As previously noted, on July 6, the U.S. Commission on Unalienable Rights issued its Draft Report.[1] The Final Report was issued 51 days later on August 26 as “a consensus document that was signed and approved unanimously by all 11 commissioners.”[2]
The latter was after the Commission had solicited and obtained a large number of comments, mainly negative, about the Draft Report.[3] But presumably after reviewing those comments, the Final Report was issued with “only [unidentified] small changes.” The only public explanation of this decision was the following: “For the most part, the recent round of public comment restated perspectives and points shared before, during, and after the Commission’s five public meetings . . . and so already had been taken into account by the Commission.”
The most important criticisms of the Draft Report, which this blog shared, were its statement, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty.” Also criticized were the draft Report’s downgrading of “positive rights,” i.e., rights that “owe their existence to custom, tradition, and to positive law, which is the law created by human beings,” and Secretary Pompeo’s objections to women’s reproductive rights (especially abortion) and to LGBTQ rights.
Criticism of Draft Report
Here is a summary of some of the criticisms of the Draft Report from some of the respected international human rights non-profit organizations.
The Human Rights Watch submission stated, “With other organizations, we also remain concerned that the commission itself was not representative of the human rights community, did not take testimony from the full scope of the human rights community, and did not consider in its scope the range of issues the human rights framework aims to address. Freedom House pointed out that there already are mechanisms for interpreting human rights obligations of states at international and regional levels. The supposed gap the commission was created to fill is one that does not exist; therefore, the premise [for the Commission] is dubious and its work duplicative. . . . we continue to question its value and have increasing concerns about the repercussions that its work may have on the universality and efficacy of human rights protections and on the institutions designed to oversee compliance and implementation.” That submission also stated the following:
“The world has no shortage of actors who aim to weaken existing protections or call internationally recognized rights into question. Too often, that has included the United States. In recent years, the United States has moved sharply away from its longstanding if inconsistent role of seeking to advance human rights worldwide. Its decisions to withdraw from the United Nations Human Rights Council, stonewall UN human rights experts, make an extraordinary threat of vetoing a UN Security Council resolution on women, peace, and security because it mentioned survivors’ sexual and reproductive health and rights, and terminate funding for multilateral bodies like the United Nations Population Fund, UNESCO, and the World Health Organization that help advance rights to education and health worldwide have removed the United States as a key player on global human rights issues. The United States State Department’s creation of the Commission on Unalienable Rights purports to scrutinize well-grounded rights and obligations and reinterpret them in a way that deprivileges certain human rights but poses a risk to all rights. The United States should prioritize fulfilling its commitments, not redefining them to fulfill the wishes of a few.”
The Report “sets dangerous precedent that countries should decide which internationally recognized rights are or are not valid. . . . appeals to history and tradition are frequently abused by governments to justify their rejection of internationally recognized human rights norms. . . . Such an approach is likely to fragment and weaken the international human rights system, not strengthen or revitalize it. “
The Declaration of Independence and UDHR “are statements of principle, not obligation. Using these documents without also considering relevant human rights treaties and other sources of international law to guide human rights policy leads to a distorted understanding of the United States’ binding international obligations and commitments.”
The Report “spends little time on the adoption of the Constitution, the Bill of Rights, the Reconstruction Amendments, the enfranchisement of women, the strengthening of due process under the Warren Court, the passage of the Civil Rights Act, Fair Housing Act, and Americans With Disabilities Act, and jurisprudence recognizing the right to reproductive autonomy and the rights of lesbian, gay, bisexual, and transgender people. Similarly, it does little to acknowledge increased recognition over the years of economic and social rights as central to human rights discourse.”
U.S. “obligations under core human rights treaties coexist with other commitments the United States has made to respect, protect, and fulfill human rights, which are largely absent from the commission’s report.”
“The human rights project is facing challenges, but they are “not a matter of too many people seeking or claiming their rights. Instead, they are challenges that arise from autocratic or authoritarian governments that have denied fundamental rights, silenced vulnerable populations, and diminished the institutions and civil society groups that protect human rights from erosion.”
“The [draft] report erroneously suggests “that human rights that are inconsistent with domestic traditions are less meaningful or real than those the United States deems to favor.. . . [and] does not sufficiently acknowledge the maintenance, scrutiny, and accountability that upholding human rights requires.”
“Efforts to secure access to abortion are . . . about rights to life, to health, and to bodily autonomy. Similarly, efforts to secure the freedom to marry are . . . about the right to form a family and equal access to existing rights and protections without discrimination based on sexual orientation or gender identity.”
Two other such organizations offered similar comments. Freedom House: Trump Administration ignored or excused violations by Egypt, Turkey, Saudi Arabia, China, Russia, N. Korea and rebuffed pressure for racial justice in U.S. The draft report also rejects LGBT+ people, women and minorities. In addition, Freedom House rejects prioritization of rights and failure to recognize change views of rights over time (Pp 21-22). Human Rights First said proliferation of rights claims has not undermined legitimacy and credibility of human rights framework; treaties have not created uncertainties; rights hierarchies are wrong; abortion, affirmative action & same-sex marriage are valid rights; effort to preclude extension of new rights is wrong. It is retreat from human rights. (Pp 80-94).
According to Kenneth Roth, the Executive Director of Human Rights First, Secretary Pompeo “has imposed his personal preferences [in the Final Report]while relying on arguments that pose a profound threat to all human rights as well.”
The Final Report “is a frontal assault on international human rights law. The report treats the Universal Declaration of Human Rights [UDHR], adopted in 1948 and drafted with the help of Eleanor Roosevelt, as the heyday of the human rights movement.” But this important document “is a non-binding political declaration. It has been followed over the years by a series of legally binding treaties, each with an independent expert committee elected by treaty members to interpret its language and monitor compliance. The commission disparages this legal elucidation as a ‘proliferation’ of rights, suggesting that there are now too many rights.”
Initially, the UDHR was codified in two legally binding covenants. One, on civil and political rights, contains provisions similar to the US Constitution, and the US government has ratified it. Another, on economic, social, and cultural rights, finds parallels in US law but not the US Constitution. The US government signed but never ratified it or fully embraced its rights.”
“After these foundational covenants, a handful of other treaties were adopted, spelling out, for instance, the meaning of the prohibition of torture or ways to protect women, racial minorities, children, and people with disabilities from discrimination. What Pompeo’s commission disparages as “proliferation” is in fact a process to ensure respect for the rights of people who traditionally have been marginalized or neglected.”
The Commission seemed most concerned with “interpretations of human rights law to protect reproductive freedom and the rights of LGBT people. In the case of LGBT rights, for example, the Human Rights Committee—the official body for interpreting the civil and political rights covenant—has found that the prohibition of discrimination on the basis of sex includes discrimination based on sexual orientation, just as the US Supreme Court recently found that sex discrimination includes discrimination against LGBT people.”
“The Pompeo commission’s discomfort with the Human Rights Committee is why it lionizes the non-binding [UDHR]. The declaration, as a statement of principles, has no accompanying interpretive body of law. That allows the US government to interpret its broad principles on its own, as if the covenants had never been adopted as its legally binding version.”
The Commission “seems to favor an a la carte approach to rights: The US government will pick the rights that it wants to observe, and others can do the same. That approach would be music to the ears of the world’s autocrats, and many will happily take the opportunity to trample on certain basic rights that Pompeo himself has rightly defended in places like Hong Kong.”
“To effectively abandon binding treaties for the Pompeo commission’s a la carte approach is to relegate human rights to the vagaries of government preferences. That’s not a system of human rights. It’s an excuse for repression, discrimination, and abuse.”
Conclusion
The Final Report also completely ignores the language of the U.S. Declaration of Independence. After reciting “life, liberty and the pursuit of happiness” as among “certain unalienable rights” that “ are endowed by their Creator,” the Declaration next states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, governments will need to enact various kinds of statutes and other rules “to secure . . .life, liberty and the pursuit of happiness.”
[3] The Commission’s website has a page for Public Submissions to the Commission, but they are limited to submissions before the issuance of the Draft Report in light of this statement, “At each of its public meetings, the Commission solicited input from the general public on relevant topics regarding human rights. Sometimes comments came from audience members who attended the meetings in person and who generously offered their thoughts and posed questions to commissioners at the microphone. Other times, outside individuals and groups opted to send more detailed written commentary to the Commission.”
The Draft Report of the U.S. Commission on Unalienable Rights and its immediate endorsement by Secretary Pompeo raise many issues.[1]
Here is an evaluation of three of those issues: (1) property rights and religious freedom as the alleged paramount human rights; (2) the report’s skepticism of new and additional rights; and (3) Pompeo’s exceedingly hostile criticism of the New York Times’ “The 1619 Project.”
Looking at the Commission’s Report for the first time, I was shocked to read, “Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty,” neither of which is specifically mentioned in the U.S. Declaration of Independence as an inalienable right. Moreover, the Report did not purport to document the bases for this conclusion other than inserting these unconvincing statements:
“For the founders, property refers not only to physical goods and the fruit of one’s labor but also encompasses life, liberty, and the pursuit of happiness. They assumed, following philosopher John Locke, that the protection of property rights benefits all by increasing the incentive for producing goods and delivering services desired by others.”
“‘The benefits of property rights, though, are not only pecuniary. Protection of property rights is also central to the effective exercise of positive rights and to the pursuit of happiness in family, community, and worship. Without the ability to maintain control over one’s labor, goods, land, home, and other material possessions, one can neither enjoy individual rights nor can society build a common life. Moreover, the choices we make about what and how to produce, exchange, distribute, and consume can be tightly bound up with the kinds of human beings we wish to become. Not least, the right of private property sustains a sphere generally off limits to government, a sphere in which individuals, their families, and the communities they form can pursue happiness in peace and prosperity.”
The Report then immediately and properly admits the inconsistency between the purported status of property rights as a “foremost inalienable right” and the existence of slavery when the Declaration of Independence was adopted in 1776. Here is that admission: “The importance that the founders attached to private property only compounds the affront to unalienable rights involved at America’s founding in treating fellow human beings as property.”
