Gary Haugen, “A New Mandate for Human Rights”

TOM GINSBURG: The edition of
the Ulysses S. and Marguerite Schwartz Lecture. We’re very honored,
particularly honored today, to have Judge John
Schwartz and his wife Betsy Schwartz, who have
been stewards of this program since it was
established in 1974. The lecture is designed
to bring to the law school distinguished lawyers with
experience in the academy, practice, or public service
to share their experiences and ideas with students,
faculty, staff, and alumni of the law school. And I can’t think of anyone
better to reflect these values or reflect the goals of the
lecture than our alumnus from the class of 1991,
Gary Haugen, who’s going to be our speaker today. Gary is the President and CEO
of the International Justice Mission, an organization
he founded in 1997. It’s a human rights agency
that works all over the world to secure justice for
victims of slavery, sexual exploitation, and other
forms of violent oppression. Some of you in the
audience had the pleasure of hearing him last year
as our distinguished alumnus and distinguished
graduation speaker, and I know you’re in
for a real treat today. The organization
is really designed to help promote or help deliver
on the promise of the law. In too many countries,
the law is not a device for
protection for people but an instrument of oppression. And Gary and his team
have [INAUDIBLE] people all over the world
who are helping to work with individual
victims to secure redress and to provide a model for
human rights protection. For those of you
who are students, if you’re interested in
his work after his lecture, I encourage you to
take his seminar. He’s going to be teaching this
spring at the college, a course entitled Human Rights
and the Rule of Law in the Developing World. And you might also consider
interning for the International Justice Mission, which is part
of our human rights program, our new human rights
program, at the school. After the lecture, we’ll
have a reception outside. I invite you all to join that. But without further ado,
I give you Gary Haugen. [APPLAUSE] GARY HAUGEN: Well,
thank you professor, for the kind introduction. I want to thank the
Schwartz’ for providing the opportunity for me to be
part of this lecture series. I’d like to thank Dean Levmore
for extending the invitation, and I’d like to think
Dean Shill for not rescinding the invitation. So thanks all
around, and thank you all for bothering to
come this evening. It’s a pleasure to get
to be here with you. I think that one
has to actually see it to believe it, which is
actually one of the biggest parts of the problem. Indeed, vast numbers of
intellectuals, policy makers, and thought leaders
in the west would say that it is fundamental,
but few have actually seen it. I think one has to
actually see, for example, what is happening to David. And to do that, one
must actually go sit in the Kenyan
courtroom into which he’s about to enter before one
can begin to understand what the public justice system looks
like in the developing world. It is safe to say that
what is about to transpire would leave any westerner
confused and disbelieving, and it would leave any western
legal professional speechless in the face of the
impending absurdity. It is equally safe to say that
what is about to transpire would seem utterly routine and
unexceptional to a poor person in the developing world. David is a slight boy
of 16 from the Kibera slum in Nairobi, Kenya. And he looks exhausted
and sick when he finally slumps down in the prisoner’s
box for his day in court. He looks lost and slightly
confused– but only slightly, because true
confusion would seem to require more mental energy
than he can presently muster. You might even
think that he’s not all that interested in what
is going on before him there in the court. Of course, he should
be very interested, because the court is deciding
if he should be executed or not. David has been languishing in a
fetid, violent, disease-ridden Kenyan prison for the
past eight months. David’s nightmare began
when he and two other boys were given the task
of guarding the water hose that provides scarce fresh
water for his slum community. When an older man from
outside the community tried to siphon off some of the
water, an altercation ensued. Infuriated, the older man
fetched a police officer friend and had the boys arrested
for robbery with violence. “Robbery” because
the older man said he had lost his
hat in the melee. Three things are important to
know about the crime of robbery with violence in Kenya. First, robbery with violence
is a non-bailable offense, which simply means
that no matter how absurd the charge, once
you’ve been arrested, you will sit in the Kenyan
prison for months or years until the indescribably
slow court system has reached the full disposition
on the merits of the case. Second, robbery with
violence is a capital crime with a mandatory death sentence,
a sentence of death by hanging. Thirdly, these two facts
combine to make this offense one of the most powerful tools
by which police extract bribes from the poor. If they can afford it, families
will pay almost any price to keep their loved
ones from being tossed into this nightmare by the mere
naked accusation of the police, police who are consistently
rated in public surveys as the most corrupt segment
of all Kenyan society. So David has had a rough
eight months awaiting his first opportunity to respond
to the charges against him, and now here he is on
trial for his life. David is too poor to pay
for legal representation, so he gets what most of the
poor in the developing world get when they come to trial. And that is no legal
representation. David doesn’t get incompetent
or sleepy or second-rate legal counsel. David, like the vast majority
of the poor in the developing world, enters the
public justice system with no legal
representation at all. Of course, the vast majority of
the people in such developing countries are poor. So when one pictures
the public justice system in the
developing world, one must picture a system in
which the hundreds of millions of people who actually live
in those countries have no access to the
professional services that are presumed to be necessary to
make the system actually work. Indeed, David– and
any other poor person– will just have to do the best
he can in defending himself. But this will be hard,
because the entire proceeding in the courtroom is
conducted in English. David does not speak
or understand English. So David faces being hung by
the neck until dead at the end of a legal proceeding in which
he has no legal representation and cannot even understand what
the prosecutor and the judge are saying. But again, David’s
circumstance is not an exotic anomaly
or a quirky story from the Nairobi newspapers. The fact is, David’s
story will never make the newspapers,
