The Sobering Reality that Securing Appropriate Judicial Oversight in America . . . .

Is and Must Be an International Human Rights Initiative


by: Zena Crenshaw-Logal, J.D.


"America must be strategically prodded pursuant to its international human rights treaties right along with the U.S. Constitution, lest it will not return the metaphorical feet of its judiciary to the fire that is the rule of law. The current, sweeping autonomy of America’s judiciary took centuries to gel, and has become a hallmark of U.S. government. Mere reminders of its inappropriateness will jolt many, many U.S. public officials and private Americans who apparently lost sight of the line between appropriate deference to America’s judiciary and its virtual tyranny. But remind them we must."



"Ubi jus ibi remedium." Loosely translated: For every wrong, the law is to provide a remedy. Whether at each, some, or only the final juncture of related oversight, that maxim fails when a legal system is geared to deny relief. Rather than being its redeemers, men and women of integrity tend to be casualties of that kind of corruption. It easily circumvents their goodness in most instances. So, not all of its parts or participants need be corrupt for a system to be utterly corrupted. But classic, save-the-day heroism in the midst of entrenched, relief-thwarting legal system corruption is virtually impossible. In fact, should it preclude relief for only a limited category of wrongs, the corruption may thrive undetected by everyone it does not directly impact. After all, with regard to most wrongs it addresses, the system works properly.


If not a remedy for every wrong, America’s judiciary is obliged to align the U.S. legal system with a fair and impartial administration of justice. On October 10, 2018, the U.N. Human Rights Council (HRCouncil) confirmed the plausibility of what should be preposterous: The prospect of America having a de facto policy of judicial impunity for the role of its judges in persistent, unconscionable U.S. legal system abuse.[1] And with that, it became apparent that America lacks effective avenues for redressing related allegations in accord with its international human rights obligations, not to mention the U.S. Constitution.[2] Allegations such as:


1. U.S. family courts have conspicuous financial incentives to reach judicial outcomes that are not supported by the facts, law, and/or equities of underlying cases;


2. Over the last twenty (20) years, primarily through U.S. Supreme Court rulings, avoidable gaps have been honed into America’s legal system such that it can be selectively enforced, i.e., properly implemented or utterly disregarded in whole or part with virtually unfettered discretion;


3. For government gadflies, America easily becomes a dystopia by way of its criminal justice system. Probable cause to criminally indict an American can be derived from totally fabricated evidence and no matter how negligent the prosecutor and presiding judge are in allowing that predicament to evolve into a wrongful conviction, it may never be thoroughly investigated, prompt civil damages, statutory reparations, and/or any form of equitable relief for the unfortunate defendant;


4. Regardless of their personal demographics, human rights defenders combatting judicial misconduct in America are most susceptible to The Third Degree (TTD), a persistent, national pattern of persecution and psychological torture imposed through U.S. legal system abuse. Targets of TTD are invariably disparaged and discredited through legal process; intimidated for their activism through violence and/or threats of violence; denied the equal protection of law and corresponding access to courts; impoverished through questionable job losses, unwarranted black listings, and/or the questionable imposition/denial of fines, sanctions, and/or damages awards; and they may be incarcerated under questionable circumstances;


5. TTD puts at risk access to affordable, competent legal representation; quality, affordable healthcare; the sanctity of families and family lineage; republican form of government; and public health as well as safety.


Obviously, to allege is not necessarily to prove. But versions of the foregoing contentions were screened, and triggered official determinations of historical magnitude. Per the Working Group on Communications of the HRCouncil,[3] the above listed allegations are not “manifestly ill-founded” or premature, as in reflective of a failure to exhaust domestic avenues of redress.[4]


Ubi jus ibi remedium, even when the wrong is consummated by judicial ruling. That maxim has rather apparently failed in America, likely for a variety of reasons, some perhaps embraced initially in good faith. But America’s legal system is corrupted as a result, nonetheless. Although overcoming the corruption on a grassroots basis remains challenging, it – the corruption – can no longer thrive undetected. The HRCouncil rang a bell alerting the world to its existence that cannot be un-rung.

While it remains to be seen whether issues at hand will progress to the Working Group on Situations in accord with the HRCouncil’s complaint procedure, the matter was taken up by the more powerful U.N. Human Rights Committee (HRCmte) in anticipation of its Country Report on the United States’ implementation of the ICCPR (International Covenant on Civil and Political Rights).[5] The HRCmte is accordingly primed to ask:


1. Whether the USA is intolerant of potential and actual human rights violations under color of law when alleged perpetrators are U.S. judges, prosecutors, and/or private attorneys; and


2. What does the USA do to ensure its court officers are an effective part of prohibiting and appropriately redressing human rights violations.

For all practical purposes, the HRCouncil’s referenced findings of October 2018 compel these requested inquiries. The HRCmte cannot very well forego them while purporting to fulfill its U.N. mandate given the related contentions substantially legitimized by the HRCouncil. Supposedly, those allegations – basically five (5) of them set out above – “(do) not address consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms” and “(do) not provide sufficient factual description of alleged violations, including the rights which are alleged to be violated.”[6] But they are prima facie proof of unchecked human rights violations extensive enough to establish U.S. judicial oversight deficiencies tantamount to one or more ICCPR violations.[7] And now, international exploration of the matter extends even further.


