HUMAN RIGHTS COMMITTEE REVIEWS THE REPORT OF THE UNITED STATES
14 March 2014
The Human Rights Committee this afternoon concluded its consideration of the fourth periodic report of the United States on its implementation of the provisions of the International Covenant on Civil and Political Rights.
Presenting the report, Mary McLeod, Principal Deputy Legal Advisor, United States Department of State, and Head of Delegation, introducing the report, said that the United States took its human rights obligations and the dialogue with the Committee extremely seriously. The report before the Committee described major developments, including new laws, judicial decisions, policies and programmes that recently expanded protections in various areas and provided remedies for violations of protected rights. While there might be matters regarding the interpretation or application of the Covenant on which the United States and Committee Members may not be in full agreement, the delegation hoped that the Committee would appreciate that the views of the United States were informed by a principled interpretation of international treaty law and its commitment to the protection of human rights.
All United States activities, including its intelligence surveillance activities and its activities in the context of armed conflict with Al-Qaeda, were carried out in strict compliance with domestic and international law. These activities were also subject to extensive domestic oversight. The Obama Administration was committed to closing the Guantanamo Bay detention facility and would continue its efforts towards that goal. The United States was also committed to addressing police brutality and to systematically investigate credible allegations. The United States was also committed to addressing violence against women, investigating all cases of trafficking in persons, and ensuring equal access to education and other services for all, regardless of sex, race, religion or sexual orientation.
Committee Members raised concerns regarding the United States’ unilateral interpretation of the scope of applicability of the Covenant, which in some cases contradicted the views of the Committee: if all States Parties shared this interpretation there would be no protection of rights at all, an Expert said. Committee Members also expressed concerns regarding the lack of oversight over intelligence activities and the lack of remedies for the victims of United States’ extraterritorial activities. Human rights violations perpetrated by the United States in the context of countering terrorism, including allegations of torture and indefinite and arbitrary detention, were also of concern. Experts asked questions regarding the death penalty, conditions of detention and solitary confinement, and the United States’ immigration and refoulement policies. The Committee inquired about firearms and self-defence legislation, the criminalization of homeless persons, the situation of victims of trafficking, as well as on police and border law enforcement brutality.
In concluding remarks, Mary McLeod appreciated the active participation of civil society organizations in the review process and looked forward to receiving the Committee’s concluding observations.
Sir Nigel Rodley, Chairperson of the Committee, said that the United States’ approach regarding the extraterritorial applicability of the Covenant remained problematic and unclear. Mr. Rodley also referred to the victims of torture left without redress, trafficking in persons, and the situation of homeless people. While the Committee had spent time pointing out challenges and areas of concern, it had to be noted that the United States was a place where laws and rights were respected.
The delegation of the United States included representatives of the Department of State, the Department of Justice, the Department of Defense, the Department of Health and Human Services, the Department of Homeland Security, the Department of Interior, and the Permanent Mission of the United States to the United Nations Office at Geneva. The delegation also included the Mayor of Salt Lake City, the Attorney General of the state of Mississippi, and a contract attorney from Los Angeles.
The Committee this afternoon also discussed its methods of work and the outcome of the intergovernmental process of the General Assembly on strengthening the treaty body system (A/68/L.37). The outcome document fortunately avoided the establishment of a code of conduct and left the work of the Committee Members intact. The Addis Ababa Guidelines were very useful for States that sought to defend the independence and impartiality of the treaty body system. Meeting time was now based on the rate of received reports rather than on the number of ratifications. Experts noted that the process resulted in an improvement of the treaty body system. One of the main gains for the system was the allocation of additional meeting time for treaty bodies to deal with the backlog of reports pending consideration; a second main gain was the capacity-building package to support States’ reporting obligations. The outcome resolution would also lead to several cost savings.
The Committee will next meet in public on Monday 17 March, at 3.00 p.m., to discuss the second periodic report of Chad (CCPR/C/TCD/2).
The fourth periodic report of the United States can be read via the link: CCPR/C/USA/4.
Presentation of the Report
MARY McLEOD, Principal Deputy Legal Advisor, United States Department of State, and Head of Delegation, introducing the report, said that the United States took its human rights obligations and the dialogue with the Committee extremely seriously. The United States had found this process of review and reflection with respect to the International Covenant on Civil and Political Rights (ICCPR) had been very helpful as it strove to improve efforts to protect civil and political rights. The broad and comprehensive legal framework within the United States to implement the Covenant remained firmly in place. The report before the Committee described major developments, including new laws, judicial decisions, policies and programmes that recently expanded protections in various areas and provided remedies for violations of protected rights.
