Simmons, William Paul, and Leonard Hammer. “Privatization of Prisons in Israel and Beyond: A Per Se Violation of the Human Right to Dignity.” Santa Clara Journal of International Law 13.2 (2015): 487-515.
Making a rather ambitious, broad-form decision, the Israeli Supreme Court (ISC) in 2009 ruled that privatization of prisons is a per se violation of human rights, in particular the rights to liberty and dignity. The Court ruled that it was not the often deleterious consequences of privatization that violated the rights to liberty and dignity, but that privatization of prisons by itself was a violation. This decision has been subject to much negative commentary and criticism with most analyses focusing on the Court’s argument on the right to liberty. Scholars that have dismissed the opinion seemed to have misread it, often grounding their counter-arguments with faulty and wildly abstract premises that misrepresent the human rights issues at stake. This article focuses on the Court’s novel argument on the right to human dignity, and especially how privatization of prisons turns inmates into commodities. While this argument may have been under-developed in the Court’s opinion, teasing out and expanding on the Court’s logic could provide an important new avenue to consider when litigating matters that pertain to the fundamental human right to dignity in other forums, both domestic and international.
The Israeli Court decision briefly mentions that similar decisions have not been made in other forums and cited a brief that suggested that “were arguments of this kind to be raised before those courts, they would not be expected to be successful.” This paper argues instead that the logic of the Israeli decision on the human rights to dignity could be successful in other jurisdictions, especially those that have strong case law on the rights of vulnerable populations and the right to human dignity, such as South Africa, the African Commission of Human and Peoples’ Rights, and the Inter-American Human Rights system. Indeed, the viable contentions based on the human right to dignity that could be raised before the Inter-American Commission on Human Rights serve as potential grounds for challenging the widespread privatization of prisons in the United States.
This paper begins with an analysis of the Israeli prison privatization case with a focus on the Court’s finding of a per se violation of the human right to dignity. The second section analyzes two previous commentaries of the Israeli case to show how even those in agreement with the Court’s decision have misread the case. This analysis provides a deeper and more nuanced reading of the Israeli Court’s logic on the human right to dignity, especially how the commodification of inmates in a private prison inherently is a violation of that right at least in the Israeli context. The third section expands upon the Court’s reasoning through a discussion of what has been referred to as “cauterization,” which involves branding a group as inferior, sealing it off from the social and political sphere, and reducing sympathy for its members. Interestingly, the same logic was also used in a recent groundbreaking mental health decision, Purohit and Moore v. Gambia, a case before the African Commission on Human and Peoples’ Rights. The fourth section teases out the key elements of the Israeli decision to show which elements would need to be present to successfully bring such a case in other jurisdictions. These elements are present not only in the Israeli context, but also in the African Commission on Human and Peoples’ Rights, the South African Constitutional Court, and the Inter-American Human Rights system.