because there’s nothing interesting about it. David’s experience
is the routine. It is the system. Now, the system works a little
differently for Lily in Peru. Lily’s 14 years old
and has been raped three times in the last
month by the same taxi driver in her Andean town of Huanuco. To understand how the
system works for her, you might have to sit with
Lillie at the police station when she finally musters enough
courage to report the assaults. If you are not there to
see it, you might not imagine all the ways the police
find to humiliate her, asking, why did you entice him? Why are you bothering this man? Why do you bring
shame to your family? In the end, they simply refuse
to investigate the complaint or to arrest the rapist. The truth is, none of
the police in Lily’s town have ever actually been trained
on how to conduct a rape investigation or
how to interview a child victim of a sex crime. When I first visited Lily’s
town of about 70,000 people and talked to lawyers,
police, and community leaders, virtually no one could
remember the last time someone had successfully
been convicted of rape. That might explain
the headline that appeared in the local
newspaper during my visit, namely, that 50 victims of
rape had sought treatment at the local medical clinic
in the preceding five days. Most of those victims were
Lily’s age of 14 or younger. Likewise, one would
probably have to go to India and actually sit
outside the office of a senior regional magistrate
to see how the system fights crimes against poor
people, particularly the non-trivial
crime of slavery. My colleagues in
India and I have done this hundreds of times. Here’s what we do. We bring affidavits from
poor people held in slavery in local brick kilns,
rice mills, rock quarries, and other facilities. These documents vividly
describe the brutalities of their slavery,
the exact location of their captivity, the precise
identity of the slave owners who are holding them, and
the precise Indian laws that are being broken,
all packaged together. And many times, we
bring video evidence of the slaveowners openly
boasting of their crimes. Were we to simply leave such
evidence with the magistrate, the precise official
charge under Indian law for the enforcement of laws
against bonded slavery, we know exactly what
would happen next– nothing. Likewise, we know what
would eventually happen– nothing. And over the years, we’ve
seen a host of reasons why. The magistrate has never heard
of the Bonded Labor Abolition Act of 1976, let alone read it. Or he’s too busy, or he’ll
respond if we come back next week, or he thinks the
slaves are probably lying, or he needs more evidence,
or it’s a government holiday, or he doesn’t have the funds
for the required restitution payments, or he thinks the
slaveowners are too powerful. Or again, probably next week
would probably be better. At the end of the
day, perhaps one has to stand in the stifling
heat of the magistrate’s anteroom to begin to
appreciate the mind-numbing ineffectiveness of
a justice system that manages to tolerate
10 to 15 million children, to say nothing of the
adults, who experts tell us are currently held illegally
in bonded slavery in India alone. One also might go with me
to the Special Victims Unit office in the headquarters of
the national police in Lusaka, Zambia. This is the unit
specially charged by law to defend the rights
of women and children, especially widows who find
themselves being thrown off their land by more
powerful families when their husband dies. Zambian law grants the
widow and her children full rights to the land
and the family property– the mud brick house, the bed,
the bicycle, the tin pans. But when the man
dies, it’s open season for more powerful
families and relatives to simply steal it all away. Such dispossessions
are taking place at an epidemic rate
in sub-Saharan Africa as husbands and
fathers are swept away by the AIDS epidemic. The widows and orphans
have the law on their side and the Special Victims
Unit on their side, but there are some
practical problems. First, if you have the law
on your side but no lawyer, you lose. In Zambia, a country of
about 11 million people, there are only about
250 practicing lawyers. I frequently enter
buildings of law firms where there are more lawyers
in the building in the United States than there are in the
entire country of Zambia. Needless to say, the lawyers in
Zambia, like lawyers anywhere, are trying to make
a living and do not build their business
model around service to impoverished widows. In fact, our office
in Zambia estimates that there are perhaps
10 lawyers in Zambia who provide legal services to
the poor on a full-time basis. So outside the offices
of these 10 lawyers, one might picture a very long
line of eight million Zambians who live off less than $2 a day. But perhaps the police officers
at the Special Victims Unit, they can help. And when my colleagues
and I bring a report to their office of several
widows in the village who are being dispossessed, the
officer seems eager to help– that is, if we can
give them a ride to the village in our vehicle,
because he and his colleagues have no vehicle, and if we are
willing to pay for his lunch. And while we might
on this occasion be able to do both
for the officer, it doesn’t take much
imagination to picture how such a system usually
works for vulnerable widows and orphans. Indeed, for the great
mass of poor people in the developing world, if
asked about the public justice system they could
probably point to things in their country called police
or courts, or laws or lawyers. But these things are generally
of zero practical use to them in their lives. These ineffective
public justice systems have become, for the
poor in the developing world, the tragic broken link
in the chain of human rights protection mechanisms put in
place over the last 60 years. Without effective
public justice systems to deliver the protections
of the law to the poor, the great legal reforms of the
modern human rights movement rarely have any impact
in the lives of those who need these systems the most. Moreover, this state of
functional lawlessness means that much of the
poverty alleviation efforts of international
development assistance is blocked, stolen, or
rendered useless for the poor. Therefore, my
contention is this– that helping build
effective public justice systems in the
developing world should become the new mandate
of the human rights movement in the 21st century. To begin with, it’s
difficult to overstate the degree to which
public justice systems in the developing
world are broken, irrelevant, and dangerous to the poor. In June 2008, a
careful UN report estimated that a
staggering 4 billion people live outside the
protections of the rule of law. The stunning conclusion
of the UN study was simply this, quote,
“Most poor people do not live under the shelter
