Month: April 2014

U.S. Citizens Convicted of Felonies Should Be Allowed To Vote

As mentioned in a prior post, the U.N. Human Rights Committee recently raised the issue of whether convicted felons should be entitled to vote in U.S. elections. As a result, the Committee recommended certain changes in those laws that will be discussed below.

First though we will look at U.S. laws on the subject before examining the U.N. Committee’s recommendations and ongoing efforts in the U.S. to reform these laws.

U.S. Laws on Voting by Felons

With certain exceptions, the determination of eligibility to vote in federal, state and local elections in the U.S. is left to the laws of the states.[1] Here is a summary of those laws:[2]

Number of States   Names of States and District of Colombia Felon Voting Status
2 Maine & Vermont Eligible to vote in or out of prison
14 District Columbia, Hawaii, Illinois, Indiana, Massachusetts, Michigan, Montana, New Hampshire, North Dakota, Ohio, Oregon, Pennsylvania, Rhode Island & Utah Eligible to vote after term of incarceration
4 California, Colorado, Connecticut & New York Eligible to vote after term of incarceration + parole
20 Alaska, Arkansas, Georgia, Idaho, Kansas, Louisiana, Maryland, Minnesota, Missouri, Nebraska, New Jersey, New Mexico, North Carolina, Oklahoma, South Carolina, South Dakota, Texas, Washington, West Virginia & Wisconsin Eligible to vote after term of incarceration + parole + probation
11 Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Mississippi, Nevada, Tennessee, Virginia & Wyoming Not eligible unless various conditions are met

Since 1996 many states have passed laws to expand felon voting rights and to simplify the process for restoration of such rights. There, however, are a few outliers that have imposed greater restrictions; they include the following:

  • In 2011 the Florida Board of Executive Clemency adopted a new policy requiring all ex-felons to wait five and seven years before applying to regain voting rights.
  • In 2011 the Iowa governor revoked an automatic restoration of voting rights for all ex-felons and instead imposed a requirement for ex-felons to apply to regain such rights.
  • In 2012, South Carolina mandated that felons on probation could not have such restoration.

The bipartisan National Association of State Legislatures (NASL) points out several problems administering these laws that make it more difficult for former felons to vote:

  • “Even in states where ex-offenders automatically regain the right to vote upon completion of their sentence, the process of re-registering to vote often is difficult. One reason is the complexity of the laws and processes surrounding disenfranchisement. In some cases, it is difficult to determine whose rights can be restored. This can vary in some states according to the date of the crime, the conviction, or the release from prison, or the nature of the crime. The complex restoration process also can be daunting. It often involves lengthy paperwork, burdensome documentation, and the involvement and coordination of several state agencies.”
  • NASL adds that a “second barrier to restoration of voting rights for ex-offenders is the often inconsistent communication among agencies. The methods of communicating the loss and restoration of voting rights among courts, corrections and elections officials are not always reliable, timely or consistent. This inconsistency can result in uneven application of the law, even when the laws are clear.”
  • Another barrier, according to NASL, “is lack of information. Ex-offenders sometimes are not aware that they regain their voting rights automatically upon completion of their sentence. They go through life believing they cannot vote when, in fact, they can. In other cases, they are not informed of the process for regaining their rights or offered assistance in doing so. As long as they remain ignorant of the necessary steps, ex-offenders cannot begin the process of regaining voting rights.”
  • The “final obstacle” to former felons voting, says NASL, “is under-funding of parole boards in some states where offenders must apply to have their rights restored. A massive backlog of applications can exist because the agencies do not have adequate staff or resources to process them in a timely manner.”

As a result of these laws and their administration, an estimated 5,800,000 U.S. citizens were ineligible to vote in the 2008 elections. This included 1,400,000 African-American men, more than 676,000 women and 2,100,000 ex-felons who had completed their sentences. Another way of looking at this disenfranchisement, 7.7% of all African-American citizens were ineligible to vote in 2008.

All of this is happening with 2.2 million U.S. citizens in prison or jail in 2012, a larger share of the total population than in any other country and about five times greater than the average for other industrialized nations.

The U.N. Committee’s Recommendations

Article 25 of the International Covenant on Civil and Political Rights (ICCPR) provides, in part, that “Every citizen shall have the right and the opportunity, without any of the distinctions mentioned in article 2 [race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status]and without unreasonable restrictions: . . . (b) To vote . . . at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors. . . .”

As previously mentioned, this treaty created the U.N. Human Rights Committee and empowered it to conduct periodic reviews of compliance with that treaty by its States Parties, one of which is the United States.

Therefore, U.S. compliance with Article 25 regarding voting was one of the topics covered by the recent Committee’s report of its review of U.S. compliance with the ICCPR.

The Committee first reiterated “its concern about the persistence of state-level felon disenfranchisement laws, its disproportionate impact on minorities and the lengthy and cumbersome voting restoration procedures in states.”

The Committee then recommended that the U.S. should “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.”

U.S. Advocates for Expansion of Felon Voting Rights

A number of U.S. NGOs are advocates for expanding voting rights for felons. They include (a) the American Civil Liberties Union; (b) the Leadership Conference on Civil and Human Rights, a coalition of over 200 national organizations promoting and protecting U.S. civil and human rights toward the goal of a more open and just society;[3] (c) the Sentencing Project, which works for a fair and effective U.S. criminal justice system by promoting reforms in sentencing policy, addressing unjust racial disparities and practices, and advocating for alternatives to incarceration; (d) the Brennan Center for Justice at NYU School of Law;[4] and (e) the National Association of Criminal Defense Lawyers.

In addition, several prominent public officials have supported such reforms.

Earlier this year in a speech about criminal justice reform at Georgetown University, U.S. Attorney General Eric Holder made extensive remarks about the need for reforming our laws regarding felon voting.[5]

The Attorney General emphasized the need to do all we can to encourage the need for successful reintegration of individuals who had been convicted of felonies, including the restoration of the “single most basic right of American citizenship—the right to vote.” Otherwise such disenfranchisement perpetuates “the stigma and isolation” of former felons and increases “the likelihood they will commit future crimes.”

Moreover, said Holder, such disenfranchisement has a “disparate impact on minority communities.” Today roughly 2,200,000 black citizens (or 1 in 13) are excluding from voting for this reason; in Florida, Kentucky and Virginia that ratio is 1 in 5. For Florida that represents 10% of the state’s potential electorate; in Mississippi, 8%.

Holder added that Iowa recently abolished automatic restoration of voting rights after completion of a criminal sentence in favor of an innocuous-sounding requirement to apply to the governor for such relief. However, according to Holder, after two years of the new policy, fewer than 12 such applications had been approved out of 8,000.

Republican Senator Rand Paul of Kentucky repeatedly has called for expansion of felon voting rights. In February 2014 he testified before a Kentucky Senate committee in support of restoring the right to vote for many non-violent felons in his state. Paul said that restoring voting rights for those who have repaid their debt to society was simply the right thing to do. In other words, “One mistake in life shouldn’t permanently block a citizen’s access to the ballot box [because the] right to vote is among the most important rights we have. It is something for which people in other countries have lost their lives.”

Following Senator Paul’s testimony, the committee and then the full Senate passed a proposed constitutional amendment that would restore the right to vote in Kentucky for many non-violent felons who have completed their sentences. If the Kentucky House approves the same measure and the two houses agree on a compromise bill, it will be on the ballot for voters to approve in November.[6]

In Virginia, former Governor Robert F. McDonnell (Republican) enacted a policy in 2012 that allowed those with non-violent felony convictions to have their voting rights automatically restored. In addition, McDonnell and his Democratic successor, Terry McAuliffe, have supported a state constitutional amendment that would restore voting rights to ex-felons automatically upon the completion of their sentences.

Conclusion

This problem of obstacles to felons’ voting was brought home to me when I went door-knocking for the re-election of President Obama in 2012 and encountered several people who said they were not eligible to vote. They did not say why, but I surmised that they had been convicted of felonies and had not yet completed their parole or probation. I felt then (and now) that they were entitled as U.S. citizens to have their voices heard in the election.