In addition, the concept of property rights is not mentioned in the Report’s earlier assertions about the origins of the American concept of unalienable rights from three traditions: “Protestant Christianity, widely practiced by the citizenry at the time, was infused with the beautiful Biblical teachings that every human being is imbued with dignity and bears responsibilities toward fellow human beings, because each is made in the image of God. The civic republican ideal, rooted in classical Rome, stressed that freedom and equality under law depend on an ethical citizenry that embraces the obligations of self-government. And classical liberalism put at the front and center of politics the moral premise that human beings are by nature free and equal, which strengthened the political conviction that legitimate government derives from the consent of the governed.”
The shock of this designation of alleged “foremost” human rights makes one wonder whether it was a last-minute insertion, perhaps by Secretary Pompeo himself, who said in his speech immediately after the presentation of the Commission Report, ““The report emphasizes foremost among these rights are property rights and religious liberty. No one can enjoy the pursuit of happiness if you cannot own the fruits of your own labor, and no society – no society can retain its legitimacy or a virtuous character without religious freedom.” (Emphasis added.)
Many commentators have attacked the contention that property rights and religious freedom were the “foremost” rights.
Daniel W. Drezner, a professor of international politics at the Fletcher School of Law and Diplomacy at Tufts University, asserts that “there are obvious elements of liberty . . that are disconnected from any conventional understanding of property rights concept. The First Amendment right to peaceably assemble, for example, seems like a core aspect of liberty and yet does not quite work as a property right per se.” In addition, when the Report refers to rights that are “fundamental” and “core concept” and “absolute or nearly so” rights, it refers to the right to vote, human dignity and the prohibition against genocide and makes no connection to property rights or religious rights.
Another critique came from Akila Radhakrishnan, the president of the Global Justice Center, an international human rights organization. He said, “You’re seeing the rise of autocrats across the world. You’re giving a gift to those people, and not only taking away U.S. leadership, but giving them and feeding them arguments they’ve long been making as well.”
U.S. Senator Bob Menendez (Dem., NJ), criticized Pompeo’s designation of property rights and religious liberty as “foremost” rights while other rights were less important. This argument, the Senator said, purports to justify “the rollback of hard-won advances for the rights of women, girls, and LGBTQ persons” and “does not call on the U.S. Government to champion greater protections for all human rights abroad, but may in fact narrow the scope of U.S. human rights obligations and further erode America’s moral and global leadership.” This Report, therefore, “will undermine long-standing, internationally-recognized human rights principles and a human rights framework which prior U.S. presidents and administrations have championed for decades, regardless of party.”
The Report’s elevation of religious freedom presented problems to Rori Kramer, the director of U.S. advocacy for American Jewish World Service and a former deputy assistant secretary of state and a senior foreign policy adviser in the U.S. Senate. This decision “purposefully [confuses] the individual freedom to worship with a state license to advance a particular religious agenda [and] is a gross misreading of the United States’ founding document.”
Kramer added, the Report and Pompeo do not reveal the promotion of Pompeo’s own religious agenda that “downplays threats to the human rights of the world’s most vulnerable groups, such as women and LGBTQI+ people.” Indeed, Pompeo’s State Department already has removed “references to sexual and reproductive health from international resolutions and statements, as well as from the work of the department itself. And he has dramatically expanded the global gag rule, the draconian policy which prohibits foreign organizations receiving U.S. funding from providing any kind of information, referrals or services about abortion.”
Tarah Demant, director of the gender, sexuality and identity program at Amnesty International USA, said: “The US government cannot unilaterally redefine which human rights will be respected and which will be ignored. The U.S. State Department’s effort to cherry-pick rights in order to deny some their human rights is a dangerous political stunt that could spark a race to the bottom by human rights-abusing governments around the world.”
A more general critique of the idea of too many subgroups demanding rights came from Elisa Massimino, the 2019-2020 Robert F. Drinan, S.J., Chair in Human Rights at Georgetown University Law Center and a senior fellow at the Center for American Progress., and Alexandra Schmitt, a policy analyst at the Center for American Progress. They say the UDHR’s preamble expressly recognizes the inherent dignity and of the equal and inalienable rights” of all humans and makes clear that all of them are interrelated and must be treated as indivisible in order to fulfill the promise of human dignity. It is a simple and radical document — a Magna Carta for all humankind.”
Therefore, Massimino and Schmitt say, “What the global human rights movement needs right now is for the United States to fully embrace the universality and indivisibility of human rights as set out in the Universal Declaration, provide a full-throated defense of human rights abroad and engage in an honest effort to address deep and persistent rights violations at home. It’s clear that Pompeo has no intention of leading such an effort; to the contrary, he is actively undermining it. To the extent that he tries to leverage the commission’s report as cover for his campaign to “prioritize” freedom of religion over other universal rights, American officials — and Congress, in particular — must be prepared to push back.”
The Report and Pompeo are skeptical of claims for additional rights, both domestically in U.S. law and in international treaties.
The Report puts it in this manner: “The effort to shut down legitimate debate by recasting contestable policy preferences as fixed and unquestionable human rights imperatives promotes intolerance, impedes reconciliation, devalues core rights, and denies rights in the name of rights. In sum, the [U.S.] should be open to, but cautious in, endorsing new claims of human rights.” Who could be against caution?
Pompeo also was indirect. He said, “Our dedication to unalienable rights doesn’t mean we have the capacity to tackle all human rights violations everywhere and at all times. Indeed, our pursuit of justice may clash with hard political realities that thwart effective action.” And “Americans have . . . positive rights, rights granted by governments, courts, multilateral bodies. Many are worth defending in light of our founding; others aren’t. . . . Prioritizing which rights to defend is also hard.. That’s a lot of rights. And the proliferation of rights is part of the reason why this report is so important.”
In so doing, the Report and Pompeo forget or ignore the Declaration of Independence, which does not have the force of law and which immediately after mentioning “certain unalienable rights” (life, liberty and the pursuit of happiness) states, “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.” In other words, the U.S. Declaration expressly contemplates, if not requires, that the U.S. government under the subsequent U.S. Constitution, will enact statutes to secure these unalienable rights and thereby create additional rights.
The UDHR, which also does not have the force of law, has the same contemplation and requirement when in its Preamble, it states, “it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law” and in its Proclamation states, “every individual and every organ of society . . . shall strive . . . by progressive measures, national and international, to secure their universal and effective recognition and observance.” In other words, the UDHR expressly contemplates, if not requires, that individual governments and international organizations will adopt subsequent statues and treaties to secure the rights of the UDHR.
The Report nevertheless favorably and correctly refers to the many “positive rights,” which “are created by, and can only exist in, civil society. Positive rights owe their existence to custom, tradition, and to positive law, which is the law created by human beings” and which “may evolve over centuries, may be legislated at a distinct moment, and may be revised or repealed.”
The Report emphasized this fact by quoting James Madison’s June 1789 speech to Congress in favor of a Bill of Rights [which was adopted in 1791). He stressed that despite different origins , “freedom is a function of positive rights elaborated in various legal codes as well as rights that belong to all human beings.” The Report also mentions that “American legislatures in the late 19th and early 20th centuries . . . began to enact protections for workers that were framed in the language of rights . . . . that entail difficult judgments about the allocation of material resources . . .[and that primarily are the tasks for legislatures.]”
Time has not stood still since 1776 when the U.S. Declaration was adopted or 1789 when the U.S. Constitution was ratified and the U.S. Government was established. The same is true with respect to the international organizations and treaties established after the adoption of the UDHR in 1948. Therefore, it is not surprising to have additional rights created over time in statutes and treaties.
Fourth, numerous commentators have criticized the Report and Pompeo on this issue.
As Molly Bangs in Truthout notes, the Report does not endorse protections against discrimination on the basis of gender, race or sexual orientation and instead asserts that “abortion, affirmative action, and same-sex marriage [are] divisive social and political controversies in the [U.S.]” This is “a signal of how the Commission and Pompeo intend to weaponize religious freedom at the expense of other human rights.”
A similar criticism came from Amnesty International, saying, the U.S. “has disgracefully sought to abandon its obligations to uphold the human rights to health and freedom from discrimination, among others. The US government is not legally allowed to unilaterally redefine its obligations under international human rights treaties, which almost all countries in the world have agreed to uphold.” According to Amnesty, the U.S. “now is seeking to deny reproductive rights, LGBTI rights and socio-economic rights, among others – which it frames as ‘divisive social and political controversies’ – by unilaterally redefining what ‘human rights’ mean.”
The Council on Foreign Relations’ Senior Fellow on Global Governance, Stewart M. Patrick, said Pompeo’s ideas, “if successful, would undermine the cause of freedom, equality and justice, both at home and abroad.” Indeed, the Report “reflects a conservative desire to roll back recent progressive advances” and it alleges, without any evidence, that “the prodigious expansion of human rights has weakened rather than strengthened the claims of human rights and left the most disadvantaged more vulnerable.” Stewart also points out the Report’s “utter disconnect from the Trump administration’s hypocritical human rights policy,” including “the president’s curious affinity for illiberal leaders ranging from Russia’s Vladimir Putin and China’s Xi Jinping, to Turkey’s Recep Tayyip Erdogan, Saudi Arabia’s Mohammed bin Salman, the Philippines’ Rodrigo Duterte and Brazil’s Jair Bolsonar.”
Human Rights Watch had similar thoughts. While the Report expresses “concern” about a “proliferation” of human rights claims, it should have focused more on “the growing number of autocratic, authoritarian governments that brazenly cast them aside.” Therefore, this organization has submitted a formal comment to the Commission before it revises, if at all, the draft Report.
The most strident critique of the Report comes from Robert Blitt, a professor at the University of Tennessee College of Law, who says it “will only strengthen the Kremlin’s longstanding effort to undercut the international human rights system.” While the U.S.recently resigned from the U.N. Human Rights Council, Russia is campaigning for a seat on that body by promising to prevent the use of human rights issues as pretexts for interference in the internal affairs of sovereign states.
In his speech commending the Commission Report, Pompeo said, “TheNew York Times’s 1619 Project – so named for the year that the first slaves were transported to America – wants you to believe that our country was founded for human bondage, that America’s institutions continue to reflect the country’s acceptance of slavery at our founding. . . [and] that Marxist ideology [correctly says] America is only the oppressors and the oppressed. [This 1619 Project] is a slander on our great people. Nothing could be further from the truth of our founding and the rights about which this report speaks.”[5]
Yes, the 1619 Project sets forth important and troubling facts about the introduction of slavery into the American colonies in 1619 that are not well known or taught, that should be known by all Americans and that should not be met with Pompeo’s unjustified ad homonyms of “Marxist ideology” and “a slander on our great people.”
