An Anticolonial, Abolitionist, and Feminist Lens to Interrogate Human Rights Penality

Guest post by Silvana Tapia Tapia. Silvana is a Leverhulme Early Career Fellow at Birmingham Law School and has been appointed Associate Professor in Law at the same department. Silvana’s socio-legal research is located at the intersections between criminal law, gender, human rights and social movement studies.

This is the last of five posts that summarise individual chapters from A Research Agenda for a Human Rights-Centred Criminology, edited by Leanne Weber and Marinella Marmo and published in the series Palgrave Critical Studies in Human Rights and Criminology. You can read the introduction here.

Chapter 7 of the book ‘A Research Agenda for a Human Rights Centred Criminology’ addresses a crucial paradox at the crossroad between criminology and human rights, proposing a research agenda to explore it. While International Human Rights (IHR) are typically conceived as moderators of coercive power, they also encourage states to activate the penal system as a primary response to human rights violations. These encompass a range of issues, including human trafficking, hate crimes, and violence against women (VAW), which prompts questions about the role of IHR discourse in penal expansion. The latter can be defined as an amplification of the frameworks and institutions that enable and justify carceral punishment and other forms of surveillance and detention, such as police, prisons, penal codes, border control and criminal policy. Numerous critics have referred to the detrimental consequences of penal expansion in terms of its disproportionate impact on populations stigmatised and hyper-policed due to social class, migratory status, gender, ethnicity, etc. At the same time, the penal apparatus justifies its actions by introducing and (in theory) observing due process and human rights principles. Critical scholars, including myself, are referring to this co-constitutive relationship between penality and human rights as ‘human rights penality’. In this context, the issues raised by radical critics of the penal apparatus, including feminist abolitionists, converge in several aspects with border criminology discussions, such as those on abolishing border penality. 

Drawing on previous work that unveils the colonial (ontological and epistemological) cornerstones of liberal legality, and using the case of VAW, I explain why an anticolonial, abolitionist and feminist lens is needed to critically investigate human rights penality; in short, a feminist lens can identify the gendered implications of legal coloniality and penal violence. Although IHR often treat VAW primarily as a matter of criminal law, criminal processes frequently fail to meet the needs of victim-survivors, especially underprivileged women. This focus can also overlook and dismiss non-penal approaches (for instance, socio-economic policy change and transformative reparations) to preventing and redressing VAW. In addition, human rights-based frameworks are not effectively tackling ongoing violence and precarity within prisons, which negatively affects incarcerated women, and also those ‘outside’ who support incarcerated relatives and friends.

Furthermore, an anticolonial perspective can elucidate the imperialist, racist and hierarchical dimensions of IHR and criminal law. The prevailing penal paradigm is founded upon a classification of individuals as human and less than human. Those deemed less-than-human are often regarded as deserving of ill treatment. Consequently, in conjunction with an anticolonial perspective, an abolitionist lens can unmask the penal apparatus as inherently dehumanising and violent. This, in turn, necessitates transcending reformist strategies, which can re-legitimise carceral institutions. The implementation of rights-based legislation has not delivered on its promises, and human rights violations continue to be perpetrated in custodial settings as an endemic issue.

Contrary to what some uninformed opinions may suggest, the abolitionist agenda does not propose a sudden and immediate closure of all prisons, nor does it advocate a no-consequence approach to violence and social harm. Rather, it endeavours to contest and dismantle the ‘carceral common sense’ that limits political and legal imagination, reducing justice to the application of punishments that do not prevent or solve the problems they are said to address. Alternatives may be based on worldviews that exceed the possibilities of ‘Western’ liberalism and colonial capitalism by centring embodiment, interdependence, relationality, healing, mutual aid, community-building, resource redistribution, and public service provision. Thinking beyond penality is all the more important in times of brutal carceral violence, overcrowding, and serious human rights violations across the Global North and South, including in countries like the United Kingdom, El Salvador and Ecuador.

In particular, the case of Ecuador should be investigated extensively to better understand the effects of current geopolitical and (legal and illegal) market configurations on social violence inside and outside prisons. The country has become a tragic example of the extreme violence that can be unleashed in inherently oppressive institutions. Ecuador's prisons have been under the control of organised criminal gangs for years, with riots resulting in the brutal killing of at least 500 people between 2021 and 2023. Prisons have been militarised as a result. It is unclear whether this process has undermined the command of organised crime — it is an open secret that the police and the military have been permeated by transnational mafias. What is more evident is that militarisation is resulting in practices of torture, starvation and sexual violence in prisons, which could amount to a humanitarian crisis.

The sole possibility of such a state of affairs should prompt us to reflect on the tools we believe to be our best, question their efficacy, and trace their ‘unintended’ consequences. If IHR discourse contributes to legitimising the prison and other institutions that systematically reproduce corruption and serious abuse, it follows that no legal approach should be exempt from scrutiny. Countering penal violence and rethinking social responses to systemic injustice requires a radical interrogation of human rights penality as a characteristic feature of the colonial legal order.

A significant challenge in this endeavour is the self-referential nature of liberal legality. Law is presented as a solution to the very problems it causes, often through successive reform proposals that rely on its assumed self-correcting nature. In order to disrupt this cycle, it is crucial to adopt an analytical framework that is not constrained by the colonial/penal paradigm. An anticolonial and feminist critique can thus challenge the universality of the colonial legal order and the conflation between penality and justice, with a view to reshaping anti-violence work. Such a project can foreground the practices of abolitionist feminists and other counter-carceral movements. A radical critique of human rights could then allow for their strategic appropriation from below, with counter-carceral objectives, to demand prevention, reparation, non-repetition and transformation in a fundamentally violent world.

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