Iraq – Page 3 – dwkcommentaries

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

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

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

Background of the ICCPR

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

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

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

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

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

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

Events Leading Up to the Committee’s Evaluation

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

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

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

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

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

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

U.S. constitutional and legal framework: clarify U.S. position on applicability of Covenant for individuals under its jurisdiction, but outside its territory; measures to ensure state and local authorities comply with the Covenant; whether a national human rights institution will be established; and whether the U.S. will withdraw its reservations to the Covenant.

Non-discrimination and equal rights of men and women: describe efforts to address racial disparities in criminal justice system and to eliminate all kinds of racial profiling against Arabs, Muslims and South Asians; provide information on imposition of criminal penalties on street people and on obstacles to undocumented migrants’ accessing health services and higher education institutions.

Right to life: provide information on various issues regarding the death penalty and victims of gun violence; and clarify how drone attacks allegedly comply with the Covenant and whether senior officers and lower-ranking soldiers have been investigated and punished for unlawful killings in armed conflict.

Prohibition of torture and cruel, inhuman or degrading treatment or punishment and treatment of detainees: provide information on independent investigations of treatment of detainees, whether U.S. regards so-called “enhanced interrogation” to violate the Covenant, why the U.S. has not adopted a statute prohibiting torture within its territory, whether the U.S. systematically evaluates “diplomatic assurances” before transfers of detainees, addressing claims of police brutality and excessive use of force, regulation of electro-muscular-disruption devices, prohibition and prevention of corporal punishment of children and application of criminal law to minors, non-consensual use of medication in psychiatric and research institutions, solitary confinement, separation of juvenile from adults detainees, rights of detainees in Guantanamo Bay, Afghanistan and Iraq, rights of immigrant detainees and prevention of domestic violence.

Elimination of slavery and servitude: provide information on combatting human trafficking and protection of children from sexual exploitation.

Right to privacy: provide information on NSA surveillance.

Freedom of assembly and association: clarify why certain workers are excluded from right to organize in trade unions.

Freedom of movement, marriage, family and protection of minors: clarify whether all cases of individuals serving life sentences without parole for offenses committed as a minor have been reviewed and if U.S. will abolish such sentences; and provide information on children held at Guantanamo Bay, Afghanistan and Iraq.

Right to take part in conduct of public affairs: provide information on voting rights of citizens who have completed their sentences for felony convictions, states’ measures to impose legal or de facto disenfranchisement of voters and efforts to provide residents of District of Columbia right to vote and elect representatives to U.S. Senate and House of Representatives.

Rights of minorities: provide information on protection of indigenous sacred sites and their rights to be consulted and consent to matters affecting their interests.

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

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

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

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

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

Conclusion

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

These subjects will be discussed in subsequent posts.

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

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

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

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

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

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

A prior post reviewed the approval on February 11, 2014, by Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), of an amendment of its statute on universal jurisdiction. Last week Spain’s Senate also approved that amendment, which then became law.

That post also predicted that the amendment would cause 12 pending cases under that statute to be dismissed. One of those 12 cases was an investigation of the conduct of three U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.

On March 17^th, however, the Spanish High Court refused to dismiss that case according to reports in El Pais and the Wall Street Journal. Judge Santiago Pedraz Gómez decided to disregard the new amended law because, he said, it contradicts Spain’s obligations under the 1949 Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War. The judge stated that the Geneva Convention obliges Spain to “prosecute the crime (search for people and make them appear) regardless of the perpetrators’ nationalities and wherever they may be.” Therefore, the court’s decision said,“The judge must refrain from applying this new rule. The rule of law requires the existence of independent bodies to protect the rights and freedoms of citizens, by impartially applying standards that express the people’s will and control the activities of public authorities.”

The court also issued international arrest warrants for three U.S. military personnel who were not present in Spain.

An appeal of this decision is expected.

In the meantime, Spain’s main opposition political party (the Socialist Party) plans to appeal the constitutionality of this amendment to the country’s Constitutional Court. That Party apparently will argue that the amendment breached the right to “effective legal protection” and that the retroactivity of the amendment breached basic constitutional principles.

Amending Spain’s Universal Jurisdiction Statute

Spain currently is in the process of adopting an amendment to its statute regarding universal jurisdiction for one of its courts. This post will examine that forthcoming amendment after looking at the background of that amendment.

Background

Under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture. (This was discussed in a prior post.)

Spain implemented this principle in 1985 in its own domestic statutory law by conferring such jurisdiction on its National Court (La Audiencia Nacional) for the following crimes: (a) genocide; (b) terrorism; (c) piracy and hijacking of aircraft; (d) falsification of foreign currency; (e) prostitution and corruption of minors or incompetents; (f) trafficking in illegal, psychotropic, toxic and narcotic drugs; and (g) any other crimes under international treaties or conventions that should be prosecuted in Spain.

In 2009 Spain amended this statute to add these additional crimes for universal jurisdiction: crimes against humanity; illegal trafficking or illegal immigration of persons; and female genital mutilation (FGM). In addition, the amendment specified that these conditions or limitations had to be established for such jurisdiction: the alleged perpetrators were in Spain; or the victims were of Spanish nationality; or there was another connecting link to Spain.

Finally the 2009 amendment specified that for such Spanish jurisdiction to exist, another country or international tribunal had not started a process involving an investigation and successful prosecution of such offenses; if there were such another process, then the Spanish court should suspend or stay its case until the other investigation and prosecution has been concluded. The latter provision is referred to as the subsidiary principle.

