Low grades for U.S. on compliance with the International Covenant on Civil and Political Rights

hoods

Earlier this month, UN Special Rapporteur Sarah Cleveland presented a draft report on follow-up to the concluding observations of the UN’s Human Rights Committee regarding the compliance of the United States with the International Covenant on Civil and Political Rights.

The Human Rights Committee on July 13 discussed the progress report, which found the U.S. response to previous inquiries to be largely unsatisfactory.

“The Special Rapporteur briefly overviewed the system of the assessment of replies by States parties,” noted the Human Rights Committee on its website, “which included a scale from A – ‘largely satisfactory’ to C2 – ‘response received, but not relevant to the recommendations’.”

Specifically, regarding the U.S.:

While the United States of America had provided information on convictions of four Blackwater contractors for their crimes in Iraq, the Committee required information on investigations, prosecutions or convictions of United States’ Government personnel in Iraq.  The Committee regretted that no action had been taken to incorporate the doctrine of command responsibility into the criminal law.  The Committee reiterated its concern about the reports that the immunity provided by “Stand Your Ground” laws had expanded.  Transfer and/or trial of detainees from Guantanamo ought to be sped up; even today, a number of people were administratively detained there without being charged or tried.  Given the lack of specific information provided by the State party on measures to ensure that interference with the right to privacy, in line with the established principles, and regardless of the nationality or location of the individual under surveillance, the Committee reiterated its request for information.

The full U.S. grades are as follows:

report card

As journalist Kevin Gosztola further explained the grading scale:

To understand the grades, “B1″ means “substantive action” took place but the committee still wants more information. “B2″ means some initial action was taken. “C1″ means US replied to UN but did not take actions to implement recommendation. “C2″ means US replied, and the reply was irrelevant to the committee’s recommendation. “D1″ means US did not cooperate with the committee on this recommendation.

While the U.S. received a relatively high “B1″ grade for declassifying part of the report of the Senate report on torture and a “B2″ grade for investigating cases of unlawful killing, torture and other ill-treatment, unlawful detention, and enforced disappearances, and expediting the release of detainees from Guantanamo Bay, no “A” grades were given for anything.

The committee issued a “C2″ grade for the continued detention of detainees at Guantanamo and in facilities in Afghanistan. For its mass surveillance policies, received a “C1″ grade for failing to ensure surveillance complies with the ICCPR.

The worst grade given was a “D1″ for a lack of access to remedies for victims of surveillance abuse.

In response to these poor grades, the U.S. Human Rights Network urged the Obama administration to follow up on ensuring full compliance with the United States’ human rights obligations.

Last May, a review by the UN Human Rights Council found that the United States is in violation of international human rights standards as enshrined not only in the International Covenant on Civil and Political Rights but also in the Universal Declaration of Human Rights and other landmark human rights treaties – some of which the U.S. refuses to ratify.

Without prosecutions, Senate’s ‘reaffirmation’ of torture prohibition largely meaningless

cia torture report

Human rights groups are welcoming the Senate’s adoption yesterday of an anti-torture amendment as part of the National Defense Authorization Act (NDAA) for Fiscal Year 2016, despite the fact that it doesn’t provide for any accountability to those who have authorized or committed torture in the past.

Officially called “the reaffirmation of the prohibition on torture,” the amendment, introduced last week by Senator John McCain (R-Ariz.) and Dianne Feinstein (D-Calif.), effectively prohibits U.S. officials from using torture techniques including mock executions, sexual humiliation, hooding prisoners and waterboarding by requiring they follow the U.S. Army Field Manual. It was adopted by a vote of 78-21.

“Without this amendment, abuses committed in the name of national security, such as forced rectal feeding and mock burials, would be all too easy for the CIA to repeat in a climate of fear-mongering about terrorism,” said Amnesty International USA’s executive director, Steven W. Hawkins.

Human Rights First praised what it called the “historic bipartisan amendment that prevents the future use of torture by any U.S. government agency.” The legislation, according to the group, will “ensure that the use of torture or cruel treatment is never again the official policy of the United States.”

But will it?

The fact remains that the torture techniques authorized by the White House and committed by the CIA in the years following 9/11 were already illegal – serious violations of both international law and domestic law – so it’s not entirely clear what is new about this “reaffirmation” of the prohibition on torture.

In fact, torture has long been banned by Common Article 3 of the four Geneva Conventions, which was further codified by the 1987 UN Convention Against Torture (CAT). The CAT provides a clear-cut definition of what constitutes the practice — which the U.S. is clearly guilty of as documented in the Senate report on torture released last year.

As stated in Article 1 of the CAT:

[T]orture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

The CAT further unambiguously states that “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

As a state party to both the Geneva Conventions and the CAT, the United States has adopted domestic legislation to ensure compliance with the treaties’ provisions. The War Crimes Act punishes any grave breach of the Geneva Conventions, including any violation of Common Article 3.

The Torture Statute, formally known as Title 18, Part I, Chapter 113C of the U.S. Code, provides for life in prison, or even the death penalty if the victim dies, for anyone who commits, attempts, or conspires to commit torture outside the United States. (Domestic incidents of torture are covered by state criminal statutes.)

The law consists of three sections (2340, 2340A, and 2340B), which define the crime of torture.

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;

(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;

(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(C) the threat of imminent death; or

(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality; and

(3) “United States” means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States.

In other words, it is not enough for the Senate to simply “reaffirm” a so-called “torture ban.” There is a legally binding obligation under the Convention Against Torture, in fact, to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction” and to “make these offences punishable by appropriate penalties which take into account their grave nature.”

For its part, Amnesty International did acknowledge yesterday – despite generally welcoming the Senate vote – that more must be done to bring the United States into compliance with its international obligations:

This legislation is one step of many that the U.S. government must take to guard against a return to torture and other ill-treatment and abide by its international human rights obligations. The U.S. government has not brought any criminal charges against those responsible for torture and enforced disappearances in the CIA secret detention program. Nor has the U.S. government withdrawn U.S. reservations to UN human rights treaties—reservations that the George W. Bush-era Justice Department Office of Legal Counsel exploited to write permission slips for torture and other ill-treatment.

The torturers in the CIA have for too long been protected by the Obama administration and U.S. Department of Justice, even while human rights defenders and whistleblowers such as John Kiriakou, Jeffrey Sterling and Chelsea Manning have been sent away for long prison terms for much less serious offenses. It is long past time for this double standard to be lifted and the committers (and authorizers) of torture to be prosecuted to the fullest extent of the law.