The Times’ introduction of this project stated its goal was “to reframe American history by considering . . . 1619 as our nation’s birth year . . . when a ship arrived . . . in the British colony of Virginia , bearing a cargo of 20 to 30 enslaved Africans [and inaugurating] a barbaric system of chattel slavery that would last for the next 250 years. . . . Out of slavery—and the anti-black racism it required –grew nearly everything that has truly made America exceptional: its economic might, its industrial power, its electoral system, diet and popular music, the inequities of its public health and education, its astonishing penchant for violence, its income inequality, the example it sets for the world as a land of freedom and equality, its slang, its legal system and the endemic fears and hatreds that continue to plague it to this day.”
More details of this early history were provided in The 1619 Project by Nikole Hannah-Jones, a MacArthur “Genius” fellow and a Times staff writer, who authored “The Idea of America.” Here are a few of those details:
“Before the abolishment of the international slave trade, 400,000 enslaved Africans would be sold into America.”
“Chattel slavery . . . was heritable and permanent, . . ., meaning generations of black people were born into it and passed their enslaved status onto their children. Enslaved people were not recognized as human beings but as property that could be mortgaged, traded, bought, sold, used as collateral, given as a gift and disposed of violently.”
“Enslaved people could not legally marry. They were barred from learning to read and restricted from meeting privately in groups. They had no claim to their own children, who could be bought, sold and traded away from them on auction blocks. Enslavers and the courts did not honor kinship ties to mothers, siblings, cousins.”
“In most courts, they had no legal standing.”
“One of the primary reasons the colonists decided to declare their independence from Britain was because they wanted to protect the institution of slavery.”
Although the Declaration of Independence, did not apply to them, “black Americans believed fervently in the American creed” and “through centuries of black resistance and protest, we have helped the country to live up to its founding ideals.”
Six of the U.S. Constitution’s 84 clauses deal directly with the enslaved and their enslavement and another five clauses have implications for slavery.
Through their labor, they helped build “vast fortunes for white people North and South.”
Although the Commission Report does not mention these facts about 1619 and slavery, it does confess the evils of slavery in America:
“Respect for unalienable rights requires forthright acknowledgement of not only where the United States has fallen short of its principles but also special recognition of the sin of slavery — an institution as old as human civilization and our nation’s deepest violation of unalienable rights. The legally protected and institutionally entrenched slavery that disfigured the United States at its birth reduced fellow human beings to property to be bought, sold, and used as a means for their owners’ benefit. Many slave-owning founders, not least Thomas Jefferson, recognized that in the light of unalienable rights, slavery could only be seen as a cruel and indefensible institution. In contemplating slavery in his Notes on the State of Virginia, he wrote, “I tremble for my country when I reflect that God is just.” Nevertheless, it would take a grievous civil war, costing more American lives by far than any other conflict in the nation’s history, to enable the federal government to declare slavery unlawful. It would take another century of struggle to incorporate into the laws of the land protections to guarantee African Americans their civil and political rights. Our nation still works to secure, in its laws and culture, the respect for all persons our founding convictions require.” (Emphasis added.)
Even today, the Report admits, “the nation must be humble in light of the work that remains to be done.” The Report also confesses, “the brutal killing of an African-American man [George Floyd] in the late spring of 2020 and the subsequent civic unrest that swept the country underscore that much still must be accomplished.”
But the Report does not trace the history of slavery in America back to its founding in 1619 or admit that for the first 157 years of that history African-American slaves had no legal basis to challenge their being held in slavery. The Report only indirectly alleges that after 1776 the slaves had an inchoate right to argue that the unalienable rights mentioned in the U.S. Declaration of Independence were contrary to slavery, but admits that it was only after the bloody Civil War and the 1865 adoption of the Thirteenth Amendment that slavery was legally abolished. The Report also admits that even that was not enough to abolish the discrimination against African-Americans with the subsequent Jim Crow laws, lynching and other discriminations.
The Times’ initial publication of the 1619 Project in August 2019 has many articles and has prompted publication of many other articles on this subject. Perhaps there are errors of fact or interpretation in these many articles, but the appropriate way to counter such errors is by dispassionate fact-based scholarly articles and books, not by wild-eyed accusations of Marxism and slander. Take note, Secretary Pompeo.
In direct response to Pompeo’s criticism of the 1619 Project, Eileen Murphy of the Times said, ““The 1619 Project, based on decades of recent historical scholarship that has deepened our understanding of the country’s founding, is one of the most impactful works of journalism published last year. We’re proud that it continues to spark a dialogue that allows us to re-examine our assumptions about the past.”
Pompeo, a former Kansas GOP congressman, is known to be eyeing a potential future presidential run, and his critics immediately pointed out that the speech endorsing the Commission report had plenty of fodder for the electoral base of the Republican Party, including the media-bashing.
There was additional fodder for that possible presidential run the very next day when Pompeo and his wife went to Iowa (an important presidential nominating state) for a speech (reprinted on the State Department website) before a gathering of a conservative Christian group opposed to divorce, abortion and other sexual orientations. There Pompeo bragged that under his leadership the State Department has a “pro-religious freedom foreign policy . . . . [and] a 100 percent pro-life foreign policy. Our administration has defended the rights of unborn like no other administration in history. Abortion quite simply isn’t a human right. . . . So we’ve reinstated the Mexico City Policy, so that not a single dime of American taxpayer money will ever go to a foreign NGO that performs active abortions anywhere in the world. In the fall of last year. . . we mobilized 20 countries to deliver a joint statement at the UN criticizing pro-abortion language in UN documents.”[7]
Conclusion
The Commission invited comments through July 30/31 on their draft report, and its website has so far posted 133 pages of such comments, which will be discussed in a future post. Thus, we and others need to wait to see if any of these comments prompt changes to the report.[8]
[5] Pompeo’s attack on The 1619 Project may have been precipitated or suggested by U.S. Senator Tom Cotton (Rep., AR), who has been engaged in a feud with the New York Times over its controversial publishing of his op-ed about the use of U.S. military troops in cases of insurrection or obstruction of the laws in U.S. cities. (Tom Cotton: Send in the Troops, N.Y. Times (June 3, 2020).) One week after publication of the Commission Report, a Cotton press release said, “The . . . 1619 Project is a racially divisive, revisionist account of history that denies the noble principles of freedom and equality on which the nation was founded” as the purported justification for his introducing the Saving American History Act of 2020 to prohibit the use of federal funds to teach the 1619 Project by K-12 schools. (Cotton, Press Release: Cotton Bill to Defund 1619 Curriculum (July 23, 2020).) Soon thereafter Cotton in an interview by an Arkansas newspaper said, “As the Founding Fathers said, [slavery] was the necessary evil upon which the union was built.” (Reuters, Republican Senator Cotton Criticized for “Necessary Evil” Slavery Comment, N.Y. Times (July 27, 2020).)
This was the title of the November 4 sermon by Executive Associate Pastor, Rev. Meghan K. Gage-Finn, at Minneapolis’ Westminster Presbyterian Church’s “Gathered at Five,” a casual, conversational worship service at 5:00 pm. The location: Westminster Hall in the church’s new addition. Below are photographs of Rev. Gage-Finn and the Hall.
(This sermon commented on All Saints Day, which was celebrated in the regular morning worship service with Rev. Tim Hart-Andersen’s “What Endures?” sermon.)
“This morning in worship we celebrated All Saints’ Day, remembering the names and lives of those in our congregation who died in the last year. We paused to recall their faces, their voices, their service to Westminster and community. The celebration of All Saints’ Day in the church began in the 9th century, but today in our context it is less about honoring the Saints (with a “Capital S”) and more about giving glory to God for the ordinary, holy faithful ones of our time whom we remember and love. It is yet another chance to declare and rejoice that nothing in all of creation can separate us from God’s love, as we pray that God’s good purposes would be worked out in us, that we would be helped in our weaknesses as we await the redemption of all things.” (Emphasis added.)
“It is a day when we think and talk about death and when we name the courage and hope with which others have lived, and imagine how we might model our lives of faith in the same way.”
“[For someone with a conflicted relationship with one of our deceased, All Saints Day was a] reminder that the final death of that relationship in life opened up something, created space for something new to emerge and begin. It was almost as if the death made way for a waiting change that couldn’t otherwise take shape.”
“This [observation] has pushed me to wonder about what we hold onto or are trapped by in our lives, and what happens when we are released from these burdens. In the context of All Saints’ Day, it led me to the question of, ‘What needs to die?’” (Emphasis added.)
“[The Ruth and Naomi story in Isaiah shows] cultural and religious norms at play for [them], which both women push back against. Both have to let these die in a way Orpah cannot, and because of this a new way forward opens up for them. They embrace each other and find healing and genuine friendship. [1]
“Dutch priest and theologian Henri Nouwen observed, ‘The dance of life finds its beginnings in grief … Here a completely new way of living is revealed. It is the way in which pain can be embraced, not out of a desire to suffer, but in the knowledge that something new will be born in the pain.”[2]
“The women of the book of Ruth certainly didn’t desire to suffer, but in their journey of letting go, of letting expected structures and frameworks die, they found knowledge in the birth of something new.”
For about the past 8 years I have been involved in a progressive movement of the PC (USA) called NEXT Church, which . . . seeks to build the relational and connectional fabric of the denomination, by cultivating leaders and congregations to serve a dynamic church in a changing context. About 4 years ago I came onto the leadership board of NEXT, [which] . . . set a goal of having representation of 50% people of color around the table.”
“I was in the meeting when this was decided, and I am pretty sure we all thought we could say it, wave our magic white privilege wands, and sprinkle the same old Presbyterian power dust, and so it would be. We quickly found it was going to take more intentionality than that to build any type of appreciable change, and that, of course, bringing balance to the leadership board needed to be based on relationships. And in a denomination that is 95% white, nurturing lasting relationships between white people and people of color takes a whole lot more than wand waving, magic dust, and good intentions.”
