Bolivian Ombudsman sues to prevent doctors from going on strike

 

Taking one more step in the Bolivian government’s slide away from socialism, the Defensor del Pueblo (Human Rights Ombudsman) has successfully petitioned a court to limit the right of Bolivian workers to go on strike. The workers in question are doctors affiliated with the Colegio Médico, who carried out a two-day work stoppage in protest of a government decree turning medicine into “free affiliation” profession, analogous to anti-union right-to-work laws in the United States.

Defensor David Tezanos Pinto filed the suit in the name of the right of the public to health, but the move cuts against the grain of strong pro-labor elements of Bolivian political culture, some of which date back to 1936. The right to strike was reaffirmed in the 2009 Constitution, and the court ruling that resulted is equivocal on the appropriate balance between that right and the public interest in access to medical services. The ruling stipulates “the Colegio Médico’s obligation to guarantee the right to health in normal conditions for all uses of the public health service when they exercise their ight to strike | El deber garantizar el derecho a la salud en condiciones de normalidad en todos los usuarios del servicio de salud público por parte del colegio médico a tiempo de ejercitar su derecho a la huelga.”

After the ruling,  Tezanos threatened further lawsuits against future protests on May 30, suggesting that transit drivers on strike and protesters using road blockades could be targeted. Blockade of highways are a central form of protest in the Andes, and many other places across Latin America. The current government owes its existence to extensive social unrest using blockades from the 1980s onward in the Chapare and from 2000 to 2005 across Bolivia. More recently, Tezanos has stepped back from his earlier threats, stating on Twitter that “The Constitution protects health services, limiting medical strikes, guaranteeing the right to strike in other sectors.”

Tezanos is the first Defensor appointed from within the Movement Towards Socialism party, which has governed since 2006. Under Bolivia’s previous political turbulence, the long term of the Defensor and the fractiousness of the National Congress has kept this important role somewhat independent of the ruling party. This lawsuit is the latest action leading some Bolivian’s to question whether that independence will continue under Tezanos’ leadership. For Inter-Union Pact leader José Luis Álvarez, the latest action “criminalizes the strike and social protest.”

This week, the Departmental Workers Center has stepped up a campaign to demand Tezanos renounce his action and back the right to strike. An alliance of workers, doctors, neighborhood councils, rural irrigation users, and others is preparing a march on the matter for June 26.

Image: Bolivian medical workers on strike in Cochabamba, April 2011.

 

At the Inter-American Commission Human Rights…

I’m spending this week in Washington, DC, attending sessions of the Inter-American Commission on Human Rights. I’m here as a researcher on socio-environmental conflicts and a teacher; six of my students in a Human Rights of Indigenous Peoples class are here with me to see how the human rights they are learning about are claimed in practice. The Inter-American human rights system, which includes the Commission and the Inter-American Court on Human Rights, has become a critical node in the mesh of institutions that are transforming indigenous rights from a general aspiration to a formal international norm.

International law institutions are viewed by most United States citizens with well-earned skepticism. The US government has played an ironic role in helping to structure such institutions, but then refusing to acknowledge any outside legal commitment or monitoring structure as having authority over its actions. US Ambassador to the United Nations Jeane Kirkpatrick famously called social and cultural rights “a letter to Santa Claus” and Senate ratifications of major human rights treaties have included statements insisting they may not be invoked in civil litigation. Outside the superpower, however, these institutions tend to be regarded with greater respect and states dutifully send senior officials to be questioned and directed by members of the Inter-American Commission. On Friday, for example, Commissioner Macaulay insisted that a Minister from Panama not leave the room without first scheduling the next meeting with a community who brought its land claims case before the IACHR.

Indigenous Rights at UN:OAS.002Both the Commission and the Court are bodies of the Organization of American States, the regional association of Western Hemisphere countries founded in 1948 in response to the Roosevelt Administration’s call for a “League of Nations of the Americas.” US leadership initially positioned the OAS as anti-communist and drove Cuba’s suspension from the organization from 1962 to 2009. The Commission began in 1959 and the Court opened in 1979. While the softer of the two institutions, the Commission has the power to impose binding “precautionary measures,” ordering states to protect vulnerable individuals or avoid taking irreversible actions. The Commission also acts as an investigative arm of the system and makes recommendations to states, and sends cases to the Court for adjudication when the states don’t comply. The Court acts as a kind of continental Supreme Court overseeing the human rights of people in twenty-four countries that have ratified the American Convention on Human Rights (those countries indicated by all colors except purple and gray in this map).