The New Amendment

On February 11, 2014, Spain’s Congress of Deputies (Congreso de los Diputados), the lower house of the country’s bicameral legislature (los Cortes Generales), approved another amendment to this statute (Article 23.4 of the 1985 Organic Law of the Judicial Power, as amended).[1] Since the same political party (Party Popular) also controls Spain’s Senate, it is anticipated that the Senate will pass the bill as well. Here are the principal provisions of the amendment:

The following specific crimes were added for universal jurisdiction: (i) war crimes (crimes against persons or goods in armed conflict); (ii) torture and crimes against moral integrity; (iii) crimes under the Convention on the Physical Protection of Nuclear Material; (iv) crimes covered by the Council of Europe Convention on the prevention and combatting of violence against women and domestic violence; (v) offenses of corruption between private or international economic transactions; and (vi) crimes of enforced disappearances under the International Convention for Protection of All Persons from Enforced Disappearances.
Greater specificity was provided for offenses other than piracy covered by the Convention for the Suppression of Unlawful Acts against the Safety of Maritime Navigation and its Protocol; offenses other than hijacking of aircraft under the Convention for the Suppression of Unlawful Acts against the Safety of Civil Aviation and its Supplemental Protocol; crimes against sexual freedom committed on children; and trafficking in human beings.
For genocide, crimes against humanity and war crimes, universal jurisdiction exists only if the accused individual is a Spanish citizen or a foreign citizen who is habitually resident in Spain or a foreigner who is found in Spain and whose extradition had been denied by Spanish authorities.
For torture and disappearances, universal jurisdiction exists only if the prospective defendant is a Spanish citizen, or the victims were (at the time of the events in question) Spanish citizens and the person accused of the crime was in Spanish territory.
Only public prosecutors and victims may initiate criminal proceedings under universal jurisdiction; other private individuals or groups (acusaciones populares) may not do so.
Pending cases under the universal jurisdiction provision would be stayed and thereafter dismissed if they could not satisfy these new conditions.

There currently are 12 cases under this jurisdictional provision pending in Spanish courts, and presumably they all will be dismissed under this new amendment. They are the following:

Genocide in Tibet. In 2006 the court commenced an investigation against five former Chinese Communist leaders, including former President Jiang Zemin, for alleged genocide in Tibet. In November 2013, the court issued arrest warrants for these individuals, and in early February 2014, the court rejected the prosecutor’s motion to quash the warrants. As a result, the court on February 10^th asked INTERPOL to issue international arrest warrants for the Chinese individuals.
Genocide in Guatemala. In 2003 the court commenced an investigation of eight former senior Guatemalan officials for alleged genocide, terrorism and torture.
Genocide in Sahara. In 2006 a NGO commenced a case against 31 Moroccan military officers for alleged genocide in the Sahara Desert.
Genocide in Rwanda. In 2005 an investigation was commenced against 69 senior Rwandan officials for alleged genocide and murder, and in 2008 arrest warrants were issued for 40 Rwandan soldiers.
Holocaust. In 2008 a case was commenced by Spanish survivors of the Holocaust against four SS guards, and in 2009 international arrest warrants were issued for three of these guards.
Murder of Spanish Diplomat. In 2012 the court commenced an investigation against seven Chilean officials for alleged participation in the 1976 kidnapping and assassination of a Spanish diplomat, Carmelo Soria. Last year a Chilean court rejected Spain’s request for the arrest of the officials.
Persecution of Falun Gong. In 2006 the court started an investigation of alleged persecution of Falun Gong practitioners by the Chinese government between 1999 and 2002.
Israeli Attack on “Freedom Flotilla” to Gaza. In 2010 the court started an investigation of Israeli officials for alleged war crimes and crimes against humanity for an armed assault on ships with materials for Palestinians in Gaza.
Murder of Spanish Journalist. In 2003 the court started an investigation of alleged U.S. military personnel in the 2003 death of a Spanish journalist, Jose Couso, in Iraq.
Torture of Detainees on CIA Flights. In 2006 the court started an investigation of possible violations by CIA or other U.S. personnel with respect to detainees on CIA flights stopping at an airport in Spanish territory.
Iraqi attack on Iranian refugee camp. In 2009 the court started to investigate an alleged Iraqi military attack on an Iranian refugee camp in 2008.
Murder of the Jesuit priests. In 1999 the court commenced to investigate the 1989 murders of six Jesuit priests in El Salvador, and in 2011 the court ordered the arrest of 20 former Salvadoran military officials.

The immediate precipitating causes for the Spanish government’s seeking and obtaining approval of this amendment at this time are widely seen as the Spanish court’s issuance of arrest warrants, and seeking INTERPOL arrest warrants, for high officials of the Chinese Communist Party, including a former president of the country, for alleged genocide in Tibet; China’s vehement protests of these developments; and the Spanish government’s desire for a friendly economic relationship with China.

Indeed, on February 11^th, China’s Foreign Ministry said, “China is extremely dissatisfied with and resolutely opposed to the wrong actions of the relevant Spanish [court] taken while ignoring China’s solemn position. Whether or not this issue can be appropriately dealt with is related to the healthy development of ties. We hope that the Spanish government can distinguish right from wrong.”

Human rights groups opposed the current proposed amendment. Amnesty International, Human Rights Watch, the Center for Justice and Accountability and 14 others argue that under multilateral treaties ratified by Spain it has a legal obligation to prosecute any suspected offender of those treaties—regardless of where the crime was committed,[2] who is found in Spain. Moreover, these groups say, the International Court of Justice explained in the case Belgium v. Senegal, this duty to prosecute arises “irrespective of the existence of a prior request for the extradition of the suspect” and requires States to adopt legislation giving its courts the necessary jurisdiction.

Conclusion

Although I regard myself as an human rights advocate and have great respect for Amnesty International and the other NGOs that have opposed the amendment, I dissent from their objections.

In my opinion, the amendment is a reaffirmation of Spain’s implementation of such jurisdiction. Indeed, as noted above, but not acknowledged in the NGOs’ objections, the amendment expands the crimes that are subject to universal jurisdiction and provides greater specificity for some of the crimes previously covered by the statute. This is important for future use of the statute and for due process notice to individuals who may be charged with such crimes in the future.

The main objection appears to be the amendment’s requirement for universal jurisdiction in some instances for an accused foreigner to be present (habitually resident or found) in Spain. This is akin to the U.S. constitutional due process requirement for a defendant to be present in the jurisdiction in order for personal jurisdiction in civil cases to exist, and I believe it is a reasonable requirement for criminal cases in Spain under its universal jurisdiction provisions.

Moreover, in many, if not all, of the previously mentioned 12 pending cases in Spain, the defendants have never been in Spain, and this has lead to the Spanish court’s unsuccessful efforts to enforce its own arrest warrants or the INTERPOL international arrest warrants. As a result, actual criminal prosecutions in these 12 cases have not even been commenced.

I know this is true in the case against 20 former Salvadoran military officers for their alleged involvement in the horrendous murders of the six Jesuit priests and their housekeeper and her daughter in El Salvador in November 1989. I think it is outrageous that these 20 individuals so far have not faced any criminal accountability or punishment for their alleged complicity in this awful crime and thus have de facto immunity or impunity for their actions, and I had hoped that the criminal case in Spain under its universal jurisdiction statute would bring them to justice. But unfortunately that has not happened. (Other posts on Spain’s case regarding the Jesuits’ murders, 6/15/11 and 8/26/11.)