U.S. hypocritically touts territorial integrity, sovereignty and international norms

obama hypocrisy

President Barack Obama issued one of his most hypocritical statements in weeks when he scolded Russian President Vladimir Putin on Monday for his alleged support of separatist rebels operating in eastern Ukraine.

“He’s got to make a decision,” Obama said of Putin. “Does he continue to wreck his country’s economy and continue Russia’s isolation in pursuit of a wrong-headed desire to re-create the glories of the Soviet empire? Or does he recognize that Russia’s greatness does not depend on violating the territorial integrity and sovereignty of other countries?”

Hearing the president of the United States lecture others about the importance of respecting countries’ sovereignty and territorial integrity was a bit like listening to a serial rapist lecturing other men about the importance of respecting women’s rights.

Of course, as Obama was uttering these duplicitous platitudes – the hypocrisy of which went completely unchallenged by the journalists in attendance at the press conference – the United States was continuing to violate the sovereignty of multiple countries, including Syria and Pakistan.

On the same day that Obama insisted on Russia’s respect for the sovereignty and territorial integrity of Ukraine, the U.S. launched nine air strikes in Syria, attacks that are unauthorized by the UN Security Council and against the stated wishes of the Syrian government, rendering them a blatant violation of international law.

Six of the air strikes were concentrated around Kobani near the Turkish border and three near the Islamic State stronghold of Raqqa, according to the U.S.-led Combined Joint Task Force. One of the air strikes apparently killed an entire family of seven, including five children, according to the Britain-based Syrian Observatory for Human Rights.

In Pakistan, the U.S. has been carrying out drone strikes for years, in complete disregard of the repeated protests of the Pakistani government complaining about the violations of that country’s sovereignty. As recently as last month, Pakistan’s Foreign Office condemned a U.S. drone strike that killed at least five people in North Waziristan, reiterating its stance that such attacks are a violation of the country’s sovereignty and territorial integrity.

“A drone strike on May 16, 2015 resulted in a number of casualties in the Mana area of North Waziristan agency,” said the Foreign Office in a statement.

“These (strikes) generate distrust among the local populace at a time when Operation Zarb-e-Azb is moving ahead decisively and the focus of the government is shifting towards rehabilitation of the civilian population. We reiterate our call for a cessation of such strikes,” the Foreign Office said.

But the U.S. can’t be bothered to acknowledge or apologize for its blatant violations of international law, or its routine, tragic killings of innocent people. It is now being sued in fact by the families of two Yemeni men killed in 2012, alleging they were innocent bystanders hit by missiles from a U.S. drone strike and calling for an acknowledgement of their unlawful deaths.

In a wrongful death lawsuit filed June 7, the families of Salem bin Ali Jaber and Waleed bin Ali Jaber said their deaths “violated the laws of war and norms of customary international law” and “provide a case study of the failures of the drone war.”

The strike on Aug. 29, 2012 “killed two innocent members of a prominent local family, Salem bin Ali Jaber and Waleed bin Ali Jaber,” according to the complaint. “By this complaint, the estates of Salem and Waleed seek to hold accountable those responsible for their wrongful deaths.”

The lawsuit does not seek any monetary relief, but rather a declaratory judgement and an apology. As the complaint points out,

Rarely but occasionally, the U.S. government addresses the reality that its drones kill innocents, and expresses official regret. Only weeks ago the President addressed the nation about two other innocents killed by a U.S. drone: an Italian citizen and an American, who were mistakenly hit in a drone strike in Pakistan while being held hostage by al Qaeda. In his televised statement, the President explained that “the [victims’] families deserve to know the truth,” and claimed that his apology showed the U.S. is willing “to confront squarely our imperfections and to learn from our mistakes.”

There is a simple question at the heart of this claim. The President has now admitted to killing innocent Americans and Italians with drones; why are the bereaved families of innocent Yemenis less entitled to the truth?

Even as the United States does occasionally concede that it sometimes kills innocent people, which is at least a tacit confirmation that its actions are not exactly in accordance with international law, it still can’t resist the temptation to point its bloody finger at others for doing the same thing.

Not only did President Obama just issue that hypocritical warning to Russia, but a number of “progressive” lawmakers have just published an op-ed in the journal Foreign Affairs expressing the urgent need to confront Russia and China over their alleged violations of international norms.

In “Principles for a Progressive Foreign Policy,” Democratic senators Chris Murphy, Brian Schatz, and Martin Heinrich warn that “traditional powers such as Russia and China are challenging international norms and pushing the boundaries of their influence.”

In response to these new challenges, as well as threats such as pandemic disease and global climate change, “the United States [must] think anew about the tools that it will use to lead the world, including reaching beyond the military budget to rediscover the power of non-kinetic statecraft.”

To their credit, these senators acknowledged that in order for the U.S. to have any credibility on the world stage, it “should practice what it preaches regarding civil and human rights, and defend its values internationally.”

“Actions abroad that are illegal under U.S. law and out of step with American values, such as torture, must be prohibited,” they continued. “Human rights and gender equality should not be viewed as secondary to security issues, but appropriately recognized as essential to long-term global stability.”

The senators are only partially right, and they left unsaid the most important thing – namely that violations must not only be “prohibited” but also prosecuted and punished. Torture of course is already “prohibited,” as is murder and violations of countries’ territorial integrity, so what the U.S. really needs to do is punish those who violate the law.

And please, stop hypocritically blaming others for doing the same thing.

Sanders’ candidacy exposes fundamental flaws in U.S. electoral system

Sanders speaks to low-wage federal contract workers on Dec. 4, 2014, during a protest where the workers demanded presidential action to win an increase to $15-an-hour wage.  - Win McNamee / Getty Images

Sanders speaks to low-wage federal contract workers on Dec. 4, 2014, during a protest where the workers demanded presidential action to win an increase to $15-an-hour wage. – Win McNamee / Getty Images

A long-time independent and self-described socialist, Vermont Senator Bernie Sanders recently decided to run for president within the confines of the two-party system under heavy pressure from Democratic Party loyalists not to be a third party “spoiler” candidate.

For months, Sanders was the target of public appeals from groups such as Progressive Democrats of America that implored him to seek the nomination of the Democratic Party rather than run as an independent, as he has done in numerous Vermont elections since the 1970s.

As a PDA petition pointed out, in 2004 Sanders “understood the very real danger of total Republican control of the U.S. Government” and “supported Democratic nominee John Kerry for President over his long-time friend and ally, Ralph Nader.”

Similarly, in order “to prevent the current crazed, mean, and dangerous incarnation of the Republican Party from seizing total power,” it is important that Sanders “commit[s] to running in the 2015/2016 Presidential primaries as a Democrat,” PDA insisted.