My students have been reading Richard Price’s Rainforest Warriors: Human Rights on Trial, a detailed ethnographic account of the how the Saramaka people brought their rights claims before the Inter-American Commission and Inter-American Court in a landmark case. The Court’s eventual decision in Saramaka v. Suriname concluded (1) Afro-descendant peoples in the Americas living traditionally and distinctly from national societies have the same rights as indigenous peoples; (2) Both kinds of traditional peoples have rights to property in their traditional territories, and the resources they have traditionally used; (3) projects that seize this property or threaten the physical or cultural survival of traditional peoples can only be carried forward with their free, prior, and informed consent.

Four years ago, I attended the session on the Isiboro-Sécure National Park and Indigenous Territory at the Commission. You can read my report on that hearing here. More recently, in December 2016, three Sioux peoples brought the issue of the Dakota Access Pipeline to the IACHR. The hearing is archived as an online video (en and es, according the language of the speaker), just as all hearings this week are available from the Commission.

Narrow Road to Prosecuting Police for Killings; A Wall Blocks Murder Convictions

With the November 16 indictment of Jeronimo Yanez for the shooting death of Philando Castile during a traffic stop in Falcon Height, Minnesota, there have now been twelve police officers criminally charged for shooting civilians on duty in 2016. Eighteen more were charged in 2015, reports Jennifer Bjorhus in the Minneapolis Star Tribune. Her reporting draws on the media monitoring and data collection of Philip Stinson, a criminologist at Bowling Green State University. Stinson has been chronicling this data since 2005, using systematic Google News searches, one part of a wide-ranging inquiry into police misconduct that can be seen in his many publications. (A 538 interview describes his work.) The thirty indictments in the last 23 months have come at a much faster pace than the 48 indictments Stinson has counted in the previous ten years, 2005-14.

Data sources: Prior to the emergence of Black Lives Matter, there was little appetite in the news media or government agencies for this kind of data, but news organizations have stepped in to the vacuum: The Guardian produces “The Counted,” a tabulation of all police killings and the Washington Post maintains “Fatal Force” chronicling deadly police shootings. Shamed by the lack of official data, the US Department of Justice announced plans to begin keeping a database of deaths in police custody and deadly police violent force in 2016, although it would rely on voluntary self-reporting for the latter. It is unclear if a Jeff Sessions-led Justice Department would continue this initiative.

Murder convictions remain elusive: The 78 indictments since 2005 have yielded 27 convictions. However, just one of those produced a murder conviction: Police officer James Ashby was convicted of second-degree murder for shooting Jack Jacquez in the back in 2014; the victim was unarmed and had fled into his mother’s house. As explained in the video below, the Supreme Court ruling in Graham v. Connor (1989) provides any cop who believed there was a threat to himself or others with a defense against prosecution.

As previously noted on this blog, in 1969 the magazine Ramparts offered a challenge to secure a murder conviction of a cop killing a Black man. The Guardian has tabulated over 500 black deaths in just the past 23 months. According to Stinson’s data, no convictions matching that description have been made in over 12 years.

Repost: Bolivia’s 2013 Law for the Protection of Highly Vulnerable Indigenous Peoples

Recent events—the appearance of indigenous people in voluntary isolation (“uncontacted peoples”) in an oil concession block in the Bolivian Amazon—have thrust the Bolivia’s 2013 Law for the Protection of Highly Vulnerable Indigenous Peoples (Ley de protección a Naciones y Pueblos Indígenas Originarios en situación de alta vulnerabilidad; Ley 450) back into the spotlight. Despite some initial movement in 2014, the Bolivian government has not issued the regulations for Law 450, a required step in its implementation, and “the government institution created by that law and responsible for instituting such measures, the Dirección General de Protección a Naciones y Pueblos Indígena Originarios (DIGEPIO), does not exist.”

To provide background on this law, I’m reposting Bolivia Information Forum’s article on the law, archived obscurely here. (Full disclosure: I wrote it.) The full text of the law (es) is available here.

Law for the Protection of Highly Vulnerable Indigenous Peoples

In November [2013], Bolivia’s legislature passed the Law for the Protection of Highly Vulnerable Indigenous Peoples. This extends special protection to isolated indigenous peoples, as well as others who face severe threats to their health, territory or capacity to protect their culture. There are seven indigenous cultures that are believed to include people living in isolation, unconnected to the broader society. According to a recent report by the International Working Group on Indigenous Affairs, as many as 21 indigenous peoples could be termed as being at high risk from ethnocide. While a handful of large indigenous groups make up half of Bolivia’s population, these small groups represent less than 0.3%.

