The Age of Imperviousness

A dangerous new crop of dictators is learning that they really can get away with murder. But it's as much Obama's fault as it is Putin's.

The problem of impunity -- the difficulty of punishing powerful wrongdoers -- has given birth to a new and potentially graver menace, the scourge of imperviousness. For years, advocates and activists have struggled against impunity, the lack of punishment for most of the worst human rights offenders. They decry the emboldening effect of this lack of sanction on other abusers, who dismiss international law and norms as toothless. But now, as Russian President Vladimir Putin muscles his way into Ukraine and Egypt's Abdel Fattah al-Sisi commits travesties of justice, we see impunity feeding into something potentially worse: imperviousness.

While the label may be new, the behavior isn't. Abusers who pay little or no mind to the outcry over their misdeeds have existed throughout human history. But they now seem to be emerging in places where, until recently, governments were more susceptible to shaming. Impunity is a problem of politics and structure, stemming from shortages of political will and weaknesses in national and international justice institutions. Imperviousness acts at a deeper, more subjective level. It is the judgment of heads of state that, when it comes to how they treat their people, what others think and say simply does not matter. 

Since the Universal Declaration of Human Rights was adopted in 1948, there have been outlier regimes galore that have not cared about international legal obligations or the stigma of noncompliance. These included closed countries like North Korea and Burma; the regimes of Ceausescu, Tito, and others of the communist bloc; Gen. Augusto Pinochet of Chile and his fellow South American dictators; Milosevic, Karadzic, and other Balkan tyrants; and African strongmen like Liberia's Charles Taylor and Uganda's Idi Amin.

In recent decades, though, their ranks thinned. In Eastern Europe and South America, authoritarians were replaced with mostly liberal, rights-respecting governments. Liberia and Rwanda left their dark histories behind to embrace democracy. Burma and Libya came out from under brutal dictatorships into fitful transitions. Pressure from foreign governments, human rights advocates, and above all these countries' own citizens helped force reform. 

Over the same period, organizations like Human Rights Watch and Freedom House began publishing hard-hitting exposés on a wide array of rights violations. Human rights activists adopted sophisticated tactics to generate media attention for wrongdoing, squiring around New York Times reporters and CNN cameras in crisis zones to expose the worst; human rights activists helped feed momentum for eventual, though belated, action to stop slaughters in Bosnia, Kosovo, and Darfur. In each case local dissident movements and rights defenders drew strength from outside supporters who backed their brave battles for freedom.

For a while, it seemed as though imperviousness was in retreat. A growing numbers of countries wrote human rights obligations into their constitutions, and more than 100 created national human rights institutions to monitor progress. In 2008, the United Nations initiated a human rights review process that trained scrutiny on each member state in turn; every single government -- including North Korea, Syria, and Iran -- turned up with a delegation in Geneva to hear and respond to the criticisms. Even countries like China and Russia implemented modest, non-threatening improvements to local justice systems in order to have something to show when human rights monitors looked, even if only to deflect scrutiny from the lack of more fundamental reforms. When Syrian President Bashar al-Assad began to violently suppress dissent in 2011, some commentators hoped that heightened media scrutiny, as well as video and social media outcry, would temper the brutality, citing that the growth of such tools was a measure of progress since Assad's father had quietly killed 30,000 civilians in the Hama massacre three decades earlier. 

But those hopes for Syria were dashed -- imperviousness was back on the march. On the contrary, hashtags and viral videos have not given Assad a moment's pause. And despite expectations that his Western-raised wife and his professional background in medicine might augur a degree of respect for international norms, Assad has proved to be among the most determined butchers of the 21st century. He has stalwartly resisted every form of pressure applied to date, and he is expected to be equally immune to an attempt by the U.N. Security Council to refer him for prosecution by the International Criminal Court.