Two_party_system_diagram-cc-565x423The fear of rank-and-file Democrats is that having a third party/independent challenger in a general election between a Democrat and Republican would siphon votes from the Democratic nominee, and hand the election to the Republican nominee. It is a fundamental flaw of the U.S. electoral system that perennial third party candidate Ralph Nader recently spoke about on Democracy Now.

Asked why Sanders may have decided to forgo his longtime independent status in favor of seeking the Democratic nomination, Nader replied:

Well, that’s always been a dilemma he’s been deliberating for the last year or so. If he runs as an independent, he can go to November. If he runs as a registered Democrat, he’s done in April or May, assuming he doesn’t defeat Hillary Clinton or others, but he gets on the televised primaries. Where as an independent he could be marginalized, as a Democrat he’s going to get on quite a few debates and in the primary.

While what Nader said about the likelihood of being marginalized as an independent is certainly true, what he failed to mention is that it’s not only a candidate’s independent or third-party status that leads to media marginalization, but also – perhaps more importantly – what it is that the candidate has to say.

With his message of income inequality, corporate corruption and environmental sustainability, Sanders was pegged early on as an unserious fringe candidate by the media establishment, which is dominated by the very business interests that he rails against.

Just as Ron Paul’s antiwar message was systematically sidelined from mainstream media coverage in the 2012 presidential campaign – notwithstanding the fact that he ran as a Republican and boasted some traditional early indicators of a vibrant campaign – it seems that the media establishment has already made a determination that Sanders’ candidacy is not to be taken seriously.

msnbc-fox-sIn an analysis for Media Matters for America, Eric Boehlert noted that despite Sanders’ campaign rallies drawing thousands of people – making them some of the largest campaign events of 2015 by either Democrats or Republicans – the media has decided not to cover them as major news events. Sanders’ first major campaign rally since announcing his presidential candidacy last month, for example, was completely ignored by the Washington Post and New York Times, while the network news programs night covered the event sparsely.

According to Boehlert, “At a time when it seems any movement on the Republican side of the candidate field produces instant and extensive press coverage, more and more observers are suggesting there’s something out of whack with Sanders’ press treatment. And they’re right.”

When Sanders does get reported on in the media, much of the coverage portrays him as outside the mainstream of American politics, or views him solely through the prism of Hillary Clinton. “It’s all about how his campaign might affect her strategy and her possible policy shifts, instead of how his campaign will affect voters and public policy,” Boehlert writes. “On the Republican side, candidates are generally covered as stand-alone entities, not as appendages to a specific rival.”

Beyond that, much of the coverage specifically declares that he has no chance of winning, an odd role for the media to play in covering a nomination campaign. The press, after all, is supposed to be covering the nomination process, not determining the nomination process. Yet, this is what a few prominent news outlets have had to say in recent weeks: “Bernie Sanders isn’t going to be president,” declared a Washington Post headline. “He Won’t Win,” said Newsweek, “So Why Is Bernie Sanders Running?” MSNBC: “Why Bernie Sanders matters, even if he can’t win.”

The clear consensus among the media elite is that Sanders’ candidacy is little more than an annoyance, sort of like ants at a picnic. Sanders is to be tolerated at best but certainly not to be welcomed or treated with the respect and reverence that a “real” presidential candidate like Hillary Clinton or Jeb Bush are to receive.

This media bias is infuriating to those who would like to see the press perform its role as a reporter of the news rather than as a shaper of the news, but beyond being aggravating it is also arguably a violation of international commitments on holding free and fair, democratic elections.

As a signatory to the Organization for Security and Cooperation in Europe’s 1990 Copenhagen Document, the United States has agreed to certain commitments to ensure genuinely democratic elections, one of which being equal media access for election stakeholders. Specifically, OSCE countries must ensure “unimpeded access to the media on a non-discriminatory basis for all political groupings and individuals wishing to participate in the electoral process.”

As the OSCE’s Office for Democratic Institutions and Human Rights (OSCE/ODIHR) further explains in its handbook for election observation,

Equal conditions should be ensured for all participants in the election process so that they compete on a level playing field. … Candidates and political parties should have unimpeded access to the media on a non-discriminatory basis, and state or public media should meet their special responsibility for providing sufficient, balanced and impartial information to enable the electorate to make well-informed choices.

This requirement for media access and balance goes for both major party candidates and minor party candidates, and besides media access, OSCE countries must also “respect the right of citizens to seek political or public office, individually or as representatives of political parties or organizations, without discrimination.”

Both the endemic media bias in the United States and the two-party system itself – which systematically discriminates against parties other than the Democrats and Republicans – are likely violations of these obligations, which also include respecting “the right of individuals and groups to establish, in full freedom, their own political parties or other political organizations and provide such political parties and organizations with the necessary legal guarantees to enable them to compete with each other on a basis of equal treatment before the law and by the authorities.”

These are all areas in which the U.S. is failing to live up to democratic standards for elections, despite its frequent claims of being the greatest democracy in the world, and could do much better.

The inside story of U.S.’s illegal grounding of Evo Morales’ plane

In a recent interview with Democracy Now!, WikiLeaks founder Julian Assange provided an inside account of the controversial grounding of Bolivian President Evo Morales’ plane by the United States in July 2013.

WikiLeaks had been providing logistical support and legal advice to NSA whistleblower Edward Snowden in his quest to reach Latin America for political asylum in the wake of his massive disclosures of the NSA’s bulk surveillance programs, and to keep the U.S. manhunt for Snowden off-track, was using various decoys and distractions, recounted Assange.

There was an international oil conference in Moscow at the time, Assange recalled, and because several presidential jets were departing the Russian capital at around the same time, there were discussions within the WikiLeaks organization whether to utilize one of those planes in order to ferry Snowden out. In their coded language WikiLeaks referred to Bolivia in order to confuse U.S. investigators who were hunting down Snowden (and presumably tapping WikiLeaks’ phones and reading their emails to do so).

This coded language was picked up by the U.S. intelligence community and was combined with a statement that President Morales had made publicly that was generally supportive of Snowden, and as Assange describes it, they “put two and two together and made 22.” As he told Democracy Now!’s Amy Goodman in an interview aired Thursday:

A number of presidential jets are flying back, and we are considering one of these. And so, we then—our code language that we used deliberately swapped the presidential jet that we were considering for the Bolivian jet. And so we just spoke about Bolivia in order to distract from the actual candidate jet. And in some of our communications, we deliberately spoke about that on open lines to lawyers in the United States. And we didn’t think much more of it. We had engaged in a number of these distraction operations in the asylum maneuver from Hong Kong, for example, booking him on flights to India through Beijing and other forms of distraction, like Iceland, for example. We didn’t think this was anything more than just distracting.

