Mr Romain Marchant
Romain is a master student in Philosophy at King's College London and International Law at the University of London (UK). He is also a researcher at the Programme for Studies on Human Rights in Context at Ghent University (Belgium). He studied Philosophy at Université Libre de Bruxelles (Belgium) and KU Leuven (Belgium) and specialises in moral and political philosophy. He is interested in moral emotions and the philosophy of human rights.
Introduction
“As for the people I am accusing, I do not know them, I have never seen them, and I bear them neither ill will nor hatred. […] The action I am taking is no more than a radical measure to hasten the explosion of truth and justice.” Emile Zola, ‘J’accuse…!’
To feel shame is not pleasant and to shame is not kind, this is not controversial. But as unpleasant as it is, shame is something we can have reasons to welcome. We often see in the ability to feel shame a sign of worth. Is it not, after all, a disparaging comment to call someone “shameless”? And as unkind as it may be, to shame can be a powerful behavior regulator and a force for good. Shaming has been widely used by human rights advocates to call out violators and prevent future violations. This blog post provides an introduction to the place of shame and shaming in international human rights advocacy by discussing the method of ‘naming and shaming’, the emotion of shame, what shaming aims to do, the relation between shaming and the law, and whether shaming rights violators can be effective.
What is ‘naming and shaming’?
The method of ‘naming and shaming’, or the “shaming methodology”, has been used for decades by human rights advocates to promote compliance with international human rights law. ‘Naming and shaming’ can be described as the process of making the identity and behavior of human rights violators public in order to punish them by damaging their reputation or authority. By undermining the violator’s reputation or authority, the hope is that shaming significantly increases the costs of rights violations to the violator and other potential violators over the price they are willing to pay. Actors vulnerable to ‘naming and shaming’ may wish to avoid damages to their reputation or authority because of the negative effects such damages can impose on their valuable relations with other actors. To ‘name and shame’ can aim to harm an actor’s interests by undermining the actor’s relations with other actors that are essential for the pursuit of these interests. These interests can be social, economic, military, diplomatic, cultural, or ideological. Examples of inter-actor relations can include international investment or trade, military alliance, or even the immigration of students. Effective shaming undermines the reputation or authority of an actor in such a way as to also harm the reputation or authority of other actors helping them out. It is because shame is contagious in this way that it undermines beneficial relations with other actors. Additionally, the detrimental impact of shaming on a shamed government’s reputation or authority can also, purposefully or not, facilitate civil disobedience or regime change attempts. But, naturally, the shaming declaration needs to be true or else it risks being judged as defamation.
Who is shamed? And who is shaming?
Many kinds of actors can be shamed: notably States, government officials, military personnel, individual citizens, or armed non-state actors. And different kinds of individuals and groups can practice ‘naming and shaming’. The main shaming actors are NGOs, the media, the UN (the Secretary-General, intergovernmental bodies, and mandated experts), individual citizens (activists or victims like those behind the #MeToo movement), and States. We should note three things about the scope of shaming in international human rights contexts. One, the effectiveness of the ‘naming and shaming’ depends on the “importance and credibility” of whoever does the shaming. It is inconsequential to be shamed by an actor who appears unreliable or illegitimate to those whose opinion and help matters. Significant cultural differences could also render the norms promoted by the shaming illegitimate in the eyes of the shamed actor. Two, to shame States rather than government officials or administrations might lead to undesirable consequences: some citizens might feel particularly threatened by criticism of their State and deny the authority of the shaming actor. Thus, shaming a State could contribute to the development of potentially problematic forms of nationalistic sentiments among some parts of a population. Three, the range of human rights violations susceptible to be ‘named and shamed’ is as wide as the body of international legal standards.
Shame and shaming, emotion and action
To understand the phenomenon of rights violators being shamed, we need to ask: is it the same to be shamed and to feel shame? For the philosopher Gabriele Taylor, shame is inextricably linked to the idea of an audience. According to her, someone’s feelings of shame are a function of how an audience sees or would see that person (according to them) and how that person relates to that audience. For example, shame can stem from the approving gaze of an audience that someone feels disgusted by, the indifferent look of an audience someone tries to impress, or the disapproving gaze of an audience someone admires. If Taylor is right, to feel shame involves both thinking of (or metaphorically looking at) oneself through the perspective of an external audience and judging oneself negatively.
