By Heather Lindsay for GlobalJusticeBlog.com
Across the world, different courts and governing bodies have attempted to take on the issue of a nation’s responsibility to protect the people who reside within their borders, regardless of their citizenship. Through different aspects of law, the international community has begun to recognize it a duty of every country to protect not just its own citizens but other nationals in their borders from gross abuses, either at the hands of the government or private actors. Most importantly, courts around the world have found countries liable for the harm done to people in their country whom they did not protect. The United States has struggled to protect new immigrants rights, forcing them to look elsewhere for protection, which has resulted in an increase of gang violence across the country. The United States’ failure to protect the people within its borders could result in a lawsuit’s being filed against them.
One of the first governing bodies to address the issue of the duty of nations to people around the world was the United Nations. In September 2005, the World Summit agreed to follow the Responsibility to Protect (R2P), as codified in paragraphs 138 and 139 of the World Summit outcome document. Paragraph 138 states that “Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it..” The phrase “responsibility to protect” was first used in 2001, but did not gain momentum until the 2005 Summit. The UN recognized the failure of nations to protect people against terrible crimes, and since adopting the R2P has attempted to prevent the commission of such crimes.
Another significant piece of law that compliments the Responsibility to Protect doctrine is the International Criminal Court’s (ICC) definition of what constitutes crimes against humanity. According to article 7(2)(a) of the ICC, ’Crimes against humanity’ include several crimes, most noticeably such violent crimes as murder, rape, and persecution against “an identifiable group on political, racial, national, ethnic, cultural, religious, or gender grounds” as part of a widespread or systematic attack directed against any civilian population.
Additionally, the ICC defined “’Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack.” It is important that the court defined these terms, because it made it possible for plaintiffs across the world to file law suits against countries which have not fulfilled their duty to protect.
One such case arose in the European Court of Human Rights in 2010, in the case of Rantsev v. Cyprus. On March 5, 2001 Oxana Rantseva, a Russian citizen, arrived in Cyprus on an artiste visa, that allowed her to work at a cabaret. Oxana lived in an apartment with several other young women who also worked at the cabaret. On March 19, 2001 Oxana left the apartment with all her clothes and belongings, expressing her intention to return to Russia. On March 28 Oxana was discovered by the cabaret owner at a local club. The owner attempted to have her arrested as an illegal, but eventually Oxana was released into his care. At 6:30 am that morning Oxana was found dead in the street bellow the owner’s fifth story apartment. The police found a bedspread looped through the railing of the balcony, and Oxana had her handbag on her arm. The police report noted that “judging by the report of the investigator to Mr. Rantsev N.M. [Oxana’s Father], the investigation ends with the conclusion that the death of Rantseva O.N. took place under strange and un-established circumstances, demanding additional investigation.” It was later discovered that Oxana had been trafficked into prostitution.
Oxana’s father brought suit against both Cyprus and Russia for failing to protect his daughter from being trafficked, which led to her death. After lengthy debate in the ECHR, the court determined that Cyprus had failed its duty to protect the life of Oxana, and that it did not conduct an effective investigation into her death to determine if a crime had been committed. While the court in this case used a different set of laws to reach its conclusion, the result was the same: Cyprus had a duty to protect Oxana from being trafficked and being murdered, and they were unable to execute that duty, making them liable.
While the United States may not be a signatory or party to some of the international laws on the R2P, the sheer amount of such legal construction shows a global trend toward a nation’s taking responsibility for people, regardless of their national affiliation. One of the areas of America’s criminal world that could attract a lawsuit similar to Rantsev v. Cyprus is the gang activity of newly immigrated people. It could be argued that the US has a duty to protect all new immigrants, yet the continued violence between different race-based gangs shows America’s inability to effectively protect some of its most vulnerable populations.
“[G]ang problems are brought about by several community-level factors, including a lack of both social opportunities and social organization, institutionalized racism, and failures of social policy.”Newly immigrated people are especially susceptible to such pressures, and often reach out to other members of their cultural community for support and protection of their individual rights. “As anyone who has attended a public high school knows, individual rights are generally not enforced expect in situations of extreme violence. Bullying, theft of lunch money, physical coercion, and other types of violence or threats of violence are not only commonplace but widely accepted and tolerated even by school administrators. The same is true in adult prisons…the failure of the government to protect the rights of individuals results in the formation of gangs as substitute protective agencies.”
New immigrants and their children are especially at risk, especially those who have emigrated from Asian countries. “Straddling two often clashing cultures–Eastern emphasis on the family and Western focus on the individual–young immigrants feel a lot of pressure and confusion too.” As these young people attempt to establish themselves in a new country and culture, the loss of traditional family roles becomes a liability. “You lose your extended family when you arrive in America…Back home, there are aunts and uncles, grandparents and neighbors who all take part in raising the young”. “For some, gangs have taken the place of an extended family…They find solace and comfort in the gangs.”
Gang violence in major cities such as Los Angeles has risen as a result of the need for protection. According to the Los Angeles police department, there are over 450 active gangs in LA, with over 45,000 members. In the last three years there have been 491 homicides, 7,047 felony assaults, 5,5518 robberies and 98 rapes. Many of these crimes fall within the Responsibility to Protect doctrine, especially the homicides and rapes, as well as any racial targeting that occurs. Equally as important is the fact that these crimes are committed by illegal criminal units, which conduct these crimes against civilians who may or may not be affiliated with other gangs in a systematic and widespread attack on civilians. While there are gang prevention unites and other law enforcement operations in place to handle the fallout of gang activity, it could be argued that the United States is not doing enough to prevent the recruitment of newly immigrated people into cultural gangs, but also to protect innocent civilians against the attacks of such gang members. Because the United States has not found an effective way to handle gang crime, they could be found in violation of the Responsibility to Protect, and could face international legal action.
Heather Lindsay is a JD Candidate, Class of 2015. Lindsay’s entry to the GlobalJustinceBlog is part of an assignment for the course International Criminal Law, taught by Professor Wayne McCormack.
 International Coalition for the responsibility to protect, http://responsibilitytoprotect.org/index.php/component/content/article/35-r2pcs-topics/398-general-assembly-r2p-excerpt-from-outcome-document (last visited October 4, 2014).
 International Coalition for the responsibility to protect, http://responsibilitytoprotect.org/index.php/about-rtop/learn-about-rtop (last visited October 4, 2014).
 Rome Statute of the International Criminal Court, Art. 7(1).
 Rome Statute of the International Criminal Court, Art. 7(2)(a).
 Rantsev v. Cyprus, ECHR 25965/04 (2010).
 Id. at ¶15.
 Id at ¶ 16.
 Id at ¶17.
 Id at ¶ 18.
 Id. at ¶ 22.
 Id. at ¶ 25.
 Id. at ¶ 51.
 Id at ¶ 83-85.
 Id. at ¶ 234-242.
 Russell S. Sobel, Brian J. Osoba, Youth Gangs as Pseudo-Governments: Implications for Violent Crime, Southern Economic Journal, pp. 996, 998 (Apr. 2009).
 Id. at 1001.
 K. Connie Kang, Mayrav Saar, Asian gangs Rise Strikes a Paradox, Los Angeles Times (Jan. 25, 1996).
 Los Angeles Police Department, http://www.lapdonline.org/get_informed/content_basic_view/1396 (last visited October 2, 2014).