By Richard Falk
Recently reflecting on the plight of refugees fleeing war zones in the Middle East and migrants from sub-Saharan Africa and Central America I was struck by the analogy to ‘Double Jeopardy.’ As generally understood, double jeopardy is a procedural rule of criminal law that prohibits prosecution by a state of an individual more than once for the same crime. It is deservedly treated as a human right that protects persons from being harassed after judicial acquittal by repeated allegations of the same alleged crime. The International Covenant on Civil and Political Rights (1966) in Article 14(7) defines double jeopardy: “No one shall be liable to be tried or punished again for an offense for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country.” (There are exceptions for acquittals tainted by fraud, confessions by the accused, and the wording of the rule should be corrected for its gender bias implying that it is only ‘men’ who could be victimized by vindictive re-prosecution).
For some years, the agonizing images of violent border security associated with keeping refugees or migrants from crossing international boundaries to reach more peaceful or affluent countries in Europe or North America prompted me to sense an analogy to the kind of ordeal that exists when someone wins an acquittal after a long, emotionally and economically costly trial, and is then confronted by a new indictment for essentially the same supposed criminal offense. In a well-administered democracy, the double jeopardy rule is taken for granted, and prevents such injustices from happening. But what of the world of refugees and migrants in which injustice takes the form of severe misfortune most often associated with being born into extreme poverty, finding oneself and family in the midst of a devastating violent political struggle, and less commonly, escaping political or ethnic persecution?
What made the double jeopardy comparison apt for me were these media images of a doubling down on punishment of those who were not only innocent, but had previously been victimized by circumstances beyond their control, and were now again being punished for acts that deserved empathy and accommodation, not punishment and acrimony. Such cruelty would not be happening if humanitarian values were properly extended to the circumstances of refugees/migrants. My existential premise, borne out by personal experience, is that persons almost never leave their place of birth and family residence without overwhelming provocations, and are especially hesitant to use their small saving and meager borrowings to embark on a dangerous voyage to a distant land with a different language and culture. Most of us, even if dissatisfied with conditions in our native land or our personal situation will still not voluntarily depart from the familiarities of family and friends, as well as native language, traditions, and nationality. Only circumstances of grave danger such as presented by ravaged combat zones or resulting from grinding poverty found in societies that confront residents and entire communities with gray horizons of hopelessness offering neither safety nor security, can induce most persons to so uproot themselves. In other words, the motivation underlying the emotional reality of the overwhelming majority of refugees and migrants is one of desperation, of grasping at straws and escaping doom. Of course, excluded from this assessment are the small nomadic elites of adventurers, exiles, and expatriates who leave their homeland not from necessity, but in pursuit of the exotic pleasures or a retirement where their pensions translate into a better standard of living.
This sad depiction of the decision to flee to safety or to search for economic security is most frequently a prelude to a treacherous and harrowing journey that often drains the traveler of his or her small savings. Many such trips end with death and illness of members of the group. And the aftermath of such perilous trips across stormy seas or barren deserts can be even worse, being confronted by a coercive ‘no’ in the form of barbed wire, walls, detention centers, and even live ammunition. To be placed in detention centers with long waits may be the best that can be hoped for by such forsaken souls, often including young children, who escaping from the depths of insecurity in their homeland only to experience an agonizing rejection rather than sanctuary and a new beginning.
I do not mean to imply that this refugee/migrant experience is double jeopardy in a legal sense, but it seems to possess the same ingredients of the unjust duplication of punishment that are prohibited as a part of civilized behavior in societies responsive to the rule of law, and protective of human rights. It is a kind of morally grounded, culturally and spiritually debasing, and often life-threatening duplication of punishment without account being taken of the human dignity and fundamental innocence of those being harshly re-victimized.
And yet, mere moral outrage or calls for compassion does not acknowledge the complexity of the issues raised. Unlike the individuals accused of the same crime a second time, the refugee/migrant may pose real threats to the wellbeing of countries that are being asked to serve as benign hosts or to extend hospitality to strangers in need. We live in a state-centric world where international boundaries identify for most people the outer limits of community. This reality has not changed fundamentally no matter how much we hear cosmopolitan sermonizing and ecologically persuasive calls for planetary identity. In such a framework of belonging, the citizenry of a country feels threatened in various ways by the influx of large numbers of strangers, especially if their racial and cultural characteristics clash with that of the country asked to show hospitality or grant asylum, and even more so as seen as competitors for jobs. Such inflamed resistance lead to the extremisms of scapegoating and xenophobia, and open political spaces that demagogues are ready to fill with hatred and chauvinism. Searching a middle way, moderates search for compromises in the form of lawful entry, quotas, job training, and language and civilizational educational resources. Given the scale of the challenge, and the unlikely emergence of greater receptivity, the main line of effective response should be a large investment in overcoming the conditions in foreign countries that give rise to massive displacement and large numbers of persons desperate to find more sustainable life conditions elsewhere. Overcoming double jeopardy in these settings depends on a self-interested globalization of responsibility for achieving peace and security, as well as lifting the curse of poverty, and this requires many adjustments starting with the drastic reform of the way the benefits of neoliberal globalization are now distributed.