Many of the rights and freedoms protected under the Covenant had parallels in the constitution of the United States, and the country took pride in the numerous other civil and political rights protections available under its laws and policies. While there might be matters regarding the interpretation or application of the Covenant on which the United States and Committee Members may not be in full agreement, the delegation hoped that the Committee would appreciate that the views of the United States were informed by a principled interpretation of international treaty law and its commitment to the protection of human rights.
ROY AUSTIN, Deputy Assistant Attorney General, United States Department of Justice, said that the right to vote was fundamental in a democracy, and was ensured by the United States. Law suits had recently been filed against the states of Texas and North Carolina seeking to block their restrictive voter-identification laws. Those lawsuits evidenced the Department of Justice’s continuing commitment to ensuring that American could vote free from discrimination. Equal access to educational opportunities was essential. Education was the gateway to full participation, recognized as a fundamental right by the Supreme Court almost 60 years ago. Federal laws were continuously enforced to expand opportunities for all students without discrimination on the basis of race, national origin, sex, language, religion and disability. Equal opportunities also meant that qualified borrowers deserved equal access to fair and responsible lending, as well as to meaningful access to courts, including for people with limited English skills. The United States ensured meaningful access to Courts. Through its Access to Justice Initiative, the United States was working to help the Justice system efficiently deliver fair outcomes, irrespective of wealth and status.
Effective and accountable police departments were also a fundamental part of democracy. When systematic problems emerged or officers abused their powers, the Department of Justice used its authority to implement meaningful reform and to hold specific individuals accountable under criminal laws. Individuals confined in institutions were also often among the most vulnerable and the Justice Department continued its work to detect, prevent and respond to abuses in detention facilities. The United States took seriously the importance of addressing racial and ethnic disparities at all levels of the justice system, especially with regards to criminal sentencing; and the Government was working to modify charging policies so that those who committed certain low-level, non-violent federal offences received sentences commensurate with their individual conduct rather than mandatory minimum sentences. In its 2013 annual report to the Sentencing Commission, the United States had called for reform of some mandatory minimum sentencing statutes, including those triggered by drug-trafficking offences, and amendments that could lead to reducing eligible sentences were voted on last January.
The United States was also making progress in its efforts to reduce violence against women. Under new provisions in the reauthorized Violence Against Women Act, tribes and the federal Government could better work together to address domestic violence against Native American women, who experienced the highest rates of assault. The act had led to significant improvements at the local Government level by encouraging victims to file complaints, improve evidence collection, and increase access to protection orders.
MARY McLEOD, Principal Deputy Legal Advisor, United States Department of State, and Head of Delegation, summarized the delegation’s responses to the list of issues adopted by the Committee. She said that the United States was working actively to address human and civil rights issues in numerous ways and the delegation looked forward to further elaboration of those during the discussion. While the Government was pursuing those matters aggressively, there remained much work to be done.
The United States continued to believe that its interpretation of the Covenant applied only to individuals who were both within the territory of a State Party and within its jurisdiction, which was most consistent with the Covenant’s language and negotiating history. While the United States did not have a single national human rights institution, it counted on multiple complementary protections and mechanisms to guarantee respect for human rights, including an independent judiciary. At the time the United States became a Party to the Covenant its reservations to a few of the provisions were crafted in close collaboration with the United States Senate. Ms. McLeod indicated that the United States had no current plans to withdraw its reservations to the Covenant.
The United States were committed to addressing unwarranted racial disparities in the criminal justice system. The 2010 Fair Sentencing Act reduced disparities in sentencing between powder cocaine and crack cocaine and the Department of Justice had pledged to work with the Sentencing Commission and the United States Congress to reform mandatory minimum sentencing statutes. Under its first strategic plan to end homelessness, the Administration was assisting communities to adopt alternatives to laws and policies that led to the criminalization of homelessness.
All people in the United States, including undocumented migrants, were entitled by law to emergency health services. Most states allowed undocumented students to enrol in public education and, in some cases, to pay in-state tuition. The number of states that had the death penalty, the number of persons executed each year, and the number of persons on death row had decreased in the last few years. Today, legislation permitted the imposition of the death penalty in 32 states, reduced from 38 in 2011. Approximately 470,000 fatal and non-fatal violent crimes were committed with firearms in 2012, and the percentage of gun-related homicides committed by intimate partners had declined over the past thirty years.
