Marco Simons writes a further response to my Chronicle article, in which I criticize university human rights programs and law school human rights clinics. One of my arguments was that the sponginess of human rights law allows it to be used by clinical professors to rationalize political activism. I did not say that all projects undertaken by human rights clinics are worthless, but I did express skepticism about many of them, which seemed not to teach students legal skills or advance any legitimate public goal.
Simons argues that I’m wrong about this:
And I also know that at least some of my projects led to benefits for clients. One of the cases I worked on was Doe v. Karadzic, which later led to a $4.5 billion jury verdict in favor of survivors of war crimes in Bosnia. Another major project was a Human Rights Watch report on corporal punishment in Kenyan schools, which was then rampant and highly abusive; two years later the Kenyan government banned the practice, and the ban was enshrined in the constitution in 2010. (Actually eliminating it remains a work in progress.)
Karadzic doesn’t have $4.5 billion or (as far as I know) any money. He’s languishing in jail in the Hague while awaiting the verdict in one of those endless trials that international courts specialize in (proceedings started in 2008). I doubt very much that Simons’ clients are going to recover a dime. Meanwhile, the Alien Tort Statute is on life support as judges gradually realize that these purely symbolic judgments are a huge waste of judicial resources.
I was curious about the Kenya example in light of Simons’ parenthetical and I found an article with the plaintive and revealing title, Why Are Kenyan Teachers Still Using Corporal Punishment Eight Years After a Ban on Corporal Punishment? The author surveyed Kenyan school teachers and here is the answer:
[The teachers] considered that the introduction of the ban on corporal punishment in schools had produced an increase in display of bad behaviour by pupils; for example, there was an increase in riots in schools leading to the closure of some schools. It seemed that once pupils knew corporal punishment had been banned they then started breaking school rules which they previously used to accept. The teachers were of the opinion that the use of corporal punishment was the most effective way of disciplining pupils and they argued that since corporal punishment inflicts pain, pupils avoided breaking school rules and displaying bad behaviour to avoid the punishment.
[As a result of the introduction of free primary school education, teachers] now had too many pupils in their classrooms which meant more children to attend to and more school books and papers to grade. In some schools, teachers who had been teaching a maximum of 40 pupils per classroom now had more than 100 pupils in each class. There was no more time to guide and counsel pupils let alone time for individual attention to any of the pupils. Teachers therefore saw corporal punishment as the only and most effective way of controlling the huge numbers of pupils in their classrooms.
The teachers also viewed corporal punishment as useful, especially in instances where a pupil was engaging in dangerous or negative behaviour that had to be stopped immediately for safety reasons.
The observation that parents had authorised teachers to use corporal punishment suggests parents were not informed about the negative effects of corporal punishment. Parents were encouraging teachers to break the law believing it was for their children’s own good.
Prosecution has been viewed as a last resort in instances where corporal punishment continues in schools despite prohibition (Committee on the Rights of the Child, 2006), but law enforcement can play a crucial role in protecting pupils from corporal punishment in schools. This, however, has not been the case in Kenya.
It’s hard to read this and not feel for the Kenyan teachers, who may be right or wrong but are certainly in a better position to understand how to maintain discipline in a 100-child classroom than a bunch of westerner busybodies with their psychological studies. I suspect that few Kenyan schools have armed guards and metal detectors, like in the U.S, or that Kenya has the resources to house troubled and violent children in special facilities as in the West.
Simons helped into existence a law that is not enforced, and that no one pays attention to, most likely because if people obeyed it the result would be riots and general chaos in Kenyan schools. Another victory for the human rights movement.