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.
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.
The United States came under sharp criticism this week from the United Nations Special Rapporteur on torture, Juan E. Mendez, who raised a number of objections regarding U.S. prison policies including solitary confinement, the treatment of juveniles in the justice system and the indefinite detention of terrorism suspects at Guantanamo.
Mendez said on Wednesday that the terms under which the United States has invited him to visit the Guantanamo Bay detention center are unacceptable, urging the U.S. to reconsider restrictions on his visit including by allowing him unmonitored conversations with detainees.
“The invitation is to get a briefing from the authorities and to visit some parts of the prison, but not all, and specifically I am not allowed to have unmonitored or even monitored conversations with any inmate in Guantanamo Bay,” said Mendez.
He also noted that he has been kept waiting for two years to visit prisons in the United States to probe the use of solitary confinement but that he has been refused access. He has requested visits to federal prisons — ADX in Florence, Colorado, and the Manhattan Correctional Center — and state facilities in California, New York, Louisiana and Pennsylvania, but so far the government has blocked his visits to the federal facilities, and he is not willing to only accept visits to state penitentiaries. More than 80,000 people languish in solitary confinement in U.S. prisons, according to the American Civil Liberties Union.
On Tuesday, Mendez also condemned the U.S. for being the “only State in the world that still sentences children to life imprisonment without the opportunity for parole,” noting that by imposing cruel, inhuman, and degrading punishment against the most vulnerable members of society, the U.S. is in serious violation of international norms. There are 2,500 American citizens serving life in prison for crimes they committed as children, according to the Sentencing Project.
“The detention of children is inextricably linked – in fact if not in law – with the ill-treatment of children, owing to the particularly vulnerable situation in which they have been placed that exposes them to numerous types of risk,” Mendez said in a report to the UN Human Rights Council in Geneva.
Mendez noted that the U.S. practice of imposing life sentences on children in cases of homicide violates international law on numerous fronts, including the Convention on the Rights of the Child.
The UN expert noted that the deprivation of liberty of children is intended to be a measure of last resort, to be used only for the shortest possible period of time, only if is in the best interests of the child, and limited to exceptional cases.
“Failure to recognize or apply these safeguards increases the risk of children being subjected to torture or other ill-treatment, and implicates State responsibility,” Mendez warned. He called for the adoption of “higher standards to classify treatment and punishment as cruel, inhuman or degrading in the case of children.”
In addition, the Special Rapporteur pointed out that inappropriate conditions of detention – including pretrial and post-trial incarceration as well as institutionalization and administrative immigration detention – exacerbate the harmful effects on children deprived of their liberty.
“Within the context of administrative immigration enforcement, it is now clear that the deprivation of liberty of children based on their or their parents’ migration status is never in the best interests of the child,” he added. “It exceeds the requirement of necessity, becomes grossly disproportionate and may constitute cruel, inhuman or degrading treatment of migrant children.”
“The U.S. government’s policy of detaining large numbers of children harms kids and flouts international standards,” said Clara Long, U.S. researcher at Human Rights Watch last summer. “Congress should be exploring alternatives to detention that other countries facing spikes in border crossings have used successfully.”
U.S. law allows Customs and Border Protection to detain children for a maximum of 72 hours but recent reports indicate that CBP is holding children for periods closer to ten days or two weeks. The children are then transferred to the Office for Refugee Resettlement in the Department of Health and Human Services, where they may be further detained.
“States should, expeditiously and completely, cease the detention of children, with or without their parents, on the basis of their immigration status,” Mendez said this week.
Laws being adopted across the United States, including in Delaware, Wyoming and Indiana, are bringing the United States closer to respecting international norms in the treatment of children in the criminal justice system.
On June 4, 2013, Delaware Governor Jack Markell signed Senate Bill 9, which eliminates juvenile life imprisonment without possibility of release by providing for new reviews of sentences of all children who are sentenced to more than 20 years in prison.
In February, the Governor of Wyoming signed a law that abolishes life-without-parole sentences for children. The law, taking effect on July 1, 2013, provides that a minor sentenced to life imprisonment is eligible for parole after serving 25 years. The new law further empowers the governor to commute a life sentence imposed on a juvenile to a term of years.
Another bill adopted by the Connecticut House of Representatives in May effectively abolishes juvenile life without parole. For people serving prison sentences for crimes committed when they were 14 to 17 years old, the bill allows for a parole hearing after 12 years in prison or 60% of their sentence.
