U.S. human rights record under international review this week in Geneva

InternationalCovenantCivilPoliticalRightsAs a country that feels comfortable proudly proclaiming its “exceptional” status to the world and relishing in its perceived global leadership on human rights, the United States might find it somewhat uncomfortable being scrutinized this week on its own human rights record, when it is reviewed March 13-14 by the UN’s Human Rights Committee (HRC) for its compliance with the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty ratified by the United States in 1992.

The review, which takes place every several years, is a rare spotlight on domestic human rights issues within the United States, as well as its prosecution of the “war on terror” abroad. It is one of the few occasions where the U.S. government is compelled to defend its record on a range of human rights concerns, speaking the language of international law rather than the usual language of constitutional rights.

One of the primary issues the United States will be asked to clarify this week is the applicability of the ICCPR to its military engagements overseas, including indefinite detention and the extrajudicial killings carried out by unmanned aerial vehicles, or drones.

Ben Emmerson, UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, has just completed an investigation into 37 recent drone strikes, in which he noted a sharp rise in strikes and a “significant number” of civilian casualties since the end of 2013. Emmerson has demanded greater accountability and transparency on drone strikes, including public investigations into allegations of civilian casualties.

In its questionnaire to the U.S. government ahead of this year’s review, the top question of the HRC was for clarification of the government’s position on the applicability of the ICCPR in the war on terror.

Specifically, the HRC requested that the U.S. clarify “the State party’s understanding of the scope of applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory; in times of peace, as well as in times of armed conflict.”

Following the last review of the United States, in July 2006, the  U.S. government articulated “its firmly held legal view on the territorial scope of application of the Covenant,” namely that the ICCPR does not apply to U.S. actions with respect to individuals under its jurisdiction but outside its territory, nor in time of war.

The HRC objected to this “restrictive interpretation made by the State party of its obligations under the Covenant,” and urged the U.S. to “review its approach and interpret the Covenant in good faith, in accordance with the ordinary meaning to be given to its terms in their context, including subsequent practice, and in the light of its object and purpose.”

Specifically, in its response to the U.S. report, the HRC urged the United States to:

(a) acknowledge the applicability of the Covenant with respect to individuals under its jurisdiction but outside its territory, as well as its applicability in time of war;

(b) take positive steps, when necessary, to ensure the full implementation of all rights prescribed by the Covenant; and

(c) consider in good faith the interpretation of the Covenant provided by the Committee pursuant to its mandate.

It does not appear, however, that the U.S. will be changing its legal position regarding the treaty’s extraterritorial applicability. As the New York Times reported on March 6,

The United Nations panel in Geneva that monitors compliance with the rights treaty disagrees with the American interpretation, and human rights advocates have urged the United States to reverse its position when it sends a delegation to answer the panel’s questions next week. But the Obama administration is unlikely to do that, according to interviews, rejecting a strong push by two high-ranking State Department officials from President Obama’s first term.

Caitlin Hayden, a National Security Council spokeswoman, declined to discuss deliberations but defended the existing interpretation of the accord as applying only within American borders. Called the International Covenant on Civil and Political Rights, it bars such things as unfair trials, arbitrary killings and the imprisonment of people without judicial review.

However, in a 56-page internal memo, the State Department’s former top lawyer, Harold Koh, concluded in October 2010 that the “best reading” of the accord is that it does “impose certain obligations on a State Party’s extraterritorial conduct.”

Despite Koh’s opinions, the Obama administration has reportedly decided not to reverse the previous U.S. position due to fears that accepting that everything from extraterritorial drone strikes to NSA surveillance could fall within the purview of the ICCPR.

The ACLU’s Jamil Dakwar pointed out in a blog post on Sunday that “the review will cast light on a dark underbelly of American exceptionalism — our refusal to acknowledge that human rights treaties have effect overseas.” The only other country in the world that claims that human rights treaties don’t apply to extraterritorial action is Israel, Dakwar noted.

Perhaps anticipating a difficult review, the United States is sending a huge delegation of government lawyers and military officials to defend the U.S. position. The HRC apparently had to reserve a bigger hall to accommodate the sizable U.S. government delegation and more than 70 human rights advocates and observers who will be in attendance at the six-hour session.