The term “voluntary isolation” describes groups of indigenous peoples who have either never had contact with those outside their culture or who actively refuse any such contact, sometimes by force. In the case of the Araona, the Esse Ejja, the Yuki, the Pacahuara, the Ayoreo and the Yuracaré, only a limited number of families have chosen to live in isolation. As in many countries, most Bolivians who fit this description have had highly traumatic encounters with outsiders, including experiences of enslavement, kidnapping of their children, massacres, and devastating epidemics from diseases previously unknown to them. There were unwanted incursions by missionary expeditions up to the 1980s and more recently by those seeking to exploit raw materials. In 2008 loggers murdered at least two Pacahuaras.

The right to live in voluntary isolation is recognised by the UN Declaration on the Rights of Indigenous Peoples (incorporated into Bolivian law in 2007). The Inter-American Court on Human Rights has ordered Peru and Ecuador to take precautionary measures to safeguard the areas where uncontacted groups live from outside threats. The Toromona people in the Madidi National Park have been protected since 15 August 2006. In 2011, a summit convened by the Confederation of Indigenous Peoples of Bolivia (CIDOB) urged the government to create similar zones for the Ayoreo, Pacahuara, and T’simane people. Most of these zones are threatened not just by the activities of outside individuals but by exploration activities in oil and gas concessions that overlap with their territories.

The law creates a new government agency [Dirección General de Protección a Naciones y Pueblos Indígena Originarios-DIGEPIO] charged with protecting indigenous peoples whose “physical and cultural survival is extremely threatened.” Its main task is to develop and implement protection strategies, including exclusion zones, emergency health services and disease monitoring, environmental restoration, and cultural revitalization initiatives. Under the terms of the law, those exploiting natural resources are expected to follow these rules.

Mistrial ruling text

Jurors, Rape, and #TheEmptyChair

  • Was an acquaintance or someone you know closely the victim of an unwanted sexual touching or assault?

In January 2015, jurors being impaneled for the rape trial of former Vanderbilt students Brandon Vandenburg and Corey Batey were asked this and similar questions. This turned out to be a pivotal issue because although the jury convicted both men of multiple counts of aggravated rape and sexual battery, the jury foreman’s impartiality was called into question based on his answer to this question. The foreman had had sex as a sixteen-year-old with an older man, who was prosecuted for statutory rape and did not mention this fact during jury selection. On June 23, Judge Monte Watkins found the juror ought to have disclosed his past and ruled that the juror’s “credibility had been tainted and brought a presumption of bias to the jury.” (His ruling did not imply that the juror intentionally withheld the facts or that he sought to influence the outcome.)

There’s experimental evidence that victims of a particular crime are more likely to convict defendants charged with that crime. This evidence backs up the common legal idea that such jurors must be probed for bias and may be removed by the defense. (On the other hand, withholding is very common practice: a study using follow-up interviews found that 25% of jurors in 31 trials were victims of a crime and 30% knew a law enforcement officer, but did not reveal these facts in voir dire.)

The sheer frequency of sexual assault and the stigma surrounding being its victim, however, raises a more complex problem. Being a survivor of sexual assault is very common: to take one data source, the CDC, 18.3% of US women and 1.7% of men report having been raped; between 5 and 6% of both men and women report having been sexually assaulted in some other way. If someone has just ten women they “know closely” there’s a 13% chance none of them have been raped. If someone knows twenty people, the chances of none of them being sexually assaulted are less than one in six. Even with these conservative ideas of people close to you, no conceivable jury would have fewer than two people saying yes.

With greater honesty (and bigger friend circles), the truth is there are only two answers to the jury question above:

  • Yes.
  • Yes, but they haven’t taken the initiative to tell me.

Empty chair next to title of NYMag article, "Cosby: The women. An unwelcome sisterhood."You certainly know someone who has survived rape. If you can answer “yes,” you probably know the emotional weight attached to the widespread impunity for rape. If you have to answer “yes, but…,” then it’s possible that this person is one of the many survivors who doesn’t come forward publicly. (There are plenty of good reasons.) New York Magazine recently symbolized the many “women who couldn’t come forward mostly (because) we, as a culture, wouldn’t believe them” with an empty chair. Social media has  made #TheEmptyChair a symbol of socially produced silence around rape and sexual assault.

But then again, maybe the problem is not just that “we, as a culture,” won’t believe them. Maybe its personal. And here’s the conundrum for jury selection. “Yes, but” isn’t a neutral category; it’s the sum of social and individual choices that mean no one came to you with one of our society’s most common traumas. One juror like that might be a coincidence. Twelve is a problem.