Objection also has been made to the amendment’s imposing a requirement for universal jurisdiction in some instances for Spain to have denied a request for extradition. But at least as I read the English translation of the amendment, this requirement exists only for those foreigners who are temporarily in Spain and does not apply to foreigners who habitually reside in the country. For the passers-by this seems like a due process concern. How would you like while on holiday for one week on the Costa Brava to be charged with a serious crime by a Spanish court for something you allegedly did in the U.S. 10 years ago?

Furthermore, the amendment’s limitations also appear to be reasonable to make efficient use of Spanish judicial resources.

Finally, the Spanish government, in my opinion, has a legitimate interest in its efforts to have friendly economic relations with China as Spain continues to struggle to emerge from its economic difficulties, including high unemployment. Pursing justice for horrible crimes committed elsewhere is a laudable purpose and goal, but it is not the only purpose and goal of the Spanish government or any country’s government.

As an U.S. scholar stated, “With unemployment at 25 percent, Spaniards would be right to wonder why their officials were using taxpayer resources for other peoples’ problems and simultaneously risking even more Iberian jobs.”

[1] This summary of Spain’s new amendment by a retired U.S. lawyer who is not an expert on Spanish law is based upon the English translation of the new law (Proposed Law on Universal Justice to amend the Organic Law 6/1985 of 1 July on the Judiciary on universal justice, No. 122/000136) and of Spain’s Congress’ press release about the bill and the following English-language sources and translations (from Spanish): Perez, High court to follow through on arrest warrants against top Chinese officials, El Pais in English (Feb. 7, 2014); Amnesty Int’l and 15 other Human Rights Organizations, Spanish Lawmakers Should Reject Proposal Aimed at Closing the Door on Justice for the Most Serious Crimes (Feb. 10, 2014); Yardley, Spain Seeks to Curb Law Allowing Judges to Pursue Cases Globally, N.Y. Times (Feb. 10, 2014); Moffett, Spain’s Lower House Approves Law to Limit Judges’ Reach, W.S.J. (Feb. 11, 2014); The twelve causes of ‘universal justice,’ El Mundo (Feb. 11, 2014); Molto, Tibet to universal justice: Chronicle of an announced impunity, El Pais (Feb.11, 2014); Kassam, Spain moves to curb legal convention allowing trials of foreign rights abuses, Guardian (Feb. 11, 2014).

[2] These treaties include the Geneva Conventions; the U.N. Convention against Torture; the International Convention for the Protection of All Persons from Enforced Disappearances; the Hague Convention for the Suppression of Unlawful Seizure of Aircraft; and the Convention on the Physical Protection of Nuclear Material.

U.S. Report on International Terrorism for 2012

On May 30, 2013, the U.S. State Department submitted Country Reports on Terrorism 2012 to the U.S. Congress as required by law. [1] This report provides an assessment of trends and events in international terrorism that occurred during 2012. The Department’s Fact Sheet about the report highlighted the following as the most noteworthy developments of the year:

Iran’s state sponsorship of terrorism, through its Islamic Revolutionary Guard Corps-Qods Force (IRGC-QF), its Ministry of Intelligence and Security, and Tehran’s ally Hizballah had a marked resurgence.
The al-Qa’ida (AQ) core in Pakistan continued to weaken.
Tumultuous events in the Middle East and North Africa have complicated the counterterrorism picture. Leadership losses have driven AQ affiliates to become more independent.
AQ affiliates are increasingly setting their own goals and specifying their own targets.
There is a more decentralized and geographically dispersed terrorist threat.
Although terrorist attacks occurred in 85 different countries in 2012, they were heavily concentrated geographically. As in recent years, over half of all attacks (55%), fatalities (62%), and injuries (65%) occurred in just three countries: Pakistan, Iraq and Afghanistan.

This report was submitted in compliance with 22 U.S.C. § 2656f, which defines “terrorism” for this purpose as ” premeditated, politically motivated violence perpetrated against non-combatant targets by subnational groups or clandestine agents” while the term “international terrorism” means “terrorism involving citizens or the territory of more than one country.”

The Department is statutorily required to identify countries that have “repeatedly provided support for acts of international terrorism” as “State Sponsors of Terrorism.” This year the following four countries were so designated: Iran, Sudan, Syria and Cuba. A subsequent post will examine this absurd designation of Cuba.

Another chapter of the report concerns “terrorist safe havens,” i.e., “ungoverned, under-governed, or ill-governed physical areas where terrorists are able to organize, plan, raise funds, communicate, recruit, train, transit, and operate in relative security because of inadequate governance capacity, political will, or both.” The following were identified as such havens: Africa (Somalia, Trans-Sahara and Mali), Southeast Asia (Sulu/Sulawesi Seas Littoral and Southern Philippines), Middle East (Iraq, Lebanon, Libya and Yemen), South Asia (Afghanistan and Pakistan) and Western Hemisphere (Colombia and Venezuela).

The Secretary of State also is required to designate “Foreign Terrorist Organizations,” i.e., foreign organizations that engage in terrorist activity or terrorism or retain the capability and intent to do so and that threaten the security of U.S. nationals or the U.S. national security (national defense, foreign relations, or the economic interests). This year the report designates 51 such organizations.

In 2012, according to the report, a total of 6,771 terrorist attacks occurred worldwide, resulting in more than 11,000 deaths and more than 21,600 injuries. In addition, more than 1,280 people were kidnapped or taken hostage. The 10 countries with the most such attacks were Pakistan, Iraq, Afghanistan, India, Nigeria, Thailand, Yemen, Sudan, Philippines and Syria.

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[1] A prior post reviewed the State Department’s terrorism report for 2011.