of law,” unquote. In the developing world,
virtually every component of the public justice system– that is, the police, the
lawyers, the prosecutors, and courts– generally diminishes
the ability of the poor to enjoy the
protections of the law. First, consider the
police, who generally serve as the poor person’s
first point of contact with their public
justice system. The average poor person
in the developing world has probably never
met a police officer who is not corrupt, at best, or
gratuitously brutal at worst. Indeed, the most pervasive
criminal presence in the lives of the global poor
is frequently their own police force. A large study conducted
by the World Bank revealed that in the
developing world, the poor experienced the
police as a source of danger rather than protection. According to the study, the
poor view the police force as a group of
vigilantes and criminals who actively harass,
oppress, and brutalize them. As a result, in a
moment of danger, the poor of the developing
world do not run to the police. They run from the police. Even when police are
inclined to protect the poor, they frequently lack
the training, resources, and mandate to be of
effective practical assistance in defending the poor
against violence. If a poor person’s contact with
their public justice system extends beyond the
police, it’s frequently because he has been
charged with a crime. As we saw in David’s
case, the poor person charged with a crime
in the developing world often will not have the
benefit of a lawyer. Compounding the problem
is the general scarcity of lawyers in many developing
world countries, where a naked accusation by a police
officer against a poor person frequently puts her
liberty or life at risk without legal representation. And with an income
of $1 or $2 a day, if a lawyer were available,
the average poor person could not afford to
pay any legal fees. In the US, there is
approximately one lawyer for every 768 members
of the population. In Cambodia, there is one
lawyer for every 22,000 members of the population. In Malawi, a country
of 11 million people, there is one lawyer for
every 40,000 people. With typical ratios like
these, the average poor person in the developing world has
probably never personally met a lawyer in their life. Moreover, within the tiny number
of lawyers in the developing country, public prosecutors
are an even smaller subset, and far too small to
handle the volume of cases. Many prosecutors are not
even trained lawyers. Indeed, many judges in
the developing world are not trained lawyers. And like the police, many
extract bribes to drop cases. For a variety of reasons,
courts in the developing world rarely resolve cases on the
basis of the law and the facts. The enormous backlog of
cases in the developing world often results in cases
languishing indefinitely in overloaded dockets. For instance, experts estimate
that at the current rate, it would take 350 years for
the courts in Mumbai, India to clear their docket. In Delhi, it would
take 466 years. According to the United
Nations Development Program, India has 11 judges for
every one million people. There are currently more
than 30 million cases pending in Indian courts,
and cases remain unresolved for an average of 15 years. As a result, those detained
pending trial sometimes serve more than the maximum
length of their sentence before a trial date is set. The International Center for
Prison Studies, for example, found that nearly 70% of the
detainees in Indian prisons have never been
convicted of any crime. Some courts are so far away that
the poor cannot physically get to them, and their cases are
decided in their absence. Judges and magistrates
sometimes solicit bribes in exchange
for favorable verdicts or to continue the
case indefinitely. Some courts do not even have
access to the applicable law, and consequently
render decisions without the benefit of the
controlling legal text. Finally, the average
poor person frequently does not know that
the abuse she suffers is even against the law. If she is aware
of the law, she is unlikely to have ever
seen such a law enforced on behalf of someone
of her social status. On the contrary, she is far more
likely to know someone who’s been a victim of the
public justice system than a beneficiary of it. As a result, law
enforcement is not one of the social
mechanisms that she considers useful for
navigating the threats against her daily life. We might ask why then. Why do these public
justice systems so massively fail the poor? The first explanation
may come from the fact that many of these
justice systems were never intended to serve
the poor in the first place. Many public justice systems
in the developing world were designed for
colonial administration and have never been
fundamentally redesigned. Their core systems of
policing and judicial process where established
during the colonial era and were never set up to serve
an indigenous, overwhelmingly poor customer
public but to serve the colonial administration
and its narrower interests and beneficiaries. And for the most
part, these systems have never been
overhauled and retooled to serve a
post-colonial objective of broad public service. As the colonial powers departed,
authoritarian governments frequently inherited and used
these same justice systems in much the same way as
their colonial predecessors– that is, for
controlling the public rather than serving them. And while many governments
were forced over time to make liberal
adjustments to their laws, often under pressure from the
international human rights community, the
enforcement of these laws was left to the public justice
systems that were never intended to serve a customer
public of overwhelmingly poor people. Not surprisingly, another reason
that public justice systems fail the poor is that
the people in power have little incentive to
transform such systems. The transition from
this colonial model to a public justice system that
effectively serves the poor requires sustained
commitment by power actors who currently have little or
no incentive to seek change. Now, in the absence of
functioning public justice systems, business, commerce,
and economic elites in the developing
world have developed substitutes or workarounds
that supply the services that a functioning public
justice system would otherwise provide. So instead of relying
on police for security, they hire private
security forces. Instead of submitting
their disputes to clogged and
corrupt courts, they establish alternative
dispute resolution systems to take their place. And those with financial means
use social relationships, political relationships,
and bribes to resolve disputes
involving their interests. The poor, however, cannot
afford to opt out of the public justice system by private
means, and so they must depend on a decrepit, abandoned, and
disintegrating public system. A well-functioning
