April 01, 2015

The United States and Human Rights Treaties: Can We Meet Our Commitments?

by Doug Cassel

The United States has a strong human rights record in many respects. Compared to other countries, we do relatively well in protecting freedoms of expression, assembly, religion, and many forms of association. We maintain generally independent and honest courts with relatively fair procedures and an active bar. Human rights defenders are rarely in danger in the United States; human rights groups are seldom shut down on technicalities or otherwise; and few Americans fear being forcibly disappeared by our security forces. Thanks to the U.S. Supreme Court, prisoners have the right to habeas corpus review of their detention, even at Guantanamo. In recent decades, we have strengthened disability rights and reduced discrimination based on gender identity or sexual orientation.

But there is another side to the story. Not long ago, the CIA and military tortured prisoners, but few prosecutions or civil damages judgments resulted. The United States continues to detain prisoners indefinitely without trial, and few are released on habeas corpus. We still conduct military commission trials at Guantanamo. We engage in questionable killings by unmanned drones and intrusive and expansive NSA surveillance. Racial minorities suffer police violence and disproportionate rates of incarceration in substandard facilities. Many Native Americans live in abominable conditions. Our laws do not treat economic, social, and cultural rights as human rights. For example, even many proponents see the Affordable Care Act as a legislative policy choice rather than as a matter of the right to health.

Treaties Joined by the United States

Despite these deficiencies, the United States thinks too highly of itself to treat international human rights law—at least when applied to us—as law. We ratify few human rights treaties. We attach multiple conditions (called “reservations, understandings, and declarations”) to those we do ratify. We declare even those treaties “not self-executing,” which renders them generally unenforceable in our courts (although they can still be used as interpretive guides for U.S. laws). And we decline to accept individual complaint procedures or clauses referring disputes under the treaties to the International Court of Justice.

That said, a trio of treaties ratified during the terms of the first President Bush and President Clinton commit the United States internationally to respect and protect a wide range of human rights. Two decades later, however, Washington is unwilling or unable to live up to key promises it made under those treaties, at least in the view of the committees of international experts set up to oversee them.

The three treaties are the International Covenant on Civil and Political Rights (ICCPR) and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), both joined by the United States in 1992; and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), joined by the United States in 1994. (We have ratified other human rights treaties on specific topics, such as the Genocide Convention and Protocols on child soldiers and child trafficking.)

Civil and Political Covenant

The ICCPR requires each of its 168 state parties “to respect and to ensure to all individuals within its territory and subject to its jurisdiction” a menu of civil and political rights, without discrimination. For example, the ICCPR protects the rights to life, liberty, humane treatment, fair trial, and privacy. States must also ensure that victims of violations have an effective remedy.

In grave public emergencies, certain ICCPR rights, including liberty and due process—but not freedom from torture—may be restricted. However, both the emergency and the restrictions (called “derogations”) must be formally notified to the UN. The restrictions must also be limited to the extent and duration strictly required. The United States has never derogated from the ICCPR.

Convention against Race Discrimination

CERD’s 177 state parties are barred from allowing distinctions based on race, color, descent, or national or ethnic origin, whose “purpose or effect” is to nullify or impair the equal exercise of human rights. Parties undertake to pursue a policy to eliminate racial discrimination. They must ensure equal treatment with respect to a broad range of rights, such as the right to vote and the right to security against police violence. Victims of violations must have effective remedies, including “just and adequate reparation.”

Affirmative action—within limits—is encouraged. CERD authorizes “special measures” for the purpose of securing “adequate advancement” of certain racial groups, so long as the measures do not lead to the “maintenance of separate rights” and do not continue after their goals are achieved. The CERD expert committee (see below) interprets this as an “obligation” to adopt special measures when warranted to eliminate “persistent” racial disparities.

Convention against Torture

CAT categorically prohibits torture: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Each of CAT’s 158 state parties is mandated to take effective measures to prevent, punish, and redress torture.

Treaty Reporting and Expert Committees

All three treaties require state parties to submit periodic reports on compliance to committees of experts. The committees also receive “shadow reports” from nongovernmental groups—from scores of groups in the case of the United States. After public hearings in which committee members question and dialogue with government delegations, the committees issue “concluding observations” and ask that follow-up reports be submitted one year later.

The committees have long had distinguished U.S. members. The current U.S. member of the Human Rights Committee, which oversees the ICCPR, is Professor Sarah Cleveland of Columbia Law School. The U.S. member of the CERD committee is Professor Carlos Vázquez of Georgetown Law, and of the CAT committee, Felice Gaer, director of the Jacob Blaustein Institute. CAT committee chair Claudio Grossman, the Chilean member, is dean of Washington College of Law at American University.

Treaty Norms vs. U.S. Norms

In 2014, all three committees issued concluding observations on U.S. reports. They began by commending positive steps taken by the United States since the previous round of reporting, such as the Supreme Court decision in Roper v. Simmons, 543 U.S. 551 (2005), ruling the juvenile death penalty unconstitutional; President Obama’s 2009 executive order prohibiting torture; his ongoing efforts to close Guantanamo; and the 2010 Fair Sentencing Act, which reduced racial sentencing disparities for crack cocaine versus powdered cocaine.