“I can report that now, in 2018, we have achieved the goal set 3 ½ years ago, but we find ourselves as a leadership board in a very tenuous and precarious situation. We have called people of color from across the denomination and country, but what we haven’t done is change how we are organized, how we communicate, how we make decisions, how we raise money, and we haven’t brought about change to any other critical structural framework within the organization.”
“And that has created an environment where trust and welcome haven’t been properly established, openness and safety is lacking, blinders are on and assumptions are prevalent. Frankly, it feels like a mess, but we are doing our best to wade through it together.”
“We are reading as a board Robin Diangelo’s book White Fragility, and discussing it in small and large groups. Personally, Diangelo’s book casts a harsh light on things I have said and silences I have kept, decisions I have made and systems I have benefited from since before I was even born. I thought I had some understanding of my own privilege and whiteness, but I have so much work to do.”
“As for the state of our board community, it is complicated, but I hope it is akin to what happens when you clean out your closet or basement or garage, any place that has old, outdated pieces of you and your history, things you have carried around that weigh you down, or maybe you even look at them all the time, but you hardly even realize they are there. Letting go, letting things die in order to create space for newness of life — sometimes it has to get worse before it gets better.”
“It is All Saints’ Day, and death is, and can be all around us, if we would but recognize it.”
“I recently read Atul Gawande’s Being Mortal. [3] Gawande is a surgeon in Boston and professor at Harvard Medical School, an accomplished writer, and he also runs a non-profit organization that strives to make surgery safer across the globe. And for his work in public health, he is a MacArthur Fellowship winner. He is one of those people who causes you question if you are really making the most of the 24 hours you are given each day.”
Being Mortal explores the relationship we have with death, both as individuals as our bodies fail us, but also as a society, as generations age and needs change and death approaches. He speaks of the experience of one patient, Felix, who said to him, ‘Old age is a continuous series of losses.”[3]
“I think in NEXT Church right now the white folks are feeling the reality of that necessary series of losses- the way we are accustomed to doing things, the loss of hiding behind our cult of whiteness, the default of not sharing, the posture of being the experts in the room. And since so much of this is deeply ingrained and largely unconscious, letting it die means naming its life in us first. In some ways, maybe even these losses are what is hardest, or as Gawande reflects: ‘It is not death that the very old tell me they fear. It is what happens short of death—losing their hearing, their memory, their best friends, their way of life.’ For many of us, our way of life works really well for us and for people like us, at the cost of the way of life of so many others.”
“Luther Seminary Professor Karoline Lewis, in writing on All Saints Day, says, ‘We allow death to have its way and a say before it should. We allow death to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God, in our midst. And finally, we allow death to have more power than resurrection.”[4]
“The same could be said of racism and the other social evils and ills of our day– we let them have their way and say and we allow them to determine a way of being in the world that has acquiesced to a matter of factness, an inevitability that truncates the power of the Kingdom of God, the presence of God in our midst. We allow racism to have more power than resurrection.”
“[Gawande also says,]’Whenever serious sickness or injury strikes and your body or mind breaks down, the vital questions are the same: What is your understanding of the situation and its potential outcomes? What are your fears and what are your hopes? What are the trade-offs you are willing to make and not willing to make? And what is the course of action that best serves this understanding?’”
“So once we name the things that need to die–racism, anti-Semitism, sexism, classism, heteronormativity, the fracturing of our political bedrock, we must ask ourselves these same questions:
What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
And what is the course of action that best serves this understanding ?” [5]
“Just as Gawande emphasizes the concept of being an active participant in mortality and the dying process, so too must we be active participants in bringing about the death of the social sicknesses and diseases which are killing our children, our communities, our siblings of color, separating us from the Good News of Jesus Christ in the world, and separating us from God’s beloved.”
“So I close by giving us space in silence to ask ourselves these questions–what needs to die and in that dying and rising, what are your fears and hopes? What is the course of action that best serves this dying and new life? What new creation might God work through that death? How can you make room for the power of the Kingdom of God, the power of resurrection life”
Closing Prayer
“This is the Good News we know–you are God with us and you are here. By the power of your Spirit, help us to name what needs to die, help us to grieve the losses, but push us to move forward in the hard work ahead, to change ourselves and the communities you have created, that we might be repairers for the world. In Christ’s name we pray, Amen”
Reflections
This sermon had a surprising and different slant than that of Rev. Tim Hart-Andersen’s sermon (What Endures?) at the morning service.
Rev. Gage-Finn focused on societal beliefs and actions that need to die: racism, anti-Semitism, sexism, classism, heteronormativity and the fracturing of our political bedrock. These beliefs and actions, she says, should prompt us to ask these questions:
“What is my understanding of the situation and its potential outcomes?
What are my fears and what are my hopes?
What are the trade-offs I am willing to make and not willing to make?
What is the course of action that best serves that understanding?
This concentration on societal and political problems, while understandable, can lead to reading and studying about the problems and to a sense of hopelessness. What can I do as one individual to combat such large problems? Instead, I suggest, we should focus on what can I do in my everyday life to combat these problems? And is there at least one of these problems where I can get more deeply involved by studying and getting active in a group that attacks the problem?
For me, blogging about law, politics, religion and history is one way to study and advocate for change on these and other issues. I also am active in various Westminster programs that address some of these issues.
And I make financial contributions to groups that concentrate on these issues, including the Equal Justice Initiative, a nonprofit law organization that has challenged mass incarceration, excessive punishment, imposition of death penalty, abuse of children, and discrimination against the poor and disabled; Advocates for Human Rights; Center for Victims of Torture; American Refugee Committee; immigrant Law Center; Amnesty International; Human Rights Watch; Center for Constitutional Rights; American Civil Liberties Union; and Center for Justice and Accountability. I urge others to add these groups to their charitable contributions.
In my everyday life, I seek to smile and greet people, regardless of race, I encounter while walking downtown.
The Isaiah passage also poses even more challenging personal questions: What am I trapped by in my life and what happens when I am released from these burdens?
[2] Henri J. Nouwen & Michael Ford. The Dance of Life: Weaving Sorrows and Blessings into One Joyful Step. (Notre Dame, IN: Ave Maria Press) 2005, p. 56.
Prior posts have discussed Cameroon’s deadly confrontations with Boko Haram terrorists in the northern part of the country and the violent conflicts between its Anglophone and Francophone populations. [1] Here is a report on developments in these matters plus the country’s upcoming presidential election.
Human Rights Watch (HRW) on July 19 blamed both sides for “grave abuses” against civilians and the forced evacuations of more than 180,000 people from their homes. HRW said, “Anglophone separatists have extorted, kidnapped and killed civilians, and prevented children from going to school. In response to protests and violence by armed separatists, government forces have killed civilians, used excessive force against demonstrators, tortured and mistreated suspected separatists and detainees, and burned hundreds of homes in several villages.”
The Cameroonian government, rejecting the HRW report, said the level of force it used remained “proportional to the extent of the threat.” It also condemned separatist attacks and defended its security forces, saying all alleged atrocities are investigated. Just because such investigations “are not always widely disseminated to the public does not in any way mean that they are not taken.”
The Boko Haram Conflict
As discussed in a prior post, on July 12 Amnesty International (AI) reported the existence of a grainy video on social media showing two women — one with a baby on her back and another holding hands with a young child — walking across a dirt patch. Behind them were armed men one of whom yells in French “You are B.H.[Boko Haram], you are going to die.” The men blindfolded them and forced them to kneel. The armed men then raised their rifles and shot them.
Four days later the U.S. Government issued a statement expressing it was “gravely concerned” over this incident and called on “the Government of Cameroon to investigate thoroughly and transparently the events depicted in the video and to take appropriate steps to bring the men to justice.
On July 19 the Cameroonian Government announced that it had arrested four soldiers suspected of killing the women and children, and an army officer in that region said the arrestees “are suspected of being the authors of the executions in the video.” Four other Cameroonian military sources told Reuters that the video did show Cameroonian soldiers and that the video was filmed in 2014 or 2015 in the early operations against Boko Haram.[3]
Cameroon’s Upcoming Presidential Election
Meanwhile, more than 20 candidates have registered to run against longtime President Paul Biya in October’s presidential election. Attempts to have opposition forces back one candidate failed, making Biya’s reelection most likely.[4]
Morocco’s human rights and other issues have been explored in previous posts. Here then is an update on recent updates on the country’s human rights.
An article in the Washington Post reports, “Last month , the Moroccan Parliament once again debated legislation long sought by women’s rights activists here that would make it a crime to harass a woman in public, whether physically or verbally. Under the latest proposal, a conviction could draw a month to two years in prison. But the bill remains mired in political wrangling between reformers and members of the conservative parties.”[1]
The reason for the troubled status of this bill, according to this article, is “Morocco is a deeply conservative, patriarchal society with a ruling Islamic party that won handily in a parliamentary election last year.” Khadija Ryadi, former president of the Moroccan Association of Human Rights, said, “Everything that concerns women’s rights is connected to religion.” Another Moroccan, Amal Idrissi, a law professor at Moulay Ismail University in the city of Meknes, disagrees. He says the reason for the country’s failure to adopt laws protecting women’s rights is not religion. It’s patriarchy.”
More broadly, this September, according to the article, “Morocco rejected 44 of 244 recommendations made by the U.N. Human Rights Council following its latest UPR [Universal Periodic Review] . . . of the country’s rights record. All 44 pertained to either women’s rights or individual rights, including laws that prevent women and men from inheriting equally and that deny rights to children born out of wedlock.” In so doing, “Morocco said its constitution must adhere to Islamic law — a striking illustration of the traditional and religious thinking hampering the country’s efforts to appear as a beacon of moderation in the region.”
Actually the 244 recommendations were made by various states or Morocco and “should not be construed as endorsed by the [Council’s] Working Group as a whole.”
U.N. Human Rights Council’s Latest UPR of Morocco
In September 2017, the Human Rights Council adopted a report by the Working Group on Morocco, but research to date has not located the Council’s official record of that action.[2]
However, Alkarama, a Geneva [Switzerland]-based non-governmental human rights organization established . . .to assist all those in the Arab world” who are at risk of human rights violations, published a press release about the outcome of this UPR. It stated that Morocco had accepted the majority of the recommendations (191 out of 244) while 44 were fully or partially rejected.