Latest U.S. Reports on International Religious Freedom

Annually the U.S. Department of State, pursuant to statutory authorization, releases a report on the status of religious freedom in every country in the world.[1] In addition, the quasi-independent U.S. Commission on International Religious Freedom releases annual reports on the same subject for selected countries.[2]

It should be noted at the outset that these two agencies are not seeking to impose on the rest of the world the U.S. constitutional prohibition of the “establishment of religion” or of “abridging the free exercise [of religion].” [3] Instead the agencies reports rely upon this definition of the freedom in the Universal Declaration of Human Rights: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.” Similar provisions are found in several multilateral human rights treaties.[4]

The post will review the latest State Department report on this subject for all 194 other countries in the world and the Commission’s latest report on 29 countries plus one large region (Western Europe).[5]

Latest State Department Report

After emphasizing the importance of religious freedom, the State Department’s May 20, 2013, report “tells stories of courage and conviction, but also recounts violence, restriction, and abuse. While many nations uphold, respect, and protect religious freedom, regrettably, in many other nations, governments do not protect this basic right; subject members of religious minorities to violence; actively restrict citizens’ religious freedom through oppressive laws and regulations; stand by while members of societal groups attack their fellow citizens out of religious hatred, and fail to hold those responsible for such violence accountable for their actions.”

The report continues.”The immediate challenge is to protect members of religious minorities. The ongoing challenge is to address the root causes that lead to limits on religious freedom. These causes include impunity for violations of religious freedom and an absence of the rule of law, or uneven enforcement of existing laws; introduction of laws restricting religious freedom; societal intolerance, including anti-Semitism and lack of respect for religious diversity; and perceptions that national security and stability are best maintained by placing restrictions on and abusing religious freedom.”

Highlighted for concern by the report were “[l]aws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive. Numerous governments imposed such undue and inappropriate restrictions on religious groups and abused their members, in some cases as part of formal government law and practice.” Another concern was the “use of blasphemy and apostasy laws.” They “continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner.”

The report documented “a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism. When political leaders condoned anti-Semitism, it set the tone for its persistence and growth in countries around the world. Of great concern were expressions of anti-Semitism by government officials, by religious leaders, and by the media.”

According to the report, “Governments that repress freedom of religion and freedom of expression typically create a climate of intolerance and impunity that emboldens those who foment hatred and violence within society. Government policy that denies citizens the freedom to discuss, debate, practice, and pass on their faith as they see fit also undercuts society’s ability to counter and combat the biased and warped interpretations of religion that violent extremists propagate. Societal intolerance increased in many regions during 2012.”

Finally the report said, “Governments exacerbated religious tensions within society through discriminatory laws and rhetoric, fomenting violence, fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks, and NGOs alleged that there were instances in which police protected the attackers rather than the victims. As a result, government officials were not the only ones to commit abuses with impunity. Impunity for actions committed by individuals and groups within society was often a corollary of government impunity.”

The report also acknowledged the Department’s statutory obligation to designate “Countries of Particular Concern (CPCs), i.e., those countries that are considered to commit “particularly severe violations of religious freedom,” and whose records call for the U.S. government to take certain actions under the terms of the Act. The term ‘‘particularly severe violations of religious freedom’’ means systematic, ongoing, egregious violations of religious freedom, including violations such as: (a) torture or cruel, inhuman, or degrading treatment or punishment; (b) prolonged detention without charges; (c) causing the disappearance of persons by the abduction or clandestine detention of those persons; or (d) other flagrant denial of the right to life, liberty, or the security of persons.”

Accordingly the report re-designated the following eight countries as CPCs: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Uzbekistan.[6]

Latest Commission Report

Under the authorizing statute, the Commission is required to designate as “countries of particular concern” (CPC) (or “Tier 1 Countries”) those that have engaged in or tolerated “particularly severe” violations of religious freedom.

In its latest report, issued on April 30, 2013, the following 15 countries were so designated: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan and Ubekistan (all of which had been designated as “Countries of Particular Concern” (CPC) by the State Department the prior year) plus Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkmenistan and Vietnam.

The Commission also designates some countries as “Tier 2 Countries,” i.e., countries on the threshold of Tier 1 status, i.e., when their “violations . . . are particularly severe” and when at least one, but not all three, of the criteria for that status (“systematic, ongoing and egregious”) is met.

The latest report designated the following eight countries as Tier 2: Afghanistan, Azerbaijan, Cuba, India, Indonesia, Kazakhstan, Laos and Russia.[7]

The latest report also discussed six other countries (Bahrain, Bangladesh, Belarus, Ethiopia, Turkey and Venezuela and one region (Western Europe) that it monitored during the year. At first glance the monitoring of Western Europe seems anomalous, but here are the topics of concern to the Commission:

Restrictions on religious dress (full-face veils) in France and Belgium.
Failure in Sweden, Luxembourg, Switzerland, Poland, Norway and Iceland to exempt religious slaughter of animals from laws requiring prior stunning of the animals.
Suggestions in Germany and Norway that religious circumcisions of male children were illegal.
Restrictions on construction of Islamic minarets in Switzerland, and the lack of an official mosque in Athens, Greece.
“Incitement to hatred” and other laws in almost all European states that can be used to restrict expression of religious beliefs.
Reluctance in many European states to provide accommodation of religious objections to generally applicable laws.
Measures in France, Austria, Belgium and Germany against religious groups perjoratively characterized as “cults” or “sects.”
Societal intolerance, discrimination and violence based on religion or belief such as towards Muslim women with full-face veils, Jewish people and Jehovah’s Witnesses.

It should also be noted that the Commission sometimes takes an adversarial position vis-à-vis the U.S. State Department. For example, on April 30, 2013, when the Commission released its latest report, its simultaneous press release recommended that the Department designate as “Countries of Particular Concern” the seven additional countries the Commission had placed in Tier 1 as noted above.

When the Department failed to do so in its May 20th report, the next day the Commission issued a press release criticizing the Department for failure to make additional CPC designations since August 2011 and to do so for the same seven additional countries.

Conclusion

Because of my personal interest in Cuba, including its religious freedom, a subsequent post will compare and contrast the two reports regarding that country.

Such a comparison, in my opinion, will show that the State Department’s reports are more balanced and fair at least with respect to Cuba.

[1] International Religious Freedom Act of 1998, § 102.

[2] Id. § § 202, 205. The fascinating structure and composition of the Commission will be the subject of a future post.

[3] U.S. Const., First Amend.

[4] See Post: International Law Regarding Freedom of Religion (Jan. 1, 2012).

[5] A prior post examined the prior State Department report.

[6] The State Department report noted that it considers the recommendations of the Commission on CPCs, but that the Secretary of State makes the final decision on that issue. The Department’s report thereby implicitly rejected the Commission’s recommendation for an additional seven countries to be so designated.