Assad is hardly alone. Egypt has sentenced more than 500 supporters of the once-again-banned Muslim Brotherhood to death for the killing of a single police officer. Sisi's interim government has jailed scores of journalists, including three reporters from Al Jazeera who have been brought to court repeatedly in metal cages for what is widely seen as a sham trial. In the latest twist, the court is trying to extort $150,000 from the men for the privilege of seeing the evidence against them. Turkey's prime minister, Recep Tayyip Erdogan, a Washington darling until recently, is in a no-holds-barred struggle to hold on to power amid a corruption scandal that has seen him try to ban YouTube and Twitter, while cravenly denying clear evidence that shows he, personally, bullied both the media and the judiciary. He has vowed to "sterilize" his opponents by "boil[ing] or moleculariz[ing]" them. Salva Kiir, the president of South Sudan, a country midwifed into existence by the United States, has now been accused by the United Nations of complicity in war crimes committed in the course of a bloody internecine conflict over the last five months. Larger trends reinforce the pattern of backsliding: Freedom House has seen an unprecedented eight-year trend in backsliding of global civil and political rights; Amnesty International has just reported that 30 years after the U.N. adopted its Convention Against Torture, 79 countries still engage in the banned practice, with the number increasing since the escalation of the global fight against terrorism. 

Each of these leaders is called out almost daily by some combination of the media, human rights groups, foreign governments, and international bodies. None of them seems to much care.

Imperviousness begets imperviousness. The role model for all these indifferent leaders is Putin, who has elevated imperviousness to international norms and outside criticism to a new level with his rigged elections, suppression of dissent, anti-gay legislation, and now the annexation of Crimea. Who knows what lies in wait for eastern Ukraine. His decision to release the jailed punk protesters of Pussy Riot and financier-dissident Mikhail Khodorkovsky right before the Sochi Winter Games was aimed to shore up his Olympics vanity project and nothing more. And let's not forget that the invasion of Crimea was, in fact, planned in Sochi, while he was smiling for the cameras. He has brushed off the niceties of the international system with the flick of a wrist; through his Security Council veto, he has made it safe for others to do the same. 

Still, the spread of imperviousness can't all be blamed on Putin. In 2008, presidential candidate Barack Obama positioned himself as the antidote to the imperviousness of George W. Bush's administration on issues like torture and indefinite detention. But Obama's failure to close the Guantánamo Bay detention center, as he promised more than six years ago, and his claim of unilateral, unexplained authority for targeted killings via drone strikes have evinced a level of immunity to both domestic and international pressure -- and sent a message that even those who claim to value strong international norms do so selectively, at best.

Obama is not deaf to outrage, and he has done far more to acknowledge and address shortcomings than those on the world's most impervious list. Yet he will almost certainly leave office in 2017 with Guantánamo open for business and the U.S. drone program alive and well -- and still shrouded in secrecy. Coupled with the revelations of National Security Agency surveillance, his continuation of these Bush administration anti-terrorism policies leaves the widespread impression of a United States that has lost the moral high ground. 

Imperviousness has also been fueled by the cramped and equivocal international responses to dramatic backsliding on human rights. Obama has rightly put a great premium on avoiding war, but by ruling out the threat of force in responses to grave human rights abuses, he may unwittingly contribute to the twin senses of impunity and imperviousness that foreign dictators evince. We'll never know what would have happened had Obama gone through last summer with his threat to launch retaliatory strikes against Assad's chemical weapons massacre, in defense of his self-proclaimed red line. Every scenario open to Obama was evil, the lesser and greater hard to discern. Yet limiting Assad's punishment to the relinquishment of his chemical weapons stocks was like telling a convicted murderer that he must no longer own guns, but is otherwise a free man. True to form, Assad has at least partially surrendered his chemical stocks (though there is now evidence that he has violated at least the spirit if not the letter of the ban but continues to maraud and murder through conventional means). If front-page photos and televised images of rows of children's bodies aren't enough to elicit an international response that goes beyond words, rising imperviousness perhaps shouldn't come as much surprise.