Human Rights Organization’s Reactions to Morocco’s UPR[3]
Alkarama
Alkarama applauded Morocco’s acceptance of the majority of the recommendations, but expressed the following concerns:
Morocco’s rejection of recommendations by Sweden and the U.S. “for an end to “the prosecution of journalists” and “the detention of some individuals for solely exercising their freedom of expression and freedom of peaceful assembly and association.” Therefore, Alkarma called for calls for “the implementation of [these] recommendations and the immediate release of any person detained for exercising his or her right to freedom of expression.”
The need for Morocco to honor the promise by its Minister of State for Human Rights “to cooperate with the UN human rights mechanisms, . . . to implement the accepted recommendations starting . . . next year . . . . [and] to implement the Opinions of the UN Working Group on Arbitrary Detention . . . calling for the immediate release of victims of arbitrary detention.”
The need for Morocco “to ensure the independence of [the National Human Rights Council with promised expansion of powers, including the National Prevention Mechanism under [the Optional Protocol to the Convention Against Torture] as well as transparency in the selection process of its members in accordance with the Paris Principles.”
Morocco’s promised judicial reform “to strengthen the rule of law and the respect for fundamental rights” needs to “result in effective changes on the ground, guaranteeing everyone’s right to an effective remedy before an impartial and independent judicial body.”
“Moroccan authorities [need] to investigate all allegations of torture and to ensure that perpetrators are prosecuted and punished appropriately.”
“Moroccan authorities should re-examine and provide acceptable compensation to all victims of unfair trials following the Casablanca attacks, during which convictions were made on the basis of confessions under torture.”
Amnesty International
Amnesty International’s report of that action by the Human Rights Council welcomed “Morocco’s acceptance of recommendations to criminalize marital rape, and ensure protection against domestic violence. However, Morocco’s “Draft Law 103.13 on combating violence against women does not comply with international standards in its definition of rape, and other barriers remain, such as the ban on abortion and sexual relations outside marriage.”
In addition and more broadly, Amnesty welcomed “Morocco’s commitment to remove obstacles in the registration of civil society organizations; to review the Penal Code in line with Article 9 of the International Covenant on Civil and Political Rights; and to develop measures to ensure full respect of freedom of expression, association and assembly in Western Sahara.” However, Amnesty “regrets Morocco’s rejection of recommendations to end the persecution of journalists and to release those detained solely for exercising their rights to freedom of expression.” Amnesty then went on to urge Morocco “to amend the Code of Criminal Procedure, in order to ensure the right to a fair trial, such as access to a lawyer during interrogation for all suspects.”
On another issue, Amnesty was “pleased to note Morocco’s commitment to speed up the review of the legal framework on migration and asylum to align it with the International Covenant on Civil and Political Rights.” However, “Morocco has yet to adopt legislation to protect asylum-seekers and refugees.”
Finally Amnesty noted that Morocco has not carried out any executions since 1993, but was concerned that “death sentences continue to be handed down and proposed changes to the Penal Code would expand the scope of the death penalty” and regretted “Morocco’s rejection of a number of recommendations to establish a formal moratorium on the death penalty, with a view to its abolition.”
Human Rights Watch
HRW first noted positive human rights developments in the country and “acknowledged Morocco’s efforts to accede to international treaties, in particular its ratification of the International Convention for Enforced Disappearance and the Optional Protocol to the Convention against Torture . . . . [and positive] developments in advancing rights of domestic workers, victims of human trafficking, and persons with disabilities.”
On the other hand, HRW expressed concern and regret over the following:
The “government rejected key recommendations on important human rights concerns, [including] “withdrawing all reservations to the Convention on Discrimination against Women; decriminalizing same-sex consensual relations; amending Penal Code provisions used to imprison journalists and others for nonviolent speech; and eliminating Family Code provisions that discriminate against children born outside of wedlock.”
The failure of the government to “comply with [previous UPR] recommendations it has accepted.”
“Morocco’s human rights record remains tainted by allegations of unjustified use of force by police against ‘Hirak’ protesters in the Rif, the systematic suppression of pro-independence demonstrations by Sahrawis in Western Sahara, and the failure of courts trying politically charged cases to scrutinize the veracity of contested ‘confessions’ to the police, contributing to trials that are unfair.”
In the wake of the July 15 failed coup in Turkey, its President Recep Tayyip Erdogan and others in his government have been pressing the United States as soon as possible to extradite Fethullah Gülen, a Muslim cleric now living in Pennsylvania. This request is based upon Turkey’s allegations that Gülen was the mastermind of the attempted coup.[1] The U.S., however, has not done so, stressing instead that the established U.S. legal procedures for extradition need to be followed. Turkey publicly has not accepted this response and repeatedly has criticized the U.S. for not extraditing Gülen.[2]
As explained in an earlier post, extradition is the legal process “by which one country (the requesting country) may seek from another country (the requested country) the surrender of a person who is wanted for prosecution, or to serve a sentence following conviction, for a criminal offense. In the U.S., international extradition is treaty based, meaning that the U.S. must have an extradition treaty with the requesting country in order to consider the request for extradition.”[3]
Here then is a preliminary analysis of the U.S. legal issues governing any such extradition request by Turkey.
The U.S. and Turkey do have such an extradition treaty that was signed in Ankara, Turkey on June 7, 1979, and entered into force on January 1, 1981.
Under Article 1 of the treaty each party has an obligation “to surrender to each other, in accordance with the provisions and conditions laid down in this Treaty, all persons who are found within the territory of the Requested Party [here, the U.S.] and who are being prosecuted for or have been charged with an offense, or convicted of an offense, or are sought by the other Party [here, Turkey] for the enforcement of a judicially pronounced penalty for an offense . . . .”
Here, Mr. Gülen apparently is found in the U.S. (the territory of the Requested Party) and is being prosecuted by Turkey (the Requesting Party). Thus, the preliminary condition of the treaty is satisfied.
Thus, the next issue is where did Mr. Gülen allegedly commit the offense. Since he apparently has not been in Turkey for many years, it would appear that whatever alleged offense he allegedly has committed was done “outside the territory of the Requesting Party” (Turkey).
That presents the next issue. Is Mr. Gülen still a citizen and thus a “national” of Turkey (the Requesting Party)? If he is, it would appear that Turkey “has jurisdiction, according to its laws, to try” him. Thus, the issue becomes whether the U.S. has an obligation to extradite him under other provisions of the treaty.
If, on the other hand, Mr. Gülen no longer is a national of Turkey, then the issue is whether “the laws of the Requested Party [the U.S.] provide for the punishment of such an offense committed in similar circumstances” and if so, whether the U.S. has an obligation to extradite him under other provisions of the treaty. Analysis of this issue would have to start with the particulars of the criminal charges under Turkish law, which so far are not readily available in public sources.
A potential treaty-based ground for the U.S. refusing to extradite Gülen is found in Article 3 (a), which states that extradition is not required, “If the offense for which extradition is requested is regarded by the Requested Party [here, the U.S.] to be of a political character or an offense connected with such an offense; or if the Requested Party concludes that the request for extradition has, in fact, been made to prosecute or punish the person sought for an offense of a political character or on account of his political opinions.” However, Article 3 (a) goes on to provide that “any offense committed or attempted against a Head of State or a Head of Government or against a member of their families shall not be deemed to be an offense of a political character.” Here, the public statements by the Turkish government certainly indicate that this exception might apply.
Another potential ground for a U.S. refusal to extradite is found in Article 3 (e): “If the offense for which extradition is requested has, according to the laws of the Requested Party [here, the U.S.], been committed in its territory and has been or will be submitted to its appropriate judicial authorities for prosecution.” (Emphasis added.) This obviously would require a U.S. prosecution, which has not yet happened and probably will not happen, in my opinion.
Yet another potential ground for a U.S. refusal to extradite Gülen is in Article 4(1): “Neither of the Contracting Parties shall be bound to extradite its own nationals.” This would require him to be a naturalized U.S. citizen, and the public information does not indicate if Gülen is such a citizen. There was a source that said he obtained a U.S. “green card” or permanent residency status in 2001, and the U.S. ambassador to Turkey in January 2015 said he believed that Gülen was not a U.S. citizen.[5]
Article 7 of the treaty has great details about the evidence that needs to be submitted, here by Turkey, to initiate a formal request for extradition. The public information to date indicates that Turkey has provided the U.S. with certain information and evidence, but whether it satisfies the requirements of Article 7 is not clear.
U.S. Obligations Under the Torture Treaty
As discussed in prior posts, the U.S. is a party to the multilateral Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and under Article 2(1) of that treaty the U.S. is obligated not “to extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture [as defined in Article 1 of that treaty].”
As indicated in a prior post, the final step in the U.S. process of determining whether an individual should be extradited includes the Secretary of State examining whether extradition would violate the U.S. obligations under the torture treaty.
With respect to Turkey this is a serious concern.
A. Concerns Raised bythe U.S. State Department
The most recent U.S. State Department report on human rights around the world said this about Turkey and torture in 2015.[6] “The [Turkish] constitution and law prohibit torture and other cruel, inhuman, or degrading treatment, but there were reports that some government officials employed them. Human rights organizations continued to report allegations of torture and abuse, especially of persons who were in police custody but not in a place of detention, and during demonstrations and transfers to prison, where such practices were more difficult to document.”
“[Turkish] Prosecutors investigated allegations of abuse and torture by security forces during the year but rarely indicted accused offenders. The National Human Rights Institution (NHRI) is administratively responsible for investigating human rights violations, including allegations of torture, excessive use of force, or extrajudicial killings. Domestic human rights organizations claimed the NHRI’s failure to follow through in investigating potential human rights violations deterred victims of abuse from filing complaints. Authorities regularly allowed officers accused of abuse to remain on duty during their trial.”
“Human Rights Watch (HRW) alleged in a report published in September [2015] that [Turkish] police abused detainees in August and September while responding to perceived security threats in the Southeast. It documented three cases in which police severely beat detainees, forced men to remain in kneeling positions for hours, and threatened them with torture and execution. In another case police detained a boy who had a severe gunshot wound and for several hours denied him medical treatment.”
“[Turkish] Police in several parts of the country sometimes used disproportionate force to disrupt protests, often leading to injury.”