public justice system would tend to limit
the power of elites and require a
substantial commitment of financial and
human resources. At the moment, they
see no serious upside to justify that investment. For ruling elites in
the developing world, broken public
justice systems are not a problem but functioning
public justice systems might be. Under such
circumstances, in theory, the traditional
human rights movement exists in part to
intervene on behalf of those who are marginalized
in these societies. But unfortunately, this
movement has largely neglected the task of
helping build public justice systems in the developing
world that work for the poor. The story behind this is
perhaps worth examining. The first stage of the
modern human rights movement began at the close
of World War II, with the goal of
articulating and establishing international human
rights standards. This effort was a
remarkable success. Scholars, jurists,
diplomats, and statesmen produced the Universal
Declaration of Human Rights, the International Covenant on
Civil and Political Rights, the International Covenant
on Economic, Social, and Cultural Rights, as well
as international conventions addressing discrimination,
torture, children’s rights, women’s rights, and
other issues relating to marginalized groups. The effort to define
international standards continues today in the drafting,
promulgation, and amendment of international treaties,
conventions, and protocols. And what has emerged is a
body of rights and norms to which all people of the
world can now lay claim. If this first stage of the
modern human rights movement was largely intellectual,
the second stage was marked by a
political movement to embed these international
human rights standards into national law,
legal reforms that would replace traditional
or colonial standards with codifications of new
international standards for basic human rights embedded
into local national law. For instance, in conformity
with international norms, South Asian countries passed
laws outlawing bonded slavery. African countries
threw off centuries of traditional cultural practice
and gave women the right to own and inherit land. Southeast Asian countries
elevated the status of women and girls,
creating new laws to protect them from sexual
exploitation and trafficking. Latin American countries
replaced authoritarian regimes and adopted
international standards for arrest and
detention procedures, and codified land reform rights. As a result of this global
political movement, country by country, hundreds
of millions of the most vulnerable and abused
became entitled to global standards of justice
and equity under local law. The tragic problem, however,
is that the enforcement of these rights
under national law was handed over to utterly
dysfunctional institutions of national law enforcement
that do not enforce the law for poor people. For the modern human
rights movement and for all those who
pursue international aid and development among
the global poor, the implications
are catastrophic. Without a credible
public justice deterrent, poor people by the
hundreds of millions are relentlessly subjected to
assault, rape, imprisonment, extortion, enslavement, theft,
dispossession, and removal. Looking back on
the story, one can see that two generations
of global human rights work has been predicated,
consciously or unconsciously, upon assumptions about a
functioning public justice system in the developing
world which, if incorrect, effectively undercut the
usefulness of those efforts for their intended
beneficiaries. Now, absent an effective
enforcement mechanism, the great work of the
first two generations of the modern human
rights movement can deliver to the poor only
empty parchment promises. This reality should, I
think, radically impact the way we prioritize the
investments of the human rights movement in the 21st century. Suppose, for example, that
scientists worked feverishly for two generations to
develop and fill warehouses with miracle vaccines
that hundreds of millions of sick people in
the developing world desperately needed
but could not access. The absence of a delivery
system that would effectively carry those vaccines to
those who needed them most would take nothing away
from the medical advances the scientists had
achieved, but it would suggest an
urgent new priority for the international
public health community. Likewise, it takes nothing away
from the historic significance of the modern human
rights movement to say that the brokenness
of the public justice systems in the
developing world render the promise of that movement
largely undelivered to those who need it the most. But it does suggest
the urgent need for a fundamental shift in
the agenda for human rights in the 21st century. After 60 years
developing and refining vaccines that rarely
reached the bloodstreams of actual sick
people, we must now shift our focus and
resources toward delivering those vaccines to those
who are dying without them. Moreover, the absence of
functioning public justice systems for the poor also
tragically undermines the usefulness of $2.5 trillion
worth of foreign aid sent to the developing world
over the last half century, because there’s no
effective mechanism to prevent those with power
from stealing it away, blocking access to it, or
rendering it useless for its intended beneficiaries. First of all, without rule of
law and effective enforcement mechanisms, resources
earmarked for aid efforts often never reach their
intended beneficiaries. A World Bank study found that
as much as 85% of aid flows are diverted to purposes
other than that for which they were initially intended. Indeed, unchecked
human rights abuses undermine the effectiveness of
even those goods and services that do manage to reach the
poor in those communities. Farming tools, for instance,
are of no use for widows whose land is stolen away. Vocational training has
no use for men and women who are rotting in jail for
refusing to pay a bribe. Medical clinics in the community
are of no use for slaves who cannot leave the brick factory,
even when they are sick. Microloans are of no use if the
proceeds from the new sewing machine are stolen
by the local police. Similarly, the inability to
restrain human rights abuses has seriously
undermined attempts to improve the health of the
poor in the developing world. For instance, the
World Bank report found that gender violence was
the cause of more ill health among women and girls
than malaria and traffic accidents combined. Another WHO report showed
that in some countries, up nearly 70% of
women report having been physically
assaulted and up to 47% report that their first
sexual intercourse was forced. Surveys of villages in
India show that 70% of women had suffered at least two
forms of physical violence in domestic abuse in that year. And 16% of all deaths