The United States was in an armed conflict with Al-Qaeda, the Taliban and associated forces, and may also use force consistent with the inherent right to national self-defence. Targets with remotely piloted aircraft were conducted in compliance with international and domestic law, and the United States went to extraordinary lengths to avoid civilian casualties. Under the law of the United States every official was prohibited from engaging in torture and other cruel or inhuman treatments, at all times and in all places. Investigations were systematically conducted when there was a credible allegation that detainees had been mistreated, and a number of such cases had been prosecuted. The United States had also prosecuted military and civilian personnel, including contractors, for suspected unlawful killings committed in operations conducted outside the United States.
Under the law, every United States official was prohibited from engaging in torture or cruel, inhuman or degrading treatment or punishment, at all times and places. The Government conducted prompt and independent investigations into credible allegations concerning mistreatment of detainees, and had prosecuted a number of cases involving alleged detainee abuse, for example, the prosecution of David Passaro in 2004, a CIA contractor accused of brutally assaulting a detainee in Afghanistan in 2003. Ms. McLeod recalled that President Obama stated had stated his belief that “waterboarding was torture and, whatever legal rationales were used, it was a mistake”; and the practice of waterboarding was explicitly prohibited in the army field manual.
The President of the United States had repeatedly reaffirmed his commitment to close the Guantanamo Bay detention facility, and to that end had appointed a Special Envoy to continue to pursue the transfer of detainees, consistent with international law. The United States Department of Justice had jurisdiction to investigate and prosecute excessive use of force and had recently put in place mechanisms to correct unlawful practices in police departments in New Orleans, Portland, Seattle, Puerto Rico and other places. Most states had outlawed corporal punishment in schools. Federal laws ensured protection for detainees with mental issues and others from violence, including sexual violence. Juvenile offenders were separated from adult ones.
The Immigration and Nationality Act provided for detention of aliens who had committed certain criminal acts or were likely to engage or had engaged in terrorist activities. Unaccompanied alien children had their best interests taken into account and benefited appropriate care and services. The United States had made significant improvements in addressing violence against women at the local level, and offered a coordinated response to domestic violence. All cases of trafficking in persons were aggressively investigated and prosecuted, including cases of sexual exploitation of children.
Surveillance activities by the National Security Agency were subjected to extensive oversight by the Executive Branch, the Congress and the Judiciary. The Foreign Intelligence Surveillance Court played an important role as it not only authorized foreign intelligence surveillance activities but also played an active role in ensuring that they were carried out lawfully.
Questions from the Experts
Experts noted that the report had carefully been drafted and welcomed the fact that it had been submitted almost on time. Committee Members also welcomed the report’s attention to both the United States’ legal framework and its implementation.
Experts regretted that the United States had the largest number of reservations to the Covenant, some of which were against the object and purpose of the Covenant, and that it refused to lift such reservations. Experts also regretted that the United States considered that the dispositions of the Covenant were not directly applicable and could not be invoked before domestic courts. While the Committee had already made recommendations on that regard, nothing seemed to have been done.
Regarding the applicability of the Covenant, Experts remained concerned about the application of the Convention by the states of the Federation and the fact that citizens could not invoke the Covenant before the courts. The position of the United States regarding the inapplicability of the Covenant to its extraterritorial activities remained a serious problem and ha had negative effects on the rights of people affected by such actions. The Covenant clearly stipulated that the rights it enshrined had to be protected for all persons under a State’s jurisdiction. At the time of ratification, the United States had made no reservations regarding its territorial applicability, despite the fact that the position of the Committee on that question was already clear at that time. Reservations on the issue were made later.
Would the delegation recognize that the United States’ position on extraterritorial activities allowed the United States to commit violations everywhere except in their own territory? The non-applicability of the Covenant to extraterritorial activities led to impunity and rights violations. If all States were to share that interpretation, there would be no protection of rights at all. Was the Government ready to review its position concerning the extraterritorial application of the Covenant?
Experts said that it seemed difficult for the Federal Government to enforce the dispositions of the Covenant at the local level, and requested further details regarding efforts to ensure that local authorities and federal states enforced the provisions of the Covenant. Had effective mechanisms been established to monitor the activities and actions of the federal states and to ensure that they did not contradict Covenant? Were remedies available for violations of the Covenant but that did not violate domestic legislation in the United States? What follow-up activities to this dialogue at local level and with civil society organizations had been planned? Experts regretted that the United States did not have even one National Human Rights Institution in accordance with the Paris Principles. Noting that national human rights institutions played a very important role in dispute resolution, Experts asked whether the creation of such an institution was planned.