But the U.S. picked up a statement, a supportive statement made in Moscow by President Evo Morales, and appears to have picked up our codeword for the actual operation, and put two and two together and made 22, and then pressured France—successfully pressured France, Portugal and Spain to close their airspace to President Evo Morales’s jet in its flight from Moscow to the Canary Islands for refueling and then back to Bolivia. And as a result, it was forced to land in Vienna. And then, once in Vienna, there was pressure to search the plane.

Although Morales refused to let the authorities board the plane, which under international law functions as a “flying embassy” with all of the rights, privileges and immunities guaranteed by the 1961 Vienna Convention, the fact that the United States forced the plane to land at all was a serious breach of diplomatic protocol and international law, for which Washington has still refused to apologize.

It also demonstrated the intense arrogance and contempt that the United States shows to Latin America in general and the subservient nature of European countries to the superpower across the pond.

At the time, a livid Evo Morales stated that “We have had enough humiliation at the hands of the Americans,” arguing that the incident revealed a “neo-colonial” attitude to his entire continent.

“It is a crime not against Evo Morales, but against the people of South America and the Caribbean. It is utter discrimination,” he said, insisting that no head of state should be treated as a “second-rate president.”

The incident also demonstrated that despite occasional grumblings from Europe about U.S. misconduct on the world stage, Europeans will always kowtow to Washington when pressured.

Although European leaders were humiliated by the United States when it was revealed by Edward Snowden’s leaks that the NSA had been tapping the telephone lines and computer networks of EU offices in Brussels, New York and Washington — as well as the governments of Germany, France, Greece, Italy and others — Europe fell into line in submitting to U.S. dictates regarding Snowden’s asylum requests, and then agreed to cooperate in the illegal grounding of Morales’ plane.

Just like forcing down the Bolivian president’s plane, the U.S. spying on diplomatic missions of the EU and European nations was a violation of the Vienna Convention which states that “the official correspondence” as well as “the premises” of diplomatic missions “shall be inviolable.”

When Snowden’s leaks revealed the NSA snooping into the emails and phone conversations of European nations, European leaders feigned outrage. Angela Merkel, the German chancellor, described the disclosures of massive U.S. spying in Europe as unacceptable.

Her spokesman, Steffen Seibert, said, “If it is confirmed that diplomatic representations of the European Union and individual European countries have been spied upon, we will clearly say that bugging friends is unacceptable.”

The French president, François Hollande, also called the spying intolerable.

“We cannot accept this kind of behaviour between partners and allies,” Hollande said. “We ask that this stop immediately.” French Foreign Minister Laurent Fabius said that if confirmed, the activities would be “totally unacceptable.”

Yet, when push came to shove, European leaders fell over each other to do the bidding of the United States, even when they were asked to violate international law in forcing down the plane of a sitting head of state, an act that was described at the time as “an act of air piracy and state terrorism.”

As Assange explained it on Democracy Now!:

So, it’s really a quite extraordinary situation that reveals the true nature of the relationship between Western Europe and the United States and what it claims are its values of human rights and asylum and the rights to asylum and so, and respecting the rule of law, the Vienna Convention. Just a phone call from U.S. intelligence was enough to close the airspace to a booked presidential flight, which has immunity. And they got it wrong. They spent all that political capital in demanding this urgent favor to close the airspace, which was humiliating to those Western European countries, and they got it wrong.

Assange recommends that the appropriate thing to do at this point is issue apologies all around. “The U.S. should apologize to Evo Morales, to Portugal, to Spain, to France” Assange said. “Portugal, Spain and France should apologize to Evo Morales for not following the law.”

He pointed out though that while the grounding was unfortunate for President Morales, it was a good thing to see because “it revealed the arrogance and hypocrisy of the United States in pressuring Western Europe in that way. It revealed the nature of the relationship between Western Europe and the United States.”

In a practical sense, it also led directly to Russia’s decision to grant Snowden’s asylum request. After this incident, “at a legal level, in terms of asylum law, it was very clear that there could not be a fair process,” explained Assange. Further, not only was it very clear he could not receive asylum in Western Europe, but at a political level, the Russian government had to respond.

As Assange points out, Russia couldn’t react by handing him over, because it would look “weak and unprincipled.” The only other card that Russia had was to grant him asylum.

And two years later, despite one of the largest manhunts in world history, Snowden is still living in the Russian Federation under political asylum. So, not only were the U.S. actions in summer 2013 illegal and arrogant, they were ultimately counterproductive.

Verdict in: U.S. falling short on human rights

157322_600 Far from being the global champion of human rights that it fancies itself as, the United States is in fact a flagrant violator of international human rights standards as enshrined in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and other landmark human rights treaties – some of which the U.S. refuses to ratify. This was the unmistakable conclusion of the U.S.’s Universal Periodic Review for compliance on human rights norms at the United Nations Human Rights Council earlier this week.

Delegates from many of the 117 countries taking part in the UPR lambasted the United States’ record of civil rights violations in the context of the nationwide epidemic of police brutality. The representative from Nambia, for example, said U.S. officials must “collaborate closely with marginalized communities to fix the broken justice system that continues to discriminate against them, despite recent waves of protest over racial profiling and police killings of unarmed black men.”

“Chad considers the United States of America to be a country of freedom, but recent events targeting black sectors of society have tarnished its image,” said Awada Angui, the delegate from that country.

The barrage of criticism led James Cadogan, senior counselor in the Department of Justice’s Civil Rights Division, to concede that the United States has a problem with police violence.

“We must rededicate ourselves to ensuring that our civil rights laws live up to their promise,” he said at the review on Monday. “The tragic deaths of Freddie Gray in Baltimore, Michael Brown in Missouri, Eric Garner in New York, Tamir Rice in Ohio, and Walter Scott in South Carolina have… challenged us to do better and to work harder for progress.”

But even while admitting its own shortcomings, the U.S. couldn’t resist the instinctual temptation to tout its record. As Mary McLeod, acting legal adviser to the U.S. Dept of State, put it, “We’re proud of the work we’ve done since our last UPR.”