Given the high levels of incarceration in the U.S. and the deplorable conditions in most of our prisons, these potential voters should provide a way to increase the importance of this public policy issue and to be a force for improving those conditions.

Another benefit of such reforms should be the elimination of the supposed “need” to have restrictive state voter “ID” laws to eliminate or reduce purported voter fraud. A Wisconsin voter “ID” law on April 29th was stricken down as unconstitutional by a federal district court.

I hope that all U.S. citizens become concerned about the disenfranchisement of our fellow citizens who have been convicted of felonies and become advocates for changing the state laws that cause this deprivation.

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[1] The U.S Constitution provides that “Congress may at any time by Law make or alter such Regulations [set by the States for the Times, Places and Manner of holding Elections for Senators and Representatives] except [not] as to the Places of chusing Senators” (Art. I, sec. 4). The Fourteenth Amendment says,”All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.  No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” (14th Amendment.) (The 14th Amendment also implicitly endorses a state’s denial or abridgment of a U.S. citizen’s right to vote because of participation in “rebellion, or other crime” in connection with allocation of seats in the House of Representatives.) The Constitution further provides, “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude [slavery]” (15th Amendment) or “sex” (19th Amendment) or “age [18 years of age or older]” (26th Amendment). In addition, the federal Voting Rights Acts of 1965 and of 2006 imposed certain measures to implement the 15th Amendment to the Constitution, and last year the U.S. Supreme Court invalidated an important part of the latter statute.

[2] Greater details on these laws are available on a ProCon website, on the Brennan Center website and on a map prepared by the American Civil Liberties Union.

[3] The Leadership Conference submitted its report on felon voting to the U.N. Human Rights Committee in connection with the latter’s review of U.S. human rights.

[4] The Brennan Center along with ACLU is supporting the proposed federal Democracy Restoration Act that would restore voting rights to ex-felons who had completed their incarceration. It was introduced in 2014 by Representative John Conyers, Jr. (H.R. 4459) and Senator Ben Cardin (S.2235).

[5] The U.N. Human Rights Committee’s concluding observations noted its “satisfaction” with Attorney General Holder’s speech, which also was applauded  by a New York Times editorial.

[6] On March 5th the Kentucky House rejected the Senate bill because it did not go far enough in expanding the voting rights, and by the end of March, legislators did not think a compromise was likely this session of the legislature. On April 16th, however, the House passed a bill that will prompt a conference committee to try to work out a compromise that both houses could accept.

Argentina’s Exercise of Universal Jurisdiction Thwarted by Spain

An Argentine court has invoked universal jurisdiction over a case brought by relatives of people who were victims of torture and other crimes committed in Spain during the Spanish Civil War (1933-1939) and the Franco regime (1939-1975).[1]

In September 2013 the Argentine court issued an international warrant for the arrest of four suspects in that case. Two of them are residents of Spain; the other two are deceased.[2]

Spain’s High Court’s Denial of Extradition

One of these suspects who lives in Spain, Jesús Muñecas, earlier this month appeared in Spain’s High Court to contest the Argentine court’s request to have him extradited to Argentina to face charges that while a Spanish Civil Guard captain in August 1968, he tortured and beat an individual at a Spanish prison. Muñecas’ opposition to extradition was supported by the Spanish prosecutor on the ground that the statute of limitations had expired on these charges.

On or about April 25th Spain’s High Court denied the extradition request. It said the Argentine charges did not reveal any facts that could be construed as genocide – a crime without a statute of limitations – and that even if torture were proven, Spain’s 10-year statute of limitations for torture had expired and, therefore, barred the case.

Spain’s High Court’s Invitation to Argentina To Start a Case in Spain

 In denying extradition of Senor Muñecas, the High Court added that Argentina could try to get the case opened in Spain. According to the High Court, “This would give the victims the possibility to access proceedings and, in some way, satisfy their desire for justice.”

This invitation is utterly disingenuous and ironical as shown below.

Baltasar Garzón
Baltasar Garzón

Previously Spain’s High Court had opened a criminal investigation of certain crimes committed during the Spanish Civil War and Franco regime, but the investigation was quashed in May 2010. Simultaneously the judge who initiated that investigation, former High Court Judge Baltasar Garzón, was charged with a crime for doing so and suspended from his judicial service.

In February 2012, this criminal case against Garzón was dismissed when Spain’s Supreme Court decided that he had not abused his judicial power in initiating the investigation even though, according to the Court, he had overstepped his authority and “exceeded himself in the interpretation of the law” in doing so.

In the meantime, however, two other criminal cases were brought against Garzón.

One of these prosecutions resulted in his February 2012 conviction for prevarication (knowingly making an unjust decision) in a case involving his authorization of police bugging of communications between individuals charged with corruption and their attorneys. For this conviction, Judge Garzón was removed from the bench for 11 years and fined Euros 2,500.[3]

These three criminal cases against Garzón and his conviction in one of them have been widely condemned as motivated by the Spanish government’s desire to punish him for his Franco-era investigation as discussed in posts of February 10, 11 and 14, 2012.

One of the criticisms of his conviction came from the European Magistrates for Democracy and Freedom (EMDF), an organization with 15,000 members from 11 states of the European Union. They petitioned the Spanish courts for a pardon of Garzón because the organization believes his conviction and sentence affects the entire international judicial community and runs the risk of limiting judicial independence, especially in countries trying to construct a democratic system of justice. Judges must have the freedom to render their own legal interpretations, said this organization, and the Garzón case could be used to curb judges’ independence and autonomy.

In late February 2014, Spain’s Supreme Court opposed the EMDF’s petition for such a pardon on the ground that it did not satisfy certain legal criteria. The court also said it was inappropriate to reinstate Garzón as he maintains that he was within his rights to order the recordings of the attorney-client communications. Said the court, “In the request there is no indication that he has expressed remorse, and this court is not aware of his having done so.” Moreover, according to the court, Garzón had displayed “indifference” to his suspension “as a way of reaffirming his position prior to the sentence.”

Now Spain’s Ministry of Justice will make the final decision on the request for pardon. As of April 27th, the prosecution apparently had advised the Ministry that there were no reasons of justice, fairness or public interest to grant such a pardon.

Meanwhile in reaction to the Supreme Court decision opposing his pardon, Garzón said it was “not legal” for the Court to demand he show remorse. “This is not a legal requisite,” he said. Nor, he added, does the fact that it was EMDF that had requested the pardon reflect his “indifference.” Garzón reasserted his innocence and said, “I believe that this offense was created with the express purpose of punishing me, and that I am within my rights to disagree and to resort to another court, as I have done in Strasbourg [the European Court of Human Rights], in order to evaluate whether the Supreme Court has violated my fundamental rights.”[4]

Finally Spain High Court’s invitation for Argentina to start a case in Spain is ironic. Argentina decided to exercise universal jurisdiction over crimes committed during Spain’s Civil War and the Franco regime only after Spain quashed its own investigation of such crimes, the one initiated by Garzón. 

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[1]This post’s discussion of the Argentine proceedings is based upon Fabra, Ex-Civil Guard officer fights extradition to Argentina to face torture charges, El Pais (In English) (April 3, 2014); Fabra, High Court refuses to extradite former Franco-era Civil Guard accused of torture, El Pais (In English) (April 25, 2014).

[2] The other living suspect and Spanish resident, Juan Antonio González Pacheco, alias Billy the Kid, also is opposing his extradition to Argentina. He is a former police inspector who faces 13 charges of torture.

[3] The other criminal case against Judge Garzón involving alleged corruption was dismissed as being barred by the statute of limitations.

[4] In March 2011 Garzon brought a case before the European Court of Human Rights challenging the legality of his criminal prosecution, conviction and sentence on his approving the prosecution’s bugging of communications between certain criminal defendants and their lawyers. This case apparently is still pending.