The same is true in Egypt. Policy analysts cite some sound reasons for Washington's reluctance to turn its back on Cairo's repressive military-led government, and they also point out that U.S. leverage is far less than it once was. Yet tepid pronouncements from the White House make clear that whatever influence the United States does have, it is reluctant to use that influence. From all appearances, Sisi may remain impervious for the foreseeable future. As far as Ukraine is concerned, Obama keeps repeating his vow against the use of force, as the United States and Europe haltingly add names one by one to their sanctions lists. Whether and when Obama and his allies in Brussels and Berlin are prepared to draw the line on Putin's invasive poking near the borders of Europe has been left vague. 

Imperviousness is also fostered by the deepening disregard of governments outside Europe and North America for anything that smacks of Western interference. Egypt arrested and tried international NGO staffers for their work on democracy training and promotion. Turkey, resentful over the European Union's ambivalence over its aspirations for membership, has lashed out against Brussels's anodyne reaction to its corruption scandals. The Arab Spring, Ukraine's Maidan protests, the International Criminal Court, the Syria uprising, and even the polio vaccine have all been denounced as Western plots. With the diminution of American moral authority, casting aspersions on U.S. motives is becoming a more popular sport.

There is no easy fix for imperviousness. There is some risk that traditional forms of pressure -- public criticism and sanctions -- only feed the image of courageous martyrdom cultivated by indifferent leaders. Iran's leaders made a great show of denouncing the failed Green Revolution as the work of outside interferers, and Putin tried to do the same with the Maidan uprising. The most effective international shame is factual and hands-off yet translates into domestic mobilization. Yet U.S. sanctions and international criticism over the invasion of Crimea have sent Putin's popularity at home soaring. Abetting the rise of homegrown democratic leaders has never been easy -- and it's getting harder, with the antenna for outside interference on high alert. 

Some regimes, like Iran and Sri Lanka, tend to write off Western views but are more susceptible to global pressure via the United Nations, a tactic the United States has tried with some success. Nascent civil society efforts are afoot in Brazil, South Africa, and elsewhere to get their governments to factor human rights into their foreign policies, potentially offering a source of pressure on the Putins of the world that is more credible and less easily dismissed than messages from Washington or Brussels. But for these efforts to have even a hope of working, they can't become too closely associated with Western partners and funders. There is some chance that the economic consequences of pariah status (for example, plunging tourism revenues in Egypt) may gradually incentivize better behavior. There is also a chance that locally respected voices -- those of writers, artists, and intellectuals -- will make their voices heard in defense of rights and norms, galvanizing ordinary citizens and emboldening dissenters within impervious regimes.

The traditional medicines of human rights activism -- exposés, media attention, and pressure from mostly credible Western governments -- are falling short when it comes to some of the major challenges of the day. It is as if an expanding group of leaders has built up antibodies and these leaders can now resist where they would previously have succumbed. While it's not time to give up on the traditional treatments, human rights defenders need to get into the lab quickly and develop some new tactics before the virus of imperviousness spreads even further.


Democracy Lab

The Skeleton in Chile's Closet

Chile has made progress toward democracy. Why do its indigenous people still feel left out?

On May 12, the Chilean Supreme Court upheld an 18-year-long prison sentence for Celestino Córdova, a Mapuche machi (shaman), for setting a house ablaze last year, killing an elderly couple. The case has sparked anger among his supporters since he was first sentenced by a lower court in late February. The couple, Werner Luchsinger and Vivian McKay, had been involved in a dispute with a local indigenous group over land they owned in Chile's Araucanía region, an area historically inhabited by the Mapuche indians.