When it comes to international human rights advocacy, it would be, of course, desirable to succeed in making human rights violators feel ashamed and disapprove of themselves. Yet, to believe this can be systematically done by ‘naming and shaming’ seems fanciful. In an interview on BBC Radio 4, the historian Peter Stearns shares doubts about any genuine shame felt by individuals at the head of corporations that have been successfully shamed into changing their policies. Thus, though the shamed human rights violators likely “feel distress at being seen”, if this is all that they feel, then they can only be said to ‘feel shame’ in a derivative and misleading sense. Though we naturally deplore our politician’s inauthentic declarations of regret and sadness (their “crocodile tears”), widespread mistrust for political and military leaders may suggest that believing in the authenticity of their declaration of feelings of shame is currently an unrealistic ideal.
Must human rights violators express feelings of shame then? Could shaming be an invitation for the actor to express shame? When the rights violator is a politician, for example, shaming might have an important influence on the course of domestic politics. It would be interesting to know whether Colin Powell’s “expressions of regret” in The New York Times for his 2003 UN speech attempting to justify the war in Iraq has enhanced the perceived legitimacy of his later criticism of Donald Trump. Popularity in politics may depend partially on the capacity of politicians to, at least, express shame.
However, though the term ‘shame’ seems misleading in the context of international human rights advocacy, the use of the term ‘shaming’ seems quite apt and illuminating. When it comes to international human rights advocacy, it is not obvious that the inducement of feelings of shame is what shaming is primarily about. To shame an actor without inducing feelings of shame in them can still be desirable. Indeed, shaming has more aims than inducing feelings of shame.
The aims of shame
If shaming is not all about inducing feelings of shame or the expression of it, what is it about then? The overarching objective of shaming as a tool for promoting compliance with the provisions of human rights treaties is practical change, i.e., the actual prevention of human rights violations. But shaming can aim to accomplish different particular things towards that overarching goal. I note four different particular aims pursued by shaming as a tool for international human rights advocacy. One, shaming can be a form of punishment. Like other punishments, shaming can aim to harm someone (or something) in retribution for something they did. We might see shaming used like this in the context of international human rights advocacy when a Special Rapporteur recommends the prosecution of an individual for the human rights violations they have been shamed for.
Naturally, shaming aims to generate public indignation. This second objective seems to be present in all forms of shaming (at least all other forms than the inducement of feelings of shame). In the context of international human rights advocacy, public indignation or “outrage” is essential. Indeed, it is public indignation that makes any harm to the shamed violator’s reputation or authority possible. But shaming can also be useful in channeling preexisting public indignation towards a designated target, much like pointing to a scapegoat.
Another, third, aim of shaming is to make someone reject their past conduct. This form that shaming can take is related to the fourth and perhaps most important objective of shaming: to make someone change their future conduct and deter other people from similar conduct in the future. Like most public sanctions, shaming generally aims to deter the shamed actor and other actors from similar behavior in the future. Shaming seems to be mainly employed in international human rights contexts as a deterrence mechanism. And this is the function of shaming according to which the effectiveness of shaming in international human rights contexts is usually appraised.
How is shaming done, concretely? Can a simple list of names and actions be enough to shame human rights actors into compliance with international law? Insofar as the shaming aspect of the practice of ‘naming and shaming’ consists in the practice’s purpose and effect, a list of names and actions counts as ‘naming and shaming’. This rudimentary method has been employed by the UN Secretary-General since 2002 in the report on Children and Armed Conflict listing State and non-state actors “that have not put in place measures during the reporting period to improve the protection of children”. However, sometimes merely identifying actors and their actions is not enough. To spark public indignation sometimes requires doing more than simply listing names and facts, it can require giving moral arguments, describing the experiences of victims, and generally making explicit the connections between the shamed act and the values the public subscribes to. This way of shaming that goes beyond minimalist lists of facts is arguably exemplified by comprehensive reports from Human Rights Watch.