during pregnancy are from domestic abuse. Studies from Peru report
that about 40% of girls will be victims of
rape or attempted rape by the age of 14. 70% of HIV-infected women
and girls in South Africa report having been
forced to have sex. AIDS education does little to
help women and children who are contracting the virus
from forced sexual encounters. Now, given all this,
one might expect that remedying the failure to
provide rule of law to the poor would become the central focus
of international efforts. Yet, few if any international
human rights or development agencies focus specifically on
building public justice systems that work for the poor. These agencies do other
very, very important work, but none measures
organizational success by its ability to help police
and courts in the developing world bring effective law
enforcement to the poor. None. The problem is not
that these agencies failed to see that dysfunction
of public justice systems in the developing world. Indeed, some of
their researchers have been meticulously
documenting the problem for decades. Why then have none of these
great international agencies made it a fundamental
operational priority? First, international human
rights and development agencies manifest doubts that building
functioning public justice systems in the developing
world is even possible. However, as a historical
matter, the fact that almost all functioning
public justice systems in the developed world
were once malfunctioning suggests otherwise. For example, 125 years
ago, police and courts in the United
States were nothing like the professional,
albeit very imperfect, law enforcement system that we
now take generally for granted. In fact, they very much
resembled the public justice systems that we see in the
developing world today. For example, in 1895, the
New York State Senate’s [INAUDIBLE] committee
collected testimony from hundreds of witnesses
regarding pervasive police practices of extortion,
bribery, counterfeiting, voter intimidation, election
fraud, torture, and thuggery. Police brutality was found to
be an established and recognized practice. Police spoke openly of bribing
their way to a particular rank or duty assignment, the
most lucrative assignments being in the red
light districts where police extracted hefty bribes. In his seminal study
of American policing in the latter half
of the 19th century, Samuel Walker writes this. “From the moment
of their creation, the police were creatures
of partisan politics. The officer on the beat
was less a public servant than an agent for a
given political faction. To gain even a nominal amount
of respect for their authority, policeman frequently
resorted to violence in order to gain, by means of
the nightstick, the respect that the public would
not freely grant. Thus began a cycle of
disrespect and brutality. Finally, the police had
only a minimal commitment to the enforcement of laws. As political
operatives, they were more interested in
furthering the interests of their sponsors. From the beginning, the police
became the central figures in an intricate system of
racketeering and corruption.” Now, to those who follow
policing in the developing world, Walker’s description
sounds very, very familiar. More importantly, it
suggests that many of the challenges
facing public justice systems in the developing
world in the 21st century are like those largely
overcome by the urban centers of the industrializing west
over the last 100 years, albeit imperfectly. Of course, justice systems
ruled by corruption, cronyism, and theft do not
change by themselves. Such change must be fought
for, but change is possible. The idea that dysfunctional
public justice systems can never provide reasonable
protections for the poor ignores the history
of that transformation in many parts of the world. On the other hand,
given the amount of discussion in certain circles
about good governance and rule of law, one might imagine that
massive efforts are already underway to address these needs. As a factual matter,
however, it must be conceded that practical,
sustained efforts to develop functioning
public justice systems in poor countries
has rarely been attempted. Recently, there have
been some attempts to build functioning public
justice systems as part of larger
nation-building strategy in post-conflict situations,
like Iraq and Afghanistan. These efforts do manifest
a growing, even desperate, appreciation that public
justice systems are utterly fundamental to any
basic socioeconomic progress. But these efforts are very
new, and similar investments have not been seen
in public justice systems of more stable
developing countries where the other bottom billions live. Outside these few
post-conflict settings, the amount of money,
intellectual effort, professional
investment, political and diplomatic capital
has been poured into addressing public justice
systems in the developing world is a tiny fraction of the
amount poured into fixing health systems, food systems, water
systems, financial systems, transportation
systems, and so on. For instance, the US Agency
for International Development spends less than 1% of its
budget on rule of law programs. And only a tiny
fraction of that is spent on programs that
might be described as helping public justice
systems work for the poor. When donor countries have
invested in law enforcement training in the
developing world, it has been largely focused on
protecting the donor country from the spillover effects of
international crimes involving narcotics, arms trafficking,
counterterrorism, and the like rather than seeking rule
of law for the poor who live in the developing country. Rule of law, anti-corruption,
and good governance funding generally has not focused
on helping public justice systems deliver effective
law enforcement to the poor. Rather, such funding
is overwhelmingly focused on two things– one, reducing theft or
misappropriation of donor aid; and secondly, building
those components of the public
justice system that provide law enforcement
protections for business and commerce. Now, these are both very
important good things. But they do not in and of
themselves make public justice systems work for the poor. This is not their outcome goal. On those rare
occasions when donors have invested in public
justice, the investments have been too small and
isolated to make a sustainable difference. Examples of these
weak efforts might be the court reporter
machines in Zambia that broke and were
left unrepaired, or the one-man UN monitor
of the courts in Cambodia who faithfully reports
how bad the courts are, or police or prosecutor training
from Western counterparts that involve a few nice
days at the Sheraton but no measurable
change in performance. In short, outside the
post-conflict setting, effective reform of
broken police and courts in the developing
