggregated by race, colour, descent, or national or ethnic origin; as well as additionally by sex, age, economic and social situation, disability, sexual orientation and gender identity, incarceration, and other status, where available. Where such information is not available, please indicate reasons why.”

Human Rights Watch has not compiled information responsive to this category of inquiry.

OHCHR has requested information on “mechanisms in place to ensure that Africans and people of African descent and their representatives are appropriately, adequately and sufficiently represented in processes to identify, remove and reform any structures, policies and practices of racial discrimination in institutions of law enforcement and the related administration of criminal justice.”

Human Rights Watch has not compiled information responsive to this category of inquiry.

OHCHR has requested information on, “good practices, challenges and lessons learned regarding measures taken to: (i) combat systemic racism at the national, state/regional and local levels, including as informed by structural and institutional factors; (ii) prevent and address alleged human rights violations against Africans and people of African descent by law enforcement officials; (iii) ensure accountability for human rights violations against Africans and people of African descent and access to effective remedies and redress for such victims of contemporary and associated historical human rights violations; and (iv) ensure appropriate Government responses to anti-racism peaceful protests. Please also identify or include related public reports in this regard.”

Human Rights Watch has not compiled information responsive to this category of inquiry.

OHCHR has requested information on, “specific information pertaining to all other aspects of the mandate set out in resolution 43/1, including regarding the situation and perspectives of African women and children and of women and children of African descent, as well as other relevant gender and intersectional dimensions, including discrimination based on colour, sex/gender, economic and social status, disability, or other status”.

Human Rights Watch has testified to the US Congress that women of African descent in the United States:

“[A]re more likely to live in poverty and face multiple barriers to health, including lack of access to health insurance, adequate housing, water and sanitation services, transportation, and employment. Implicit bias and structural racism in the medical field also impact the quality of care and responsiveness to health concerns that women of color receive, contributing to racial disparities in health. Black women are more than three times as likely to die from pregnancy-related complications as white women in the US. Research has also shown that low-income women and women of color are more likely to die from cervical cancer than white women.”[5]

For more information, please see:

• “It Should Not Happen” Alabama’s Failure to Prevent Cervical Cancer and Death in the Black Belt | A Human Rights Watch report explaining that the federal and many state governments, including Alabama, are not doing enough to address the ways in which discrimination and poverty lead to cervical cancer deaths, which are largely preventable.  Approximately 4,200 women a year die in the United States from cervical cancer, and mortality rates are disproportionately high for women of African descent.
• Covid-19 Disparities Reflect Structural Racism, Abuse | Human Rights Watch testimony to the US House of Representatives Ways and Means Committee on the ways in which Covid-19 racial disparities reflect structural racism and racial discrimination in the United States.
• US: Heat Emergency Plans Missing Pregnancy, Racial Justice | Report by Human Rights Watch showing that efforts by US federal and local authorities to address increasing heat in the US because of the climate crisis largely fail to include pregnancy health and birth outcomes, and racial disparities in the same as areas of concern. Our concern, shared by partners, is that this failure in climate justice will worsen already-existing health disparities including between Black and white women in the US.
• US: US Structural Racism Shapes Access to Water During Covid-19 | A report explaining that discontinuing water services for inability to pay in any context is incompatible with human rights and is particularly harmful in the context of the Covid-19 pandemic. In 2020, the NAACP Legal Defense and Educational Fund, Inc. and the ACLU of Michigan Lawyers filed a class action lawsuit alleging that these shutoffs reflect long-existing structural racism in the state. The lawsuit included statistical analyses showing that Black Detroiters are more likely to be impacted by water shutoffs. We the People of Detroit, an organization committed to community research and the human right to water, released findings in July 2020 that in Detroit, more water shutoffs correlated with more Covid-19 cases.