Experts appreciated the recognition by the United States that the criminalization of homelessness raised serious human rights concerns, as well as steps taken to address homelessness. However, were such efforts, in a federal context, enough? What was the Federal Government effectively doing to address such criminalization by states? Would criminalization policies be sanctioned?
Regarding the issue of the death penalty, Experts welcomed the decrease in the number of executions but expressed concerns about discrimination. The number of persons wrongfully sentenced to death illustrated the flaws in the judicial system of federal states that continued to carry out executions. Incidents surrounding the administration of the lethal dose were worrying and certainly amounted to inhuman treatment. Was it correct that some states did not, or barely, compensate persons wrongfully sentenced to death? Would the United States ensure that no executions were carried out using drugs that were not validated by the federal drug department? In light of the large number of persons on death row, some of them were probably innocent, an Expert said. What effective measures had been taken to ensure that the right not to be arbitrarily deprived of life was respected, including when international bodies such as the Inter-American Commission on Human Rights had expressed concerns about some cases? Would it be realistic to imagine the United States ratifying the Second Optional Protocol to the Covenant, on the abolition of the death penalty?
The Committee was extremely worried at the high number of persons killed by fire arms, most victims being children or juveniles. While the Committee appreciated the clear position taken by the President of the United States on the issue, much more needed to be done. What measures would be undertaken to fulfil the United States’ obligation to protect life under Article 6 of the Covenant? Experts were deeply concerned that laws on self-defence, including “stand-your-ground” laws, that seemed to go beyond regular provisions on that issue and sometimes allowed for total impunity. Would any effort be made to harmonize the practices of different federal states in this regard?
Experts also expressed concern at the use of lethal force by police officers and requested information concerning the practice of systematic investigations into such cases, as stipulated by the Covenant. The excessive use of force by police forces had always been an issue of concern for the Committee. There had been allegations concerning incidents of police brutality against members of ethnic minorities, and against migrants by United States’ border patrol agents. It was undeniable that this issue continued to cause problems despite the reforms undertaken, particularly at the border between the United States and Mexico. Had criminal cases been initiated against alleged perpetrators? Were steps being taken to ensure that lethal force was only used when absolutely necessary? How were border patrol agents trained? Were statistics available regarding the use of force by law enforcement officers? What steps were being taken to implement effective oversight and transparency mechanisms to ensure effective remedy for victims of police brutality?
Amnesty International had expressed concern about the excessive use of Tasers and the lack of regulation on their use, and the abusive use of Tasers had been reported. Experts found the use of Tasers against inmates for many minor offences, including juveniles, alarming; and there seemed to be no oversight on the use of Tasers. Could the delegation provide further information on this issue?
Experts welcomed the United States’ recognition that racial disparities existed in the judicial system and the creation of a working group to review the practice of racial profiling. According to official statistics: 3.1 per cent of the Afro-American population and 1.3 per cent of the Latin-American population were incarcerated, while only 0.5 percent of the white population was. What further steps would the Government take to address the situation? Could the delegation provide details regarding reports that the Federal Bureau of Investigation (FBI) had allegedly carried out discriminative activities and implemented systematic surveillance targeting the Muslim population?
Segregation had increased in the area of education, Latin-American and African American people were more likely to quit school. What measures were being taken to address unequal access to education?
Regarding the principle of non-discriminatory access to healthcare, the Committee was concerned regarding the de facto discrimination against undocumented migrants. Could the delegation explain the legal justification for not allowing undocumented migrants to purchase health insurance? There were concerns regarding the link between migratory status and access to medical care, including the obligation for hospitals to inquire into their patients’ immigration status. What measures had been taken to ensure that such practices did not violate migrants’ right to access healthcare? Concerns were also raised regarding limitations on undocumented migrants’ access to free education.
Experts recognized that the United States had the responsibility to protect its citizens against terrorism. However, the use of lethal force had to be regulated and restricted to circumstances of absolute necessity during all counterterrorist activities. Committee Experts were concerned by the United States’ open-ended approach regarding the definition of armed conflict, in particular, the lack of clarity regarding when such a conflict would end.
The laws concerning the right of the military to employ lethal force were also unclear. Experts raised concerns related to the use of drones and the practice of targeted killings, including doubled strikes. Experts underlined allegations by Amnesty International and Human Rights Watch that indiscriminate drone attacks had been carried out in Pakistan and Iraq. Were accountability mechanisms available to victims of drone attacks? Experts also expressed concern about the absence of prosecution against any commanders allegedly responsible for violations of the Covenant. Committee Members insisted that the United States enhance its standards of transparency on such cases.