U.S. Orders Deportation of Former Salvadoran General

 

General Jose Guillermo Garcia
General Jose Guillermo Garcia

 

As mentioned in a prior post, in October 2009, the Department of Homeland Security charged that General Jose Guillermo Garcia, who had been residing in the U.S. since his retirement from the Salvadoran military, was removable (or deportable) from the U.S. under the Immigration and Nationality Act on the grounds that he had committed, ordered, incited, or otherwise participated in torture and extrajudicial killings in El Salvador.

 

According to that post, on February 27, 2013, an immigration judge in Miami, Florida concluded a seven-day trial or hearing on these charges.

On February 26, 2014, the judge issued his 66-page decision in the case.[1] The judge found that:

  • “As head of the armed forces and the most powerful person in El Salvador, [García] fostered, and allowed to thrive, an institutional atmosphere in which the Salvadoran Armed Forces preyed upon defenseless civilians under the guise of fighting a war against communist subversives. Instead of institutional changes that would decrease the incidents of killings and torture by the military, [García] failed to stamp out death squads within the security forces.  Likewise, despite contemporaneous evidence that members of the military had been involved in the [1980] assassination of Archbishop Oscar Romero,[[2]] a man who could have been an ally in bringing about change and peace in El Salvador, [García] failed to adequately investigate.”

The judge also found that General García helped conceal the involvement of soldiers who killed four American churchwomen in 1980.[3] In addition, he “knew or should have known” that army troops had slaughtered the villagers, including women and children, in the hamlet of El Mozote in 1981.[4]

As a result, the judge ordered that Garcia should be removed (or deported) from the U.S. The lawyer for Mr. Garcia said there will be an appeal.

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[1] This summary of the decision is based upon a New York Times article and a more extensive analysis by the Center for Justice and Accountability. The actual decision is also available on the web.

[2] This blog has many posts about Archbishop Romero.

[3] This blog also has posts about the ministries and murders of the American churchwomen.

[4] The El Mozote massacre also has been a subject in this blog.

U.N. Human Rights Committee’s Concluding Observations on U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and the events leading up to the Committee’s evaluation. Another post looked at the Committee’s recent hearings regarding U.S. human rights.

Now we examine the Committee’s report of concluding observations that resulted from the hearings and all the evidence on that subject.

The Committee’s Concluding Observations[1]

After considering the written materials and the testimony and remarks at the hearing, on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America). Given the hostile nature of the Committee members’ comments during the hearing, it is not surprising that the report was very critical of the U.S.[2]

With respect to various topics, the Committee expressed its regrets or concerns about the U.S. record and then made the recommendations outlined below.

Applicability of the Covenant at national level.[3] The U.S. should: “(a) Interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose and review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances . . . .(b) [I]dentify ways to give greater effect to the Covenant at federal, state and local levels, taking into account that the obligations under the Covenant are binding on the State party as a whole. . . . (c) [E]nsure that effective remedies are available for violations of the Covenant, including . . . proposing to the Congress implementing legislation to fill any legislative gaps. . . . [and considering] acceding to the Optional Protocol to the Covenant providing for an individual communication procedure. [4] (d) Strengthen and expand existing mechanisms mandated to monitor the implementation of human rights at federal, state, local and tribal levels . . . . (e) Reconsider its position regarding its reservations and declarations to the Covenant with a view to withdrawing them.”[5]

Accountability for past human rights violations. The U.S. should: “[E]nsure that all cases of unlawful killing, torture or other ill-treatment, unlawful detention, or enforced disappearance are effectively, independently and impartially investigated, that perpetrators, including, in particular, persons in command positions, [6] are prosecuted and sanctioned, and that victims are provided with effective remedies. The responsibility of those who provided legal pretexts for manifestly illegal behavior should also be established. [7] The State party should also consider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”

Racial disparities in the criminal justice system and Racial profiling. The U.S. should: “[R]obustly address racial disparities in the criminal justice system . . . [and] effectively combat and eliminate racial profiling by federal, state and local law enforcement officials . . . .”[8]

Death penalty. The U.S. should: “(a) take measures to effectively ensure that the death penalty is not imposed as a result of racial bias; (b) strengthen safeguards against wrongful sentencing to death and subsequent wrongful execution by ensuring inter alia effective legal representation for defendants in death penalty cases, including at the post-conviction stage; (c) ensure that retentionist states [those that maintain the death penalty] provide adequate compensation for the wrongfully convicted; (d) ensure that lethal drugs for executions originate from legal, regulated sources, and are approved by the U.S. Food and Drug Administration (FDA) and that information on the origin and composition of such drugs is made available to individuals scheduled for execution; [9] (e) consider establishing a moratorium on the death penalty at the federal level and engage with retentionist states with a view to achieving a nationwide moratorium;” [f] Consider acceding to on the Second Optional Protocol to the Covenant aiming at the abolition of the death penalty on or before July 11, 2116, the 25th anniversary of its entry into force.

Targeted killing using unmanned aerial vehicles (drones). The U.S. should: “revisit its position regarding legal justifications for the use of deadly force through drone attacks [and] . . . (a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”

Gun violence. The U.S. should: “[T]ake all necessary measures to abide by its obligation to effectively protect the right to life. . . . [including] (a) continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers in order to prevent possession of arms by persons recognized as prohibited individuals under federal law . . . ; and (b) review Stand Your Ground Laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.”

Excessive use of force by law enforcement officials. The U.S. should: “(a) step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers; (b) ensure that the new CBP [U.S. Customs and Border Protection] directive on use of deadly force is applied and enforced in practice; and (c) improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

Legislation prohibiting torture. The U.S. should: “[E]nact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. . . . [and] ensure the availability of compensation to victims of torture.”[10]

Non-refoulment [ban on returning persecuted to persecutor]. The U.S. should: “[S]trictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, [11] continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their . . . return to other countries and take appropriate remedial action when assurances are not fulfilled.”

Trafficking and forced labour. The U.S. should: “[C]ontinue its efforts to combat trafficking in persons, inter alia by strengthening its preventive measures, increasing victim identification and systematically and vigorously investigating allegations of trafficking in persons, prosecuting and punishing those responsible and providing effective remedies to victims, including protection, rehabilitation and compensation. [T]ake all appropriate measures to prevent the criminalization of victims of sex trafficking, including child victims, to the extent that they have been compelled to engage in unlawful activities. [R]eview its laws and regulations to ensure full protection against forced labour for all categories of workers and ensure effective oversight of labour conditions in any temporary visa program. [R]einforce its training activities and provide training to law enforcement and border and immigration officials, . . . [and] other relevant agencies. . . .”

Immigrants. The U.S. should: “review its policies of mandatory detention and deportation of certain categories of immigrants in order to allow for individualized decisions, to take measures ensuring that affected persons have access to legal representation, and to identify ways to facilitate access of undocumented immigrants and immigrants residing lawfully in the U.S. for less than five years and their families to adequate health care, including reproductive health care services.”

Domestic violence. The U.S. should: “[S]trengthen measures to prevent and combat domestic violence, as well as to ensure that law enforcement personnel appropriately respond to acts of domestic violence. [E]nsure that cases of domestic violence are effectively investigated and that perpetrators are prosecuted and sanctioned. [E]nsure remedies for all victims of domestic violence, and take steps to improve the provision of emergency shelter, housing, child care, rehabilitative services and legal representation for women victims of domestic violence. [T]ake measures to assist tribal authorities in their efforts to address domestic violence against Native American women.”

Corporal punishment. The U.S. should: “Take practical steps, including through legislative measures where appropriate, to put an end to corporal punishment in all settings. [E]ncourage non-violent forms of discipline as alternatives to corporal punishment and . . . conduct public information campaigns to raise awareness about its harmful effects. [P]romote the use of alternatives to the application of criminal law to address disciplinary issues in schools.”