“Human rights groups alleged that although torture and mistreatment in police custody decreased following installation of closed-circuit cameras in 2012, police continued to abuse detainees outside police stations. On July 13, [2015] a media report included footage from security cameras showing police beating 24-year-old university student Tevfik Caner Ertay multiple times in 2013 during the Gezi Park protests before transporting him to a police station in the trunk of a police car. Ertay suffered multiple injuries, including a broken nose. Police perpetrators included some of the same officers later accused of killing fellow university student Ali Ismail Korkmaz.”
“Some human rights observers reported detainees often refrained from reporting torture and abuse because they feared retaliation or believed complaining to authorities would be futile. Human rights organizations documented cases of prison guards beating inmates and maintained those arrested for ordinary crimes were as likely to suffer torture and mistreatment as those arrested for political offenses, such as speaking out against the government.”
“Through the first nine months of the year [2015], the [Turkish] Ministry of Justice reported 98 investigations regarding allegations of torture, 26 of which resulted in indictments.”
“The HRA reported receiving hundreds of allegations of torture and excessive use of force, including 213 cases through September 21 [2015] that involved the alleged abuse of detainees. For example, on January 29, in Sirnak, police reportedly beat four citizens whom they had detained during raids of their homes.”
B. Concerns Raised by the U.N. Committee Against Torture
As explained in an earlier post, the multilateral treaty against torture created a Committee Against Torture, one of whose responsibilities is to review the records of the parties to the treaty. That Committee on June 4, 2016, did just that for Turkey by issuing 20 numbered paragraphs of “principal subjects of concern.”[7] Here are the key concerns for purposes of the pending extradition request.
“The Committee is concerned that, despite the fact that the State party has amended its law to the effect that torture is no longer subject to a statute of limitations, it has not received sufficient information on prosecutions for torture, including in the context of cases involving allegations of torture that have been the subject of decisions of the European Court of Human Rights. The Committee is also concerned that there is a significant disparity between the high number of allegations of torture reported by non-governmental organizations and the data provided by the State party in its periodic report . . ., suggesting that not all allegations of torture have been investigated during the reporting period. Further, while the State party has undertaken many investigations into allegations of ill-treatment and excessive use of force by its officials, these have resulted in relatively few cases of disciplinary sanctions, and in fines and imprisonment in only a small number of cases. The Committee regrets that the State party did not provide information requested by the Committee on the six cases in which officials received sentences of imprisonment for ill-treatment between 2011 and 2013, nor on any cases in which officials received sentences of imprisonment for ill-treatment in 2014 or 2015. The Committee further regrets that State party did not respond to the concern raised by Committee members that law enforcement authorities have on many cases brought ‘countercharges,’ such as ‘resisting’ or ‘insulting’ police officers, against those individuals lodging complains of torture, ill-treatment and other police brutality. The Committee further regrets, with reference to its previous recommendations . . . that the State party has not yet created an independent State body to investigate complaints of torture and ill-treatment against law enforcement officers.”
“The Committee is seriously concerned about numerous credible reports of law enforcement officials engaging in torture and ill-treatment of detainees while responding to perceived and alleged security threats in the south-eastern part of the country . . . in the context of the resurgence of violence between the Turkish security forces and the Kurdistan Workers’ Party (PKK) following the breakdown of the peace process in 2015 and terrorist attacks perpetrated by individuals linked to the so-called Islamic State in Iraq and the Levant (ISIL). The Committee is further concerned at the reported impunity enjoyed by the perpetrators of such acts.”
“In addition to the allegations of torture and ill-treatment of detainees noted above, the Committee is concerned at reports it has received concerning the commission of extrajudicial killings of civilians by the State party’s authorities in the course of carrying out counter-terrorism operations in the south-eastern part of the country. The Committee regrets that the State party did not respond to requests for information as to whether investigations are under way into widely reported cases, such as the alleged killing by police snipers of two unarmed women, . . . on 8 September 2015. The Committee also regrets the failure by the State party to ensure accountability for the perpetrators of killings in cases previously raised by the Committee, such as the killing by security forces of . . . in November 2004, which was the subject of a decision of the European Court of Human Rights. The Committee is further concerned at reports that family members of those killed in clashes between security forces and members of armed groups have been denied the ability to retrieve their bodies, which has the effect of impeding investigations into the circumstances surrounding those deaths.”
“The Committee is concerned that allegations of excessive use of force against demonstrators have increased dramatically during the period under review. The Committee notes with regret that the State party’s investigations into the conduct of officials in the context of the 2013 Gezi Park protests in Istanbul and Ankara have not resulted in any prosecutions, despite the allegations of excessive use of force noted by observers, including the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The Committee also regrets that the State party did not provide any data on the specific sentences, if any, that police officers tried on charges of excessive use of force during the reporting period had received. It further expresses concern over the recent legislative amendments in the Domestic Security Package granting additional powers to the police, in particular the expanded power to use firearms against demonstrators.”
“Although the Criminal Code defines torture as a specific offence, the Committee notes that the definition set out in article 94 [of the Code] is incomplete inasmuch as it fails to mention the purpose of the act in question. There is also no specific mention of the act of torture carried out in order to intimidate, to coerce or to obtain information or a confession from a person other than the person who was tortured.”
“While taking note of the legal safeguards enshrined in Turkish legislation, the Committee is concerned at recent amendments to the Code of Criminal Procedure, which give the police greater powers to detain individuals without judicial oversight during police custody. Placing suspects under constant video surveillance in their cells is another matter of concern.”
“The Committee is concerned at the ‘almost complete lack of accountability for cases of enforced disappearance’ in the State party and its ‘palpable lack of interest [in] seriously investigating, prosecuting and adjudicating these cases’, as reported by the Working Group on Enforced or Involuntary Disappearances in its preliminary observations publicly . . . announced at the end of its visit to Turkey from 14 to 18 March 2016. . . .”
“The Committee regrets the lack of complete information on suicides and other sudden deaths in detention facilities during the period under review.”
“The Committee is concerned by the restrictive conditions of detention for persons sentenced to aggravated life imprisonment, a sentence that was established after the abolition of the death penalty in 2004.”
C. Human Rights NGOs and Others
Especially after the failed coup, human rights NGOs have raised increasing concerns about human rights in Turkey. These concerns were heightened by the Turkish government’s July 20 declaration of a state of emergency for the next three months. This gives the government the power to impose rule by decrees that are published and rushed through parliament for approval the same day. The possibility of review by the Constitutional Court is curbed. Human Rights Watch expressed its alarm over this development: “A state of emergency imposed where there are clear signs that the government is ready to crack down more broadly – combined with far more scope for unchecked executive action – is an alarming prospect. It risks further undermining democracy by providing a legal – if not justifiable – basis for a crackdown on rights.”[8]
Amnesty International (AI) on July 18 (only three days after the attempted coup) said that several Turkish “government officials have suggested reinstating the death penalty as punishment for those found responsible for the failed coup, and . . . [AI] is now investigating reports that detainees in Ankara and Istanbul have been subjected to a series of abuses, including ill-treatment in custody and being denied access to lawyers.” Two days later AI stated, “We are witnessing a crackdown of exceptional proportions in Turkey,” including freedom of expression.[9]
On July 24 AI reported that it had “gathered credible evidence that detainees in Turkey are being subjected to beatings and torture, including rape, in official and unofficial detention centers in the country.” According to these accounts, “police held detainees in stress positions, denied them food, water and medical treatment, verbally abused and threatened them and subjected them to beatings and torture, including rape and sexual assault.”[10]
On August 2 President Erdogan in a public speech challenged AI’s research underlying its assertion that some detainees had been tortured. In response AI’s Secretary General stated, ““The serious human rights violations documented by an . . . [AI] team on the ground in Turkey are alarming. These findings are based on detailed interviews with lawyers, doctors, family members and an eyewitness to torture in a detention facility.”[11]
A Turkish bar group in the capital of Ankara has stated that some of its members have reported alleged abuses of their clients in detention while other lawyers and human rights organizations have made similar allegations.[12]
The Turkey-U.S. Dispute Over the Requested Extradition of Gülen
Turkey’s Foreign Ministry has to be aware of the terms of its extradition treaty with the U.S. and the latter’s procedures for handling extradition requests. Thus, Erdogran and his government’s strident complaints about the U.S. not immediately granting the request for Gülen has to be intended to show Turkish citizens the strength and resolve of the regime. There even have been rumors that the U.S. was behind the attempted coup.
In any event, “Usually deeply polarized, the two sides [of Turkey’s population] are largely united in their opposition to military coups and the . . . [extradition] of Fethullah Gülen, a Muslim cleric who lives in self-exile in Pennsylvania and has been accused by Turkey of orchestrating the failed uprising.” There even is widespread support for the “sweeping purge of suspected followers of Mr. Gülen from the state bureaucracy and other professions” and Mr. Erdogan’s asking “Turks to inform on those they believe are connected to Mr. Gülen.”
The unity was on vivid display at a recent Istanbul rally of at least two million Turks who put aside their political differences to express solidarity.”[13] (To the right is a photograph of that rally.)
The U.S., however, needs to continue to resist acquiescence in these strong-arm tactics and to insist on following U.S. law and procedures for such requests. Secretary of State Kerry and President Obama have done just that.[14] So too have State Department spokespeople at daily press briefings.[15] This is not easy since the U.S. has a strong national security interest in maintaining Turkey as an ally in the fight against ISIS/ISIL.
Tomorrow U.S. Vice President Joe Biden will be visiting Turkey to see President Erdogan. The Associated Press opines that Biden will have difficulties in persuading Turkey that the U.S. values Turkey as a key NATO ally amid worrying signs that Turkey is flirting with having closer ties with Russia and that the U.S. and Turkish approaches to the Syrian conflict may be diverging.[16]
Today, says the Associated Press, a U.S. Justice Department team is meeting with Turkish officials in Ankara to discuss U.S. technical requirements of Turkey’s extradition request. This includes firm evidence of Gülen’s involvement in the coup whereas senior officials in the Obama administration say Turkey’s extradition requests to date have been based on allegations of other crimes against Gülen, not evidence of involvement in the coup attempt. A Turkish professor of international relations said that Turkish “people have an expectation that Gülen should be returned to Turkey immediately. If the extradition request is refused or delayed I’m afraid that’s going to have serious repercussions.”