Regarding the prohibition against torture, Experts inquired about the conviction of officials following allegations of torture during interrogations carried as part of United States’ “war on terror”. How would the United States respond to the recommendations made by the Special Rapporteur on human rights and countering terrorism? What remedies had been made available for victims of torture? Regarding the interrogation programmes during the war on terror, would information be made public? Committee Members regretted that the United States had refused to implement recommendations made by other United Nations bodies in that regard. What legal guarantees were offered during transfers of prisoners, was it ascertained that persons transferred would not be subjected to torture in another country? There had been recent cases of prisoners being transferred to Algeria, an Expert said, asking what measures had been taken by the United States to establish with absolute certainty that those prisoners would not be tortured in Algeria and would benefit from due process?
Experts were concerned that a different criminal law applied to prisoners considered “high value detainees”, which seemed not to offer the appropriate guarantees of due process and fair trial. Was the right to a defence protected? Could lawyers intervene, even when prisoners were transferred to another country?
More than ten years after the 9/11 attacks, an Expert asked what lessons had been learned following the subsequent investigations, and asked whether information on Central Intelligence Agency investigations would be declassified so as to allow the Committee to learn more about how interrogations were conducted?
Responses by the Delegation
Regarding the scope of the application of the Covenant, the United States said it had made its position clear on many occasions, including to this Committee, and it would not change its position on this question.
The United States’ conduct overseas was regulated by international treaties, including on the prohibition of torture, and its extraterritorial activities abroad were based on the rule of law and ensured protection of the right to life, the right to a fair trial, and the right to non-discrimination. Under the Detainee Treatment Act, no individual in custody under the authority of the United States could be subjected to torture. In addition, no transfer of prisoners occurred if there were doubts as to whether the prisoner might risk torture.
Regarding the criminalization of homelessness, considerable work had been undertaken by the administration and the Government had taken a firm position that criminalization was not a solution. Solutions included efforts to prevent homelessness and educating police officers regarding how to address homelessness. People who were released from prison were often the ones most vulnerable to the risk of homelessness, a delegate said. The Federal Government supported housing programmes at tribal level and in Indian reservations.
The death penalty did remain a sanction at the federal level and in several states but only for the most serious crimes, in accordance with the Covenant. Every effort was made to ensure that no innocent people were sentenced to death. Mechanisms were in place to ensure that convicted persons benefited from all guarantees for a fair trial and non-discrimination. High levels of procedural safeguards were in place to ensure that the death penalty was only imposed in the appropriate cases; and post-conviction reviews, including habeas corpus reviews, were also available. States had the obligation to provide appropriate reparations to wrongfully sentenced persons.
Responses by the Delegation
Concerning the scope of application of the Covenant, the delegation reiterated its position. At the time it became a Party to the Covenant, the Government had carefully evaluated whether it could implement its dispositions. None of the reservations were considered to be incompatible with the object and purpose of the Covenant. Furthermore, the withdrawal of reservations was not an easy or usual process in the United States. Considering the protection offered by the United States Constitution and laws, it was decided that the direct applicability of the Covenant at the domestic level was unnecessary. Although there was not a single national human rights institution in the United States, there were several mechanisms monitoring the protection of civil rights at different levels.
Before applying the death penalty, systematic procedures sought primarily to ensure that the punishment was fair and non-discriminatory. The overrepresentation of persons of African descent on the death row was of great concern for the United States and motivated the Government to grant greater attention to compliance to the principle of non-discrimination. The delegation indicated that a total of 100,000 dollars were awarded every year to victims of wrongful imprisonment. In Mississippi, some defence attorneys had spread misinformation regarding drugs used for lethal injections. The product in use was pentobarbital, which was commonly used in surgery, and it was wrong to claim that these products were sometimes outdated. The United States had no plans to become a party to the Second Optional Protocol to the Covenant.
On the issues of police brutality, Tasers and use of lethal force, the delegation underlined the belief that life mattered and was sacred. There were more than half a million police officers in the United States, and most of the time, people relied on their services without any problem related to race, sex, religion or sexual orientation. The United States trained its officers and constantly aimed at improving police services but, when problems did occur, accountability mechanisms were in place. Over the last five years, 246 police officers had been federally convicted for police misconduct. Several federal agencies worked to inform police departments anything that could violate rights enshrined in the United States Constitution. Tasers could indeed be dangerous or lethal and officers received training regarding their use. In the past five years, five police officers had been prosecuted for using their Tasers unnecessarily. Prosecution in the United States needed credible evidence and witnesses. Officers sometimes faced life-threatening situations and were compelled to use force, but the Department of Justice did not hesitate to conduct comprehensive and independent investigations on the use of lethal force and did not hesitate to prosecute when necessary.