Shaming and the law
To understand the place of shaming in international human rights advocacy, it is important to take note of the relation shaming has had with the law in general and domestic laws in particular. The relationship between shaming and the law is nuanced and complex. Shaming has sometimes been a substitute for the law and sometimes a complement or inherent part of it.
Shaming has been used as a substitute for judicial measures when the legislation was non-existent, when the courts were ineffective or uncooperative, or revolted people did not have the legal means to object. In particular, shaming has been used as a form of extrajudicial punishment. A famous example of extrajudicial shaming occurred in 1944 at the liberation of France (and some other previously occupied countries) when tens of thousands of women suspected to have been too friendly with the occupier were shaven in public.
Shaming can be appealing to those who wish to take justice into their own hands because it is accessible and cost-effective. Unlike incarcerations or fines, shaming can be done by almost anyone: it does require some moral or social standing but no formally recognized authority. Shaming is also cost-effective because, aside from a crowd, it requires little else than voices and perhaps a few rotten tomatoes. But the price to pay for shaming is an impoverishment of the relationship between the shamer and the shamed.
Shaming has also sometimes been a part of or a complement to the law. The cost-effectiveness of shaming makes it an attractive form of legal punishment for States with overcrowded prisons. Current examples include unusual legal punishments sentenced by judges in the USA involving carrying a sign describing the misdemeanor.
It is not entirely clear whether shaming is an alternative or complement to legal measures ensuring actors’ compliance with international human rights law. On the one hand, it has been suggested that shaming is a tool of last resort, a second-best alternative to lacking legal enforcement measures. The main shaming actors (like UN treaty bodies, UN Human Rights Council, Special Rapporteurs, and NGOs) do indeed lack direct access to sanctioning measures. On the other hand, shaming can be used in international human rights contexts as a warning mechanism before enacting sanctions or prosecution. Shaming also complements international human rights law in an obvious and not insignificant way: insofar as ‘naming and shaming’ is a measure of publicization of rights violations, it can help bring issues to the attention of those who have the legal means to intervene against the violations (by prosecution or sanctions).
If shaming is all we have got to defend human rights, then trying it seems reasonable. But maybe alternatives are more effective. If alternatives (like criminal prosecution, humanitarian aid, protection of human rights defenders, economic sanction, or even military intervention) are effective and shaming does little to undermine a human rights violator’s reputation or authority, then practising ‘naming and shaming’ over those alternatives becomes an objectionable cheap and flashy cop-out. Thus, to see whether shaming can coexist with legal measures we need to assess its effectiveness.
Is shaming effective?
Shaming is considered effective if it helps prevent rights violations or at least provides support to victims or legitimacy to the work of human rights defenders. It has been difficult to appraise the overall effectiveness of ‘shaming and naming’ without distinguishing between the different kinds of violations or violators. Shaming international human rights actors appears to be effective only some of the time and to varying degrees. For example, on the one hand, it has been shown that shaming helped to “reduce the severity of ongoing instances of genocide or politicide” between 1976 and 2008. On the other, shaming has been ineffective and even detrimental to the prevention of “political terror” in 145 countries between 1975 and 2000. Shaming can also be ineffective when the reputation or authority of an actor is too low. Some actors have little left to lose from being shamed. Shaming could even be counterproductive when it undermines an actor’s authority or reputation down to the level at which the actor is no longer bothered by shaming. Evidence also suggests that the effectiveness of shaming by international human rights NGOs (concerning violations of “basic physical integrity rights”) depended on the collaboration with local activists or participation of international political actors like States and IGOs.
To provide an answer to the question “What can be done to prevent violations when shaming is ineffective?” is most likely possible only on a case-by-case basis or at least according to generalized frameworks sensitive to the particular needs associated with different kinds of human rights violations or the violator’s political and economic circumstances. For example, the establishment of less punitive and more collaborative alternatives like “humanitarian engagement” has been suggested when dealing with armed non-state actors. Of course, another important question to answer is “What can be done to improve the effectiveness of shaming itself?”. Reflections on the form shaming takes in the context of international human rights advocacy, on what it is meant to do and how, and what hurdles hinder its effectiveness should provide a fertile ground for designing incremental improvements to the practice of shaming violators of human rights internationally.
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