Most UN Human Rights Council delegations and civil society observers strongly disagreed. One of the recurring themes in the interventions that took place on Monday was the U.S.’s failure to ratify a number of key human rights treaties and protocols, including the Convention on the Rights of the Child and Convention on the Rights of Persons with Disabilities, since its last periodic review in 2010. As Human Rights Watch noted,

In its 2010 review, the United States agreed to “consider” ratifying ICESCR, CEDAW, CRC, and CRPD (92.10, 92.11, 92.20, 92.21); ratifying ILO Convention Nos. 100 and 111 (92.22 and 92.26); ratifying the Rome Statute of the International Criminal Court (92.28); signing the Migrant Worker Treaty (92.30); lifting reservations to the ICCPR and other ratified human rights treaties (92.47, 92.48, 92.49); and establishing a national human rights institution (NHRI) at the federal level (92.74). To date, however, no new human rights treaty has been signed or ratified, no reservations, understandings or declarations have been lifted, and no NHRI established. The UPR is ineffective if limited to a conceptual exercise, and no country should claim success by accepting recommendations that require no identifiable outcomes or even proof of a deliberative process. The United States has failed to implement a number of other recommendations from its prior review. These include recommendations involving national security, criminal justice and policing, treatment of immigrants, and privacy, as detailed below, as well as overarching recommendations, such as agreeing to incorporate human rights training and education strategies in public policies (92.87). This submission also touches on issues that the United States did not address in its prior UPR but should consider in its upcoming review.

“The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review,” U.S. advocacy director at Human Rights Watch Antonio Ginatta told VOA News.

Brazil raised objections to the United States’ mass surveillance program, urging that all surveillance polices and measures comply with human rights law regardless of nationality, noting the importance of the principle of proportionality. The Brazilian delegation also criticized the U.S. record on migrant rights, and called for the elimination of police brutality.

The U.S. also heard criticism over the continued use of the death penalty.

The Belgian delegation said the U.S. should take specific measures to eliminate racial bias and wrongful convictions leading to executions. Swedish UN representative Anna Jakenberg Brinck called for a “national moratorium on the death penalty aiming at complete abolition.” Other countries, including France, pushed for “full transparency” in the types of drugs being administered to kill prisoners, following news that some death row inmates experienced inordinate pain and suffering during their executions.

The U.S.-led war on terror and the ongoing impunity related to the crimes of torture committed by the CIA were other areas of concern. One of the key demands of the UN delegations was for Washington to take measures to prevent acts of torture, to prosecute perpetrators, and to ensure that victims of torture were afforded redress and assistance.

Guantanamo was also raised, with some delegations including the United Kingdom recalling the pledge to close the prison by President Barack Obama back in January 2009 and regretting that it hasn’t happened yet. The UK called for an expedited effort to shut down the detention facility once and for all. More than 100 NGOs submitted reports on various aspects of U.S. human rights shortcomings, which are collected at the website UPR Info.

“Today was a demonstration of the no confidence vote that world opinion has made of the United States as a country that considers itself a human rights champion,” said Jamil Dakwar, director of the Human Rights Program of the American Civil Liberties Union. “I think that there was a clear message from today’s review that the United States needs to do much more to protect human rights and to bring its laws and policies in line with human rights standards.”

The UPR takes place every four years to scrutinize the human and civil rights practices of each of the UN’s 193 member nations.

Amid declining human rights, U.S. faces tough review at UN

obamas legacy in 50 years

The United States is scheduled to undergo its second Universal Periodic Review (UPR) before the UN Human Rights Council in Geneva on May 11, with UN member countries raising past U.S. human rights pledges and new concerns. The review comes five years after the last U.S. UPR, and in the context of a generally deteriorating human rights situation in the United States.

Human Rights Watch noted on May 7 that in its first review in 2010, the United States accepted 171 recommendations out of 240 from other member countries. “However,” HRW stated, “the U.S. has largely failed to follow through on these recommendations.”

The rights group stressed several primary areas in which the U.S. has failed to deliver:

  • Take measures to “improve living conditions through its prison system,” “increase its efforts to eliminate alleged brutality and use of excessive force by law enforcement officials” against Latinos, African Americans, and undocumented migrants, and study racial disparities in the application of the death penalty. Five years later, the US has done little on these recommendations;
  • “[I]nvestigate carefully each case” involving the detention of migrants and ensure immigration detention conditions meet international standards. While UN bodies oppose all detention of immigrant children, the US has in the past year embraced the detention of immigrant children and their mothers; and
  • Seek the ratification of core international human rights treaties, including the Convention on the Rights of Persons with Disabilities, the Convention on the Elimination of All Forms of Discrimination against Women, and the Convention on the Rights of the Child. The Obama administration submitted only the Disability Rights Convention to the Senate for its consent, and was unable to muster the two-thirds majority necessary for ratification.

Regarding the last point, as an outlier on these key human rights treaties, the United States now faces an even more embarrassing situation, being one of just two countries that has not ratified the Convention on the Rights of the Child. Earlier this week, South Sudan ratified the Convention, leaving just the United States and Somalia as the only two countries in the world not having ratified the treaty. However, the UN notes that “Somalia is in the process of finalizing the process to ratify the Convention,” which would leave the U.S. in the awkward position of being the only country in the world standing against children’s rights to health, education and freedom from discrimination.

“At the UN rights review, the US has been strong on process and short on substance,” said Antonio Ginatta, U.S. advocacy director at Human Rights Watch. “The U.S. has little progress to show for the many commitments it made during its first Universal Periodic Review.”

During the current UN review process, HRW has flagged concerns over mass surveillance programs, longstanding concerns over indefinite detention without trial at Guantanamo Bay, and the lack of accountability for torture under the previous administration.

In March, UN High Commissioner for Human Rights Zeid Ra’ad Hussein said that the rights abuses permitted by the U.S. government as part of counter-terrorism activities have encouraged radical extremism, citing the rise of the Islamic State (ISIS) terrorist group.

The review also comes at a time of heightened scrutiny of police brutality, with six police officers just charged in Baltimore for the murder of 25-year-old Freddie Gray. Regarding privacy rights, in the context of an appeals court decision just handed down declaring the NSA phone surveillance program illegal, the U.S. could be forced to take a public stand on the legitimacy of intercepting private communications around the world.

As Sarah St. Vincent of the Center for Democracy and Technology explained,

The US has committed to upholding human rights under several treaties, including the International Covenant on Civil and Political Rights (“ICCPR”), the Convention against Torture, and the International Convention on the Elimination of All Forms of Racial Discrimination. The ICCPR, in particular, contains rights to privacy and free expression. During the session, every other UN Member State will have the right to ask the US questions about its respect for the human rights enshrined in these treaties and make recommendations as to what the country should do differently in order to comply with its obligations.