Non-consensual psychiatric treatment. The U.S. should: “[E]nsure that non-consensual use of psychiatric medication, electroshock and other restrictive and coercive practices in mental health services is generally prohibited. Non-consensual psychiatric treatment may only be applied, if at all, in exceptional cases as a measure of last resort where absolutely necessary for the benefit of the person concerned provided that he or she is unable to give consent, for the shortest possible time, without any long-term impact, and under independent review. . . . [P]romote psychiatric care aimed at preserving the dignity of patients, both adults and minors.”

Criminalization of homelessness. The U.S. should: “[E]ngage with state and local authorities to: (a) abolish criminalization of homelessness laws and policies at state and local levels; (b) ensure close cooperation between all relevant stakeholders . . . to intensify efforts to find solutions for the homeless in accordance with human rights standards; and (c) offer incentives for decriminalization and implementation of such solutions, including by providing continued financial support to local authorities implementing alternatives to criminalization and withdrawing funding for local authorities criminalizing the homeless.”

Conditions of detention and use of solitary confinement. The U.S. should: “[M]onitor conditions of detention in prisons, including private detention facilities, with a view to ensuring that persons deprived of their liberty be treated in accordance with the requirements of articles 7 and 10 of the Covenant [12] and the UN Standard Minimum Rules for the Treatment of Prisoners. . . . [I]mpose strict limits on the use of solitary confinement, both pretrial and following conviction, in the federal system, as well as nationwide, and abolish the practice in respect of anyone under the age of 18 and prisoners with serious mental illness. . . . [B]ring detention conditions of prisoners on death row in line with international standards.”

Detainees at Guantanamo Bay. The U.S. should: “[E]xpedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. [E]nd the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.” [13]

NSA surveillance. The U.S. should: “(a) take all necessary measures to ensure that its surveillance activities, both within and outside the [U.S.], conform to its obligations under the Covenant, including article 17; [14] in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance; (b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse; (c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses; (d) refrain from imposing mandatory retention of data by third parties;(e) ensure that affected persons have access to effective remedies in cases of abuse.”

Juvenile justice and life without parole sentences. The U.S. should: “prohibit and abolish all juvenile life without parole sentences irrespective of the crime committed, as well as all mandatory and non-homicide related sentences of life without parole. . . . [15] ensure that all juveniles are separated from adults during pretrial detention and after sentencing and that juveniles are not transferred to adult courts. . . . [encourage] states that automatically exclude 16 and 17 year olds from juvenile court jurisdictions . . . to change their laws.”

Voting rights. The U.S. should: “ensure that all states reinstate voting rights to felons who have fully served their sentences, provide inmates with information about their voting restoration options and remove or streamline lengthy and cumbersome state voting restoration procedures, as well as review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence. [T]ake all necessary measures to ensure that voter identification requirements and the new eligibility requirements do not impose excessive burdens on voters resulting in de facto disenfranchisement. [P]rovide . . . full voting rights of residents of Washington, D.C.”

Rights of indigenous people. The U.S. should: “adopt measures to effectively protect sacred areas of indigenous peoples against desecration, contamination and destruction and ensure that consultations are held with the communities that might be adversely affected by State party’s development projects and exploitation of natural resources with a view to obtaining their free, prior and informed consent for the potential project activities.”

Other. The U.S. should: “widely disseminate the Covenant, the text of the . . . [recent U.S. report to the Committee], the written responses that . . . [the U.S.] has provided in response to the list of issues drawn up by the Committee and the present concluding observations so as to increase awareness among the judicial, legislative and administrative authorities, civil society and non-governmental organizations . . . [in the U.S.] as well as the general public.” “[For] its fifth periodic report, . . . continue its practice of broadly consulting with civil society and non-governmental organizations. [P]rovide, within one year, relevant information on its implementation of the Committee’s recommendations regarding accountability for [past human rights violations, gun violence, detainees at Guantanamo Bay and NSA surveillance]. [Submit] its next periodic report . . . [on March 28, 2019 with] specific, up-to-date information on all . . . [the Committee’s] recommendations and on the Covenant as a whole.”

Conclusion

One of the overriding issues in the Committee’s review was the geographical coverage of the entire treaty, whether it applies to U.S. conduct outside the U.S. territory, but where it has jurisdiction. The proper conclusion to this issue, in this blogger’s opinion, is that it does so apply or does have extraterritorial application. This conclusion was succinctly stated by the Committee’s Chairperson, Sir Nigel Rodley, during the hearing as noted in a prior post.

Essentially the same conclusion was reached in an October 2010 memo by Harold Koh, then the U.S. State Department’s Principal Legal Adviser.[16] After what he described as an “exhaustive review,” he stated, “an interpretation of Article 2(1) [of the ICCPR] that is truer to the Covenant’s language, context, object and purpose, negotiating history, and subsequent understandings of other States Parties, as well as the interpretations of other international bodies, would provide that in fact, . . . [a] state incurs obligations to respect Covenant rights — is itself obligated not to violate those rights through its own actions or the actions of its agents– in those circumstances where a state exercises authority or effective control over the person or context at issue.”[17]

Civil society organizations in the U.S. lauded the Committee’s “scathing report” and characterized the review as an opportunity for the Obama Administration to meaningfully improve its human rights legacy. The Electronic Frontier Foundation, among other groups, welcomed the Committee’s explicit recognition of the extraterritorial nature of the State’s obligations and its specific recommendations regarding surveillance, and urged immediate implementation by the United States.

The U.S. press coverage of this important international critique of U.S. human rights was pathetic. I did not find any such coverage in the Washington Post and the Wall Street Journal, two respected national newspapers.

The New York Times, on the other hand, had limited coverage. Before the hearings, the Times published one article on the then likely U.S. rejection of the treaty’s having extraterritorial effect along with the actual text of the contrary opinion on that issue by Harold Koh. Later the Times had an article about the first day of the Committee’s hearings that was primarily about the U.S.’ actual rejection of the treaty’s extraterritoriality with two short paragraphs about other issues. Finally the Times had an exceedingly short article about the Committee’s report that touched only on a few of its issues (drone strikes; the virtual lack of any U.S. investigation and prosecutions for alleged unlawful killings; use of torture and authors of legal memoranda purportedly justifying torture in the so called “war on terror;” and the call for publication of the U.S. Senate’s investigation of the CIA’s secret rendition program (turning over suspects to other countries)).

Finally, the Committee’s critique can be taken as an agenda for change by U.S. human rights advocates. Such change will not happen quickly given the dysfunctionality of the U.S. political system and culture. As President Obama frequently says, change does not come easily.                                                                 —————————————————————–

[1] This summary of the Committee’s concluding observations is based upon the observations themselves plus extensive articles about them in the Guardian, Reuters, Human Rights Watch, Amnesty International, the American Civil Liberties Union and a very short New York Times article.

[2] Before making its criticisms, the Committee noted its “appreciation [for] the many [U.S.] efforts undertaken, and the progress made in protecting civil and political rights.” The Committee then welcomed the U.S. Supreme Court’s abolition of the death penalty for offenders who were under the age of 18 when the crimes were committed (Roper v. Simmons (2005)); the U.S. Supreme Court’s recognition of extraterritorial habeas corpus for aliens detained at Guantanamo Bay (Boumediene v. Bush (2008)); the expansion of rights for such detainees (Presidential Executive Orders 13491 and 13493); and the U.S. President’s support of the U.N. Declaration of the Rights of Indigenous Peoples.

[3] This issue concerned Article 2(1) of the ICCPR, which states, “Each State Party . . . undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” (Emphasis added.)

[4] The Optional Protocol to the ICCPR allows alleged victims of an alleged violation by a State Party of any of the rights set forth in the Covenant to submit a communication of complaint to the Committee, and after it has received a response from that State Party, the Committee shall submit ”its views” [akin to an advisory opinion] on the matter to the alleged victim and State Party.

[5] The U.S. reservations and understandings to its ratification of the treaty were covered in a prior post.

[6] “Persons in command positions” presumably include former President George W. Bush, Vice President Dick Cheney and Secretary of Defense Donald Rumsfeld.

