Silvana Tapia Tapia
Birmingham Law School
1. Penal expansion and prison massacres in Ecuador
The history of carceral violence in Latin America, and the precarious living conditions in the region’s prisons, make a stronger case for penal abolition than any theory of punishment, as Ávila and Postay (2012) have put it. Readers may be familiar with the tragedy of Carandiru in Brazil, and it may come as a surprise to learn that the recent prison massacres in Ecuador have left more victims than the 1992 events depicted in an award-winning film. As of now, around 400 people have been brutally killed since February 2021, in successive and connected riots whereby government intervention has always been late.
Although the government presents the events reductively as a matter of “gang warfare” and “narco-politics”, such narratives have been called into question by the victims’ families, critical scholars, human rights activists, grassroots movements, and previously incarcerated persons. These groups are denouncing the role of police and the government in producing the conditions under which the massacres became possible. Said conditions include increasing precariousness in the country, lack of access to education and employment for youth, the building, since 2014, of mega-prisons that are severely overcrowded, absence of basic services and healthcare therein, police corruption, and state involvement in organised crime. After all, large calibre weapons have been used in all the riots, while the entry of the armament remains a “mystery”, given the rigorous and often humiliating security checks to which visitors are subjected.
The horror inside the prisons, as well as the neglect of the victims’ families by the government, has drawn the attention of several local and international human rights organisations. In situ visits have taken place, countless meetings and commissions have convened to discuss the situation and propose solutions, and the government’s Human Rights Secretariat affirmed that it has devised a human rights-based plan to reform the prison system. Moreover, the authorities in charge of prison administration have been removed and replaced numerous times following the incidents. Despite these actions, not a lot has changed, and the violence has not stopped. Further “minor” disturbances have continued to result in torture and death.
This is the appalling backdrop against which I find myself researching anti-carceral and feminist responses to “human rights penality”. Having participated in meetings like the ones mentioned above —including with the UN Subcommittee on prevention of torture—, I know that it is highly unusual for organisations and advocates to direct critical questions towards human rights discourse itself. However, a closer look at the trends in international human rights reveals that treaties and court decisions have been key in characterising criminal investigation, prosecution and punishment, as state “due diligence”. This characterisation is also upheld and disseminated by NGOs and civil society initiatives, including, for instance, feminist anti-impunity campaigns against sexual violence.
Much of my work to this point has, in fact, been concerned with augmenting and nuancing the debate on so-called “carceral feminism”. In my current project, however, I am engaging more with persons and groups that implicitly and explicitly embrace an “anti-carceral feminism”. This term is being used to characterise “a movement grounded in intersectional feminist critiques, strategies, actions driven to struggle against and undermine structures of oppression that give rise to violence and injustice” (Carlton & Russell, 2018, p. 3). In addition, I probe further into the implications of the language that I previously identified as central to feminist criminal law reform in relation to VAW; that is, the language of human rights (Tapia Tapia, 2018). Next, I make some remarks on why we can characterise contemporary human rights as carceral.
2. Carceral human rights? A faded potential for emancipation
Saying that human rights are accomplices in the production of carceral violence seems counterintuitive and perhaps too provocative. As noted above, human rights organisations have been among the first to condemn the violence against incarcerated people in Ecuador and elsewhere. Furthermore, in many ways, the history of human rights is the history of struggling to curb coercive power and prevent its abuses. Nevertheless, on the other side of the same coin, we find the “common-sense” of demanding more criminal prosecutions and harsher carceral punishments for human rights violations, even when lacking empirical data to show that imprisonment can prevent, deter, or redress.
There is an often unacknowledged paradox implicit in mainstream human rights discourse, which consists of calling for a potent activation of the penal apparatus when rights are violated, while rejecting the excesses in which that very apparatus systematically incurs. This ambivalence is frequently overcome through the rhetoric of due process, constitutional guarantees and a “minimal criminal law”. These concepts enable a logic whereby the activation of the penal apparatus is constructed as reasonable, legitimate and even benign, given that it is limited by legal rules that protect the rights of plaintiffs and defendants. Nevertheless, this “constitutionalised”, rights-based criminal law, can paradoxically produce a renewed discourse that re-legitimises penality. In practice, this means that that penal apparatus remains available, central, and, therefore, susceptible of expansion (Tapia Tapia, 2022). In other words, as abolitionist repeatedly note, the appeals to reform the penal apparatus take as their point of departure that penality is legitimate, and do not question it as a social institution. Evidently, the existence of due process principles and human rights-based rules has not stopped prison overcrowding, deprivation of basic services and extreme carceral violence in the real world. Yet, the formal existence of due process rules does allow justice operators to continue issuing convictions, even if these are, in reality, a condemnation to torture and death.
