Who Is a Prisoner of War? Mutulu Shakur and the Struggle for Black Liberation

Introduction

Mutulu Shakur has been incarcerated by the federal government since 1986. A cofounder of the Republic of New Afrika movement, Shakur was a well-known acupuncturist who developed innovative treatment for drug addiction. He was active nationally and internationally in addressing discrimination against Black people in the United States and was a prominent target of the FBI’s COINTELPRO operations

In 1988, in a trial before Judge Charles Haight, Jr., in the Southern District of New York, Shakur was convicted in connection with the 1981 robbery of a Brinks armored car that left a guard and two police officers dead He was sentenced to 60 years in prison and was eligible for parole in 2016. Since then, despite being a model prisoner, he has been denied parole nine times. In December 2020, in the midst of the coronavirus pandemic, the 69-year-old activist was denied compassionate release by the now 90-year-old Judge Haight, despite the fact that Shakur has advanced and incurable multiple myeloma cancer, has survived a stroke, and suffers from diabetes and hypertension

In his 2020 decision, Judge Haight asserted that it was “impossible” to find that Shakur meets the conditions for compassionate release, primarily because the criminal conduct at issue was “indefensibly undertaken for political reasons. The court referenced a motion filed in 1988, in which Shakur “contends that under applicable treaties and international law he is a prisoner of war, and thus immune from prosecution for the acts charged in the indictment. This view, the judge noted, “is echoed today in the website ‘mutulushakur.com’ … where Shakur refers to himself as a ‘political prisoner.’ On its face, the judge’s reasoning would seem to confirm that, at least at this point, Shakur is, in fact, a political prisoner.

Mutulu Shakur, however, has consistently identified himself as a prisoner of war—a combatant captured in the course of an armed conflict—rather than a political prisoner. The website established by his supporters clarifies that the latter term applies only in the sense that Shakur’s actions—for which he has accepted full responsibility and expressed deep regret for the loss of life involved—were “politically motivated.

If one’s vision of the rights of those engaged in the struggle for Black liberation is limited to the framework provided by the domestic law of the United States, then Judge Haight’s conclusions may seem reasonable. Our usual “civil rights” lexicon, relying almost exclusively on the Constitution’s guarantees of due process and equal protection, simply does not extend to struggles for self-determination. Nonetheless, Shakur’s claim to prisoner of war status relies on well-established principles of international human rights and humanitarian law. These recognize the legitimacy of the global struggles against apartheid and colonial rule which, in turn, provide the backdrop for the actions of Shakur and others who understand themselves to be engaged in wars of liberation

This essay provides a brief overview of the historical context and the international legal framework undergirding Mutulu Shakur’s assertion that he is not a criminal or even a political prisoner, but a prisoner of war. It begins by situating the Black liberation movement within the global context of anti-colonial struggles, and then considers how, during this era of decolonization, the legitimacy of anticolonial and anti-racist struggles were recognized in international law. The resulting recognition of liberation fighters as combatants entitled, when captured, to prisoner of war status is then discussed. Finally, the invocation of this law in Shakur’s case, and the refusal of the government or the court to apply it, is addressed.

A Global Era of Decolonization

The 1960s and early 1970s was an era of tremendous tumult and energy, as movements for national liberation and fundamental human rights swept the planet. In 1960 alone, the independence of eighteen former African colonies was recognized by the United Nations (UN) and, in the years that followed, anti-colonial struggles and mass movements against military dictatorships swept across much of Asia and Latin America and inspired student and youth uprisings throughout Europe and North America

In the United States, the civil rights movement of the 1950s and early 1960s had some judicial and legislative victories, most notably the Supreme Court’s acknowledgment that legally mandated apartheid violated the Constitution’s guarantee of equal protection and Congress’ passage of the 1964 Civil Rights Act and the 1965 Voting Rights Act Nonetheless, very little changed for most people of color, and hundreds of urban rebellions occurred in U.S. cities over the next few years. Analyzing these “riots,” the very mainstream National Advisory Commission on Civil Disorders (Kerner Commission) attributed them to “pervasive discrimination and segregation in employment, education and housing” and the resulting “frustrations of powerlessness” which permeated the “ghettos.