world has not been tested and found impossible. It’s been found difficult
and left untried. Accordingly, some of
us are now calling for a fundamental transition
in the modern human rights movement in which the
dominant focus must shift from legal reforms to
practical legal enforcement. The most significant
work we can undertake to serve the poor in
the developing world is to help develop public
justice systems that regularly enforce the laws that were
painstakingly developed over the first two stages of the
modern human rights movement. The time has come
to move human rights from wholesale to retail, to
take the wholesale human rights promises stored in the
warehouses of national law and deliver them to the poor who
still stand in line for justice at the retail level. And what might be the conceptual
framework for doing so? Creating public justice
systems in the developing world will require two
things, political will and capacity-building. To achieve large-scale,
sustainable impact, approaches to developing
political will and increasing capacity must
work at the micro and macro levels. Macro-level approaches have
the potential for broad impact by targeting leaders in
diplomatic, political policy, or high-level
management roles who do set the agenda for the larger
core of enforcement personnel under their authority. But developing political will
and capacity at the macro level will not benefit the poor unless
the priorities and capacities flow down to those who enforce
the law in the streets. Capacity-building
investments might include, for example,
one, financial assistance to build vetted police
and judicial units with salaries above the
petty corruption line; two, material resources that
give police, prosecutors, social workers, and judges the
basic tools of their trade; three, practical and sustained
on-the-ground casework training; four, legal aid and
supportive social services for the poor. These kinds of
investments are expensive, but they represent a fraction
of the trillions of dollars in development
assistance that’s been of questionable long-term
value in the absence of effective public justice
systems for the poor. In the coming era,
development assistance should be linked to the
willingness of authorities in the developing
world to commit to the kind of
transformational process that is possible with serious
investments in building the capacity of public
justice systems. International incentives can
also support and encourage the nascent movement of local
social demand for functioning public justice systems
that are already emerging in the developing world– movements of social demand
from cadres of enlightened national leaders, from
a middle class that’s growing impatient with
endemic corruption, and from the investment
community’s appreciation of the competitive
advantages that await developing economies
with functioning public justice systems. The challenges presented
in this law enforcement era call for new
approaches and skills tailored to the unique
nature of the task. Because law enforcement
occurs at the ground level, micro-level strategies
that develop the capacities of street-level law enforcement
must be a significant part of the process. One promising model of
international assistance that has emerged over
the last 10 years is a methodology of
collaborative casework. Under this model, human rights
lawyers and law enforcement professionals collaborate
with local law enforcement to identify individual
victims, extricate them from oppressive violence,
and support the prosecution of the perpetrators through the
local public justice system. This model then uses
data from a large volume of individual cases to
gather concrete information for assessing what structural
changes in the public justice system would be most effective. In this sense, the
case-driven model works for solutions
from the bottom-up. Of course, broken public
justice systems cannot be fixed everywhere all at once
in regard every failing. Therefore,
collaborative casework must be applied in
a targeted manner. A case-driven agency
might select a precisely defined geographic
area and focus on a single category
of abuse that’s relatively uncontroversial
and non-threatening to the political establishment. For instance,
helping authorities in a particular city in the
developing world to fight sexual violence
against children. Starting with this small
step of political will, a case-driven agency can
begin capacity-building. Working case after case of
child rape with the authorities, they work together
to solve any problems along the way to secure
justice for the victim. In the process, a
case-driven agency builds a relationship of
trust with local constables, prosecutors, judges, and
social welfare authorities. It does not publicly
embarrass them if they lack competence or
integrity, except perhaps as a very last resort. Rather, it helps train them
in professional methods and creates
opportunities for them to receive credit for good work. Eventually, a few
leaders and achievers begin to catch the
professional joy of using their skills
to hold perpetrators accountable for child
rape in their community. And after observing
widespread abuse by local law enforcement
in the developing world, there may be doubts
that any local law enforcement in the
developing world would ever work
to help the poor. But such radical skepticism
is just too strong. The notion that all public
authorities in the developing world are hopelessly corrupt,
apathetic, and brutish is simply not
supported by the facts. Wherever the case-driven
model has succeeded, it’s been because of local
authorities who acted with courage and competence. They are there. What they need is political
support, training, and resources. And once they are empowered,
crimes like child rape are no longer treated
as peripheral offenses. Instead, child rape
becomes a crime that receives attention,
special training, international resources,
and professional regard. Over time, officers,
prosecutors, and judges experience
success, and poor mothers in the community
start to believe that cooperating with the
police might bring justice. Everybody along the public
justice pipeline starts to see, for the first time, what their
job was supposed to look like, and many begin to
take initiative to learn to do their job well. Eventually, in one place in
the developing world in regard to one category of abuse,
the public justice system begins working for the poor. This collaborative
casework approach requires a sustained
commitment on the ground over a long period of
time, but there is evidence that it has worked
on a small scale. For instance, in one
Southeast Asian city, the agency that I work for was
able to witness a 70% reduction in the victimization of children
in the commercial sex trade, as measured by outside
auditors, after just two years of collaborative casework