Border patrol officers were subject to a strict set of rules and had to avoid placing themselves in situations where deadly force might be necessary. They were also required to avoid responding with lethal force attacks with objects such as rocks. Allegations of racial profiling were taken very seriously by the United States, a delegate said, and information was provided to prevent racial profiling and racial discrimination.
Regarding self-defence and stand-your-ground legislation, the delegation recalled that most laws in the United States were decided and implemented at the state level. The position of the Federal Government regarding stand-your-ground laws was clear: such laws had to be questioned as they could lead to discriminatory acts of violence or impunity.
The Obama administration had taken measures to bring common sense to bear on legislation on weapons and remained committed to enacting federal legislation to address abuses committed with small arms.
At the local level, the United States was undertaking efforts to address discrimination and inequality in education. The Federal Government continued its efforts to combat racial disparities and discrimination. The United States believed that children should not be sent away from school for minor offenses. Schools were not allowed to have policies that banned or discouraged students from attending schools based on their immigration status, in some cases, states provided financial aid regardless of immigration status.
In relation to undocumented migrants’ access to basic services, such as healthcare, and with regards to concerns expressed about the law in Arizona that forced state officials to denounce undocumented migrants, the delegation indicated that the United States wanted to ensure that all people in the country had access to minimal care, including undocumented migrants. A directive stated that no child in the territory of the United States could be denied access to school, regardless of its immigration status.
Many of the questions asked about the United States overseas activities touched upon issues that did not fall within the scope of the Covenant but rather of international humanitarian law. The United States was in a armed conflict against Al-Qaeda and exercised its right to self-defence. All activities were conducted to protect the lives of the American people and military operations were regulated by provisions of United States’ law, including drone strikes. The United States took allegations of civilian casualties very seriously, and investigations were systematically conducted. The United States did its utmost to avoid civilian casualties. All strikes had to respect the principles of international humanitarian law and to distinguish between civilians and combatants. It was not true, as some had claimed, that the United States considered in the context of certain operations that all men of fighting age were suspected fighters, the delegation assured.
The United States did not permit its officers to undergo acts of torture and other forms of cruel, inhuman or degrading treatment, both inside and outside of American borders, and allegations of torture were investigated. In recent years, many American soldiers had been prosecuted for abuses or illegal conduct towards detainees, and those responsible for such acts incurred in criminal penalties, as well as criminal prosecution by court martial or federal court. Neither the International Covenant on Civil and Political Rights nor the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment required States Parties to undertake comprehensive legislation prohibiting torture as long as the right not to be subjected to inhuman treatment was effectively protected. Several states in the United States provided laws protecting citizens from torture.
The United States position was that the Covenant did not create non-refoulement obligations on States Parties. In accordance with its international obligations, the United States did not transfer individuals to countries where they might face risks of torture and this applied to Guantanamo detainees. Transfers of prisoners from Guantanamo to their countries of origin were undertaken in full compliance with the United States’ international obligations and refoulement procedures. One of the Algerian prisoners had expressed the wish to be returned to Algeria, where authorities had offered him the right to appeal the conviction that had been imposed on him in absentia. At present, there were 154 detainees in Guantanamo.
Questions from the Experts
Regarding the extraterritorial applicability of the Covenant, Experts regretted that the delegation could not change the official position by the United States, but hoped that an evolution would eventually come. Committee Members were very concerned at the United States’ unilateral interpretation of the Covenant. For example, it had continuously been the view of the Committee that non-refoulement was covered by the Covenant. What would happen if all States parties had their own interpretation in that regard?
What measures had been adopted to prevent corporal punishment in schools and minor detention facilities? A zero tolerance policy, regardless of the context and behaviour of the person, constituted a reactive policy. Prevention, however, was needed. Experts were alarmed by the high percentage of corporally punished inflicted on young African-Americans or young persons with disabilities. Were allegations of corporal punishment being investigated?
Experts also regretted the lack of a preventive focus against domestic violence; States had to take active steps towards prevention to address that issue. Experts were also concerned that victims of trafficking in persons were criminalized, and asked whether the United States would ensure federal level decriminalization for victims.
Experts reminded the delegation that international standards required that juvenile offenders were not treated as adults and that alternative penalties to imprisonment were preferable. Experts regretted the lack of a national requirement to separate juveniles from adults in detention facilities. Experts were also concerned that states did not comply with guarantees on that issue set up by the federal government. In some states, 16 and 17 year-olds were excluded from the juvenile justice system and brought to adult criminal courts. What steps were taken by the federal government to address this issue?