[7] “Those who provided legal pretexts” presumably include John Yoo, Alberto Gonzalez and four other lawyers who in the George W. Bush Administration were authors of legal memoranda justifying the so-called “enhanced interrogation” techniques. At least some of these memoranda are available online. The issue of their legal responsibility for such memoranda has been raised in at least three proceedings. First, under Spain’s previous version of its universal jurisdiction statute, a Spanish court opened a criminal investigation regarding these six lawyers, but later the case was stayed when the Spanish court asked the U.S. for information about any U.S. investigation of such allegations. Second, Mr. Yoo was sued in U.S. federal court for money damages and declaratory relief by an individual who had been arrested and detained for interrogation in a military brig in the U.S. for three and a half years, but the U.S. Court of Appeals for the Ninth Circuit in May 2012 held that Mr. Yoo was entitled to immunity and thus reversed the district court’s denial of Yoo’s dismissal motion. Third, in January 2010, the U.S. Department of Justice’s Office of Professional Responsibility concluded that Yoo and another lawyer had used flawed legal reasoning in these memoranda, but that this had not constituted professional misconduct This issue also has been raised in other contexts. In the midst of all this, Yoo continues vigorously to assert the validity of the memoranda and thus his innocence.

[8] One of the Committee’s concerns that prompted this recommendation was, in the Committee’s words, “surveillance of Muslims undertaken by . . . the New York Police Department (NYPD) in the absence of any suspicion of wrongdoing.” On April 15th (or nearly three weeks after the issuance of the Committee’s report), the NYPD announced that it was terminating this program. This decision was welcomed by Muslim Advocates and the Center for Constitutional Rights of New York City while lamenting that the NYPD did not say it was ending its broad surveillance practices.

[9] There is litigation in U.S. courts over lethal drugs used in executions under death penalty laws. In Oklahoma, for example, a state trial court on March 26, 2014, decided that a state law mandating secrecy for the identity of suppliers of such drugs was unconstitutional. On April 21st the Oklahoma Supreme Court stayed two executions so that the court could resolve “grave constitutional claims.” Since then there has been an unseemly intra-state squabble over whether that court had the power to stay the executions with the Oklahoma Governor vowing to conduct the executions as previously scheduled, a state legislator introducing a resolution to impeach the court’s judges who voted for the stay and the Supreme Court itself on April 23rd vacating the stay.

[10] The U.S. has a criminal torture statute, 18 U.S.C. sec. 2340A. It states, “Whoever outside the United States commits or attempts to commit torture shall be fined under this title or imprisoned not more than 20 years, or both, and if death results to any person from conduct prohibited by this subsection, shall be punished by death or imprisoned for any term of years or for life.” (Emphasis added.) Thus, this criminal statute does not apply if the torture occurs in the U.S. In addition, the U.S. has the Torture Victims Protection Act (TVPA) that provides for a civil action for money damages by an “individual” who has been subjected to “torture” against an “individual, who, under actual or apparent authority, or color of law, of any foreign nation” committed the torture. (Emphasis added.) Thus, this statute does not apply if the torture is committed by someone acting under U.S. law.

[11] The ICCPR’s Article 6 bans arbitrary deprivation of life and any derogation from the genocide treaty while its Article 7 bans torture or cruel, inhuman or degrading treatment or punishment.

[12] The ICCPR’s Article 7 bans “torture . . . [and] cruel, inhuman or degrading treatment or punishment while its Article 10 requires all inmates to be “treated with humanity and respect for the dignity of the human person,” separation of accused persons from convicts and juveniles from adults and in facilities whose aims shall be “reformation and social rehabilitation” of inmates.

[13] Article 14 of the ICCPR contains detailed provisions that in the U.S. would be regarded as constitutional criminal due process rights.

[14] Article 17 of the ICCPR says “[e]veryone has the right to the protection of law against . . . arbitrary or unlawful interference with his privacy, family, home or correspondence, . . . [and] unlawful attacks on his honour and reputation.”

[15] The Committee’s report recognized with satisfaction that the U.S. Supreme Court had decided under the U.S. Constitution’s Eighth Amendment’s ban on “cruel and unusual punishment” that (a) sentences of life without parole for juveniles for non-homicide crimes were not permitted (Graham v. Florida (2010)); and (b) mandatory sentences of life without parole for juveniles for homicide were not permitted (Miller v. Alabama (2012)).

[16] Koh is one of the U.S.’ preeminent international lawyers. He has taught at the Yale Law School since 1985 except for his years as the State Department’s Legal Adviser (2009-2013) and as U.S. Assistant Secretary of State for Democracy, Human Rights and Labor (1998-2001). He served as the Dean of the Yale Law School (2004-2009) and returned to Yale in 2013 as the Sterling Professor of International Law. He has received many awards and holds degrees from Harvard University (B.A. and J.D.) and the University of Oxford (B.A. and M.A.)

[17] The Koh memorandum also stated that the contrary 1995 opinion by the Department’s Legal Adviser was “not compelled by either the language or the negotiating history of the Covenant . . . [and] that the 1995 Interpretation is in fact in significant tension with the treaty’s language, context, and object and purpose, as well as with interpretations of importantU.S. allies, the Human Rights Committee and the ICJ [International Court of Justice], and developments in related bodies of law [and, therefore,] was no longer tenable.” Nevertheless, the U.S. continues to rely on the 1995 opinion for its resistance to extraterritorial application of the ICCPR. The Koh memorandum was published by the New York Times along with a discussion of the document a week prior to the Committee’s hearings, and it is safe to assume that copies of same were provided to all the Committee members before the hearings.

U.N. Human Rights Committee’s Hearings about U.S. Human Rights

As discussed in a prior post, in March 2014, the United Nations’ Human Rights Committee (the Committee) issued a negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights. That prior post reviewed the background of the ICCPR and certain events preceding the Committee’s evaluation.

U.N. Human Rights Committee
           U.N. Human                Rights Committee

Now we look at the hearings that lead up to that negative evaluation. The evaluation itself will be the subject of another post.

The Committee’s Hearings[1]

On March 13 and 14, 2014, the Committee held sessions or hearings in Geneva, Switzerland regarding the U.S. report and other information.

The Committee’s questions focused on racial disparities in the criminal justice system; racial discrimination and profiling; police brutality; treatment of the homeless population; the death penalty; gun violence (including stand-your-ground laws); detention of immigrants; drone attacks; “enhanced interrogation techniques” including water boarding; National Security Agency surveillance; treatment of detainees held in Guantanamo; and transfers or renditions of detainees to third countries that practiced torture. Other covered issues were restrictions on voter registration and alleged mistreatment of mentally-ill and juvenile prisoners.

The Committee encouraged the U.S. to disclose a Senate investigative report on a Central Intelligence Agency (CIA) interrogation program that reportedly involved torture. The U.S. delegation’s insistence that the NSA’s mass collection of data was lawful and subject to substantial oversight was disputed by non-governmental groups that attended the sessions.

One Committee member, Walter Kälin,[2] was especially critical in his comments and questions. Here a few of those comments:

  • He attacked the US government’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders. He said if the U.S. position were adopted universally, it would foster “impunity and lack of accountability” for human rights violations.
  • Kälin said, “One hundred and forty-four cases of people wrongfully convicted to death [in the U.S.] is a staggering number.” He pointed out the “disproportional representation of African Americans on death rows . . . ‘Discrimination is bad, but it is absolutely unacceptable when it leads to death.’”
  • Kälin pointed to another “‘staggering figure’ – that there are 470,000 crimes committed with firearms each year, including about 11,000 homicides. . . . [M]uch more needs to be done to curb gun violence.”

The Committee’s Chairperson, Sir Nigel Rodley of the United Kingdom,[3] addressed the issue of legal opinions in the George W. Bush Administration that provided a purported legal justification for the “enhanced interrogation” methods. Sir Nigel said, “When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” He added, “Of course we know that so far there has been impunity.”

