Kathleen Killian ’21, Law & Public Policy Scholar
The following is the first part in a series on systemic racism in the United States and the manner in which it implicates several crimes against humanity under international criminal law.
The United States has, while flouting its reputation as the “land of the free,” has continued to implement government policies that furthers the systemic oppression of Black Americans. Although civil rights advocates in the country have achieved milestones for equality, the United States’ criminal justice system has effectively held the majority of Black Americans captive. At each civil rights milestone, the system would reshape itself to achieve the same result – the continued confinement of Black citizens – while using a different structural framework. In other words, as public tolerance for overt systemic racism faded, politicians simply learned to adapt. President Reagan was one of the first masters of exploiting racially motivated hostilities to perpetuate discrimination against Black citizens without ever mentioning race. Dog whistle terms such as “welfare queen” or “super predator” painted a vivid picture, but allowed for plausible deniability so that no politician risked being branded a “racist.” Moreover, throughout the continued violence perpetrated by state actors against Black citizens, barriers like qualified immunity for police officers or juries that exclude Black members have continued to prevent legal redress for its victims.
International law, specifically international criminal law, provides a forum to prosecute atrocities when the country at issue cannot or will not do so on its own. The United States has historically failed to address its issues of systemic racism and crimes against humanity that are being committed against Black citizens. The government has periodically recognized that systemic inequities exist but has failed to make meaningful changes to address these problems. It is for these reasons that we must look outside the bounds of our domestic legal system to actually achieve justice and racial equality.
In a series of posts following this introduction, I will highlight five different crimes against humanity committed against Black citizens: murder, forcible transfer, persecution, imprisonment, and other inhumane acts. I will provide evidence for each and explain how the elements of these crimes are met. In my last post, I will discuss what this reality means for the United States as a whole and how this country could move toward healing. In this post, I will briefly touch on the factual basis for these claims, and then define crimes against humanity broadly.
In the subsequent posts, I will discuss in greater detail the factual bases for each crime against humanity that the United States has committed against Black Americans. For purposes of this introductory discussion, however, it is important to understand the following points. Black Americans make up 13% of the U.S. population, but are two times as likely as their white counterparts (76% of the population) to be killed by police. What is even more concerning is that these statistics are also widely underreported. The Washington Post built a comprehensive database of police shootings after discovering that the FBI had underreported shootings by more than half. Civilians also target and kill Black Americans, often without consequence, as was the case with Trayvon Martin. Moreover, government practices such as redlining and “slum clearance” forced Black Americans into neighborhoods that were cut off from resources for decades. Black families were therefore broadly prevented from creating generational wealth through resultant restrictions on their ability to purchase and own real property.
In addition, mass incarceration disproportionately impacts Black communities. The incarceration beast was fed by the legalization of stop-and-frisk laws that essentially provided a legal basis for racial profiling. Relatedly, Black Americans suffer persecution because they are disproportionately deprived of the fundamental right to vote and the fundamental right to privacy (considering how often police are called on Black people living their everyday lives). Lastly, other inhumane acts are committed through police brutality, the school-to-prison pipeline, and disproportionate access to healthcare. I will discuss each of these issues in turn and demonstrate how each constitutes a separate crime against humanity.
Crimes against humanity were first defined on the international plane at the International Military Tribunal, a court established by the victors of the Second World War in order to prosecute the atrocities committed by the leaders of Nazi Germany during that conflict. But the definition I rely on comes from the Rome Statute – a treaty ratified in 2002 that created the International Criminal Court. It defines a crime against humanity as: “any of the [identified constitutive] acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.” This conduct must also be committed “in furtherance of a State or organizational policy to commit such an attack.” An organization as it relates to the organizational policy is a group that has the capability to perform acts which infringe on basic human values, but it does not necessarily have to be a government.
Context is what distinguishes a constitutive act as a domestic crime versus a “core” international crime. For example, murder is prosecuted as a federal or state crime, but if that murder was committed in furtherance of a state policy to oppress or abuse a civilian population, then it is prosecutable under international law as a crime against humanity. The crimes that constitute a crime against humanity are prosecuted to preserve peace and security, and to protect human dignity. Governments are meant to work for the welfare of their citizens, not harm and attack them. In the event that civilian populations are under attack, the international community has determined it has an obligation to intervene. This idea is also encapsulated in the Responsibility to Protect doctrine, a political commitment to bring the worst forms of violence and persecution to an end.
Explaining the Contextual Elements
Each relevant constitutive act in the United States occurs both in a widespread and systematic manner. Victimization of Black Americans is statistically significant when compared to their white counterparts. The mistreatment occurs in every corner of the United States but more so in states with a higher population of Black Americans, therefore satisfying the widespread requirement.
The constitutive acts also occur in a systematic manner. Systematic is defined as “relating to or consisting of a system” or “methodical in procedure or plan.” Thus, crimes against humanity occur systematically when they are committed in accordance with a system. The U.S. criminal justice system is built not only to enforce laws in a way that oppresses Black people, but also to protect the state actors that murder, abuse, and mistreat them. The systematic nature of these crimes can be demonstrated by looking at different cities. New Orleans and Minneapolis are drastically different in population, geographic location, and industrial make-up, but one thing they have in common is the methodical oppression of their Black citizens. The United States is a very large and diverse country, but no matter the different culture of the city, there is invariably evidence of crimes against humanity being committed against Black Americans.
An organization does not necessarily have to mean a government. The main qualifying factor is whether or not the group is able to perform acts which infringe on basic human values. The relevant state or organizational policies that are currently furthered by the constitutive acts of systemic racism in the United States are not necessarily racist on their face; the goal of each problematic law may not be inherently to hurt Black people. But the way the laws are implemented results in furthering the oppression of Black citizens. The laws create barriers so that they cannot escape poverty, cannot have a say in who represents them politically, cannot live freely, and cannot live without fear of assault from the state. Above all, these policies are upheld to maintain the status quo. They are meant to protect white civilians that murder Black people, to protect the police forces that abuse and kill them, and to protect the white wealth that was built on the oppression of Black people. This protection is the main goal of the policy that is furthered by each constitutive act. State actors know that furthering this policy requires the murder, imprisonment, transfer, and persecution of Black Americans and they willingly participate in its implementation.