detainees – dwkcommentaries

U.S. and Cuba Hold Inconclusive Talks on Restoring Diplomatic Relations

On January 22 and 23, 2015, U.S. and Cuban diplomats met in Havana to discuss a multitude of issues relating to the restoration of normal diplomatic relations. No agreements were reached other than an understanding that additional talks were necessary and would be held albeit without dates or location being set.[1]

The first topic focused on technical issues related to reestablishing diplomatic ties. Gustavo Machin, the Cuban foreign ministry’s deputy director for U.S. affairs, said, “We have spoken about the principles upon which our diplomatic relations should be re-established.” The participants were “very respectful and flexible,” and not all the outstanding issues would be resolved in the first meeting.

At the conclusion of the first day’s meetings, U.S. Assistant Secretary of State Roberta Jacobson agreed that the participants had a “very productive and positive dialogue.” She added, “We discussed the real and concrete steps required to restore diplomatic relations and the terms for opening of embassies in our respective countries, as well as expectations about how the US Embassy in Havana would work.” She also agreed with Cuba’s assertion that the restoration of diplomatic relations would be in accordance with the Vienna Conventions on Diplomatic and Consular Relations. (In the photo to the right note the Cuban and U.S. flags at the podium at the site of the talks.)

Officials for both countries, however, outlined issues standing in the way of a normal U.S.-Cuba relationship.

Ms. Jacobson spoke of the U.S.’s persistent concerns about Cuban human rights while Cuba’s representatives talked about their concern for U.S. human rights, especially recent police killings of unarmed black men in Ferguson, Missouri and New York City and the treatment of detainees at the U.S. base in Guantanamo Bay Cuba.

An unnecessary note of discord was introduced by a problem over the U.S. translation into Spanish of the Jacobson’s English-language post-session written statement. The statement (with the English word in question put in bold) said, “As a central element of our policy, we pressed the Cuban government for improved human rights conditions, including freedom of expression and assembly.” The U.S. translation of this statement used the Spanish verb “presionar,” which means to pressure. Josefina Vidal, the head of the Cuban delegation, however, said, “I can confirm that the word ‘pressure’ was not used. I must say it’s not a word that is used in these types of conversations.” Later the U.S. apologized for its erroneous translation.

Ms. Vidal cited as problems for restoration of diplomatic relations Cuba’s inclusion in the U.S. list of state sponsors of terrorism and the various financial restrictions imposed on the country as a result of the U.S. trade embargo. (Again note the two flags at the same podium in the photo to the right.)

Both of the countries’ leaders talked about the need for further discussions and negotiations to resolve these many issues. I expect the two sides to develop an agenda and plan for addressing these many issues, including dates and location for the next set of talks. In a subsequent post I will set forth my views, as an outsider, as to how these differences can be resolved.

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[1] This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015); Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015); Reuters, U.S. Presses Cuba on Human Rights in Talks on Restoring Ties, N. Y. Times (Jan. 22, 2015); Sosa, U.S. aims to go beyond the restoration of relations with Cuba, Granma (Jan. 22, 2015); DeYoung, U.S., Cuba find ‘profound differences in first round of talks, Wash. Post. (Jan. 22, 2015); Klapper & Weissenstine, U.S., Cuba End Historic talks with More Questions than Answers, Assoc. Press (Jan. 23, 2015); Respectful and constructive climate brand rapprochement between Cuba and the United States, Granma (Jan. 23, 2015); U.S. is willing to discuss their differences with Cuba, Granma (Jan. 23, 2015); Ayuso, US and Cuba confirm a channel for dialogue despite their differences, El Pais (Jan. 23, 2015); Ayuso, The dialogue between Cuban and the US stumbles on human rights, El Pais (Jan. 23, 2015); An exchange that made world headlines, Granma (Jan. 23, 2015); Jacobson, Video of Statement on U.S.-Cuba Meetings (Jan. 23, 2015); Assoc. Press, U.S., Cuba End Historic Talks With More Questions than Answers, N. Y. Times (Jan. 23, 2015); Assoc. Press, U.S. admits: we’re not sure if new Cuba approach will work, Guardian (Jan. 23, 2015).

[1] This post is based upon the following: Wroughton & Trotta, U.S. says mistrust must be overcome to restore Cuba Ties, Reuters (Jan. 22, 2015), http://www.reuters.com/article/2015/01/22/us-cuba-usa-idUSKBN0KV0E720150122;

Archibold, Conflict, and Smiles, as U.S. and Cuba Discuss Ties, N.Y. Times (Jan. 22, 2015), http://www.nytimes.com/2015/01/23/world/conflict-and-smiles-as-us-and-cuba-discuss-ties.html?ref=world;

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 15^th 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 15^th 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.