Chairperson Rodley also zeroed in on the issue of extraterritorial application of the ICCPR. He said at the conclusion of the hearings, it “was difficult . . . to understand what principles underlay the [U.S.] non-acceptance of the extraterritorial application of the Covenant.” Indeed, he immediately followed this statement with his exposition of the Committee’s contrary view. In diplomatic language, Rodley was saying the U.S. position was absurd. Here is Sir Nigel’s exposition:

  • “The relevant applicable principles were the canons of interpretation contained in the Vienna Convention on the Law of Treaties, . . . [which] stated that a treaty should be interpreted in the light of its text, its context, and its object and purpose.”
  • “Consequently, it was difficult to see how the words of article 2 of the Covenant regarding a State party’s undertaking to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized therein [[4]] were only capable of interpretation as meaning that they applied solely to people who were both within the territory and subject to its jurisdiction. An ordinary, grammatical reading of the article in question supported the interpretation that it applied to everybody in either of the circumstances provided for.”
  • “Furthermore, the idea that the object and purpose of the treaty was met by saying that its application stopped at the frontier, whatever effective control any State might have over certain individuals, was one that was hardly consistent with the treaty’s object and purpose. That was the position not only of the Committee [5] but also of the International Court of Justice and very many States.”

Conclusion

The Committee’s negative comments at the hearings were a preview of its very critical comments about U.S. human rights in the Committee’s concluding report or “observations.” Another post will discuss that report.

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[1] This account of the hearings is based upon articles in the Guardian (March 13 and 14), the New York Times (March 13), Reuters (March 13), Al-Jazeera (March 14), the International Justice Resource Center and the Committee’s Summary Record (March 14). The archived webcasts of these sessions are available on the web.

[2] Walter Kälin is a preeminent Swiss humanitarian, constitutional lawyer, international human rights lawyer, activist, advocate, legal scholar and law professor. He has been published extensively on issues of human rights law, the law of internally displaced persons, refugee law and Swiss constitutional law. Since Since 2004, Kälin has served as the Representative of the United Nations’ Secretary-General on the Human Rights of InternallyDisplaced Persons, and In 1991-1992, he served as the Special Rapporteur of the Commission on Human Rights on the situation of human rights in Kuwait under Iraqi occupation. He holds degrees from the University of Bern (Dr. Jur.) and the Harvard Law School (LL.M.)

[3] Sir Nigel Rodley since 2001 has been a Committee member and since 2003 has served as its Vice Chair and now its Chair. He also is a Commissioner of the International Commission of Jurists and a trustee of the NGO Freedom from Torture. Since 1990 he has taught law and human rights at the University of Essex and since 1994 has been its Professor of Law and Chair of the Human Rights Centre. Formerly he was Amnesty International’s Legal Advisor and Head of the Legal and Intergovernmental Organisations [sic] Office (1973–1990) and U.N. Special Rapporteur on torture (1993-2001). He is a founding member and former Executive Committee Vice Chairman of INTERRIGHTS (the International Centre for the Legal Protection of Human Rights). He is the author of books and articles about international human rights and holds degrees from the University of Leeds (LLB), New York University (LLM), Columbia University (LLM) and the University of Essex (PhD). In 1998 Queen Elizabeth awarded him the Knight of the British Empire (KBE) for his “services to human rights and international law.”

[4] The complete text of Article 2(1) of the ICCPR states: “Each State Party to the . . . [ICCPR] undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin,property, birth or other status.”

[5] The Committee publishes “general comments” setting forth its interpretation of various provisions of the treaty, and its interpretation of Article 2(1) is set forth in General Comment No. 31 (The Nature of the General Legal Obligation Imposed on States Parties to the Covenant), which was issued on March 29, 2004.

 

 

 

U.N. Human Rights Committee’s Review of U.S. Human Rights

In March 2014, the United Nations’ Human Rights Committee (the Committee) made a very negative evaluation of how the United States of America (U.S.) was implementing and complying with the International Covenant on Civil and Political Rights (ICCPR or Covenant), which is regarded as an important part of the International Bill of Rights.

Before we examine the Committee’s hearings that resulted in that very negative evaluation in subsequent posts, we will look at the background of the ICCPR and the events leading up to the Committee’s hearings and evaluation.

Background of the ICCPR

As discussed in a prior post, the ICCPR was approved and adopted by the United Nations General Assembly on December 16, 1966. The drafting of the treaty was the work of the U.N. Commission on Human Rights, in which the U.S. participated.

The ICCPR (in terms reminiscent of the U.S. Bill of Rights) establishes an international minimum standard of governmental conduct for rights of self-determination; legal redress; equality; life; liberty; freedom of movement; fair, public and speedy trial of criminal charges; privacy; freedom of expression, thought, conscience and religion; peaceful assembly; freedom of association; family; and participation in public life. The ICCPR forbids “cruel, inhuman or degrading treatment or punishment;” slavery; arbitrary arrest; double jeopardy; and imprisonment for debt.

The ICCPR’s Part IV established the Human Rights Committee, and its Article 41 provides that periodically the States Parties to the treaty shall “submit reports on the measures they have adopted which give effect to the rights recognized . . . [in the treaty] and on the progress made in the enjoyment of those rights” and that the Committee “shall study [such] . . . reports . . . . [and make] such general comments as it may consider appropriate.”[1]

Under Articles 28 and 29 of the treaty, its states parties elect the 18 Committee members to four-year terms from “nationals of the States Parties . . . who shall be persons of high moral character and recognized competence in the field of human rights, consideration being given to the usefulness of the participation of some persons having legal experience, . . . [and] who shall be elected and shall serve in their personal capacity.”

The Committee, under Article 31, “may not include more than one national of the same State” and “consideration shall be given to equitable geographical distribution of membership and to the representation of the different forms of civilization and of the principal legal systems.”

As discussed in a prior post, the Covenant went into force on March 23, 1976, in accordance with its Article 49(1), after 35 states had ratified or acceded to the treaty. On October 5, 1977, the U.S. signed the treaty, but it was not until nearly 15 years later (June 8, 1992), that the U.S. ratified this treaty (with reservations) and became a state party thereto. Now there are 168 states parties to the treaty.

Events Leading Up to the Committee’s Evaluation 

1. U.S. Report. On December 30, 2011, the U.S. submitted to the Committee its 188-page Fourth periodic report.[2]

The report opened with these words of President Obama,“By no means is America perfect. But it is our commitment to certain universal values which allows us to correct our imperfections, to improve constantly, and to grow stronger over time. . . .”

The report then marched through the U.S. implementation of each of the 27 Articles of the ICCPR.

In conclusion, the U.S. report discussed the Committee’s Concluding Observations on the prior U.S. report that the U.S. “acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction, but outside its territory, as well as its applicability in time of war.” The U.S., however, reiterated its position that the Covenant does not so apply.

With respect to the Committee’s prior request that the U.S. “consider in good faith the interpretation of the Covenant provided by the Committee,” the U.S. continued to reject the Committee’s interpretation on applicability, but said it “appreciates its ongoing dialogue with the Committee with respect to the interpretation and application of the Covenant, considers the Committee’s views in good faith, and looks forward to further discussions of these issues when it presents this report to the Committee.”

2. Committee’s List of Issues. On April 29, 2013, after reviewing the U.S. report and Common Core Document, the Committee issued its six-page, 27-paragraph List of Issues, which asked the U.S. to respond to the following:

  • U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.
  • Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.
  • Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.
  • Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.
  • Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.
  • Right to privacy: provide information on NSA surveillance.
  • Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.
  • Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.
  • Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.
  • Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

3. U.S. Replies. On July 5, 2013, the U.S. submitted its 28-page Replies to the List of Issues. It said the U.S. responded “with great pleasure” and was “pleased to participate in this process.” The U.S., it said, “in the spirit of cooperation, provided as much information as possible in response to the questions posed by the Committee.”

The U.S., however, maintained its position that the treaty did not have extraterritoriality, i.e., it did not apply to U.S. conduct outside the U.S. It did provide some additional information, but did not retract any of its previous positions that prompted the Committee’s List of Issues.