Against this backdrop, powerful movements emerged in African American, American Indian, Chicano, Puerto Rican, and Asian American communities that identified themselves, to some degree or another, as internally colonized peoples. As framed by the late Kwame Ture (Stokely Carmichael), “black people in this country form a colony, and it is not in the interest of the colonial power to liberate them. This was not simply a rhetorical gesture. Ture insisted that the United States is a “settler colony” and, therefore, “by its very nature, an unjust and immoral political state. This was because the European colonists had come to North America not just to exploit its lands and peoples and then return home, but to stay. They presumed a prerogative to exercise exclusive control over a state of their own creation, superimposed upon existing Indigenous polities and relations. Unwilling to envision systems of shared power or governance, the settlers’ first objective was the elimination of those peoples who “got in the way just by staying home. As they consolidated their territorial control, the colonizers rendered the lands they claimed profitable largely by enslaving American Indians and Africans and, subsequently, by impressing other peoples of color into a labor force subjected to the push-pull dynamics of U.S. immigration regulation

This understanding of individuals of African descent as a colonized people trapped within a racist settler regime had significant implications for the movements in which Mutulu Shakur and others who fought for Black liberation participated. Invoking a long tradition of describing African Americans as a “nation within a nation,” many leaders in the 1960s referenced emerging international law that condemned genocide, racial discrimination and colonialism, and defined their struggles in terms of the right to self-determination Thus, for example, in 1966 the Black Panther Party for Self Defense issued a ten-point Platform and Program that began: “We want freedom. We want power to determine the destiny of our Black Community.” After addressing employment, housing, education, military service, police brutality and criminal justice, as well as restitution for slavery and genocide, it identified its “major political objective” as a plebiscite supervised by the United Nations “for the purpose of determining the will of black people as to their national destiny.

These themes were echoed in the platforms of other organizations, including the Chicano Brown Berets, the Puerto Rican Young Lords, and the Asian American Red Guards In October 1971, some ten thousand people responded to a call from the Young Lords to march to the United Nations and demand, among other things, an end to the United States’ colonial occupation of Puerto Rico Emerging in 1968 from the broader Red Power movement, the American Indian Movement (AIM) quickly expanded its focus from resisting police brutality to struggles for land rights, treaty enforcement, and the protection and promotion of traditional cultural and spiritual practices. In the mid-1970s, on the instruction of traditional Lakota elders, AIM was instrumental in organizing Indigenous peoples from North and South America to demand recognition of their issues by the United Nations, beginning a process that resulted in the international acknowledgement of Indigenous rights

Providing a liberatory vision of what could be, such organizations situated their communities’ problems and potential solutions within the global context of anticolonial movements and evolving interpretations of collective rights under international law. And that law, in turn, was evolving to recognize that all peoples had the right to resist colonialism and racial subjugation by such means as were necessary.

Liberation Struggles in International Law

Mutulu Shakur and others in the Black liberation movement understood themselves to be engaged in an anti-colonial and anti-racist struggle for self-determination that had been waged since the first enslaved Africans were brought to the Americas A primary function of the United Nations is the development of “friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples. In furtherance of this goal, the General Assembly’s 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples (Resolution 1514) “[s]olemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all its forms and manifestations. It states forthrightly: “All peoples have the right to self-determination; by virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.

This is repeated almost verbatim in Common Article 1 of the two primary human rights treaties, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) According to the UN Human Rights Committee, the right to self-determination was accorded such primacy because “its realization is an essential condition for the effective guarantee and observance of individual human rights and for the promotion and strengthening of those rights. As framed by the International Court of Justice, “the right of peoples to self-determination, as it evolved from the Charter and from United Nations practice, has an erga omnes character”– in other words, it is binding on all

The United States does not acknowledge that persons of African descent within its borders constitute a “people” entitled to self-determination, but under international law states do not have an exclusive right to determine which groups constitute “peoples.” Rather, as legal scholar Howard Vogel observes, “the definition of the term ‘peoples’ in a minority rights context must be left to the people themselves. Groups previously relegated to “minority” status are increasingly recognized as having a right to self-determination Thus, in 1998, the Canadian Supreme Court noted with respect to the status of Quebec that “a people” may be a minority within a state, and that a “definable group” may have the right to determine their own political status when they are consistently excluded from political, social and cultural participation in government A similar sentiment was expressed in the 1976 Universal Declaration on the Rights of Peoples (“Algiers Declaration”), which states that “[e]very people has an imprescriptible and unalienable right to self-determination …” including “the right to break free from any colonial or foreign domination, whether direct or indirect, and from any racist regime.