Each committee then elaborated its “concerns.” From a U.S. perspective, one might group them in three broad categories: (1) U.S. rejection of treaty norms for reasons that many U.S. human rights lawyers would applaud; (2) U.S. rejection of treaty norms for reasons deeply embedded in U.S. legal and political culture; and (3) U.S. violations of treaty norms, even where they are consistent with American culture and values.

In the first category—laudable U.S. departures—one might place overbroad bans on hate speech. CERD requires criminalization of “all dissemination of ideas based on racial superiority or hatred.” The ICCPR bans all “advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence.” The United States adopted reservations to these provisions on First Amendment grounds. Nonetheless the CERD committee urges the United States to consider criminalizing racist hate speech, even when it does not incite imminent violence or “true threats” of violence. Many U.S. human rights lawyers would support the U.S. position to allow hate speech that falls short of such incitement.

In the second category—norms incompatible with embedded U.S. culture—one might place the Human Rights Committee’s call for the United States to consider acceding to an Optional Protocol to the ICCPR abolishing the death penalty. Another candidate might be the CERD committee’s call for the United States to redefine racial discrimination across the board in order to meet CERD’s “purpose or effect” definition. The Supreme Court has held that the test for violating constitutionally mandated equal protection of the law is a purpose test, not an effects test. While some U.S. laws use a “disproportionate impact” test, most do not. U.S. law is unlikely to move toward an “effects” test anytime soon.

This reality neutralizes many CERD committee recommendations to the United States. CERD committee concerns rest on disproportionate impact in such areas as denial of voting rights to convicted felons, gun violence, aspects of criminal justice and juvenile justice, and inadequate legal aid. While there are serious racial gaps in all these areas, and CERD may help focus attention by placing them under an international spotlight, the United States is more likely to treat them as policy problems than as unlawful discrimination.

On the other hand, CERD concerns about disparate racial impacts in housing—resulting from urban environmental pollution, criminalization of homelessness, and mortgage-lending practices and foreclosures—may prove to be in sync with the “disparate impact” test under the U.S. Fair Housing Act as recently interpreted by the Supreme Court in Texas Department of Housing & Community Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015).

Fair housing may thus potentially fit within the third category of issues, where human rights treaties are consistent with both U.S. national values and our legal culture. In these areas, Washington should live up to our international commitments without delay. The following are illustrative:

Torture and Accountability

CAT requires the United States to:

  • prevent torture “in any territory under its jurisdiction”;
  • criminalize all acts of torture;
  • make these offenses punishable by penalties that “take into account their grave nature”;
  • establish jurisdiction over torture by U.S. nationals;
  • ensure a “prompt and impartial investigation, wherever there is reasonable ground to believe that an act of torture has been committed in any territory under its jurisdiction”;
  • ensure that victims of torture obtain redress and fair and adequate compensation; and
  • refrain from sending someone to a country if there are “substantial grounds for believing that he would be in danger of being subjected to torture.”

Since 2001, the United States has violated all these treaty commitments. In December 2014, the U.S. Senate Select Committee on Intelligence released a 500-page executive summary of its report on CIA detention and interrogation. In a foreword, Committee Chair Dianne Feinstein expressed her “personal conclusion that, under any common meaning of the term, CIA detainees were tortured.” She was correct. The Committee found, for example:

  • “Sleep deprivation involved keeping detainees awake for up to 180 hours, usually standing or in stress positions, at times with their hands shackled over their heads. At least five detainees experienced disturbing hallucinations . . . .”
  • “The waterboarding technique was physically harmful, inducing convulsions and vomiting.” One detainee “became ‘completely unresponsive, with bubbles rising through his open, full mouth.’ Internal CIA records describe the waterboarding of [another prisoner] as . . . a ‘series of near drownings.’”
  • Techniques such as slamming detainees against a wall were used “with significant repetition for days or weeks at a time” “in combination, frequently concurrent with sleep deprivation and nudity.”
  • One detention facility was a “dungeon,” the chief CIA interrogator said. Detainees were “in complete darkness and constantly shackled in isolated cells with loud noise or music and only a bucket to use for human waste. Lack of heat . . . likely contributed to [a detainee’s] death.”

The Committee also found that the CIA repeatedly misled the Justice Department about interrogation techniques and confinement conditions. The CIA’s “inaccurate and incomplete” information impeded effective oversight by the White House and Congress. CIA misinformation “complicated, and in some cases impeded” the national security work of the FBI, Director of National Intelligence, and State Department.

Against this backdrop, the United States should heed the recommendations of the CAT committee. The first set of recommendations concerns inadequate legislation. The U.S. Code criminalizes torture abroad but not in the United States. The CAT committee “regrets that the specific offense of torture has not yet been introduced at the federal level.” Even where torture is a crime, the committee “regrets” that the United States restrictively interprets CAT by narrowing the definition of “mental harm” that can qualify as torture (although the Senate Committee findings reveal that the CIA tortured even by that narrower definition).