The US (represented by its Geneva diplomatic mission and other members of the executive branch) will have the opportunity to respond to these points during the session, and will also need to declare shortly afterward whether it accepts each of the recommendations. In other words, if (for example) a country recommends that the US discontinue any indiscriminate interception of private communications, the Obama administration will be required to take a public position as to whether it accepts this recommendation.

The UN established the UPR process in 2006. Countries under review submit written reports on their human rights situation and respond to the questions and recommendations put forward by UN member countries at the Human Rights Council. All 193 UN member states undergo these reviews.

human-rights-us-style

Charging Baltimore cops a promising step for rule of law and international norms

The remarkable announcement last Friday by Baltimore State’s Attorney Marilyn Mosby that she had filed charges against the six officers connected to Freddie Gray’s arrest and transport on April 12, saying they illegally arrested the 25-year-old without probable cause, then ignored his pleas for medical help, came to some as a surprise.

After similar cases had resulted in no charges nor prosecutions of police officers – such as those responsible for the deaths of Eric Garner in New York and Mike Brown in Ferguson, MO – many seemed resigned to the reality that police in America essentially have free reign to kill with impunity, particularly when the victims are African American. Last week, Mosby proved these doubters wrong, leading to cries of jubilation from some quarters.

People celebrate in the streets of the Sandtown neighborhood in Baltimore after Marilyn Mosby announced that six police officers are being charged in the death of Freddie Gray, in Baltimore. Photograph: Jim Lo Scalzo/EPA

People celebrate in the streets of the Sandtown neighborhood in Baltimore after Marilyn Mosby announced that six police officers are being charged in the death of Freddie Gray, in Baltimore. Photograph: Jim Lo Scalzo/EPA

In announcing her decision to level 28 counts against the six police officers responsible for Gray’s death, Mosby said, “As the city’s chief prosecutor, I’ve been sworn to uphold justice and to treat every individual within the jurisdiction of Baltimore City equally and fairly under the law.”

While this statement should be considered uncontroversial to any sixth-grader learning the principle of America being “a nation of laws, not men” in civics class, the irrefutable reality of late has been the opposite – that some people are indeed above the law, in practice if not principle.

However, not everyone was equally impressed with the developments last week. Interviewing several demonstrators in Baltimore following the decision, journalist Amy Goodman found some people still expressing skepticism that the police will really face justice.

“I mean, it’s a good start,” said protester Hooley Shelone. “It’s a good start. But it’s just the beginning, you know? That’s why it’s important for us, everybody, to get out here and vote, when it’s time to vote, you know? So we can get people like the Marilyn Mosbys in office, you know what I’m saying?”

“I’m going to say like this,” added Ashton True Nichols:

It’s been times where as though people get 20 and 30 charges and might end up with one. So, what she said sounds good, but we want to see the work, because you go to court, you can have 20 charges and end up with one or end up free. So, if people on the streets do it, imagine what’s going to happen when the police is involved. Now that the police is involved and the police got to do it, you don’t think they got top-notch lawyers? A lot of them charges going to be dropped. Because I ain’t hear the right charge: first degree. They knew what they was doing. Yeah, they knew.

These anecdotal accounts are in line with general opinion, as determined by a poll released yesterday by Pew Research Center. Nearly eight-in-ten blacks (78%), Pew found, and 60% of whites said that the decision to bring charges was right, but far fewer expressed confidence that the investigations into the police will result in justice being served:

While the public generally supports the decision to charge the police officers, most Americans do not have a great deal of confidence into the ongoing investigations into Gray’s death. Just 13% say they have a great deal of confidence into the investigations while 35% say they have a fair amount of confidence. About four-in-ten (44%) have little or no confidence in the investigations. However, the share expressing confidence in the investigations rose during the latter part of the survey period: 40% expressed a great deal or fair amount of confidence on April 30, while 50% expressed at least a fair amount of confidence from May 1-3, after the charges were announced.

Pew baltimore opinion survey

Despite the lingering – and understandable – skepticism, it is still significant that these charges were leveled against the six Baltimore cops. According to international norms on law enforcement, when police abuse their power and arbitrarily use excessive force, their actions must be treated as criminal offenses in the justice system, which is what Mosby has done in filing these charges.

As Mosby said in her announcement:

The findings of our comprehensive, thorough and independent investigation, coupled with the medical examiner’s determination that Mr. Gray’s death was a homicide, which we received today, has led us to believe that we have probable cause to file criminal charges. […]

While each of these officers are presumed innocent until proven guilty, we have brought the following charges:

Officer Caesar Goodson is being charged with second-degree depraved-heart murder, involuntary manslaughter, second-degree negligent assault, manslaughter by vehicle by means of gross negligence, manslaughter by vehicle by means of criminal negligence, misconduct in office for failure to secure a prisoner, failure to render aid.

Officer William Porter is being charged with involuntary manslaughter, assault in the second degree, misconduct in office.

Lieutenant Brian Rice is being charged with involuntary manslaughter, assault in the second degree, assault in the second degree, misconduct in office, false imprisonment.

Officer Edward Nero is being charged with assault in the second degree, intentional; assault in the second degree, negligent; misconduct in office; false imprisonment.

Officer Garrett Miller is being charged with intentional assault in the second degree; assault in the second degree, negligent; misconduct in office; and false imprisonment.

Sergeant Alicia White is being charged with manslaughter, involuntary manslaughter, second-degree assault, misconduct in office.

This development could go a long way into bringing the United States more closely in line with global standards on policing. These standards include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, which state,

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life;

When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

There is still a long way to go before a punishment is leveled against the officers responsible for Gray’s death, but the filing of criminal charges is a promising first step.

Reaction to Baltimore uprising reveals deep double standards on violence in the U.S.

A demonstrator raises his fist as police stand in formation as a store burns during unrest following the funeral of Freddie Gray in Baltimore on Monday, April 27, 2015. Patrick Semansky—AP

A demonstrator raises his fist as police stand in formation as a store burns during unrest following the funeral of Freddie Gray in Baltimore on Monday, April 27, 2015. Patrick Semansky—AP

The general reactions to the uprising earlier this week in Baltimore, MD, reveal an almost schizophrenic attitude in the United States towards violence in general and police brutality in particular. Following the brutal arrest of unarmed black man Freddie Gray which resulted in his voice box being crushed, his spine being severed, his spleen being ruptured and ultimately his death, no officer has been fired, arrested, or prosecuted.

Yet, the focus of outrage seems to be more on the protesters rising up to demand change than on the unaccountable police whose brutality sparked the crisis.