Moreover, peoplehood can be actively constructed. In the Namibia case, the International Court of Justice (ICJ) rejected South Africa’s argument that “tribalism” within Namibia prevented its population from constituting a people Addressing “the Namibians’ status of a people,” ICJ Vice President Fouad Ammoun’s separate opinion recognizes the significance of agency in this process, pointing out that “the Namibian people … asserted its international personality by taking up the struggle for freedom” and as a result, despite South Africa’s objections, had been recognized by UN General Assembly and Security Council resolutions, as well as by the Court Finally, it is worth noting that the right to self-determination is a “continuing” right, meaning that the status of a people subject to the jurisdiction of any state may always be reassessed. According to international legal scholar Antonio Cassese, “The issue of whether the government of a sovereign State is in compliance with [Common Article 1 of the ICCPR and the ICESCR] is a legitimate question, with reference to any State, at any point in time.

Peoples exercising their right to self-determination necessarily reside within the boundaries of one or more states; states that will inevitably deny the legitimacy of their struggles and claim a right to repress their movements in the name of domestic law enforcement. Recognizing this, international law acknowledges that struggles for self-determination may require the use of armed force. In turn, there are legal norms governing all forms of armed conflict. In 1960, the United Nations General Assembly passed the Declaration on the Granting of Independence to Colonial Countries and Peoples. After noting “that the process of liberation is irresistible and irreversible” and that “an end must be put to colonialism and all practices of segregation and discrimination associated therewith,” it declares “[t]he subjection of peoples to alien subjugation, domination and exploitation” to be “a denial of fundamental human rights” as well as the UN Charter The declaration prohibits states from using armed force or repressive measures against people attempting to exercise their right to self-determination, but does not explicitly address the question of armed resistance. Beginning in the mid-1960s, the United Nations General Assembly repeatedly articulated the right to engage in “struggles” for independence from colonial or alien rule and for liberation from racist regimes, and this evolved into an explicit recognition of the right to engage, when necessary, in armed struggle

Recognizing Armed Struggle and POW Status

In 1973 UN General Assembly passed Resolution 3103, Basic Principles of the Legal Status of the Combatants Struggling Against Colonial and Alien Domination and Racist Regimes. After observing that on-going colonialism is a crime, it reaffirms that colonized peoples “have the inherent right to struggle by all necessary means at their disposal against colonial Powers and alien domination in exercise of their right of self-determination. Further, it stresses that “the policy of apartheid and racial oppression has been condemned by all countries and peoples, and that the pursuing of such a policy has been recognized as an international crime. From 1973 until 1990, the General Assembly consistently reaffirmed “the legitimacy of the struggle of peoples for independence, territorial integrity, national unity, and liberation from colonial domination and foreign occupation by all means available, particularly armed struggle.

These resolutions have been acknowledged by U.S. courts. Thus, for example, in 1984, a three-judge panel of the D.C. Circuit Court of Appeals concluded that international law claims related to an armed attack on civilian buses in Israel had to be dismissed because there was no international consensus that politically motivated terrorism constituted a violation of the law of nations In support of this conclusion, Judge Harry T. Edwards referenced the UN General Assembly’s 1973 declaration that “[t]he struggle of peoples under colonial and alien domination and racist regimes for the implementation of their right to self-determination and independence is legitimate and in full accordance with the principles of international law. The resolution, he noted, went on to observe that “armed conflicts involving such struggles have the full legal status of international armed conflicts” and, therefore require compliance with “norms of international law. Judge Edwards also cited a General Assembly resolution defining aggression for the proposition that “nothing in [the] definition of [the] term ‘aggression’ should prejudice [the] right of self-determination or struggle, particularly of peoples under ‘colonial and racist regimes or other forms of alien domination.’

Resolution 3103 also observes that “the treatment of the combatants struggling against colonial and alien domination and racist r'egimes captured as prisoners still remains inhuman,” and it declares, as a key principle, that such struggles constitute international armed conflict and, therefore, those engaged in them should be classified as combatants for purposes of the Geneva Conventions What does it mean for those who engage in liberation struggles to be deemed combatants in international armed conflicts? There are many implications for the laws of war— embodied in customary law as well as treaties that have great reach. With respect to Shakur’s claims, however, the most significant are provisions relating to combat immunity and conditions of confinement.