On Feb. 28, Mapuche protesters gathered outside the Temuco courthouse to protest. "Thousands of us were slaughtered by Chileans and none of them went to jail," one of the Mapuches explained. But even despite this 130-year-old conflict, the machi's supporters were convinced of his innocence and insisted that the trial was staged. And they have good reason to believe that the state security and justice system is not treating them fairly. Over recent years, a number of Mapuche leaders have been arrested on trumped-up charges, only to be released after months in prison on absence of proof. In February, an undercover police agent, Raúl Castro Antipan, confessed that he had infiltrated a Mapuche community and lit fires to implicate the community's leaders on more than one occasion. The Mapuches argue that in convicting Córdova, the state is attempting to quell their demands for the return of their ancestral territories in the south of the country.

The Mapuches lost most of their land when they were incorporated into Chile at the end of the 19th century. But the conflict didn't end there. Over the years, much of the land they had been left with and that had been registered in their names was usurped from them and ended up in the hands of timber companies and private landowners. After the end of Pinochet's dictatorship, the state pledged to begin a new relationship with indigenous people, based on their fair treatment. The return of disputed territories to the Mapuches was a fundamental part of it.

However, the efforts at land restitution have been half-hearted. None of the democratic governments has been willing to jeopardize the interests of forest plantation owners, who are significant players in Chile's economic growth. Timber is the country's second largest export commodity, worth almost $6 billion a year. Moreover, the political elite is deeply invested in the industry. For example, the former governor of Araucanía, Andrés Molina Magofke, has a 42 percent share in a small timber company Santa Laura, worth $600,000.*

The government has neglected to give the necessary expropriation powers to the body in charge of buying back the disputed land, the National Corporation for Indigenous Development (CONADI). As a result, it has been locked in protracted negotiations with landowners, who, knowing that law requires the state to buy the land back, have been demanding exorbitant prices, according to CONADI's regional director Julio Anativia.

Meanwhile, the Mapuches struggle to survive on tiny plots of land. Neighboring pine and eucalyptus plantations are making their situation worse, as these water-demanding plants are causing droughts. Araucanía, where almost a third of the population is Mapuche, is Chile's poorest region, with the poverty level of 22.9 percent in 2011.* During Sebastián Piñera's presidency, the government worked on a proposal called Plan Araucanía, which was meant to stimulate economic growth in the region -- but it looks as though the new governor of Araucanía does not intend to continue the program.

It's no wonder tensions are rising. As Jaime Huicahue, a CONADI councilor, explained: "The government has been warned many times of the situation at the Luchsinger estate."

Unable to find a solution to the land conflict, previous governments turned to repression instead. Countless carabineros (uniformed police) were sent to remove Mapuche's "illegal" land occupations. Human rights activists reported that these evictions have come with indiscriminate violence against women, children, and the elderly. A 17 year old, Alex Lemun, was shot dead in 2002 while his community was occupying private land. Matias Catrileo (22 years old) and Jaime Mendoza Collio (24 years old) were killed under similar circumstances in 2008 and 2009 respectively. Under existing Chilean legislation, all complaints of abuse by carabineros are heard in military court procedures that are largely secret. Many complaints are rejected or left unresolved. The officer who killed Alex Lemun evaded prison and continues to serve in the police force. 

The de facto impunity enjoyed by law enforcement officers is in a stark contrast with the vigorous prosecution of the Mapuches who break the law. Under the Pinochet-era anti-terrorist legislation, Chile's democratic governments -- including President Michelle Bachelet's -- have held Mapuches in pre-trial detention for months, and handed out tough prison sentences based on the testimonies of secret witnesses. In one of the most emblematic cases, five Mapuche leaders were sentenced to 10 years in prison in 2004 for "terrorist arson" at the Poluco Pidenco estate of the timber company Mininco. In another case, three Mapuche leaders were sentenced to five years in prison for threats of arson against the estate of former agriculture minister Juan Agustín Figueroa in 2003.

Last year, a U.N. human rights investigator, Ben Emmerson, warned that the Araucania region was "extremely volatile" partly due to the misuse of this counter-terrorism legislation within the context of "an inexcusably slow" process of ancestral repatriation. He urged the government to make the resolution of this conflict a political priority.