[7] Previously the Commission called this group the “Watch List of countries where the serious violations of religious freedom engaged in or tolerated by the governments do not meet the CPC threshold, but require close monitoring.” According to the Commission, the “Watch List provides advance warning of negative trends that could develop into severe violations of religious freedom, thereby providing policymakers with the opportunity to engage early and increasing the likelihood of preventing or diminishing the violations.”

Case Against Corporations Under the Alien Tort Statute Is Allowed To Proceed

On November 1, 2012, the U.S. District Court for the District of Eastern Virginia allowed a lawsuit by four Iraqis to proceed against two U.S. corporations for their alleged direct participation in torture and other illegal conduct at Iraq’s Abu Ghraib prison.

The case, Al Shimari v. CACI, which was commenced in June 2008, has had a complex history.[1]

In March 2009, the district court granted the corporations’ motion to dismiss the claims under the U.S. Alien Tort Statute (ATS), but denied the motion to dismiss the other claims under state common law for assault, battery, sexual assault, infliction of emotional distress, and negligent hiring and supervision. (Al Shimari v. CACI, 657 F. Supp. 2d 700 (E.D. Va. 2009).)

In September 2011 a panel of the U.S. Court of Appeals for the Fourth Circuit, 2-1, reversed the district court’s denial of the motion to dismiss the state law claims on the ground that the corporate defendants were immune.

However, in May 2012, that court, en banc, dismissed the defendants’ appeal on the procedural ground that the appellate court had no jurisdiction over the premature appeal. The appellate court, therefore, remanded the case to the district court. (Al Shimari v. CACI Int’l, Inc., 679 F.3d 205 (4th Cir. 2012) (en banc).)

On October 11, 2012, the plaintiffs moved the district court to reverse its March 2009 decision and reinstate the ATS claims. (Plaintiffs’ Memorandum of Law in Support of Their Motion Seeking Reinstatement of the Alien Tort Statute Claims, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Oct. 11, 2012).)

On November 1st the court did just that with an order to follow. (Civil Minutes, Al Shimari v. CACI, No.1:08CV827 (E.D. Va. Nov. 1, 2012).)

This plaintiffs’ victory may be short-lived because the U.S. Supreme Court has a case under advisement on the issue of whether corporations may be held liable under the ATS.

[1] See generally Center for Const’l Rights, Al Shimari v. CACI.

Should the International Criminal Court Indict George W. Bush and Tony Blair over Iraq?

On September 2nd Desmond Tutu, a Nobel Peace Prize Laureate and the retired South African Anglican Archbishop, said, “The immorality of the United States and Great Britain’s decision to invade Iraq in 2003, premised on the lie that Iraq possessed weapons of mass destruction, has destabilized [sic] and polarised [sic] the world to a greater extent than any other conflict in history.” Therefore, Tutu continued, “In a consistent world, those responsible for this suffering and loss of life [George W. Bush and Tony Blair] should be treading the same path as some of their African and Asian peers who have been made to answer for their actions [at the International Criminal Court] in the Hague.”

These remarks in London’s Observer newspaper followed Tutu’s withdrawal last week as a speaker at a conference in South Africa because Tony Blair was also to be a conference speaker.

Tony Blair immediately responded to Tutu’s comments. Blair said, Tutu had repeated “the old canard that we lied about the intelligence [on Iraq] is completely wrong as every single independent analysis of the evidence has shown.” In addition, according to Blair, “to say [as Tutu had] that the fact that Saddam massacred hundreds of thousands of his citizens is irrelevant to the morality of removing him is bizarre.” Finally Blair claimed that “despite the problems, Iraq today has an economy three times or more in size with child mortality rate cut by a third of what it was.”

However morally appropriate Tutu was on his criticism of the decision to start the Iraq war, his call for ICC prosecution of Bush and Blair is not legally well founded.

That was the legal conclusion on February 9, 2006, by the ICC’s Office of the Prosecutor in response to many communications expressing concern regarding the launching of military operations and the resulting human loss. This conclusion was documented in a detailed memorandum by the ICC Prosecutor that set forth the following reasons:

The ICC did not have jurisdiction over any actions by Iraqi or U.S. citizens because Iraq and the U.S. were not States Parties to the Court’s Rome Statute.
Although the Court had jurisdiction over the crime of “aggression” under the Statute’s Article 5, that crime had not yet been defined and thus could not be a basis for any charges.[1]
Although there was information indicating war crimes of intentional killing and inhuman treatment had been committed, the information did not suggest that they were “part of a plan or policy or as part of a large-scale commission of such crimes” as required by Article 8 of the Statute.
There was no information that the Coalition forces had an “intent to destroy, in whole or in part, a national, ethnical, racial or religious group as such”, as required in the Statute’s definition of the crime of genocide (Article 6).
There was no information of “a widespread or systematic attack directed against any civilian population” as required in the Statute’s definition of crimes against humanity (Article 7).

Therefore, the Office of the Prosecutor stated the statutory requirements for initiating a formal investigation of the situation in Iraq had not been satisfied.[2]

[1] As discussed in a prior post, a definition of the crime of aggression was agreed to at the Court’s June 2010 Kampala Review Conference, but its actual use by the Court will not happen until after January 1, 2017 and only if there is a two-thirds vote of approval of the amendment by the Court’s Assembly of States Parties and ratification of the amendment by at least 30 States Parties.

[2] There are many posts about the ICC on this blog. To find them, just click on “International Criminal Court” in the tag cloud to the right of this post.

The Latest U.S. Report on International Terrorism

On July 31, 2012, the U.S. Department of State issued its latest annual report on terrorism in the world: Country Reports on Terrorism 2011. This post will review the report as a whole.

The report included the following statistics on terrorists attack during the year:

Area	Number of Attacks
Near East & South Asia	7,721
Africa	978
Europe & Eurasia	561
East Asia & Pacific	543
Western Hemisphere	480
*TOTAL*	*10,283*

The report’s “Strategic Assessment ” section puts all of this into a worldwide context. It highlights the death of Osama bin Laden and other top leaders of al-Qa’ida as putting its “network on a path of decline that will be difficult to reverse.” However, its affiliated groups around the world increased their impact. Iran was also criticized for its lethal support of terrorism in Iraq and Palestine. Others specifically mentioned in this Assessment were certain terrorist groups in South-Asia, the Kurdistan Workers Party in Turkey, anarchists in Greece and Italy, dissident Republican groups in Northern Ireland and Anders Behring Breivik (the Norwegian right-wing extremist who killed 77 people last July).