First, it is worth noting that international law has long acknowledged the distinction between the commission of political offenses and common crimes. This is reflected in what is known as the “political offense exception,” a provision found in most extradition treaties, whereby those who commit political offenses will not be returned to countries that wish to prosecute them criminally It has been applied to persons engaged in anti-colonial struggles, most notably perhaps, by U.S. courts with respect to members of the Irish Republican Army In 1979, William Guillermo Morales, a Puerto Rican independentista and bombmaker was tried on weapons and explosives charges and sentenced to 99 years in prison The federal trial court denied his claim to prisoner of war status under the Geneva Conventions and their additional Protocols Nonetheless, after Morales escaped and made his way to Mexico, the Mexican government refused to extradite him because he was a “freedom fighter” and he was ultimately granted political asylum in Cuba

Going further, we encounter the foundational principle that actions taken in the course of international armed conflict are to be judged by the laws of war, not by domestic criminal law. As law professor Jordan Paust summarizes:

Violations of the laws of war are war crimes; violators are not entitled to immunity, and are thus prosecutable. However, lawful acts of war are covered by the rules of combat immunity and cannot properly be criminal under domestic law, nor can they be judged elements of domestic crime or acts of an alleged conspiracy to violate domestic law

Persons who are captured and held as combatants are entitled to the protections outlined in the Third Geneva Convention of 1949, including due process rights and specific requirements of humane treatment The four Geneva Conventions of 1949 are binding on the United States because it is a party to the treaties, and because they are widely recognized as articulating customary international law Moreover, as the International Court of Justice noted in the Nicaragua case that they “are in some respects a development, and in other respects no more than the expression” of “the fundamental general principles of humanitarian law.

Following up on Resolution 3103, Protocol I (1977) to the Geneva Conventions was explicitly framed to clarify that the conventions apply to “armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist r'egimes in the exercise of their right to self-determination. It applies as long as the armed conflict or contested occupation continues, or until persons protected by the Protocol obtain their final release The Protocol, which has 176 states parties, was signed but not ratified by the United States Even though the U.S. is not a party, it is relevant as an articulation of what it means, specifically, to apply the provisions of the Geneva Conventions to those engaged in struggles for self-determination—an obligation that, according to the UN General Assembly, applies to all states.

According to the Third Geneva Convention and also Protocol I, persons captured after committing belligerent acts are to be treated as prisoners of war until such time as their status is determined by “a competent tribunal. The United States was well within its rights under international law to challenge the claims made by Mutulu Shakur and other members of the Black Liberation Army to be properly classified as prisoners of war Nonetheless, even when those requirements are not met, Protocol I notes that a combatant “shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war” by the Protocol as well as by the Third Geneva Convention

Additionally, Article 75 of Protocol I provides that all “persons who are in the power of a Party to the conflict and who do not benefit from more favourable treatment under the Conventions,” are to have the benefit of certain “fundamental guarantees,” without any adverse distinction based upon, among other things, “political or other opinion.” These include a prohibition on violence to their “life, health, or physical or mental well-being” and on “outrages upon personal dignity, in particular humiliating and degrading treatment.” Noting that even terrorists have a right to human treatment, William H. Taft, IV, legal adviser to the U.S. State Department (and former Deputy Secretary of Defense), observed that the fundamental guarantees protected by customary international law were expanded upon in Article 75, and that, while the United States “has major objections” to certain provisions of Protocol I, it considers Article 75 “as an articulation of safeguards to which all persons in the hands of an enemy are entitled.

Invoking International Law: Mutulu Shakur’s Case

Throughout U.S. history, international law has been invoked consistently by persons of African descent to challenge slavery, legalized apartheid, and continuing manifestations of racialized subordination Mutulu Shakur invoked international law to challenge the jurisdiction of criminal courts throughout his trial. At his 1985 arraignment he “appealed orally to the ‘Geneva Conventions’ and a ‘prisoner of war’ status” and in late 1987, shortly before his trial was scheduled to begin, he filed a motion to that effect, supported by an affidavit and memorandum of law After oral argument on the matter, he submitted further arguments on the question, the U.S. State Department submitted responses to questions posed by Judge Haight, and Shakur filed his replies

As explained above, for the protections of the Geneva Conventions to apply, Shakur needed to establish his actions as part of the struggle for self-determination of a people resisting “colonial and alien domination” and/or a “racist regime. Evidence of this status was provided in a thorough and very detailed affidavit filed by attorney Chokwe Lumumba in 1987 in conjunction with Shakur’s request to be afforded prisoner of war status Lumumba explains Shakur’s 20-year history as a freedom fighter in the New Afrikan independence movement, explaining this movement as a liberation struggle of the nation known as the Republic of New Africa, “a colony of the United States of America. This was not a unique perspective. In the 1960s and 1970s, many activists and scholars considered communities of color in the United States to be colonized, and there is today renewed recognition of the United States as a settler colonial power