It was especially revealing to witness CNN personality Wolf Blitzer wringing his hands over violence on the streets of Baltimore and criticizing the inability of law enforcement to stop looters:

“I don’t remember seeing anything like this in America in a long time,” he said, apparently forgetting all about the very similar riots that rocked Ferguson, MO, just a few months earlier over the non-indictment of killer cop Darren Wilson (riots covered extensively at the time by CNN).

Later, Blitzer attempted to browbeat a community organizer into confirming the narrative that the mainstream media is attempting to establish, namely that the primary concern in this situation is the unrest on the streets and not the systemic police violence that sparked the unrest.

On live television, he directly challenged activist DeRay McKesson to state unequivocally his condemnation of violence – again, not the violence of police but the violence of protesters. “I just want to hear you say that there should be peaceful protests, not violent protests, in the tradition of Dr. Martin Luther King,” Blitzer insisted.

“Yeah, there should be peaceful protests,” the community organizer replied. “And I don’t have to condone it to understand it, right? The pain that people feel is real.”

McKesson added: “And you are making a comparison. You are suggesting this idea that broken windows are worse than broken spines, right?” Trying to keep the discussion focused on the issue at hand, McKesson pointed out that “police are killing people everywhere.”

“They’re killing people here,” he said. “Six police officers were involved in the killing of Freddie Gray, and we’re looking for justice there. And that’s real. The violence the police have been inflicting on communities of color has been sustained and deep.”

Before this week’s riots broke out in Baltimore, there had been over a week of peaceful protests against the police murder of Freddie Gray, which naturally received nowhere near the media attention of the violent protests that ensued following the young man’s funeral on Monday.

Despite this media bias, there is a growing acknowledgement in the United States that its local police forces are generally out of control, killing and brutalizing unarmed civilians with impunity across the country, with a number of proposals for stemming the tide of wanton police brutality gaining traction.

Anti-police brutality activists marched 250 miles from New York to Washington DC, starting on April 13 and ending on April 20. Upon arrival at the nation’s capital, they delivered a “Justice Package” to Congress highlighting three pieces of legislation: the Stop Militarization of Law Enforcement Act, the Juvenile Justice Delinquency Prevention Act and the End Racial Profiling Act.

As March2Justice Co-Chair Tamika D. Mallory put it, “With every step we knew that we were moving closer to presenting our demands to the legislators who could respond to a national crisis with a national solution by making these bills law.”

While these measures are designed to prevent future tragedies, other campaigns are focusing on ensuring accountability for police killings that have already taken place. An email from ColorOfChange to supporters on April 29 noted that in Baltimore, “local officials haven’t provided answers to the most basic questions about why police violently arrested Gray in the first place or why ended up dead after just 45 minutes with Baltimore law enforcement.”

The email continues:

The lack of accountability for Gray’s killing is unacceptable and the solution to Baltimore’s policing crisis is not martial law or more militarized policing. Right now, we need widespread public pressure to ensure the necessary leadership and independent oversight to bring Gray’s killers to justice and overhaul the Baltimore Police Department. Without independent oversight it’s unlikely that Gray’s killers will be held accountable. Local prosecutors work too closely with police on a day to day basis to hold them accountable — and they almost never do. …

The best way to restore peace to Baltimore is for Governor Hogan and local leadership to undo the structural racism targeting its people. But right now, police are preparing to announce even harsher measures to crack down on the protests — like a curfew for youth — that will likely continue to escalate an already unacceptable level of confrontation and violence between police and citizens.

The group calls on people to send a letter to Maryland Governor Larry Hogan urging him to appoint Maryland Attorney General Brian Frosh to join the local investigation of Baltimore law enforcement responsible for Gray’s brutal death, noting that local district attorneys work too closely with police on a day to day basis to hold them accountable.

These measures – both the investigation into Baltimore law enforcement being urged by ColorOfChange and the more long-term preventive solutions being advocated by March2Justice – would go a long way into bringing the United States more closely in line with international norms on policing.

These norms include the UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, which state,

Law enforcement officials, in carrying out their duty, shall, as far as possible, apply non-violent means before resorting to the use of force and firearms. They may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result.

  1. Whenever the lawful use of force and firearms is unavoidable, law enforcement officials shall:

(a) Exercise restraint in such use and act in proportion to the seriousness of the offence and the legitimate objective to be achieved;

(b) Minimize damage and injury, and respect and preserve human life;

When tragedies do occur and police unnecessarily kill innocent people, the UN Basic Principles call for governments to “ensure that arbitrary or abusive use of force and firearms by law enforcement officials is punished as a criminal offence under their law.”

Further, Articles 2 and 3 of the International Code of Conduct for Law Enforcement Officials state unambiguously:

In the performance of their duty, law enforcement officials shall respect and protect human dignity and maintain and uphold the human rights of all persons.

Law enforcement officials may use force only when strictly necessary and to the extent required for the performance of their duty.

It’s recently been coming more into focus just how out of step the United States is when it comes to respecting these norms. As the United Kingdom’s Independent newspaper pointed out on April 17,

Police in the US have have fatally shot people 298 more times than forces in the UK, which has consistently had two or fewer shootings a year since 2009 and fewer than seven shootings a year since 1990. According to some estimates, police in the US killed more people in March than police in the UK killed in the last century.

Iceland only experienced one fatal police shooting in 2013 – believed to be the first in the country’s history.

Our graphic, supplied by Statista, also shows a gaping hole in official FBI data, illustrated by the smaller of the two US circles. The FBI only reports shootings that are considered “justified”, defined by them as “the killing of a felon by a law enforcement officer in the line of duty”.

police shootings

It’s also noteworthy that the vast majority of these shootings were considered unjustified as demonstrated in this graphic:

unjustified police shootings

If opinion-shapers like Wolf Blitzer were really concerned about violence, these are the statistics he would harping on, and perhaps browbeating cops into condemning violence on his live TV show rather than activists.

Coalition pressures Congress on surveillance reform as UN establishes Special Rapporteur on privacy

flag surveillance

Pointing to “global norms of free expression and privacy,” a coalition of major internet companies this week launched a campaign to pressure the U.S. Congress to reform practices and laws regulating government surveillance of individuals and access to their personal information.