targeting that form of abuse. For citizens and public
justice professionals who’ve never seen laws
enforced on behalf of the poor, the impact is transformative. Success generates a
demand from constituencies who have never dared to hope. Dormant and defeated
middle-class demand for rule of law is rekindled. Leaders emerge
who are encouraged by the social demand,
and obstructionists begin to be marginalized. I don’t believe there’s really
anything about the essential dynamics of this approach that
cannot work on a larger scale with greater resources
and investment. Anyone who believes
that the poor do not care about public
justice has not seen how far the widows
will walk for it, how doggedly the
mothers will demand it, or how courageously the slave
will risk his life for it. The process of helping the
public justice system work for one category of abuse
provides the experience, allies, assets, and
self-confidence for making the system work for the
next category of abuse– to widow land seizures,
to forced labor, to domestic violence, to illegal
detention, to police abuse. In time, there is one place
in the developing world that has a vastly improved
public justice system that protects the
poor from the brutalities of oppression. And to move toward this model,
the international human rights agencies must develop practical
knowledge and expertise in the technical
administration of justice. The international
human rights community is now dominated by researchers,
scholars, legal theorists, media advocates, diplomats,
and policy experts who are experts at developing
standards and assessing compliance with those standards. But the movement has not
developed extensive expertise and experience in
delivering justice through police and
court systems on behalf of individual victims. Accordingly, the
human rights community will need to recruit
practitioners to the task and shift its strategic
focus to the problem. Aid agencies face a
similar set of challenges, because they’ve become
experts in devising ingenious workarounds
and coping mechanisms to deal with failed
public justice systems in the developing world. They’ve spent decades
innovating ways to help poor people survive
in the absence of a working pipeline of justice. And it may be a
disorienting shift to move towards actually
fixing the pipeline, but investments to improve
the administration of justice are critical to the
long-term success of efforts to provide the poor with
functioning schools, clean water, microloans,
food production, and the other
lifesaving programs of international development. To meet the challenges
of the current era, I believe, both the human rights
and development communities will have to restructure
and retool their movements to include those whose
background and expertise allow them to
diagnose and repair the pipes and plumbing of
broken public justice systems. In support of these practical
applications in the field, I believe there is also
opening up in this generation a vast and indispensable field
of intellectual inquiry that has barely begun
to be excavated. For instance, what is the
lost historical account of how functioning public
justice systems have been bravely fought for and
tediously built out of chaos and corruption? What is the precise legacy
of colonial public justice administration in the developing
world as it manifests itself in contemporary legal codes,
criminal procedure, rules of evidence, and
police practice? Given a country’s
economic development, what is an appropriate
level of investment of resources in
the infrastructures of public justice? How is social demand generated
in different cultural and country contexts for
the enforcement of laws, as opposed to the
social demand necessary for the mere enactment of laws? How does one
meaningfully measure whether a justice system
is working for the poorest? There are, I think,
at least a dozen groundbreaking PhD
dissertations embedded in these questions that might
provide answers that could make a significant impact in
serving alongside the world’s most vulnerable poor. Indeed, what would it
look like for law schools to inspire and
prepare practitioners with the intellectual depth
necessary to build rule of law in extreme cross-cultural
contexts of poverty and grievous dysfunction? On behalf of
hundreds of millions of poor people in our world who
suffer, endure, and otherwise make themselves small under
the vast shadow of lawlessness, the time has finally
come to hammer together a shelter of justice that
makes human rights meaningful and international
development sustainable. Such, I believe,
is the opportunity for service for this generation
of scholars and practitioners in the law. Thank you very, very much. [APPLAUSE] TOM GINSBURG: So we have time
for a few questions, at least. And Gary, why don’t
you take them yourself? GARY HAUGEN: Great. We’ll start with the easy
questions first, please. Yes, sir? AUDIENCE: What can a law student
do at the moment right now? Because it seems like
there’s a long chain of events or problems
that you have listed. But what would you suggest
how one could get involved? GARY HAUGEN: I think
it’s important to take great advantage of
your legal education to actually understand deeply
these institutions, which we’ve had the benefit of thinking
deeply and rigorously about for hundreds
and hundreds of years. And there are really powerful
things to be learned. So work hard in the
classes that you have. And I do think, though,
particular focus in the areas of criminal
law, of government– but it’s fascinating. I tremble in the presence of
Professor Helmholz who’s here, my property professor. I can’t even speak
right in his presence. [LAUGHTER] But to appreciate the beauty of
a functioning property rights system– and that is understood,
I think, most powerfully in the absence of it. So first of all, if you’re
able to go to the developing world and number one, just
be amongst poor people, just try to actually solve
some issue or problem and try to understand
what it’s like to do that in the developing world. Because even though we may
learn these brilliant things about how to make functioning
public just systems work, the even harder thing
would be to figure out how to translate that helpfully
and humbly alongside people of very, very,
very modest means. So there are issues
of technique, and there’s questions
of character that also need to be
developed in order for this to actually work. I would also invite you to
visit the International Justice Mission website. There’s a little article
I’ve written there about how to prepare for
careers in this area, and to be an intern with
International Justice Mission or to otherwise serve with other
agencies who are increasingly offering some opportunities for
students to learn what it means to do the tactical work of