4. Civil Society Organizations’ Submissions. Sometime prior to October 2013, 138 reports about the status of U.S. human rights were submitted to the Committee by civil society organizations, including Amnesty International, Human Rights Watch, the American Civil Liberties Union, Physicians for Human Rights and Minnesota-based Advocates for Human Rights.

5. Postponement. The Committee’s review of the U.S was scheduled for October 2013, but was postponed until March 2014, pursuant to a U.S. request due to the then ongoing U.S. government shutdown.[3]

6. U.S. Delegation. On March 7, 2014, the U.S. submitted to the Committee the list of members of the U.S. delegation for the upcoming session. The U.S. Representative was Mary McLeod, Principal Deputy Legal Adviser, Office of the Legal Advisor, Department of State. She was to be aided by 27 Advisers from the Departments of State, Justice, Defense, Homeland Security, Health and Human Services and Interior; the U.S. Mission to the U.N.; the Attorney General of the State of Mississippi; the Mayor’s Office of Salt Lake City, Utah; and a Private Sector Adviser (a private attorney from Los Angeles, California).

Conclusion

On March 13 and 14, 2014, the Committee held hearings in Geneva, Switzerland on the U.S. report and other information, and on March 26, 2014, the Committee adopted its 11-page report (Concluding observations on the fourth report of the United States of America) that was very critical of the U.S. compliance with the ICCPR.[4]

These subjects will be discussed in subsequent posts.

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[1] The nation states creating and joining this treaty chose to not grant the Committee the power to order the states to do anything. Instead, the Committee only may make recommendations as observations.

[2] The report was supplemented the same date by the 85-page U.S. Common Core Document that contained general information (U.S. demographic, economic, social and cultural characteristics) and legal information (U.S. constitutional, political and legal structure; general framework for the protection and promotion of human rights; and information on non-discrimination and equality and effective remedies).

The U.S.’ fourth periodic report and Common Core Document were preceded by the first U.S. report to the Committee on July 29, 1994 (with the Committee’s concluding observations on October 3, 1995) and the U.S.’ combined second and third reports on November 28, 2005 (with the Committee’s concluding observations on September 15 and December 18, 2006).

[3] The civil society organizations submitted to the Committee an additional 41 reports before the March 2014 Committee session.

[4] The Committee’s procedure and report are similar to, but separate from, the Universal Periodic Review (UPR) of U.S. human rights that is conducted by a separate U.N. organization, the Human Rights Council, as discussed in a prior post.

Spanish Court Refuses to Apply New Amendment to Spain’s Universal Jurisdiction Statute

On March 15th Spanish High Court Judge Pablo Ruz refused in two cases to apply Spain’s new amendment to its universal jurisdiction statute.[1] This is the subject of a report in Spain’s leading newspaper, El Pais.

U.S. Detainees Case

One case has U.S. Government officials in its sights. It involves alleged torture by U.S. officials of five individuals from the moment of their initial detention in various countries (Afghanistan, Pakistan and Gambia) and subsequent detention at Guantanamo Bay, Cuba. On March 15th Judge Ruz renewed his request to the U.S. Government for information about U.S. investigation of these cases.

The Judge concluded that under the new amendment “torture and war crimes cannot be pursued . . . because the target of the procedure is not a Spaniard or a resident of Spain.” These restrictions , however, are trumped by international treaties ratified by Spain–the Geneva Conventions and the Convention Against Torture–which force signatory countries to pursue crimes.

The new amendment also stipulates that crimes cannot be pursued in Spain if they are already being investigated by an international court or by the country where they were committed. This is why Judge Ruz is insisting on securing information from US authorities regarding the status of any investigation there.

Western Saharan Genocide Case

The other case involves claims of genocide against several members of the Moroccan military in connection with Western Sahara, a disputed territory that Morocco claims as its own.

Judge Ruz asserts that the court has jurisdiction because the alleged crimes were committed between November 1975 and February 1976 when Western Sahara was still a Spanish colony. Thus, the court concluded, the alleged crimes must be considered to have been committed on Spanish territory for legal purposes.

The Judge also says he has the power to keep open this investigation because it involves alleged genocide.

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[1] A prior post discussed the amendment added earlier this year to the universal jurisdiction statute while comments thereto talked about initial reaction to the amendment. Another post involved the court’s refusal to apply the new amendment in a case involving the Geneva Conventions while a subsequent post talked about the High Court’s following the new amendment in drug-trafficking cases.

Spanish Court Dismisses Drug Trafficking Charges Against Foreign Sailors

On March 8th a Spanish High Court judge dismissed drug trafficking charges against five Egyptian sailors. They had been captured in international waters on a non-Spanish boat with 10 tons of hashish.

The reason for the dismissal was the requirement of the new amendment to Spain’s universal jurisdiction statute for defendants to be Spanish citizens or residents, as discussed in a prior post.

Important for the dismissal, said the judge, was the international treaty against drug trafficking did not have provisions to “establish the jurisdiction of the national courts, but instead [the treaty] only requires cooperation” from governments.

This is a reference to the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, which provides as follows:

  • “Each Party [to the treaty] Shall take such measures as may be necessary to establish its jurisdiction over [certain offenses] . . . when: (a) i) The offence is committed in its territory; [or] ii) The offence is committed on board a vessel flying its flag or an aircraft which is registered under its laws at the time the offence is committed; [or] (b) i) The offence is committed by one of its nationals or by a person who has his habitual residence in its territory; [or] . . . (2) a) when the alleged offender is present in its territory and it does not extradite him to another Party on the ground: i) That the offence has been committed in its territory or on board a vessel flying its flag or an aircraft which was registered under its law at the time the offence was committed; or ii) That the offence has been committed by one of its nationals     . . . .“ (Art. 4)
  • “The Parties [to the treaty] shall afford one another, pursuant to this article, the widest measure of mutual legal assistance in investigations, prosecutions and judicial proceedings in relation to criminal offences established in accordance with article 3, paragraph 1[of the treaty].” (Art. 7(1) (emphasis added).)

Other similar cases will probably be dismissed on the same ground according to Spanish legal sources. Indeed, on April 11th a case against another eight drug-trafficking suspects who were from Syria was dismissed.

However, as discussed in a prior post and comments thereto, the Spanish High Court has refused to enforce the new amendment to the universal jurisdiction statute in cases charging violations of the treaty against genocide and the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War.

These developments prompted an El Pais editorial criticizing Spain’s governing political party for having used a “fast-track” legislative procedure for adoption of the new amendment to the universal jurisdiction statute. If regular legislative procedures had been used, the editorial argued, it would have required “preliminary reports by the State Council and the Council of the Judiciary” that could have guaranteed “the technical quality of the new” amendment. Moreover, the editorial stated, “the principle of universal justice [should] still reach . . . far enough that its power as a deterrent is not undermined.”

 

 

 

 

 

 

 

 

 

 

 

 

 

Death Certificates’ Documentation of Mortality

The April 7th issue of the New Yorker has a fascinating article by Kathryn Schulz[1] on death certificates, a subject you never thought you would want to know about.

She says, “every dead body is a mystery. Death is an assassin with infinite aliases, and the question of what kills us is tremendously complex. . . . Today, ‘Why do we die?’ is one of the fundamental questions of epidemiology, and we have developed a vast and macabre bureaucracy to answer it.”

Only one half of the 50 million people who will die this year, she reports, will get a death certificate. The half who do not are in the world’s poorest places that do not have the infrastructure for such documentation.

The antecedent of the modern death certificate was the Bill of Mortality in early-sixteenth century England that recorded the weekly numbers of death by the plague.

In 1836 they were replaced in England by what would become the global prototype of the modern death certificate.

In 1893 the International List of Causes of Death was published by a committee headed by the French statistician and demographer Jacques Bertillon. That list after 10 revisions is still used today and now is managed by the World Health Organization. The latest version has over 8,000 ways to die.

Today the one-page death certificate has 250 pages of instructions on how to fill it out by physicians, funeral directors, medical examiners and coroners. Although 90% of the certificate can be filled out easily, the problem arises with the four lines for cause-of-death.