The Washington Post editorial board urges the Vice President “to reassure Mr. Erdogan once again that the two nations share vital interests, not the least of which are fighting the Islamic State and ending the conflagration that has consumed Syria.” The Vice President also “should make clear he understands how much Turkish civilians are suffering from terrorist attacks” and “convince Mr. Erdogan that the United States does not desire to destabilize Turkey.”[17]
The Washington Post editorial further urges Biden “to candidly tell his host that the United States did not instigate the coup and that it will not relinquish Mr. Gülen to a witchhunt. Mr. Erdogan may not want to hear it, but he also should be reminded that crushing the rule of law will dim Turkey’s prospects.”
In the midst of this high-stakes squabble between the two countries, Gülen wrote an article for the New York Times in which he stated, “During the attempted military coup in Turkey this month, I condemned it in the strongest terms. ‘Government should be won through a process of free and fair elections, not force.’ I said, ‘I pray to God for Turkey, for Turkish citizens, and for all those currently in Turkey that this situation is resolved peacefully and quickly.’” President Erdogan’s suggestion that I was the mastermind of the coup “run[s] afoul of everything I believe in, it is also irresponsible and wrong. My philosophy — inclusive and pluralist Islam, dedicated to service to human beings from every faith — is antithetical to armed rebellion.”[18]
Moreover, Gülen said, “Throughout my life, I have publicly and privately denounced military interventions in domestic politics. In fact, I have been advocating for democracy for decades. Having suffered through four military coups in four decades in Turkey — and having been subjected by those military regimes to harassment and wrongful imprisonment — I would never want my fellow citizens to endure such an ordeal again. If somebody who appears to be [my] . . . sympathizer has been involved in an attempted coup, he betrays my ideals.”
Gülen concluded his article with this plea to the U.S. government. The U.S. “must not accommodate an autocrat [Erdogan] who is turning a failed putsch into a slow-motion coup of his own against constitutional government.”
[3] U.S. State Dep’t, Report on International Extradition Submitted to the Congress Pursuant to Section 211 of the Admiral James W. Nance and Meg Donovan Foreign Relations Authorization Act, Fiscal Years 2000 and 2001 (Public Law 106-113) (2001); U.S. Justice Dep’t, Frequently Asked Questions Regarding Extradition.
The Seventh Summit of the Americas will take place in Panama City, Panama on April 10 and 11. Such Summits are institutionalized gatherings of heads of state and government of the member states of the Western Hemisphere where leaders discuss common policy issues, affirm shared values and commit to concerted actions at the national and regional level to address continuing and new challenges faced by countries in the Americas. [1]
In the meantime, preliminary Summit events are underway while planning for the meetings of heads of state and government are nearly complete.
This post will review the plans for this Summit by the organizers and then discuss Summit developments involving the U.S., Cuba and Venezuela. [2]
The Summit Organizers’ Plan
The Summit’s central theme is “Prosperity with Equity: The Challenge of Cooperation in the Americas” with several sub-themes, including education, health, energy, environment, migration, security, citizen participation and democratic governance. These issues will be discussed by 35 heads of state and government. In addition to these officials, the Vatican Secretary of State, Cardinal Pietro Parolin, will attend.
The priority of the organizers in Panama is to work on a comprehensive document titled “Mandates for Action”, which will contain agreements from all countries involved on topics related to health, education, security, migration, environment, energy, democratic governance and citizen participation.
The Summit’s main events will take place in the ATLAPA Convention Center in central Panama City as shown in the photograph below.
The Summit also will host the four following forums:
Civil Society Forum will seek to promote governments’ consultation and coordination, dialogue and exchange with civil society. It also will offer input and recommendations for the consideration of the participating States.
The Youth Forum will provide young entrepreneurs an opportunity to offer their recommendations to the participating States.
The Business Forum will explore the trade and investment opportunities and public-private sector cooperation.
The University Presidents’ Forum will focus on academic mobility, the role of innovation and technology in enhancing research skills and college education for the region; and the importance of scholarly research on entrepreneurship and sustainable economic development.
U.S. Plans for the Summit
A prior post reviewed some of the U.S preparations for the Summit. In addition, the U.S. Department of State asserts that this Summit “is an historic opportunity to deepen partnerships, collaborate on shared challenges, and make tangible commitments to securing a brighter future for all of the people of the Americas. . . . The [U.S.] is working closely with partners throughout the Americas to ensure the 2015 Summit upholds our common commitment to inclusive economic development, democracy, and human rights, while providing robust engagement among government leaders, civil society groups, and regional business communities.”
The U.S. especially has been calling for the participation of Cuban civil society in the Summit. Indeed, in his December 17th announcement of the rapprochement with Cuba, President Obama said, “we are prepared to have Cuba join the other nations of the hemisphere at the Summit. . . . But we will insist that civil society join us so that citizens, not just leaders, are shaping our future.”
Interestingly I have not seen any news or information about the U.S. inviting U.S. civil society, youth, business or university presidents to participate in the Summit.
The U.S. was hoping that by the time of the Summit, the U.S. and Cuba would have re-established normal diplomatic relations and that this would be an occasion for the two countries to enjoy receiving congratulations from the other countries in the Americas.
The resumption of normal relations, however, has not yet happened, and now there are many countries demonstrably upset over President Obama’s executive order of March 9th imposing sanctions on seven Venezuelans. This week at Venezuela’s invitation, a senior Department of State official went to Venezuela to meet with the country’s foreign minister.
The Washington Post this week published an editorial criticizing the U.S. opening to Cuba. It said there have been no benefits to the U.S. to date while Cuba has gained. President Castro will attend the Summit. Soon the U.S. probably will rescind its designation of Cuba as a “State Sponsor of Terrorism” in disregard of Cuba’s alleged “continued support for Colombia’s terrorist groups, its illegal arms trading with North Korea and the sanctuary it provides American criminal JoAnne Chesimard.” In addition, says the editorial, Cuba is joining Venezuela in unjustifiably attacking the U.S. over President Obama’s executive order imposing sanctions on seven Venezuelans.
Cuba’s Plans for the Summit
According to the Cuban press, the country has been preparing for full participation in the Summit. The Cuban Minister of Foreign Trade and Foreign Investment, Rodrigo Malmierca, emphasized that over 100 representatives of Cuban civil society, including youth, academics, intellectuals, entrepreneurs and coop leaders would be going to the Summit. They will show the possibilities that Cuba provides for the development of international economic relations from the adoption of Law 118 Foreign Investment and Development Special Zone Mariel (ZEDM).
On Tuesday pro-government representatives of Cuban civil society in Panama issued a statement denouncing the presence at the Summit of other Cubans who allegedly were “mercenaries paid by the historic enemies of our nation,” i.e., the U.S. Such Cubans, the pro-government representatives said, “make up a tiny ‘opposition’ manufactured from abroad, lacking any legitimacy or decorum. Several of its members are publicly linked to recognized terrorists who have caused infinite pain to the Cuban people.”
The statement asserted, “It is offensive that such people, who have made betraying the homeland a well-paid profession and shamefully usurp the name of the country that they slander and offend day after day, are participating in these forums. For the dignified and sovereign Cuba that has withstood more than five decades of blockade and harassment, for the overwhelming majority of Cubans, for us, we who have come to Panama with modesty and a spirit of cooperation to share experiences of our social development, it is unacceptable that there are people of such low moral character here.”
The next day, Wednesday, during one of the forums, about 100 supporters of Cuba’s government heckled Cuban dissidents by calling them “imperialist” and “mercenaries” Organizers appealed for calm during the hour-long frenzied scene. The pro-government groups joined by pro-government groups from Venezuela angrily marched out, saying they wouldn’t attend the proceedings in the presence of individuals they accuse of trying to destabilize Cuba’s government.
From Havana, Cuban Vice-President (and reputed future president) Miguel Diaz-Canel, stated, “Nobody could think that in a process of re-establishing relations, which we’re trying to move forward on with the [U.S.], Cuban support for Venezuela could be made conditional. If they attack Venezuela, they’re attacking Cuba. And Cuba will always be on Venezuela’s side above all things.”
A Cuban online newspaper, CubaDebate, has a journalist in Panama to provide minute-by-minute tweets about the Summit.
Venezuela’s Plans for the Summit
Venezuela plans to make a major effort to obtain the Summit’s condemnation of President Obama’s executive order imposing sanctions on seven Venezuelans. For example, President Maduro will bring a petition against the executive order that has been signed by over nine million of his people. A Caracas pollster said, “Maduro is taking advantage of Obama’s order. It’s an extreme campaign that distracts from the internal problems of the country. You just want your people in the street, proselytizing and campaigning.”
In addition, Maduro’s political allies are sending 825 activists to the Summit to protest Obama and support Maduro.”There will be marches, caravans and anti-imperialist stands,” said Rafael Uzcategui, secretary general of the ruling Fatherland for All, who said that Nicaragua, a close ally of Chavez, will send a delegation with a similar purpose.
Others plan to focus on Venezuela’s alleged human rights violations. In recent weeks many countries and human rights organizations have criticized Venezuela’s imprisonment of political dissidents. This includes the U.N., the European Parliament, the governments of the U.S., Spain, Canada and Colombia and the Socialist International, Amnesty International and Human Rights Watch, among others.
Now 21 Latin American presidents have issued a statement to denounce the “democratic alteration” of Venezuela and to advocate for the release of prisoners and the restoration of political autonomy. Their proposed Declaration of Panama asks the Summit of the Americas to seek a solution to the Venezuelan crisis “that respects the constitutional principles and international standards.” The signers of this statement include Colombians Andres Pastrana, Alvaro Uribe and Belisario Betancur; Costa Ricans Laura Chinchilla, Rafael Calderon, Miguel Angel Rodriguez and Luis Alberto Monge; Chilean Sebastián Piñera ; and Spain’s José María Aznar.
In addition, this week 28 human rights organizations across the continent (including: Human Rights Watch, Amnesty International, Transparency International and the International Commission of Jurists) issued a statement requiring cessation of “harassment against human rights defenders of human rights ” and called on the governments participating in the Summit of the Americas” to demand the government of Nicolas Maduro to ensure that the defenders and human rights defenders can carry out their work without fear of reprisal.”