Nonetheless, Lumumba’s historical summary was extraordinary, tracing the consistent resistance of New Afrikans, or Black people in America, to “kidnapping, enslavement, genocide and forced migration and colonization” from the early 1600s through the 1980s He chronicles self-governing maroon villages established by those who escaped enslavement, on-going guerilla warfare against white settlements, and more than 200 armed rebellions involving tens of thousands of people asserting their right to self-determination Their efforts to obtain and retain land in the post-Civil War era, to be self-governing thereon, and to contest the imposition of U.S. citizenship are documented The racial subordination that has persisted throughout U.S. history, and the resulting disparities in every aspect of life are referenced, along with examples of twentieth century Black rebellions in every sector of the country

Lumumba then moves to an accounting of Black liberation organizations in the 1960s, and an explanation of the establishment and activities of the Provisional Government of the Republic of New Africa between 1968 and 1983 He concludes this overview with a brief account of the secret war waged by the United States against all manifestations of Black nationalism, and the organization, in response, of the Black Liberation Army Finally, Lumumba provides specific information, obtained from FBI documents, about the government’s targeting of Shakur in particular, referencing surveillance reports as well as physical assaults, and ties this to the case at hand The incredibly detailed and yet compact history provided in this affidavit explains, in a nutshell, why Mutulu Shakur (among many others) understood himself to be engaged in an armed struggle for the liberation of his people.

Illustrating the importance of international law to these struggles, Lumumba’s affidavit also summarizes appeals to international organizations by Black activists and organizations from 1827 to 1979 The applicability of international human rights and humanitarian law to Shakur’s case is also spelled out in an amicus brief submitted by attorney Lennox Hinds on behalf of the International Association of Democratic Lawyers (IADL), an organization Hinds represented at the United Nations Relying heavily on Supreme Court cases, the IADL brief explains how international law has long been accepted as part of United States law, binding on U.S. courts. It then focuses on the right to self-determination, detailing how it is not only articulated in treaties to which the United States is a party as well as key UN resolutions, but is also recognized as a preemptory (jus cogens) norm of customary law, binding on all states

The IADL brief also provides historical evidence supporting the “firmly held convictions” of Shakur and his codefendant Marilyn Buck that “the United States is at war with Afro-American people,” and that their conduct fell within “the ambit of their struggle in support of the New Afrikan nation for self-determination and independence”; their convictions reinforced by the United Nations’ recognition of the legitimacy of struggling for their liberation “by all available means, including armed struggle. The brief concludes by providing extensive legal support for the defendants’ claims that their actions should be considered to be political rather than criminal conduct, and that they should be recognized as combatants entitled to protection of the Geneva Conventions, including Protocol I

The IADL’s amicus brief was a rejoinder to the government’s reply to questions posed by Judge Haight, a reply signed off on by three legal advisors to the State Department, as well as lawyers for the Army and the Department of Defense The government’s response begins by asserting that the political offense exception applies only to extradition cases, and that it can never be a defense to prosecution in the United States. It goes on to state that the United States is not a party to Protocol I and does not recognize it as reflective of customary international law. The response ignores entirely the context of anti-colonial and anti-racist struggles the Protocol was intended to address. Instead, it candidly admits the government’s concern that the negotiations over the protocol “would be dominated by a majority of developing countries, a majority which all too often seems to be led by radical States bearing grudges against the wealthy countries in general and against the United States in particular.

The government also acknowledges that among the “most important reasons” the United States rejected the Protocol was its expansion of the categories of individuals to be considered prisoners of war, and emphatically states the U.S. position that wars of national liberation do not constitute international, armed conflicts Instead, it argues, “the pattern of activities engaged in by the defendants” are simply “internal disturbances” and, therefore, do not constitute either international or internal (non-international) armed conflicts subject to international law Contrary to well-established international law, the government argues that because the Republic of New Afrika is not a state, “the provisions on international armed conflicts in the Geneva Conventions could not possibly be applicable in this case. In support of its refusal to recognize Protocol I as reflective of customary international law, the government asserts: “It is most unlikely that States will in the future choose to accord prisoner of war status in conflicts described as wars of national liberation. This, of course, is precisely what Protocol I says, and it is a treaty to which 176 states have now become parties, reflecting the extent to which the United States remains out-of-step with the evolution of international humanitarian law