The Office of the U.N. High Commissioner for Human Rights (OHCHR) and the Inter-American Commission on Human Rights (IACHR) invited National Human Rights Institutions, civil society, and human rights defenders to share information on the situation of human rights defenders in the Americas. Corresponding questionnaire responses will contribute to a joint OHCHR-IACHR report on the subject, slated to be launched late in 2019. Pursuant to that opportunity, it was credibly asserted that:


(w)hen it comes to the situation of human rights defenders in America as of 2016, the clear ineffectiveness of domestic avenues for redressing even rather apparent, retaliatory violations of their rights, deters them and their work more than anything else. In other words, the unresponsiveness of America’s legal system to illegal action(s) intended to derail their efforts is the contextual factor with the greatest impact on the situation of human rights defenders in America. Relatively few of them may experience the impact directly. In fact, for many if not most human rights defenders in America, the impact may be undetectable. But for those helping vindicate discernible groups that powerful people are intent on oppressing, the futility of seeking relief for suppression of activities otherwise protected by the First Amendment of our U.S. Constitution is an existential consideration.

. . .


In fact, “(t)he main causes and/or risk situations that contribute to a situation of violence and vulnerability against human rights defenders in America relate to the likelihood that their assailants will act with impunity.” See the Attached Questionnaire Responses, p 1.


While the situation may or may not involve “consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms” warranting the HRCouncil’s intervention, the international human rights community is on notice:


As feeble as democracy has become for average Americans, our country would remain the world’s haven for human rights protection were the U.S. legal system not so easily weaponized against human rights defenders. The ‘situation of violence and vulnerability against human rights defenders’ in America, courtesy of persistent U.S. legal system abuse, helps ensure the oppressed remain the oppressed in our country. Humanitarian relief can abound in that environment, but not lawful/equitable shifts of power. In fact, in such an environment, there are no actual rights . . . only privileges extended with varying levels of magnanimity.[8]

To eradicate this condition, thereby creating “a safe and conducive environment for the defence of human rights, the (U.S. legal) system must be changed such ‘that all actors know (it) will respond effectively and consistently to violations and abuses’.”[9] But first, those agitating for that reform should accept a sobering reality: America must be strategically prodded pursuant to its international human rights treaties right along with the U.S. Constitution, lest it will not return the metaphorical feet of its judiciary to the fire that is the rule of law. The current, sweeping autonomy of America’s judiciary took centuries to gel,[10] and has become a hallmark of U.S. government. Mere reminders of its inappropriateness will jolt many, many U.S. public officials and private Americans who apparently lost sight of the line between appropriate deference to America’s judiciary and its virtual tyranny. But remind them we must.


Ubi jus ibi remedium, even when the wrong is consummated by judicial ruling. That maxim has rather apparently failed in America, likely for a variety of reasons, some perhaps embraced initially in good faith. But America’s legal system is corrupted as a result, nonetheless. Although overcoming the corruption on a grassroots basis remains challenging, it – the corruption – can no longer thrive undetected. The HRCouncil rang a bell alerting the world to its existence that cannot be un-rung.



[1] See, National Judicial Conduct and Disability Law Project, Inc. (2018, October 12). UN Human Rights Council Poised to Address Prospect of Judicial Impunity in America [Press release], accessible as of May 20, 2019 at https://www.prlog.org/12734665-un-human-rights-council-poised-to-address-prospect-of-judicial-impunity-in-america.html


[2] Obviously, the HRCouncil could not entertain addressing judicial oversight in America if effective avenues of redress were clearly available in the United States. Yet, as indicated, the United Nations charter body has expressed willingness to intervene, subject to elaboration on instances of related harm. That fact alone at least arguably confirms a violation of the International Covenant on Civil and Political Rights (ICCPR) by the United States, specifically a violation of the treaty’s Article 2, paragraph 3(a) and (b) which mandate effective domestic remedies for ICCPR violations under color of law.


[3] “The Working Group on Communications (WGC) is designated by the Human Rights Council Advisory Committee from among its members for a period of three years (mandate renewable once). It consists of five independent and highly qualified experts and is geographically representative of the five regional groups. The Working Group meets twice a year for a period of five working days to assess the admissibility and the merits of a communication, including whether the communication alone or in combination with other communications, appears to reveal a consistent pattern of gross and reliably attested violations of human rights and fundamental freedoms. All admissible communications and recommendations thereon are transmitted to the Working Group on Situations.” Learn more at https://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/WGCommunications.aspx


[4] See, footnote 1, Supra.


[5] See, CCPR - International Covenant on Civil and Political Rights. 125 Session (04 Mar 2019 - 29 Mar 2019). List of issues prior to reporting (LOIPR). United States of America. Info from National Judicial Conduct and Disability Law Project, Inc., accessible as of May 20, 2019 at https://tbinternet.ohchr.org/_layouts/15/treatybodyexternal/SessionDetails1.aspx?SessionID=1296&Lang=en&fbclid=IwAR1UT6vkcBaGwmYkEv4dM5G81NzyXD2Iov1Yi_Q5YAxNX4w2rlZqzpV30JE


[6] See, footnote 1, Supra.


[7] See, footnote 2, Supra.


[8] See the Attached Questionnaire Responses, p 4.


[9] See the Attached Questionnaire Responses, p 5.


[10] See, Opt IN USA (2018, January 18). “JUDICIAL IMPUNITY: A Likely Inadvertent but Deadly Failure of American Democracy”, pp 5-7, accessible as of May 20, 2019 at https://www.dropbox.com/sh/03e5qnq7yn1by9p/AACLLKEklxK9VyVPDMBOV5RZa?dl=0&preview=2017-2018+Winter+Judicial+Impunity+Report.pdf


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