fixing broken public justice systems. Yes, ma’am? AUDIENCE: I absolutely
love your thesis about the issue being the
application of the laws on the ground level. And I think some of
the issues with that is that a lot of
times, it takes knowing the culture, the customs, or
the language in some cases. And so are you suggesting
that organizations actually send people who
are willing to live among the people for
many years at a time just to learn the systems? I guess, how do you
make that function? I think it’s a lot easier
from the outside looking in to just donate
and set standards, because you’re not living there. So how do you how do you
solve that issue, I guess? GARY HAUGEN: My
overall thesis has to do with empowering local
champions of this change. And so the way to
do that, I think, tremendously is incarnational. It’s actually going and being
among them, to learn from them, and to figure out how to make
this difficult translation of what skills and resources
one may have in support of their own
aspirations for what it is that they are seeking to do. So none of this will come
from the genius and power of outsiders without the
ownership and application of indigenous champions. But they can use support and
companions in the process, especially because they’re
up against enormous forces of power within the community
who do not want change. So it will take different
forms of service. Some will have the opportunity– and will need– to actually
go and spend a lifetime there, the way people who want to
help in these other spheres of helping a health system– well, there’s a
whole lot of culture that you just need to
understand in order to actually make that more good than harm. And so many have
given their lives to be able to go and acquire
that kind of understanding. Others, though, make sure that
the policy coming out of the US government actually
provides funding for those kinds of efforts. So it can be something
that is very remote, in the way that sort of
AIDS funding in Africa has had a tremendous capacity
to bring transformation, but it will only be applied
helpfully, tactically on the ground, to
those who’ve made a deep investment
in understanding the culture and the people. Yes, ma’am? AUDIENCE: You talked about
leftover colonial legal systems in the developing world. And also, I think, in
the post-colonial world, there was a push to maybe
return to more traditional law systems. But I wonder, in
your experience, have these legal
systems actually helped buttress the rights
of poor individuals, or have they actually
done more harm than good when it comes to seeking
redress from grievances? GARY HAUGEN: Which
ones, the colonial ones or the traditional ones? AUDIENCE: No, the more
traditional legal systems. GARY HAUGEN: I haven’t seen
yet a ton of good execution upon the traditional systems. Many of the traditional
systems, I would say, though, are not great for poor people
and those with less power. They come from, in
many circumstances, a traditional hierarchy of
power that didn’t work out well for the vulnerable. And the sort of interesting
story, in a way, is that colonial
powers, while they were ruling and administrating
these countries, themselves went through a
tremendous transformation in their own societies of
increasing the franchise, becoming more democratic in
a way that allowed the public to make sure that
their public justice system was more responsive. So they went through
this tremendous evolution over about 150 years, but
none of that evolution took place within
those countries that were being ruled as colonies. But they got these institutions
called police and called courts and so forth which no one
in the developed world would now be satisfied with. No one wants to live in
the Great Britain or France or the United States
of the 1820s, no one except the equity of the public
justice system from that era. But that is
significantly, in terms of process, what much
of the developing world is saddled with. And so I do think there
can be appropriate, a good look, at what might
be customary practices that would actually be
perfectly useful and genius for
providing rule of law, equity, protection
of people’s rights. But what I’ve seen is that the
traditional or Western forms have been so discredited,
because of their corruption and brutality, that people
want to get rid of those and then reach for traditional
or communal solutions for public justice, which
are not always so great. So there’s some dangers there
for poor and vulnerable people, as well. TOM GINSBURG: I think we have
time for one more question. GARY HAUGEN: Great. Yes, ma’am? Did you raise your hand? AUDIENCE: So if your
thesis is about empowering local public justice
systems, then the opposite of that would be sort
of removing power from the oppressors, right? So is there anything within
your model [INAUDIBLE]. Wealth is a big part of power. Is there anything in
your model that accounts for going after the financiers,
the wealth, and things like, for example, transnational
trafficking networks and that sort of thing? Because it seems to me like that
would be an interesting avenue to think about. GARY HAUGEN: It is,
in a certain way except that what we have
found amongst the poor is that most
oppressors of the poor are not massive power
actors, because it doesn’t take much to oppress the poor. And that significantly, most
of the massive victimization of the poor is crime
of opportunity, is driven not so much by
the overwhelming power of the perpetrators but
by the utter vulnerability of the victims. So where one is able to
identify these very large, well-financed organized crime
networks or syndicates that are responsible for some horrific
abuse against a massive number of poor people– and true, you’re going
to have to address that center of power– but most poor people in
the developing world, their daily experience of
violence and oppression in their person is coming
from a very localized center of power which nevertheless
needs to be addressed. Because likewise
in our community, if there was no local
law enforcement just simply protecting us from
someone else taking advantage of us, we would
be taken advantage of on a regular basis. And that is what’s absent in
the daily life of the poor. So where are we going to
find those sort of need to address the sort of
larger economic entities that abuse their power? Very important. And to bring a
proportionate power to bear to be able to
defend those who are weaker. But my thesis
generally addresses what is the daily reality
of the poor, which comes from the oppression
that comes from them in their own community. Thank you for your patience. TOM GINSBURG: If there
are more questions, I think we’ll have
another opportunity outside at the reception. Gary will be here
for a bit of time. So please join me
in thanking Gary. [APPLAUSE]

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