Experts regretted that the United States law did not recognize trade union rights for agricultural and domestic workers.
Was the United States Government concerned about the non-consensual use of psychiatric medication? What steps had been taken to prevent discrimination against persons with disabilities in medical and psychiatric institutions? Experts recalled that the Special Rapporteur on torture had recently called for an absolute ban on non-consensual medication of persons with disabilities.
There were 80,000 prisoners currently detained in terrible conditions, including in solitary confinement, and also including pre-trial detainees. Solitary confinement had serious persistent psychological and physical side-effects, which could continue after release. In addition, solitary confinement was used disproportionately against people from minority backgrounds. Solitary confinement was clearly incompatible with the Covenant. The United Nations Special Rapporteur on Torture had released a report on solitary confinement, describing minimum guarantees for detainees, stating that the use of solidarity confinement had to be only exceptional and limited and that instances of solitary confinement beyond 15 days amounted to torture and other cruel, inhuman or degrading treatment. What steps had the United States taken to restrict and regulate the use of solitary confinement, particularly for vulnerable persons?
Experts appreciated that prisoners in Guantanamo could now file petitions, but were deeply concerned about continued restrictions to prisoners’ right to a fair trial and to a defence. In addition, the United Nations High Commissioner for Human Rights considered that the continued detention of those prisoners, for whom transfer had been accepted, constituted a flagrant violation of human rights. Did a timeline exist for the closing of the Guantanamo Bay prison? Given that the majority of prisoners were of Yemeni origin, were there resettlement efforts in place? Did the accused ever had the opportunity to review and challenge the evidence presented against them by the United States Government? Was it true that a prisoner had continuously been on hunger strike for the last seven years?
In relation to deportation and mandatory detention of immigrants and asylum seekers, Experts were concerned about mandatory daily quotas. How could this practice be compliant with the Covenant? Experts welcomed the fact that aliens enjoyed the same rights than citizens regarding access to legal counsel and assistance during criminal cases, and asked whether this was also the case for civil or administrative procedures. Experts asked for further clarification on deportations in cases of minor crimes, which had negative impacts on families and children. Mandatory deportation to countries that faced grave humanitarian challenges, including resulting from natural disasters, was a further concern, an Expert said.
With regards to the interception of the content of electronic communications worldwide by its intelligence services, Experts wondered whether the United States considered that the rights to privacy and to freedom of expression enshrined in the Covenant applied to foreigners living outside of the American territory. Experts believed that such interpretation would indeed defeat the object and purpose of the Covenant.
Was the National Security Agency’s surveillance proportional to the aims of achieving national security? Was the collection of telephone and metadata, in contradiction with of the rights of American citizens, necessary? Experts were also deeply concerned that the oversight on such practices seemed too poor.
Experts asked how the United States understood the concept of free, prior and informed consent of indigenous peoples, particularly with regard to the protection of sacred sites.
In the past, the Committee had expressed the view that life without parole sentences could raise human rights concerns and ought to be used only in cases of exceptional gravity. The mandatory use of life without parole sentences for juvenile offenders or in cases where no murder had been committed did not seem to meet this standard.
Committee Members denounced an exaggerated use of censorship against students who supported the Palestinian cause or who criticized Israel.
Experts regretted the lack of paid maternity leave in the United States, which could be viewed as a problem in relation to the Covenant. Concerns were also raised regarding increasing restrictions on women’s right to abortion in some states.
Experts sought clarification regarding the stand-your-ground laws and recalled that the normal rules regarding self-defence included the absolute necessity to use force, the use of minimum force, and the use of force that did not exceed the one the person was being threatened with.
Responses by the Delegation
The detainees in Guantanamo continued to be held in accordance with international and United States law. All current military proceedings in Guantanamo met or exceeded international fair-trial guarantees set forth by international humanitarian law, including the presumption of innocence and the prohibition of the use of torture. The closure of Guantanamo was a difficult and complex process, but the United States would continue its efforts towards that goal. Detainees received exceptional healthcare, exceeding the ones that United States officers received there. President Obama had recently lifted the moratorium on transfers of detainees to Yemen, and situations could now be examined on a case by case basis. Extradition was, in general, governed by bilateral or multilateral treaties, and did not fall within the scope of the Covenant and human rights law.
The United States had no desire to detain juveniles in the context of conflict. Preventive detentions were undertaken in order to prevent soldiers from returning to the battlefield, and were not more frequent or longer than absolutely necessary. In the domestic system, trying juveniles in adult courts remained extremely rare. When individuals were transferred to adult facilities, it was because of very specific and exceptional circumstances. Procedures and safeguards were in place to ensure that juvenile offenders were treated appropriately.