Triple Jeopardy for Palestinian Prisoners at a Time of Pandemic
This metaphor for layers of unjust suffering initially occurred to me while preparing a ZOOM presentation on the abuse of Palestinian prisoners in the context of the health dangers associated with the COVID-19 challenge. Such dangers were present for Palestinians under pre-pandemic conditions, but greatly aggravated by Israeli failures to mitigate the additional and aggravated risks that come from keeping around 5,000 Palestinian prisoners in overcrowded prisons where some of the guards and security personnel had tested positive for the virus yet continue to interact with prisoners without even wearing prescribed personal protective gear (PPE), and where insufficient hospital and medical capabilities existed in the event that the disease started to spread. This overall sub-par situation was further accentuated by 172 or so child prisoners, many elderly and disabled prisoners, and almost all inmates incarcerated for security offenses that should never have been criminalized as falling within the scope of a right of persons living under an apartheid regime, which is itself criminal, to exercise their right of resistance, at least within the limits of international law regulating violence by reference to the choice of targets. Israel has not accepted WHO guidelines or a variety of humanitarian to release at least ‘low-risk’ prisoners as well as those with ‘underlying conditions,’ children, and the elderly.
Taking these considerations into account the ‘triple jeopardy’ framing seems justified underscoring the layers of injustice endured by Palestinian prisoners at this time. As the Palestinian writer Ramzy Baroud writes,
“… all of Palestine has been in a state of ‘lockdown’ since the late 1940s when Israel became a state and the Palestinian homeland was erased by Zionist colonialists with the support of Western benefactors.”
To drive the point home Baroud adds,
“In Palestine, we don’t call our imprisonment a lockdown, but a ‘military occupation’ and apartheid.”
[See Baroud, “A Palestinian Guide to Surviving a Quarantine: On Faith, Humor, and ‘Dutch Candy,’” TRANSCEND Media Service, 20 April 2020]. In effect, all Palestinians are enduring an unjust ‘imprisonment’ that has lasted for more than 71 years with no signs of abatement, and is itself a punishment for the ‘crime’ of existing.
On this basis, the criminalization of resistance, including nonviolent and symbolic forms, extending even to poems (for example, Dareen Tatour, and her crime, the poem “Resist, my people, resist them”), has resulted in harsh confinement in Israeli prisons, including reliance on such legally dubious mechanisms as ‘administrative detention’ (imprisoning without charges or any due process for extended periods) and the unlawful transfer of prisoners from detention in Occupied Palestine to Israeli prisons out of reach of family members). In effect, the imprisoning of Palestinians in Israeli jails is Double Jeopardy because it puts Palestinians already being punished by lockdown, displacement, and dispossession behind bars because they dared to resist.
The allegation of Triple Jeopardy arises from the failure to suspend or mitigate prison condition in light of the Coronavirus Pandemic, and the related failure to take responsible steps to protect those so confined from contracting the potentially lethal disease. A virtual death sentence hangs over every single Palestinian prisoner, and in an especially acute form with respect to particularly vulnerable Palestinians living in crowded unhealthy prisons.
It is not possible to set forth detailed proposals to overcome double and triple jeopardy as depicted. I will only indicate the vectors that point in a direction sensitive to practical and normative aspects of the challenge.
For Double Jeopardy: seek to accommodate an ethos of hospitality and empathy with a major commitment to remove the conditions of mass desperation prompting large numbers to leave their homelands, ideally funded by a globally administered tax on luxury goods, financial transactions, fossil fuels, and transnational air travel.
For Triple Jeopardy: unconditionally release all Palestinian political prisoners immediately, with a sense of urgency, and commit to ending apartheid as the essential step toward a sustainable and just peace based on the equality of rights of Jews and Palestinians.
*Richard Falk is a member of the TRANSCEND Network, an international relations scholar, professor emeritus of international law at Princeton University, Distinguished Research Fellow, Orfalea Center of Global Studies, UCSB, author, co-author or editor of 60 books, and a speaker and activist on world affairs. In 2008, the United Nations Human Rights Council (UNHRC) appointed Falk to two three-year terms as a United Nations Special Rapporteur on “the situation of human rights in the Palestinian territories occupied since 1967.” Since 2002 he has lived in Santa Barbara, California, and associated with the local campus of the University of California, and for several years chaired the Board of the Nuclear Age Peace Foundation. His most recent book is On Nuclear Weapons, Denuclearization, Demilitarization, and Disarmament (2019).