In this regard, ground-breaking work is emerging —including from Birmingham Law School— on the perils of “human rights penality”, that is, the trend toward centring the activation of the penal apparatus as a primary response to human rights violations. Natasa Mavronicola considers that, among other perils, there is a risk of diversion of human rights doctrine to conservative stances, delegitimisation of counter-carceral human rights agendas, and the hollowing out of visions of justice within the human rights frame (paper on file with author). In other words, penality may significantly diminish the emancipatory potential of human rights, undermining and even excluding non-carceral stances, and precluding more radical uses of human rights tools in struggles for social justice.
With these considerations, it is possible to link the model of justice that international human rights entities are building and disseminating, to the enhancement and legitimation of the penal apparatus, which is necessarily linked to the validation of prisons. For instance, I am conducting discourse analysis of flagship case law on VAW by the Inter-American Human Rights System and the European Court of Human Rights. Among my initial findings, there is a transversal pattern, whereby the failure of a State to initiate criminal proceedings and impose exemplary sanctions, is regarded as an encouragement for citizens to perpetrate acts of violence. This is far from having been proven empirically in a consistent manner (Bottoms & Von Hirsch, 2010; Mathiesen, 2005; Scott, 2013). Still, the case law is clear that an adequate protection of human rights requires requires activating and deploying the penal apparatus.
The fact that this is a globalised model of justice, leads us to questions about the coloniality of human rights. The concept of coloniality of power (Quijano, 2000) centres race as integral to colonisation and the formation of capitalism. Race justifies a hierarchical social system that gives the colonisers control over resources and governance. In addition, European knowledge production is accredited as the only valid knowledge, whilst indigenous ontologies and epistemologies are relegated or destroyed (Mendoza, 2016). It follows that decolonial theories broadly frame law as an imperial technology of government that reproduces a colonial approach to reality, knowledge, and human relations. In this way, my current research is revealing that Western legality facilitates the dominance of technocratic forms of knowledge over other knowing practices to address social conflict. This includes a formalistic, adversarial and disembodied approach to widespread violence and systemic inequality.
Notwithstanding these critiques, debates are ongoing on whether it is possible or desirable to do without human rights, as they may also be strategically used to mitigate specific instances of oppression, particularly when the interlocutors are governance institutions. Some have argued that, whether for tactical reasons (Grewal, 2015), or because human rights do have a radical emancipatory potential (Barreto, 2018; McNeilly, 2019; Scott, 2016), we cannot part with them. For example, decolonial feminist Aída Hernández (2017) considers that it is necessary to maintain a critical perspective on law, and on human rights as universalising and globalised frameworks. However, in her view, it is still possible to support grassroot struggles by appropriating and re-signifying national and international legislation. Furthermore, the compatibility between human rights and penal abolition has been examined, with encouraging findings emerging from the tradition of economic and social rights (Renzulli, 2021), as well as the struggles of grassroots movements (Escobar, 2004; Scott, 2016). Moreover, In Latin America, a “decolonial abolitionism” is being projected (Gómez Vélez & Gómez Gómez, 2018).
In the next section, I reflect on some emerging insights from the field, regarding when and how Ecuadorian anti-carceral activists and grassroots organisations resort to the language of human rights, often radicalising it.
 Project: “Toward a non-penal human rights framework to counteract violence against women”, Early Career Fellowship proposal funded by the Leverhulme Trust and hosted by Birmingham Law School.
 Peruvian sociologist, Anibal Quijano, theorized the coloniality of power as a process of racialization integral to colonisation (2010, 2008). European conquerors reclassified entire populations in accordance with hierarchies grounded in religious doctrines, physiognomies, myths about blood and divine mandates to spread the message and means of salvation. Those conquered through violence were condemned to a zone of non-Being, stripped of humanity, rights, and self-determination. See Mendoza (Mendoza, 2016).