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Abstract
The term “political prisoner” plays an important role in contemporary affairs. But how coherent is the concept behind the term, and is use of this term essentially unobjectionable? As it turns out, the most influential contemporary definitions of the concept of “political prisoner” are fundamentally flawed, and the use of the term itself may do more harm than good. One basic problem with the concept of “political prisoner” concerns the most current definitional criteria, which all prove either arbitrarily narrow or excessively broad. Even more worrisome than these definitional issues, the use of the concept contributes nothing to the moral assessment of detentions and punishment, and deflects attention from other considerations that are more relevant in evaluating their legitimacy. There is, finally, a third fundamental problem with the concept: it serves to arbitrarily privilege one class of prisoners vis-à-vis all the others.
Notes
[Disclosure Statement: No potential conflict of interest was reported by the author.]
1 I discuss some aspects of the relationship between human rights and the concept of “political prisoner” below.
2 I elaborate on these points below, in the course of considering two detailed definitions of the term “political prisoner”.
3 Webster’s Third International Dictionary, s.v. “political prisoner.”
4 The standard media treatment of Chelsea (Bradley) Manning, convicted of espionage-related offenses in 2013, is a case in point.
5 Founded in 1949 and currently comprising 47 countries, the Council of Europe “was set up to promote democracy and protect human rights and the rule of law in Europe.” Council of Europe, “Do not Get Confused.” Its Parliamentary Assembly includes representatives from all the Council’s member states. The Council of Europe should not be confused with the European Union.
6 I do not know whether or not Human Rights Watch, another well-known human rights organization, has formulated its own definition of the term “political prisoner,” but I was unable to find any statement regarding the concept on the HRW website and the organization did not respond to an email inquiry requesting information about its use of the term.
7 Amnesty International, Handbook, 40–1. This was published in 2002, but it appears to be AI’s most recent statement on political prisoners.
8 Ibid., 41; cf. ibid., 27.
9 Council of Europe, “Resolution 1900.”
10 It is worth bearing in mind that a violation of a human right need not entail a violation of a political right, since the set of human rights includes some rights that are not political rights as conventionally interpreted.
11 The European Convention. See http://www.echr.coe.int/pages/home.aspx?p=basictexts (emphasis added). By contrast, Amnesty International makes a point of stating that its “vision is for every person to enjoy all the rights enshrined in the Universal Declaration of Human Rights and other international human rights standards. Amnesty International’s mission is to conduct research and take action to prevent and end grave abuses of all human rights—civil, political, social, cultural and economic. From freedom of expression and association to physical and mental integrity, from protection from discrimination to the right to housing—these rights are indivisible.” Amnesty International, Report 2014/15, ii (emphasis added).
12 Of course, we might also ask about the rationale for according priority to the guarantees mentioned in section (a) of the Council’s statement on political prisoners, which the Council does not explain.
13 According to “Document 13011: The Definition of Political Prisoner,” an “explanatory memorandum” presented by the rapporteur for the Committee on Legal Affairs and Human Rights, part of the Council of Europe’s Parliamentary Assembly, “[p]ersons who are imprisoned in connection with non-political offences (i.e. all other offences where neither the actus reus nor the mens rea has a political connotation) are, as a rule, not political prisoners. Again, there are exceptions to this rule. A person convicted of a non-political offence can be a political prisoner when there is a political motive on the side of the authorities to imprison the person concerned. This can become apparent when the sentence is totally out of proportion with the offence and/or when the proceedings are clearly unfair.” This passage suggests that a person imprisoned for exercising her freedom of religion should be regarded as a political prisoner “when there was a political motive on the side of the authorities to imprison the person concerned” (and the religious activity did not contain any political element or have direct political implications). In other words, the relevant criteria in determining whether or not such a prisoner is a political prisoner turn out to be (b) and (c) from the Council’s main statement on (i.e., definition of) political prisoners. If this is so, what, exactly, are the grounds for the Council’s decision to include detentions for the exercise of freedom of religion in (a), which otherwise refers to guarantees that have a straightforwardly political value and significance?
14 For a useful overview of the different ways in which the European Union’s member states, all of which are also members of the Council of Europe, regulate various facets of freedom of expression, see Harris, “Time to Step Up,” 3–27.
15 Amnesty International, Handbook, 41. We may assume that the examples in which a person is “charged with” or “accused of” a crime also entail incarceration, since they are supposed to represent cases of political prisoners.
16 It is not clear to me whether or not Amnesty is suggesting that the person who refuses to pay taxes “for ideological reasons” has likewise been accused or convicted “of an ordinary crime.” In any event, our assessment of this case will undoubtedly depend on the nature of the person’s “ideological reasons.” A refusal to pay income taxes that will be used to finance a war that one considers immoral, for example, is very different from a refusal deriving from the conviction that income taxes as such are illegitimate.