A group of Venezuelan human rights organizations will be going to Panama to present their complaints about human rights in their country. President Maduro’s response is to call them “CIA stooges.”
Conclusion
New York Timeseditorial has urged U.S. and Cuban government officials at the Summit to “not ignore” the Cuban civil society representatives, “but rather work to amplify their voices. They have struggled for years to be heard in their own country, where those critical of the Communist system have faced repression.” The Times also notes that some Cubans “who cannot afford a trip to Panama or are restricted from traveling have pledged to hold a parallel meeting in Cuba. . . . Increasingly, the [Cuban] government will have to reckon with the fact that many of the dissidents’ aspirations are shared by most Cubans.”
Now we will have to see what actually happens at the rest of the Summit.
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[1] Prior Summits were held in Miami, Florida, USA (I, 1994); Santiago, Chile (II, 1998); Quebec City, Canada (III, 2001); Mar del Plata, Argentina (IV, 2005); Port of Spain, Trinidad and Tobago (V, 2009); and Cartagena, Colombia (VI 2012). This process also held a Summit on Sustainable Development in Santa Cruz, Bolivia in 1996 and a Special Summit in Monterey, Mexico in 2004.
An op-ed in El Pais, Spain’s leading newspaper, by Peace Zárate, an expert in public international law, criticizes Venezuela’s response to President Obama’s March 9th executive order. [1]
According to the author, the Venezuelan and UNASUR reactions to the executive order prompt four questions and answers.
First, are the reactions proportional to the executive order? “No” is his answer. He reasons, “No doubt that Caracas has the sovereign right to feel offended by the actions taken by the U.S. government. However, these [U.S.] actions are not “the most aggressive, . . . nefarious, unfair, and . . . [unprecedented measures] against Venezuela” as described by [Venezuelan President] Maduro. The measures have not been taken against the country as a whole, nor against all its citizens, nor against its economy, trade and bilateral investments, but only [against] seven officials individually responsible for severe and massive human rights violations. . . . These seven individuals are prohibited from entering U.S. territory and prevented from making transactions relating to assets located in the [U.S.].”
Second, are these sanctions illegal? “No,” again is his answer. He says, “The justification given by the Obama administration was respect for human rights and safeguarding democratic institutions within the framework of international law. These rules are contained in both treaties to which Venezuela and the [U.S.] are signatories, and in customary international law. Serious violations of human rights are not ‘internal affairs.’ They are the exception to the principle of non-intervention. And in the case of Venezuela, these violations have been established by the U.N. and [the] most respected international non-governmental human rights organizations, including Amnesty International and Human Rights Watch.” Moreover, the “U.S. sanctions [against] seven Venezuelan officials are: a minor gesture and [permissible].”
Third, was the U.S. entitled to impose these sanctions? “Yes,” is his answer even though the U.S. does not have a perfect record on human rights and even though “countries generally tend to avoid taking [their] own actions when human rights are violated in another state. . . .But this reluctance does not mean [a] State cannot adopt sanctions. . . . And to do that, international law does not [require a state to have an unblemished record] (no state has that).”
Fourth, “what effect will [the sanctions] have for the individual rights of the citizens of Venezuela, where repression leads [to] a growing account of death and torture [as it] is governed by decree?” That question is unanswered even as “the practical effects for the seven Venezuelan officials affected by the sanctions are minimal” and “the impasse between Washington and Caracas eventually [will] be solved.”
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).
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.
A prior post reviewed the U.S. State Department’s just-released 2013Country Reports on Human Rights Practices while another post discussed its chapter on Cuba. Now we look at the implications of that report for U.S. policies regarding Cuba.
Some people assert that the negative aspects of Cuban human rights justify continuing U.S. hostility toward the island. They see the Cuban glass of human rights at least half empty. Notable among them is U.S. Representative Mario Díaz-Balart, a Cuban-American and a Republican Congressman from Miami, who remains a stalwart powerful defender of the embargo and other anti-Cuba policies of the U.S.
Others, including this blogger, reach the opposite conclusion based, in part, on the belief that the Cuban glass of human rights is half full.
Rev. Raul Suarez
As Rev. Raúl Suárezput it at the February 27th briefing for the U.S. Congress, “Cuba has many problems but Cuba isn’t hell . . . . We have many good things that have been achieved [but] . . . Cuba is not the Kingdom of God.” Suárez added, “God . . . wants us [Cubans and Americans] to live like brothers and sisters.”[1]
Indeed, the humility expressed by Rev. Suárez should lead the U.S. to the same conclusion. As U.S. Secretary of State John Kerry said last month on release of the Human Rights Reports, “from our own nation’s journey, we know that [human rights] is a work in progress. Slavery was written into our Constitution before it was written out. And we know that the struggle for equal rights, for women, for others – for LGBT community and others – is an ongoing struggle.” Secretary Kerry admitted that we “know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.”
In evaluating Cuba’s mixed human rights record and deciding on U.S. policies regarding that country, that same humility should cause we in the U.S. to remember the U.S. immense superiority in economies and military might and the long-standing U.S. actions of hostility towards Cuba, including the following:
the U.S. usurpation of Cuba’s war for independence from Spain in the late 19th Century (what we in the U.S. call the “Spanish-American War“);
the U.S.’ making Cuba a de facto U.S. protectorate in the early 20th Century;
the U.S. support for the invasion of Cuba’s Bay of Pigs in 1961;
the U.S. threats of military action against Cuba during the pressured Cuban missile crisis of 1962;
the CIA’s hatching several plots to assassinate Fidel Castro when he was Cuba’s President;
the U.S. conduct of an embargo of Cuba over the last 50-plus years; and
the U.S. Government’s Commission on Assistance for a Free Cuba setting forth what amounted to a U.S. blueprint for taking over Cuba.
This history provides Cuba with many legitimate reasons to be afraid of the U.S. It, therefore, is understandable why Cuba has harshly treated what we call “dissidents” and what Cuba fears are or could be supporters of a U.S. takeover.
And we in the U.S. should know from our own history since 9/11 that societies and governments tend to clamp down on civil liberties when they fear outside interference or attacks.
Cuba’s regrettable lapses on human rights, though perhaps understandable in context, should not be a reason for continued U.S. hostility toward the island.
Therefore, as a prior post argued, improving Cuban human rights should be one of many items on an agenda for a comprehensive, mutually respectful negotiation between the two countries. The objectives of such a negotiation, in my opinion, should be restoration of full diplomatic relations; ending the U.S. embargo against Cuba;[2] terminating the unjustified U.S. designation of Cuba as a “State Sponsor of Terrorism;” [3] terminating the one-sided U.S. lease of Guantanamo Bay; and compensating owners for expropriation of property on the island as part of the Cuban Revolution.[4]
Such a negotiation, in my opinion, is in the interest of the U.S. Cuba poses no threat to the U.S. Our businesses and farmers would benefit economically from open relations with Cuba. Normalizing our relations with the island would be seen by most people in the world, especially Latin America, as a sign that the U.S. is a mature, rational country.
These thoughts were echoed by the Cuban religious leaders who held a U.S. congressional briefing on February 27th. Joined by the President and CEO of Church World Service, [5] they reaffirmed their long-held opposition to the U.S. embargo of Cuba.
They also called “for the U.S. government to end the ban that prevents U.S. citizens from visiting Cuba and seeing the island for themselves; to take Cuba off the list of State Sponsors of Terrorism . . . ; and for the American government to open up trade and commerce in ways that support the small enterprises, cooperatives, and non-profits that are emerging on the island. Finally, the U.S. and Cuban governments ought to open a high level dialogue between our countries to normalize relations and discuss differences in ways that honor and respect the dignity of both nations.”
Before the commencement of such complicated negotiations, the U.S. President should commute the sentences of three of the Cuban Five to the 15-plus years they already have spent in U.S. jails and prisons and let them return to their home country. Similarly Cuba should commute the sentence of U.S. citizen Alan Gross to the time he already has spent in Cuban prison and allow him to return to the U.S.
Given the long period of hostility between the two countries and the apparent lack of movement toward negotiations, I believe that the assistance of a neutral third-party mediator would be helpful to both countries. Such a mediator, in my opinion, should be someone who is bilingual in English and Spanish with experience as an international mediator, who is in fact and perceived to be neutral and who has the time (and staff?) to make a major commitment to this process.
Such a mediator indeed could and should step forward and invite representatives of both countries to participate in mediated negotiations, rather than wait on them to agree on such a process.
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[1]Suárez is a Baptist pastor and the founder and director of the Martin Luther King, Jr. Center in Havana. When I visited the Center in 2007, Rev. Suárez told our group that he had founded the Center because he thought King’s philosophy of non-violence and social justice was relevant to Cuba, especially to Afro-Cubans. He also said that in 1984 he and other religious leaders met with then President Fidel Castro to protest the government’s endorsement of atheism (or scientific materialism) as limiting the space for churches, and after the collapse of the Soviet Union in 1989, Cuba abandoned that endorsement and provided more space for churches to participate in issues facing the island.
[2]Amnesty International, Human Rights Watch and former U.S. President Jimmy Carter also call for ending the U.S. embargo. So too does world opinion as evidenced by the U.N. General Assembly’s passing resolutions condemning the embargo for the last 22 years. The last such resolution in October 2013 was passed 188 to 2 with only the U.S. and Israel voting against it. A prior post to this blog also has argued for ending the embargo and summarized the 2011 General Assembly resolution against the embargo.
[3] This blog has reviewed the State Department’s asserted rationale for the “State Sponsor of Terrorism” designation and called it ridiculous for 2010, 2011 and 2012 and absurd for 2013. This blog also noted Cuba’s adoption of legislation against money laundering and terrorism financing and thereby negating one of the purported reasons for the designation.
[4] In a letter to President Obama that was reproduced in this blog, I called for the U.S. to terminate the Guantanamo Bay lease and for Cuba to compensate property owners for expropriating their property. A comprehensive review of this lease is found in Michael J. Strauss’ The Leasing of Guantanamo Bay.
[5]Church World Service was founded in 1946 with this mission: “Feed the hungry, clothe the naked, heal the sick, comfort the aged, shelter the homeless.” It now has 37 Protestant member communions all over the world.