The certificates for deaths in hospitals typically are filled out by residents who have inadequate training for doing so. This results in errors that “overstate leading causes of death, obscure emerging ones, and distort the data we use to allocate funds for research, education, prevention and treatment.”

The author concludes that a death certificate “provides the pathological basis of death, determined by some combination of fact, convention, and guesswork, and described in terms that most non-doctors struggle to understand.” She adds, “The bureaucratization of death . . . has evolved over time into a massively complex checkpoint at the border between the living and the dead; Charon’s[2] T.S.A. [Transportation Security Agency].”

I now add the history of the death certificate to my prior post’s reflection on mortality.

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[1] Schulz is a journalist, author and book critic for New York Magazine. Her book Being Wrong: Adventures in the Margin of Error was described as a “funny and philosophical meditation on why error is mostly a humane, courageous and extremely desirable human trait.” She has spoken at TED on “Don’t regret regret” and “On being wrong.”

[2] In Greek mythology, Charon is the ferryman of Hades who carries souls of the newly deceased across the rivers Styk and Acheron that divided the world of the living from the world of the dead.

 

What is Wrong with the White House’s Plan for Democracy in Cuba?

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[This is a re-posting of a blog post by Zuleika Rivera, an Intern at the Latin American Working Group (April 08, 2014), http://lawg.org/action-center/lawg-blog.]

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ZunZuneo or the “Cuban Twitter” continues to dominate headlines as details regarding U.S. Agency of International Development’s (USAID) failure to inspire a “Cuban Spring” through a “discreetly” funded social networking platform remain unclear. The  Associated Press (AP) first broke the story on April 3, 2014 outlining the parameters of the USAID and Creative Associates International program to develop a bare-bones “Cuban Twitter,” using cell phone text messaging to evade Cuba’s strict control of information and its restrictions of the internet. The idea behind the development of the social media platform, according to AP, was to create a credible news source for Cubans on the island. ZunZuneo drew more than 40,000 followers and gathered data (such as location, cell phone numbers) on its users which was hoped to be used for political purposes. According to the AP, the social network managers hoped to use this information to trigger “smart mobs” that would protest the current Cuban government and generate a “Cuban Spring,” head nodding to the “Arab Spring,” a series of protests and uprisings that swept through a handful of Arab countries from 2010-2013.

How did the United States successfully keep ZunZuneo a secret for so long? USAID used shell companies and foreign banks in the Cayman Islands, United Kingdom, Spain and Costa Rica in order to conduct its programs. USAID contracted with Washington Software Inc who was given $3.2 million to text subscribers of TV and Radio Marti. They were required to send 24,000 messages a week and no fewer than 1,800 an hour. They were also required to create an account and give full access to the Authorized Representative for the contracting officer, the government’s technical experts who are responsible for developing and managing the technical parts of a contract. USAID subcontractor, Creative Associates, received $6.5 million to carry out work in Cuba and later another received $11 million from USAID. The U.S. Broadcasting Board of Governors gave to Mobile Accord $60,000, and USAID also gave Mobile Accord $1.69 million to help run ZunZuneo. Similarly, the New America Foundation was given $4.3 million in 2012 under the Open Technology Institute; their role in the program, if any, remains unclear.

Soon after its creation in 2010, ZunZuneo gathered a lot of followers; and when famous Colombian-born singer Juanes hosted his “Peace Concert” in Cuba’s revolutionary plaza, the ZunZuneo took the opportunity to begin collecting data on Cubans. They polled all of their users on their general thoughts on the concert line-up; and as Cubans innocently answered, ZunZuneo gathered their data. In 2010 when ZunZuneo was at its height, they asked a Denver-based mobile company to join in (Mobile Accord). In their article, the Associated Press mentions a Mobile Accord memo that indicates that they were fully aware of their involvement, stating, “There will be absolutely no mention of the United States government involvement. If it is discovered that the platform is, or ever war, backed by the United States government, not only do we risk the channel being shut down by Cubacel [Cuba’s cell phone provider], but we risk the credibility of the platform as a source of reliable information, education, and empowerment in the eyes of the Cuban people.”

At this point Creative Associates had moved all corporations abroad and had made sure there was no money trail leading back to the United States. By 2011 Creative Associates was thinking of expanding their program and had agreed that the management team should not find out the United States government was involved. At this time they asked Mobile Accord to become independent from the United States government; but that became increasingly more difficult to do, as revenue from text messages was not enough. Finally, in September 2012 the program had to be cut, and it disappeared mysteriously from the Cuban landscape.

The White House has said that the program was not covert because they had disclosed the program to Congress and the program was intended to foster the free flow of information amongst Cubans on the island. Congress denies ever knowing about the program. The legality of this program is also in question since according to U.S. law any covert action by a federal agency must have presidential authority and Congress should also be notified. USAID has said that it is a “congressionally mandated and congressionally supported effort” and that it was reviewed by the Government Accountability Office (GAO). But the GAO report does not list any programs by name or any specifics about what programs were being carried out. It only says that USAID is conducting programs with “greater focus on information technology to support independent bloggers and developing social network platforms.”

Similar to the White House, USAID said this was a discreet, not covert program. USAID came out with its own statement claiming that much of what was reported is false. While ZunZuneo doesn’t portray the full scope of the Obama Administration’s plan towards democracy promotion in Cuba, it is certainly the ugly side of it.

ZunZuneo proved it had little success in promoting freedom of expression on the island to support a more open civil society through a covert, or “discreet” program; and when compared to the White House’s policy to facilitate cross-cultural communication through people-to-people exchanges, ZunZuneo’s success diminishes to zero. In 2011 President Obama took a big step towards “promoting democracy” in Cuba by easing restrictions on travel for U.S. citizens to Cuba. While Cuba remains a sovereign state with its own political system, the legacy of U.S. policy towards Cuba doesn’t recognize this. The Obama Administration has taken steps to engage Cuba in a different way but still under the guise of “democracy promotion.” The President has liberalized travel regulations for purposeful travel as a way to empower and engage civil society in Cuba and in the United States. Its success was immediate: in 2011 73,500 U.S. citizens traveled legally to Cuba, and in 2012 that number increased to more than 98,000. Since the easing of restrictions, the Office of Foreign Assets Control (OFAC) has issued more than 250 people-to-people licenses, nine charter companies have been set up and there are more than 20 active travel service providers. People-to-people travel has led to authentic interactions between Cubans and U.S. citizens, which has deconstructed the Cold War image of Cuba as the enemy and presented a more accurate Cuban reality. Current regulations have allowed researchers and students to travel to Cuba, to study Cuba “on the ground,” and come back to the United States ready to share their experiences of a different Cuba, a Cuba that is changing.

People-to-people travel has created a new class of ambassadors: citizen ambassadors that in their exchanges on the island promote the core values of democracy. The exchange of ideas between real people via a different brand of “democracy promotion,” program, such as people-to-people travel, is what will inform Cubans about “democracy,” not spam social messaging. The Obama Administration should focus on initiatives such as un-restricted travel to Cuba for all U.S. citizens, and high level dialogue with the Cuban government to talk about a variety of issues of common interest. These tactics will not only save money from unknowing taxpayers, but educate about U.S. ideals and realities by real people who are not trying to destroy Cuba, in a much clearer, less secret, non-covert manner. Rather than staining USAID’s reputation around the world, and smearing the Obama Administration as cold war re-enactors, the time is long overdue to sever our ties with difficult-to-clarify, “discreet” democracy promotion programs.

ZunZuneo proved to be a failure; the 53-year-old economic embargo on Cuba, another failure, and the list could go on. Cuba is not our enemy, rather our neighbor; and we should begin to treat them as such. Behind closed doors, judgments can be passed; but in the world arena, we should be “keeping up with the Joneses”—the 188 countries that annually vote in the UN General Assembly to end the embargo—and begin on the path toward a respectful, normal relationship with Cuba.