The statutory authorization of this report requires the Department of State to identify countries that have “repeatedly provided support for acts of international terrorism” as “State Sponsors of Terrorism.” This year the following four countries were so designated: Iran, Sudan, Syria and Cuba. A subsequent post will examine this designation of Cuba.

A wide range of sanctions may be imposed as a result of a State Sponsor of Terrorism designation, including: (a) a ban on arms-related exports and sales; (b) controls over exports of dual-use items, requiring 30-day Congressional notification for goods or services that could significantly enhance the terrorist-list country’s military capability or ability to support terrorism: (c) prohibitions on economic assistance; and (d) imposition of miscellaneous financial and other restrictions.

Spain’s Criminal Case Over U.S. Killing of Spanish Journalist in Iraq

Spain’s National Court (Audiencia Nacional), as mentioned in a prior post, has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory. We now look at the third of these three cases.

In May 2003, the mother (Maria Isabel Permuy Lopez) and other family members filed a criminal complaint with the Central Criminal Court for Preliminary Criminal Proceedings No. 1 at the Audiencia Nacional in Madrid. The subject of the case is the April 8, 2003, killing of her son, Jose Couso Permuy, who was a cameraman for a Spanish television station, in Baghdad, Iraq by a shell fired by a U.S. tank. The defendants are three U.S. infantrymen involved in the shelling.

On October 19, 2005, Judge Santiago Pedraz opened a preliminary investigation in light of the failure of the U.S. to provide responses to the Spanish court’s requests for information. The Judge also issued three international arrest warrants for the three U.S. infantrymen on charges of murder and war crimes.

On March 10, 2006, the case was closed by the Criminal Division of the National Court, but nine months later (December 2006), the Spanish Supreme Court reversed the dismissal.

Judge Pedraz in January 2007 reactivated the three arrest warrants and requested a freeze on the defendants’ assets. He also asked the U.S. to provide contact information for the defendants for an INTERPOL Red Notice, but the U.S. Ambassador to Spain advised the Spanish Attorney General that the U.S. would not respond to the request.

The next round was the April 2007 indictment of the defendants by Judge Pedraz for aggravated murder and crimes against the international community by attacking journalists. However, in May 2008, this was reversed by the Criminal Division of the National Court on an appeal by the National Court Chief Prosecutor.

The case, however, was not yet over. In May 2009 on the basis of new evidence Judge Pedraz issued new indictments for murder, crimes against humanity and violations of the Geneva Conventions. There also was another indictment in November 2011.

In summary, this case is still pending.

Collaterally the Couso family has asked the Spanish government for an investigation of the integrity of the Spanish criminal investigation of this case following the WikiLeaks release of certain U.S. diplomatic cables. This request has faced procedural problems and has not reached a final conclusion.

U.S. Second Report to U.N. Committee Against Torture

As previously noted, States Parties to the multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are obligated to submit periodical reports to the Committee Against Torture (CAT) “on the measures they have taken” to implement the treaty. We also have examined the U.S. initial report to CAT (First Report).[1]

In CAT’s comments on the First Report, it requested the U.S. to submit its second report on or before November 19, 2001. The U.S. did not do so. Instead, the U.S. belatedly submitted its second report (the Second Report) on May 6, 2005.[2]

It is important to remember that the Second Report came after 9/11 and during the U.S.’ so called “war on terror.” It was also after there was world-wide publicity and criticism of the U.S. about horrible abuses of prisoners by U.S. personnel at the Abu Ghraib prison in Iraq, U.S. transfer of detainees to other countries (so called “rendition”) where torture was known to occur and the U.S. use of its base at Guantanamo Bay, Cuba for detention of men arrested in the “war on terrorism.” As we will see below, this led to an intensive examination and criticism of the U.S. by CAT.

We will examine the Second Report (85-pages plus annexes, including two sworn statements about transfers of detainees from Guantanamo Bay), CAT’s hearings regarding that report, CAT’s responsive comments and the U.S. reaction to those comments.

1. U.S. Second Report to CAT

The report started with positive general statements. The U.S. “is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the [U.S.].”[3]

Moreover, “All components of the [U.S.] Government are obligated to act in compliance with the law, including all [U.S.] constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment.The U.S. . . . does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.”

The report also said the U.S. “is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States [George W. Bush, however,] . . . has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted.”

The report further stated that the U.S. recognizes “its obligation not to expel, return (refouler) or extradite a person to another state where there are substantial grounds for believing that he would be in danger of being subjected to torture. . . . [A]llegations that it has transferred individuals to third countries where they have been tortured [are contrary to U.S. policies and procedures].”

After the submission of the Second Report and before the hearings, CAT in February 2006 provided the U.S. with a document containing 59 very detailed questions or issues that it wanted addressed before or at the hearings. The document demonstrated the Committee’s awareness of what was happening in the U.S. “war on terrorism” and of internal U.S. documents that had entered the public domain.[4] On April 28th the U.S. submitted its written responses to these issues.[5]

2. Committee’s Hearings Regarding the U.S. Second Report

There were two parts to the Committee’s hearing regarding the U.S. in Geneva, Switzerland. The initial hearing took place on May 5, 2006.[6] The second, on May 8th.[7]

These hearings were the first time since 9/11 that the U.S. had answered questions from an international body about alleged U.S. abuses in the so-called war on terrorism. The seriousness of the occasion was underscored by the U.S.’ sending a delegation of 26 officials from the Departments of State, Defense, Justice and Homeland Security. It was headed by Barry Lowenkron (Assistant Secretary of State for Bureau of Democracy, Human Rights and Labor) and John Bellinger (Legal Advisor to the State Department) with high-level support from Thomas Monheim, (Associate Deputy Attorney General) and Charles Stimson (Deputy Assistant Secretary of Defense for Detainee Affairs).

a. May 5, 2006 Hearing

The initial hearing was opened by Mr. Lowenkron. He emphasized the U.S. commitment to uphold its obligations to eradicate torture and prevent cruel, inhuman or degrading treatment or punishment. Abuses, like those at Abu Ghraib in Iraq, sickened American people and were inexcusable and indefensible. The U.S. is taking steps to hold accountable those who were involved. The U.S. values transparency and openness. For example, the International Committee of the Red Cross, a European governmental group and over 1,000 journalists have visited the U.S. facility at Guantanamo Bay, and some have made positive statements about the facility.