17 Amnesty International, Handbook, 41.
18 Ibid., 42. The argument I am advancing against the category and concept of “political prisoner” in the present section could also be applied, to some extent, to Amnesty International’s category and concept of “prisoner of conscience.” According to Amnesty, “[s]ome prisoners of conscience have acted in direct opposition to the entire system of government, while others have worked within the legal framework of a country’s political system but have been imprisoned nonetheless.” Ibid. If some who “have acted in direct opposition to the entire system of government” have disregarded the law, as the structure of the statement suggests (“while others have worked within the legal framework”), then the incarceration of at least some prisoners of conscience—such as people who participate in certain strikes or demonstrations, one of Amnesty’s examples—may well be perfectly justified on the basis of a country’s existing laws. If we condemn the law that has produced the sanction on the grounds that it is unjust, use of the term “prisoner of conscience” adds nothing of evaluative significance to our condemnation.
19 This statement may sound inaccurate or incorrect, since many states still prohibit, say, same-sex sexual practices; however, it would seem to follow from Amnesty’s distinction between prisoners of conscience and all other political prisoners: “The term ‘political prisoner’ includes both prisoners of conscience and those who have resorted to criminal violence (or have been accused of other ordinary crimes such as trespassing or destruction of property) for political motives.” Amnesty International, Handbook, 41. As this passage makes clear, for Amnesty, prisoners of conscience are also political prisoners, which makes sense, given the organization’s construal of the term “political.” But the passage also shows, in light of the examples provided, that a person may be a political prisoner without qualifying as a prisoner of conscience, even though she has not engaged in or advocated violence (or hatred). Accordingly, since what distinguishes prisoners of conscience from all other political prisoners is neither the character of their imprisonment (which is also political) nor the fact that they did not use violence or advocate either violence or hatred, the essential difference between the two types of political prisoner would seem to have to do with whether or not they were charged with a codified offense.
20 TIME magazine’s website features a list, apparently first published on November 15, 2010, of the “Top Ten Political Prisoners.” The list includes, among others, Aung San Suu Kyi, Nelson Mandela, Mohandas Gandhi, Martin Luther King Jr., and Ho Chi Minh. See http://content.time.com/time/specials/packages/completelist/0,29569,2024558,00.html. Some, but not all, of the figures on the list would apparently satisfy Amnesty International’s criteria for prisoners of conscience. In any case, we should ask in connection with all these figures, and particularly in connection with those who were charged with some actual, codified offense, whether the label “political prisoner” adds anything to an evaluative assessment of their convictions and incarceration.
21 The Compact Edition of the Oxford English Dictionary defines murder as “the most heinous kind of criminal homicide; also, an instance of this.” The general legal definition of murder, according to this dictionary, is “the unlawful killing of a human being with malice aforethought”; s.v. “murder.”
22 I thank an anonymous reviewer for Criminal Justice Ethics for suggesting this argument, including the two examples that I discuss.
23 Amnesty International’s website contains numerous documents that address the special problems confronting such prisoners. See https://www.amnesty.org/en/
24 Furthermore, most people will reflexively condemn both the conditions of incarceration and the incarceration itself in the case of the political prisoner, whereas they are apt to condemn, at most, the conditions of incarceration of the person imprisoned for a drug-related offense.
25 See https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp; Carson, Prisoners in 2014, 30.
26 Husak, Drugs and Rights, 2.
27 Ibid., especially chaps. 2 and 3.
28 Many people today not only uphold a variety of non-traditional rights pertaining to sexuality and sexual expression (as regards, for example, sexual orientation, consensual sexual acts, and reproductive choices), but also consider these rights just as fundamental as the right to freedom of religion (or the rights constitutive of this freedom). These fairly determinate, sexuality-related rights can readily be derived from such broad basic rights as freedom of expression, freedom of conscience, or the right to privacy. Could these broad, basic rights not also ground certain rights to drug use as well? If they could, would the resulting rights be any less fundamental than the right to freedom of religion?
29 For a few examples of absurdly draconian sentences, see American Civil Liberties Union, Living Death, chap. 6. Some information on mandatory minimum sentences for drug offenses can be found at DrugWarFacts.org; see http://www.drugwarfacts.org/cms/Mandatory_Minimum_Sentencing#sthash.rXQ2Qinq.dpbs. U.S. government statistics on the racial background of those incarcerated for drug-related offenses are available in Carson, Prisoners in 2014, 15–17. For a brief discussion of the relationship between poverty, drug usage, and incarceration, see Western, “Decriminalizing Poverty.” For discussion of the financial challenges facing poorer defendants, see Shapiro, “As Court Fees Rise,” and Speri, “High Cost of Justice.”