Mutulu Shakur claims to have been engaged in political rather than criminal conduct, and his assertion of prisoner of war status was made in a timely manner, well-supported by legal and historical arguments, and responded to seriously by the U.S. government before being rejected by Judge Haight in July 1988 It is not uncommon for a domestic court in the United States to refuse to apply international law but, as the IADL brief noted, courts are constitutionally mandated to do so Moreover, the rejection of international legal norms by domestic courts does not undermine the validity of those norms. For all of these reasons, and many more, the record does not support Judge Haight’s characterization of Shakur’s conduct as “indefensibly undertaken for political reasons” in his 2020 refusal to grant compassionate —a characterization that also contradicts the court’s earlier claim that Shakur’s political motivation was “irrelevant” to his liability for the conduct he was alleged to have engaged in The court’s refusal to respect the international law governing the right to contest colonialism and racist regimes cannot erase the fact that Shakur’s claims were, in fact, very ably defended.

Conclusion

In 1949, the International Court of Justice noted that “the development of international law has been influenced by the requirements of international life. Illustrating this proposition in the context of the struggles against colonial and racist regimes, legal scholar Lisa Napoli observes that “[e]vidence of [armed struggle as a means of liberation] and international approval of that practice can be found in the numerous armed movements in opposition to colonial domination in Algeria, Zimbabwe, Angola, Cape Verde, Vietnam, Mozambique, and East Timor, and the racist regimes in Rhodesia, Namibia, and South Africa.

Thus, in the 1960s and ’70s international law explicitly recognized that peoples struggling to free themselves from “colonialism, alien domination and racist regimes” not only have a right to self-determination, but that meaningful exercise of that right might necessitate the use of armed force. During that era, colonialism and racialized subordination had been formally condemned for many years but it was abundantly clear that in many cases that armed conflict was required to break free from oppressive regimes. As Kwame Nkrumah, Ghana’s first president observed, “[n]o imperial power has ever granted independence to a colony unless the forces were such that no other course was possible, and there are many instances where independence was only achieved by a war of liberation. There are few who, today, would contest the legitimacy of the wars for independence waged by colonized peoples in Africa and Asia during this era.

There is, however, resistance to understanding the struggles for Black liberation in this country as part of the larger global movement for decolonization. We know that the transatlantic slave trade was an integral aspect of European colonization; that by 1800, some ten to fifteen million enslaved Africans had been brought to European colonies in the Western Hemisphere through a process of warfare, captivity, and transportation that robbed the African continent of perhaps fifty million people It is clear that chattel slavery was essential to the Angloamerican colonizers, protected by the U.S. Constitution, and integral to the social, political, and economic success of this settler state We also know that from the 1600s to the present Africans and people of African descent have used every means at their disposal to resist their continued colonization and racialized subordination. Nonetheless, there is widespread resistance to acknowledging that these have been, and continue to be, struggles against “colonialism, alien domination, and racist regimes.

The fact that indigenous Africans were forcibly relocated to support a colonial project half a world away did not eviscerate their right to resist, and the passage of time does not negate the right of those who continue to see themselves as a people struggling for self-determination. It may be that one day we will recognize with respect to people of African descent in the United States—as ICJ vice-president Ammoun did in the Namibia case—that “[s]overeignty, which is inherent in every people, just as liberty is inherent in every human being, therefore did not cease to belong to the people subjected to [colonization]. It had simply, for a time, been rendered inarticulate and deprived of freedom of expression. In the meantime, as he has contested the criminal charges that have kept him incarcerated for decades, Mutulu Shakur has given voice to this understanding. His may not be a position U.S. courts will ever be willing to accept, but it is certainly not an “indefensible” political opinion. Rather, it is a perspective well-grounded in history and international law and the fact that Shakur will not renounce it cannot constitute legitimate grounds for denying him clemency.

Author’s Note

While I am solely responsible for the views presented in this essay, I owe a debt of gratitude to the principled perseverance of Mutulu Shakur and the many attorneys who have represented him, and to the work of many scholars, especially Ward Churchill, Kathleen Cleaver, Lennox Hinds, Chokwe Lumumba, Susan Rosenberg, and Akinyele Umoja.