These comments were reiterated by Mr. Bellinger, who emphasized U.S. efforts to help torture victims recover. The Torture Convention, he argued, was not intended to apply to armed conflicts which are governed by humanitarian law. There were many allegations about U.S. mistreatment of detainees, but he urged the Committee to remember they were only allegations, not proof, and to keep a sense of perspective and proportion regarding these claims. Bellinger then summarized the U.S.’ written responses to the Committee’s list of issues.

Mr. Monheim discussed the role of the Department of Justice’s Civil Rights Division in enforcing federal civil rights statutes and U.S. legal protections for victims of torture. Mr. Stimson spoke about the U.S. treatment of detainees in Afghanistan, Iraq and Guantanamo Bay.

After these presentations, several Committee members appeared skeptical about aspects of the U.S. presentation. Fernando Marino Menendez of Spain, the Committee’s Rapporteur for the U.S., raised several concerns. He said the International Court of Justice and the Committee believed that the Convention was applicable in times of armed conflict contrary to the U.S. position; that the U.S. failure to disclose information about intelligence services could be a violation of victims’ rights; that the U.S. had failed to adopt the Convention’s definition of “torture” and instead improperly had adopted a different definition; and international tribunals and opinion had concluded that forced disappearances constituted torture contrary to the U.S. position. Menendez also expressed skepticism of the U.S. assertions that its interrogation practices complied with the treaty, that the abuses were not systematic and that the U.S. complied with the treaty with respect to transfer of detainees to other countries.

The Committee’s Alternate Rapporteur for the U.S., Guibril Camara of Senegal, emphasized that the Committee’s interpretation of the treaty trumped that of the U.S., and he questioned the legitimacy of the U.S. reservations to its ratification of the treaty.

Other members of the Committee reiterated some of these concerns and added others as well.

b. May 8, 2006 Hearing

The U.S. delegation returned on May 8th to respond to the oral questions raised at the initial hearing. These responses focused on legal issues regarding U.S. implementation of the treaty; U.S. treatment of detainees and accountability for abuses; and monitoring and oversight of U.S. intelligence activities.

Immediately after the conclusion of the hearings, the U.S. delegation released a written “Departure Statement.” It emphasized that (1) all U.S. officials are prohibited from engaging in torture and cruel, inhuman or degrading treatment or punishment at all times and in all places; (2) the U.S. deplores its personnel’s occasional violations of these bans and will investigate and hold perpetrators accountable; (3) the U.S. does not transfer people to countries where it is more likely than not that they would be tortured; and (4) the U.S. is able to recognize its failures and make things better and comply with the torture treaty. The statement also mentioned that while in Geneva, members of the delegation also met with the U.N. High Commissioner for Human Rights, the International Committee of the Red Cross and several human rights NGOs.[8]

3. Committee’s Conclusions and Recommendations Regarding the U.S. Second Report

On July 25, 2006, the Committee issued its conclusions and recommendations regarding the U.S. Second Report. CAT complimented the U.S. for its exhaustive written responses to the Committee’s list of issues and to the questions raised at the hearing and for the presence of the large and high-level U.S. delegation at the hearing. CAT also welcomed the U.S. commitment to prohibition of torture and improper transfer of detainees to other countries. Finally CAT was pleased with new U.S. legislation on treatment of prisoners and detainees.[9]

The U.S.’ major effort to persuade the Committee that the U.S. was in full compliance with the Convention Against Torture, however, was unsuccessful. The Committee’s report recorded a lengthy list of concerns and recommendations. Although polite, diplomatic language was used, it was a stinging rebuke of the U.S. According to the Committee, the U.S. should:

(a) enact a federal crime of torture consistent with Article 1 of the treaty;

(b) ensure that acts of psychological torture, prohibited by CAT, are not limited to “prolonged mental harm” as set out in U.S. “understandings, ” but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration and withdraw its reservation to article. 16 (prevention of cruel, inhuman or degrading treatment);

(d) recognize and ensure that CAT applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and that CAT’s provisions are without prejudice to provisions of any other international instrument;

(e) recognize and ensure that CAT’s provisions apply to, and are fully enjoyed by, all persons under the de facto effective control of its authorities, of whichever type, wherever located in the world as opposed to the regrettable U.S. view that they applied only to its de jure territory;

(f) register all persons it detains in any territory under its jurisdiction;

(g) ensure that no one is detained in any secret detention facility under its de facto effective control because doing so is a per se violation of the treaty; the U.S. “no comment” policy regarding such facilities is regrettable;

(h) adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators because such practices are per se violations of the treaty; the U.S. view that such practices do not constitute torture is regrettable;

(i) adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation, ensure that perpetrators of acts of torture are prosecuted and punished appropriately, ensure that any interrogation rules, instructions oR methods do not derogate from the principle of absolute prohibition of torture and that no doctrine under domestic law impedes the full criminal responsibility of perpetrators of acts of torture, and promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to acts of torture committed by their subordinates;

(j) apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, and ensure that suspects have the possibility to challenge decisions of refoulement; the Committee is concerned that the U.S. does not consider its non-refoulement obligation to extend to its detainees outside its territory;

(k) with respect to refoulement only rely on “diplomatic assurances” from States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case, establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements, and provide detailed information to the Committee on all cases since 9/11/01 where assurances have been provided;

(l) cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured because detaining people indefinitely without charges constitutes a per se violation of the treaty;

(m) ensure that education and training of all law-enforcement or military personnel, are conducted on a regular basis, in particular for personnel involved in the interrogation of suspects; training to include interrogation rules, instructions and methods, and specific training on how to identify signs of torture and cruel, inhuman or degrading treatment; such personnel should also be instructed to report such incidents; regularly evaluate such training and education and ensure regular and independent monitoring of their conduct;

(n) rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control;

(o) promptly, thoroughly and impartially investigate all allegations of acts of torture or cruel, inhuman or degrading treatment or punishment by law-enforcement personnel and bring perpetrators to justice, and provide the Committee with information on the ongoing investigations and prosecution relating to Chicago Police Department;

(p) eradicate all forms of torture and ill-treatment of detainees by its military or civilian personnel, in any territory under its jurisdiction, and promptly and thoroughly investigate such acts, prosecute all those responsible for such acts, and ensure they are appropriately punished, in accordance with the seriousness of the crime;

(q) ensure that independent, prompt and thorough procedures to review the circumstances of detention and the status of detainees are available to all detainees;

(r) ensure that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse, including sexual violence, perpetrated by its officials;