Legislation is critical. The CAT committee welcomed the United States’ “unequivocal commitment to abide by the universal prohibition of torture and ill-treatment everywhere,” as well as U.S. assurances that its personnel are legally barred from committing torture and ill-treatment “at all times and in all places.” However, this bar rests in part on executive orders overturnable at the stroke of a pen. The committee recommended that the United States amend its laws and withdraw its reservation implying a territorial limitation on CAT applicability.

In November 2015, President Obama signed into law, as part of the FY 2016 defense authorization bill, the McCain-Feinstein amendment to effectively prohibit torture by U.S. government agencies. Even so, the new law does not address the CAT committee’s concern for lack of accountability and redress.

No CIA or military personnel have been prosecuted for torture per se (although low-ranking military personnel have been prosecuted for lesser offenses). Nor has there been civil redress. In 2014, the D.C. Circuit ruled that Congress had barred a civil damages remedy for a detainee allegedly tortured at Guantanamo. Janko v. Gates, 741 F.3d 136 (D.C. Cir. 2014), cert. denied, 135 S. Ct. 1530 (2015).

Secret Detention

For at least five years after 2001, the CIA held detainees in secret “black sites” overseas. While a 2009 Executive Order directed that the CIA close its sites and not open any new ones, that order is not embodied in legislation. The CAT committee recommended that the United States “[e]nsure that no one is held in secret detention anywhere under its de facto effective control.” The committee reiterated that secret detention is a per se CAT violation.

Indefinite Detention without Trial

The CAT committee reminded the United States that “indefinite detention without trial constitutes, per se, a violation” of CAT. It noted that during the period under review nine deaths occurred at Guantanamo, including seven suicides, as well as repeated suicide attempts and mass hunger strike protests. In March 2015, the United States reported to the UN Human Rights Committee that of the 122 prisoners still at Guantanamo, 56 were cleared for transfer, had not yet been transferred, and had no immediate relief in sight; 10 were involved in some form of criminal justice; and the remaining 56 were “eligible for review” by the Periodic Review Board—i.e., they are still detained indefinitely without trial. The Human Rights Committee expressed concern that detainees at Guantanamo “are not dealt with through the ordinary criminal justice system after a protracted period of over a decade, in some cases.” It recommended that the United States should “ensure either their trial or their immediate release.”

Military Commission Trials

In March 2015, the United States reported to the Human Rights Committee that 10 Guantanamo detainees were currently facing charges, awaiting sentencing, or serving sentences imposed by military commissions. Although the United States contends that military commission trials are fair, the Committee recommended that the United States ensure that any criminal cases against detainees at Guantanamo be “dealt with through the criminal justice system rather than military commissions.”

Drone Deaths

As highlighted by President Obama’s recent apologies to families of two American hostages killed in drone attacks, the use of armed drones endangers innocents and raises serious questions under international law. The Human Rights Committee recommended that the United States:

  • “revisit its position regarding legal justification”;
  • ensure compliance with the principles of “precaution, distinction and proportionality”;
  • disclose, subject to operational security, the criteria for drone strikes, the legal basis for specific attacks, the process of target identification, and the circumstances in which drones are used;
  • provide “independent supervision and oversight” of drone attacks;
  • take “all feasible measures to ensure the protection of civilians” in specific attacks;
  • track and assess civilian casualties;
  • investigate and bring to justice anyone responsible for violations of the right to life; and
  • provide victims with effective remedies and compensation.

Intelligence Surveillance

The Human Rights Committee expressed its concern over NSA surveillance, including the bulk phone metadata surveillance program. It recommended that the United States ensure that interference with privacy comply with “principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance.” While the recently enacted USA Freedom Act is a step toward that goal, more safeguards are needed. See, e.g., Neema Singh Guliani, What’s Next for Surveillance Reform after the USA Freedom Act, ACLU (June 3, 2015), https://www.aclu.org/blog/washington-markup/whats-next-surveillance-reform-after-usa-freedom-act.

Police Killings

The CERD committee expressed “concern at the brutality and excessive use of force by law enforcement officials against members of racial and ethnic minorities, including against unarmed individuals.” It recommended improved investigations, reporting, and redress.

Criminal Justice

The Human Rights Committee and CERD committee expressed a range of concerns about racial disparities in the criminal justice system, including racial profiling, stop-and-frisk arrests, and racial disparities in sentencing, including the death penalty.

Voting

The Human Rights Committee expressed concern over obstacles to voting, including burdensome voter identification and eligibility requirements. It recommended that voting rights be restored to felons who have completed their sentences, and that states “review automatic denial of the vote to any imprisoned felon, regardless of the nature of the offence.”

Conclusion

The foregoing is only a sampling of treaty committee recommendations, constrained by limitations of space. Interested readers can find the full committee reports and extensive documentation at http://www.ohchr.org/EN/HRBodies/Pages/HumanRightsBodies.aspx. For anyone concerned about human rights in the United States, the inquiry is well worth the effort.

 

Doug Cassel

Doug Cassel (doug.cassel@nd.edu) is professor of law and Notre Dame Presidential Fellow at Notre Dame Law School, where he teaches, publishes, and practices in the fields of international human rights law, international criminal law, and international humanitarian law.