Luckily, Chile's new president, Michelle Bachelet, seems to have the will to address the Mapuche's grievances -- some of them, at least. During her campaign, she pledged to never again use the anti-terrorist laws against indigenous activists, and to investigate abuses caused by the use of these laws in the past. She also promised to strengthen CONADI by turning it into a ministry, and to include recognition of indigenous peoples in a new constitution. Until now, Chile's principal law has insisted that there is only one nation in the country.

The new governor of Araucanía, Francisco Huenchumilla, also plans to help. Just a day after he took office on March 11, he apologized to the Mapuche people for the land grabs and acknowledged that the Chilean state owes them a debt. Himself a half-Mapuche, Huenchumilla is determined to persuade the timber companies to take part in resolving the conflict, asking them to leave the most critical zones. However, it seems like he shouldn't count on the good will of the investors. They have made it clear that they are not ready to join the governor's apology, saying that they, not the Mapuches, are the victims of the land conflict. At the moment, Huenchumilla doesn't have any tools on hand to force them to cooperate. Despite his experience and resolve, he is only a designated representative of the president and he, too, will have to follow orders.

The president's program looks good on paper. But how much of it will she be able to implement? All proposals have to be approved by the congress and many of them have crashed there in the past. This time around, Bachelet's left-wing block has the majority in both chambers of the congress -- but unanimous support for the president's proposals is difficult and unlikely. And given Bachelet's own record of using antiterrorism laws against Mapuches during her first term, the Mapuche aren't letting their hopes fly too high. Recognition in the constitution was already promised to indigenous people during Bachelet's first government -- to no avail. Moreover, the Mapuches won't be appeased by token recognition in a new constitution. They want it to include certain, specific rights, such as the right to self-determination, the right to land, and the recognition of ancestral territories and Mapuche parliaments.

The huge challenge for the new president will be to win the Mapuches's trust, lost during years of ill treatment. Rural communities, for one, have very little confidence in politics. "The state is using laws to protect the interests of the rich. It favors the right to property over the right to life. There is a law on indigenous people, but not a half of it has ever been respected," Kelv Tranamil, a leader of the protest supporting Córdova, said. "The little we have achieved, we have achieved because our people fought and died."

Mapuche intellectuals believe the political class has a very limited understanding of indigenous people. As Mapuche anthropologist Rosamel Millaman Reinao explained: "The government's policies are not at all addressing the fundamental problems. Land is not the only problem. There are historical, economic, political, and ideological problems, as well." In addition, the Mapuche feel that the government does not fundamentally care about indigenous people. "We have no economic power, no cultural power, no political power, and as such, we are irrelevant," says Mapuche journalist Pedro Cayuqueo. "The indigenous problem does not exist -- there is only the problem of public safety. In the government's eyes, we are penniless terrorists."

To be fair, in some ways Chile has gone further than many well-established democracies to protect the rights of its indigenous peoples. It is one of only 22 countries that has ratified the ILO Convention 169, a legally-binding treaty that covers a wide range of rights, including land, education, health, employment, natural resources and participation in public affairs. However, previous governments failed to fully implement the convention within its domestic legal system, especially when it comes to the indigenous people's right to consultation on legislation or investment projects that directly affect them. As a result, Chile is not only violating its international legal obligations, but is also perpetuating the Mapuche's distrust of the government and fuelling conflict between the two, and undermining the integrity of its own democracy.

It is crucial that Bachelet start delivering on her promises. The sense of injustice among the Mapuches is quickly turning into violence. As protesters in front of the Temuco court threw rocks at carabineros in February, they chanted: "We don't want peace, we want our land!"

*Correction, May 19, 2014: Andrés Molina Magofke is the former governor of Araucanía. The original language suggested that he is the current governor. (Return to reading.)

*Correction, May 19, 2014: Araucanía has the highest proportion of Mapuche people of any Chilean state. This article previously misstated that most of Chile's Mapuche live in Araucanía. (Return to reading.)