The Global Government Surveillance Reform coalition, which consists of AOL, Apple, Google, Microsoft, Yahoo, Twitter, Facebook and other companies, trade associations and civil society groups, issued the following letter to the House and Senate leadership on March 25:

We the undersigned represent a wide range of privacy and human rights advocates, technology companies, and trade associations that hold an equally wide range of positions on the issue of surveillance reform. Many of us have differing views on exactly what reforms must be included in any bill reauthorizing USA PATRIOT Act Section 215, which currently serves as the legal basis for the National Security Agency’s bulk collection of telephone metadata and is set to expire on June 1, 2015. That said, our broad, diverse, and bipartisan coalition believes that the status quo is untenable and that it is urgent that Congress move forward with reform.

Together, we agree that the following elements are essential to any legislative or Administration effort to reform our nation’s surveillance laws:

There must be a clear, strong, and effective end to bulk collection practices under the USA PATRIOT Act, including under the Section 215 records authority and the Section 214 authority regarding pen registers and trap & trace devices. Any collection that does occur under those authorities should have appropriate safeguards in place to protect privacy and users’ rights.

The bill must contain transparency and accountability mechanisms for both government and company reporting, as well as an appropriate declassification regime for Foreign Intelligence Surveillance Court decisions.

We believe addressing the above must be a part of any reform package, though there are other reforms that our groups and companies would welcome, and in some cases, believe are essential to any legislation. We also urge Congress to avoid adding new mandates that are controversial and could derail reform efforts.

It has been nearly two years since the first news stories revealed the scope of the United States’ surveillance and bulk collection activities. Now is the time to take on meaningful legislative reforms to the nation’s surveillance programs that maintain national security while preserving privacy, transparency, and accountability. We strongly encourage both the White House and Members of Congress to support the above reforms and oppose any efforts to enact any legislation that does not address them.

capitol_nsa_surveillanceThe original signatories to the letter consisted of 47 internet firms and civil society groups, but the list of signers is growing by the day. (You can add your name here.)

The Global Government Surveillance Reform coalition also issued five principles to guide reform of government surveillance, “consistent with established global norms of free expression and privacy and with the goals of ensuring that government law enforcement and intelligence efforts are rule-bound, narrowly tailored, transparent, and subject to oversight.”

These principles are the following:

1. Limiting Governments’ Authority to Collect Users’ Information

Governments should codify sensible limitations on their ability to compel service providers to disclose user data that balance their need for the data in limited circumstances, users’ reasonable privacy interests, and the impact on trust in the Internet. In addition, governments should limit surveillance to specific, known users for lawful purposes, and should not undertake bulk data collection of Internet communications.

2. Oversight and Accountability

Intelligence agencies seeking to collect or compel the production of information should do so under a clear legal framework in which executive powers are subject to strong checks and balances. Reviewing courts should be independent and include an adversarial process, and governments should allow important rulings of law to be made public in a timely manner so that the courts are accountable to an informed citizenry.

3. Transparency About Government Demands

Transparency is essential to a debate over governments’ surveillance powers and the scope of programs that are administered under those powers. Governments should allow companies to publish the number and nature of government demands for user information. In addition, governments should also promptly disclose this data publicly.

4. Respecting the Free Flow of Information

The ability of data to flow or be accessed across borders is essential to a robust 21st century global economy. Governments should permit the transfer of data and should not inhibit access by companies or individuals to lawfully available information that is stored outside of the country. Governments should not require service providers to locate infrastructure within a country’s borders or operate locally.

5. Avoiding Conflicts Among Governments

In order to avoid conflicting laws, there should be a robust, principled, and transparent framework to govern lawful requests for data across jurisdictions, such as improved mutual legal assistance treaty — or “MLAT” — processes. Where the laws of one jurisdiction conflict with the laws of another, it is incumbent upon governments to work together to resolve the conflict.

Implementing these principles would not only bring U.S. surveillance practices in line with the U.S. Constitution, but would also go a long way in ensuring that U.S. policy is complying with international norms.

A year ago, following the U.S.’s periodic review for its compliance with the International Covenant on Civil and Political Rights, the United Nations issued a scathing report detailing a host of U.S. violations, including on privacy rights. The UN Human Rights Committee highlighted the ongoing U.S. lack of compliance with privacy requirements set forth in Article 17 of the ICCPR, particularly to respect the right to privacy regardless of the nationality or location of individuals being monitored.

To address these violations, the UN issued the following recommendations to the U.S. government:

(a)          Take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity, regardless of the nationality or location of the individuals whose communications are under direct surveillance;

(b)          Ensure that any interference with the right to privacy, family, home or correspondence is authorized by laws that: (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise and specify in detail the precise circumstances in which any such interference may be permitted, the procedures for authorization, the categories of persons who may be placed under surveillance, the limit on the duration of surveillance; procedures for the use and storage of data collected; and (iv) provide for effective safeguards against abuse;

(c)           Reform the current oversight system of surveillance activities to ensure its effectiveness, including by providing for judicial involvement in the authorization or monitoring of surveillance measures, and considering the establishment of strong and independent oversight mandates with a view to preventing abuses;

(d)          Refrain from imposing mandatory retention of data by third parties;

(e)          Ensure that affected persons have access to effective remedies in cases of abuse.

The Electronic Frontier Foundation’s Katitza Rodriguez urged the United States to conform to the UN’s recommendations. “It’s imperative the United States comply with its human rights treaty obligations, specifically Article 17 of the ICCPR, which protect the right of privacy for everyone in the same manner, within or outside US borders, regardless of nationality or place of residence,” Rodriguez said.

In an effort to ensure better compliance from the United States and other serial violators of individual privacy rights, the United Nations Human Rights Council decided this week to establish a new position of Special Rapporteur on the right to privacy, whose tasks will include gathering relevant information, including on international and national frameworks, national practices and experiences.

As Privacy International explains,

The Special Rapporteur will be the authoritative voice and intellectual leader at the global level on the right to privacy around the world. The resolution gives the individual a broad mandate to promote the respect and protection of the right to privacy in all circumstances, wherever or however it is exercised. Amongst other things, the mandate holder will monitor states’ and companies’ compliance with the right to privacy, investigating alleged violations, and making recommendations to ensure that this fundamental right is respected and protected.

Tomaso Falchetta, Legal Officer for Privacy International, said,

The Council today has confirmed what we have said for some time: The right to privacy is an invaluable human right, essential to human autonomy and dignity, and deserves explicit attention to ensure that it is respected and protected around the world. Now, perhaps more than ever, we need a dedicated individual to hold those accountable who wish to violate privacy, whether it is through surveillance, indiscriminate data collection, or other techniques that infringe on this important right. As Privacy International celebrates 25 years of advocating for the right to privacy, we can confidently say that today’s resolution is one of the most important events to protect privacy.

The individual chosen to take up the role of Special Rapporteur is expected to be appointed in June 2015.

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