Life without parole sentences for adults were not considered an issue in the United States, and no recommendations had been made to Congress to change the existing situation.
With regards to free prior and informed consent of indigenous people, the delegation said that this was not a disposition of the United Nations Declaration on the Rights of Indigenous Peoples, rather than the Covenant. The United States, however, regarded the situation of indigenous people very seriously. Consultation with Indian tribes did not always produce satisfactory results for them, as compromises often had to be made, but the United States attached great importance to these dialogues. The Government was restoring lands to Indian tribes, where they could exercise their self-government. Sacred sites were often outside of Indian lands, which was an issue. Extractive industries had the potential to cause great arm to such sites.
The federal law of the United States prohibited non-consensual medical treatment and allowed for the granting of medication without consent only in most extreme cases. The law provided flexibility for employers who wanted to provide for maternity leave.
The United States was committed to a smart and effective immigration system. The United States immigration laws provided authorities with the right to temporarily detain illegal immigrants. Mandatory detention for some categories of criminal or terrorist aliens provided for limited detention. Detention conditions were, safe, secure and human for all detainees.
The United States was committed to combating trafficking in persons through a victim-centered approach and granted specific immigration rights to victims of trafficking.
Before an individual could be placed in solitary confinement, all conditions of due process had to be guaranteed. There were limitations on the practice of solitary confinement, and individuals could only be placed as such if this was necessary to protect themselves or others.
Intelligence programmes respected the law of the United States and were transparent in many aspects. Intelligence data collection was only undertaken for valid purposes, and data collection did not intend to change or to challenge freedom of expression, and did not seek to discriminate on any ground. Oversight was in place at multiple levels, including in a variety of contexts, including from the Executive, Congress and the judiciary. Over the last years, the United States had conducted an extensive review of its intelligence practices. President Obama had demanded further safeguards to Congress.
The Supreme Court of Bolivia had sent the United States a new request for extradition of former Bolivian President Gonzalo Sanchez de Lozada, which will be duly considered.
The Department of Education was continuously defending freedom of expression in schools, which included the right to criticize Israel.
Follow-up questions from the Experts
Experts required further information regarding the detention practices on asylum seekers and the mandatory detention of aliens.
Expert asked whether, should Guantanamo be shut, this would mean that the United States would stop its continued detention practices.
Committee Members also raised concerns about the lack of national regulations regarding solitary confinement of juveniles.
Regarding life without parole sentences, Experts asked whether the department of justice was committed to reducing the length of sentences for non-violent drug offenses.
Did the United States intend to apologize to indigenous people and provide reparation for past events?
Responses by the Delegation
Regarding the detention of individuals seeking asylum, the delegation said that the Government, when addressing a demand for asylum, first established whether the individual had a credible fear to return to his/her home country, and if so, then proceeded to the release of the individual.
The United States always considered how to ensure that sentencing was appropriate. There were however no steps that would be taken to change existing legislation on life without parole sentences.
The delegation presented a variety of federal laws that provided for an effective protection against torture.
The United States would reserve its right to continue its detention activities for as long as it was engaged in armed conflict, in conformity with international and American law.
Juvenile offenders were always kept separated from adults.
The United States had already issued an apology to indigenous people, in 2000, for past crimes.
MARY McLEOD, Principal Deputy Legal Advisor, United States Department of State and Head of Delegation, expressed appreciation for the active participation of civil society organizations in the review process and looked forward to receiving the Committee’s concluding observations.
Sir NIGEL RODLEY, Chairperson of the Committee, noted that this review had been held in a much more constructive manner than the previous review, which illustrated President Obama’s will to enhance international cooperation in the field of human rights. The Committee had highly appreciated the expertise and diversity of the delegation. While the Committee had spent time pointing out challenges and areas of concern, it had to be noted that the United States was a place where laws and rights were respected. The United States’ approach regarding the extraterritorial applicability of the Covenant, however, remained problematic and unclear. The provisions of the Covenant were rather clear on the fact that it applied to both people in the territory and people under the jurisdiction of the State Party, and this was the most common interpretation. It was worrying that the United States presented such an example to the international community. Mr. Rodley also referred to the indefinite detention practices, and the victims of torture left without redress. The Committee was reassured about the victim-centred approach to trafficking in persons. While alarmed by the idea of criminalizing homeless people, Mr. Rodley was reassured that housing services and assistance were provided.
For use of the information media; not an official record