(s) amend the U.S. Prison Litigation Reform Act to eliminate the requirement that there can be no lawsuit for mental or emotional injury suffered while in custody without a prior showing of physical injury;

(t) ensure that the ban on use of statements induced by torture are fulfilled in all circumstances, including in the context of military commissions, and establish an independent mechanism to guarantee the rights of all detainees in its custody;

(u) review and revise its execution methods, in particular lethal injection, in order to prevent severe pain and suffering;

(v) design and implement appropriate measures to prevent all sexual violence in all it detention centers, and ensure that all allegations of violence in detention centers are investigated promptly and independently, perpetrators are prosecuted and appropriately sentenced and victims can seek redress, including appropriate compensation;

(w) ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, and address the question of sentences of life imprisonment of children, as these could constitute cruel, inhuman or degrading treatment or punishment;

(x) review the use of electroshock devices, strictly regulate their use, restricting it to substitution for lethal weapons, and eliminate the use of these devices to restrain persons in custody;

(y) review the regime imposed on detainees in “supermaximum prisons,” in particular the practice of prolonged isolation;

(z) ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished;

(aa) invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in full conformity with the terms of reference for fact-finding missions by U.N. special procedures, to visit Guantánamo Bay and any other detention facility under its de facto control;

(bb) reconsider its intent not to join the International Criminal Court;

(cc) withdraw all U.S. reservations, declarations and understandings lodged at the time of ratification of CAT;

(dd) make declaration under article 22, thereby recognizing the competence of the Committee to receive and consider individual communications, and ratify Optional Protocol to CAT;

(ee) provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints, etc.

Indeed, journalists saw the Committee’s report as “a rebuke of Bush administration counter-terrorism policies.” Human Rights Watch said it was a “strong and thorough critique” and “a complete repudiation of virtually every legal theory that the Bush administration has offered for its controversial detention and interrogation policies.” [10]

4. U.S. Reaction to the Committee’s Conclusions and Recommendations

Immediately after the release of the Committee’s report, U.S. officials were very critical of the Committee and its report. Mr. Bellinger was reported as saying that the report was “skewed and reaches well beyond the scope and mandate of the Committee,” and he reiterated the U.S. argument that in any war, a belligerent nation holds captured combatants without charges indefinitely until the war is over. Bellinger even said the Committee had not provided a fair hearing.[11]

Pursuant to CAT’s request, within one year after the issuance of its conclusions and recommendation, the U.S. on July 25, 2007, submitted its follow-up report to the Committee regarding some of its conclusions and recommendations.[12] Here is what the U.S. said:

The treaty has no provision regarding the registration of prisoners and, therefore, the recommendation to do so was not required; U.S. personnel, however, “generally maintain appropriate records” on detainees;

The U.S. determines whether it is more likely than not that a person would be tortured in another country before transferring him, not whether there is a “real risk” of that occurring, and the treaty does not give such individuals a right to challenge the transfer;

There is no basis in the treaty to recommend that the Guantanamo Bay facility be closed or that every detainee there have a right to judicial review of their detention;

The law of war, not CAT, applies to detention of enemy combatants in the war on terrorism; and

Juveniles are not regularly and generally held in federal and state prisons with adult prisoners. The U.S. is not a party to the Convention on the Rights of the Child and is not subject to any of its provisions.

Conclusion

CAT also requested the U.S. to submit its next periodical report on or before November 19, 2011.[13] The U.S., however, did not do so. Once again we see that CAT does not have power to order the U.S. or any other State Party to do anything or to impose sanctions on the party when it does not do what CAT politely had requested.

[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011); Post: U.S. First Report to the Committee Against Torture (Dec. 5, 2011).

[2] Post: U.S. First Report to the Committee Against Torture (Oct. 15, 1999); U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm.

[3] Id. The second report also contained responses to CAT’s concerns and recommendations to the first U.S. report. In connection with the second report, the U.S. in October 2005 also provided CAT with supplemental responses that are contained in a U.S. Department of State website, http://www.state.gov/g/drl/hr/treaties/index.htm.

[4] CAT, List of issues to be considered during the examination of the second periodic report of the UNITED STATES OF AMERICA (Feb. 8, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[5] U.S. Dep’t of State, Response of the U.S.A. to List of issues to be considered during the examination of the second periodic report of the U.S.A. (April 28, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[6] U.S. Dep’t of State, U.S. Treaty Reports, http://www.state.gove/g/drl/hr/treaties/index.htm: has posted the following documents at U.S. Dep’t of State, Opening Statement for U.S. Hearing at Committee Against Torture (May 5, 2006); U.S. Dep’t of State, Opening Remarks by John Bellinger (May 5, 2006); U.S. Dep’t of State, U.S. Delegation Oral Responses to CAT Committee Questions (May 5, 2006). See also U.N. Committee Against Torture, Summary Record of 703rd Meeting–Consideration of Second Periodic Report of the U.S.A. (May 5, 2006); Wright, U.S. Defends Rights Record Before U.N. Panel in Geneva, N.Y. Times (May 6, 2006).

[7] U.N. Committee Against Torture, Summary Record of 706th Meeting–Consideration of Second Periodic Report of the U.S.A. (May 8, 2006) (original in French);U.S. Dep’t of State, The United States’ Oral Responses to the Questions Asked by the Committee Against Torture (May 8, 2006); Wright, U.S. Defends Itself on Inmate Abuse, N.Y. Times (May 9, 2006).

[8] U.S. Dep’t of State, U.S. Delegation Departure Statement (May 9, 2006) (available on State Department website).

[9] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (7/25/06), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e2d4f5b2dccc0a4cc12571ee00290ce0.

[10] Human Rights Watch, U.N. Torture Committee Critical of U.S. (May 19, 2006); Lynch & Brubaker, U.N. Urges Closure of Guantanamo Detention Facility, Wash. Post (May 19, 2006); Lynch, Military Prison’s Closure Is Urged, Wash. Post (May 20, 2006); Golden, U.S. Should Close Prison in Cuba, U.N. Panel Says, N.Y. Times (May 20, 2006); Human Rights Watch, United States: Committee Against Torture Denounces U.S. Practices (June 1, 2006).

[11] Id.

[12] Id.; U.S. Dep’t of State, U.S. Response to Specific Recommendations Identified by CAT, (7/25/07), http://www.state.gov/g/drl/rls/100736.htm.

[13] See n.9 supra.