In addition to issues related to the global war on terror, the HRC will review U.S. compliance with its ICCPR obligations on matters such as the rights of indigenous peoples, the death penalty, solitary confinement, voting rights, migrant and women’s rights, and NSA surveillance.

The ACLU submitted a shadow report to the committee highlighting examples of accountability gaps between U.S. human rights obligations and current law, policy, and practice. “U.S. laws and policies remain out of step with international human rights law in many areas,” notes the ACLU.

In addition, the ACLU provided an update to the issues covered in its September submission to the committee, which addresses serious rights violations that have emerged in recent months. The report covers:

The U.S. Human Rights Network has also submitted 30 shadow reports and currently has a delegation in Geneva, conducting activities over the course of the week to ensure that UN and U.S. officials understand the human rights realities of communities across the country.

USHRN’s shadow reports cover a wide range of issues including indigenous rights, equal protection of men and women, prisoners’ rights, freedom of association, political participation, and access to justice. The Center for Constitutional Rights has submitted shadow reports on issues including police departments’ stop-and-frisk policies, deportations of immigrants, and arbitrary detention at Guantanamo Bay.

As the ACLU’s Jamil Dakwar wrote on Sunday,

More than ever, the U.S. is facing an uphill battle to prove its bona fides on human rights issues. The United States is not only seen as a hypocrite, resisting demands to practice at home what it preaches abroad, it is now increasingly seen as a violator of human rights that is setting a dangerous precedent for other governments to justify and legitimize their own rights’ violations.

Despite this fact, the U.S. continues to ruffle feathers around the world with its increasingly hypocritical criticisms of other countries. On February 27, the State Department released its annual human rights report on the global human rights situation. As Secretary of State John Kerry said in releasing the report:

Even as we come together today to issue a report on other nations, we hold ourselves to a high standard, and we expect accountability here at home too. And we know that we’re not perfect. We don’t speak with any arrogance whatsoever, but with a concern for the human condition.

Our own journey has not been without great difficulty, and at times, contradiction. But even as we remain humble about the challenges of our own history, we are proud that no country has more opportunity to advance the cause of democracy and no country is as committed to the cause of human rights as we are.

Kerry’s comments not only likely infuriated the frequent targets of U.S. criticism, but also were offensive to every other country on earth that takes the cause of human rights seriously. By saying that “no country is as committed to the cause of human rights as” the U.S., what he’s really saying is that even countries such as Iceland or Denmark which have made human rights core pillars of their foreign policy don’t come close to the U.S. standard.

Not unexpectedly, China and Russia immediately denounced the U.S. human rights report, saying the United States is hardly a bastion of human rights standards and is on poor footing to judge other nations.

“The United States always wants to gossip and remark about other countries’ situations, but ignores its own issues. This is a classic double standard,” said Chinese Foreign Ministry spokesman Qin Gang.

The combination of the U.S. drone assassination programs, a National Security Agency under increasing global scrutiny for its dragnet surveillance practices, rampant gun violence, poor labor standards, and use of solitary confinement in jails shows that the U.S. is hardly without its own human rights abuses, noted China in its own report, “The Human Rights Record of the United States in 2013.”

Moscow concurred, with Russian Foreign Ministry’s commissioner for human rights, democracy and supremacy of law Konstantin Dolgov saying on March 4 that the U.S. human rights report “has the same flaws that were typical for previous similar reports.”

“The document is cramped with selective and stereotype assessments with the use of double standards, for instance, regarding tragic events in Ukraine,” Dolgov noted.

He pointed out that the U.S. has “acute problems with equal suffrage rights in the US and their equal access to justice.” Further, the U.S. leads the world with the number of incarcerated citizens, with with 2.2 million prisoners, Dolgov said.

As the U.S. is forced to answer for its own human rights record this week, it will be interesting to see how forthcoming it is on these problems, or if it will continue to tout its claimed status as the human rights champion of the world.

The entire U.S. ICCPR review, taking place March 13 and 14, will be broadcast live on UN TV. To follow on Twitter, use the hashtag #ICCPRforAll.

For Compliance Campaign’s archive of ICCPR related articles, see here.

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About The Compliance Campaign

Campaigning for a United States in compliance with its international obligations. Follow on Twitter here: https://twitter.com/compliancecamp Facebook: https://www.facebook.com/compliancecamp Comments, article submissions or news leads are welcome at compliancecampaign [at] gmail.com.

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