An Indiana law, spurred by a 2010 case which resulted in 12-year-old Paul Henry Gingerich being sent to an adult prison for 30 years, gives judges new sentencing options for children under 18 in the state’s criminal courts. It goes into effect July 1.
Gingerich’s case garnered international attention and sparked questions about whether children belong behind bars with grown-up offenders. Some noted that the United States stands nearly alone in the world in sending children to adult prisons.
The UN Convention on the Rights of the Child, a treaty that’s been ratified by every country in the world except the United States and Somalia, spells out the basic human rights of children everywhere, noting in particular certain standards that should be applied to children in the criminal justice system:
(c) Every child deprived of liberty shall be treated with humanity and respect for the inherent dignity of the human person, and in a manner which takes into account the needs of persons of his or her age. In particular, every child deprived of liberty shall be separated from adults unless it is considered in the child’s best interest not to do so and shall have the right to maintain contact with his or her family through correspondence and visits, save in exceptional circumstances;
(d) Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action.
While the U.S. has not subscribed to the treaty and it is therefore not binding on the U.S. government, the Convention falls under the rubric of “customary international law,” defined by Article 38 (1) of the Statute of the International Court of Justice as “General Principles of Law recognized by civilized nations.”
While Gingerich remains in prison awaiting a critical court hearing, his case has already had a profound impact on how juveniles tried as adults may be punished.
The law signed by Indiana Gov. Mike Pence in April gives judges more discretion in keeping young offenders out of the adult prison system and to put them instead into juvenile detention facilities where they can be rehabilitated while serving their sentence.
In Indiana, children as young as 10 can tried as adults. Gingerich was 12 when he was arrested in the shooting death of 49-year-old Phillip Danner of Cromwell, along with Danner’s 15-year-old stepson. The defense argued Gingerich had been bullied into the crime by the older teen.
While Gingerich’s case received substantial attention, it is not unique, with children tried and sentenced as adults in U.S. courts with troubling frequency.
A 2009 report, “From Time Out to Hard Time: Young Children in the Adult Criminal Justice System,” found that more than half of U.S. states permit children age 12 and under to be treated as adults for criminal justice purposes. In 22 states, plus the District of Columbia, children as young as seven can be prosecuted and tried in adult court where they would be subject to harsh adult sanctions, including long prison terms, mandatory sentences and placement in adult prisons.
The report noted that the United States stands nearly alone in the world in its harsh treatment of young children:
Punishing young children violates international norms of human rights and juvenile justice, and yet the United States continues to lead the world in both policies and practices aimed at treating young children as adults. The way the United States punishes pre-adolescents who are waived to the adult criminal justice system is of special concern in light of the basic principles of international human rights law. From the U.N. Convention on the Rights of the Child to the International Covenant on Civil and Political Rights, the United States has disregarded international laws and norms providing that children should be treated differently than adults. A number of international laws offer support for increasing the minimum age of criminal responsibility and argue against long, mandatory minimum sentences for children.
Nearly all nations in the world follow both the spirit and letter of these international instruments. As a result, most countries—including those Western nations most similar to the United States—repudiate the practice of trying young children as adults and giving them long sentences. Our research has yielded no findings of any young children elsewhere in the world who are imprisoned for as long as some children in the United States. Moreover, the international community is seeing a trend whereby juvenile punishments are being rolled back, at the same time that certain states in America are increasing the possible array of punishments for children. Ultimately, while international norms do not control the criminal justice policy of the United States, they do signal the extent to which the U.S. is out of step with the global consensus that children should be treated as children.
The recent spate of laws, largely adopted in response to the U.S. Supreme Court decision in Miller v. Alabama which struck down mandatory life-without-parole sentences for children, are a welcome if overdue development. While the U.S. still has a long way to go in developing its human rights legal framework, the ongoing legal reforms are a step in the right direction, and of course, good news for the children serving time in adult prisons.
Last week, the International Criminal Court (ICC) reached a verdict in the case of Congolese warlord Thomas Lubanga Dyilo for his role for the war crimes of enlisting and conscripting children and using them to participate actively in hostilities in the Democratic Republic of the Congo in 2002 and 2003.
Lubanga, former commander of the Patriotic Forces for the Liberation of the Congo militia and president of the Union of Congolese Patriots, was found guilty of conscripting children under the age of 15 and sending them into a brutal guerrilla war.
The United States welcomed the verdict with a statement calling it “an historic and important step in providing justice and accountability for the Congolese people.”
“This conviction puts perpetrators and would-be perpetrators of unlawful child soldier recruitment and other atrocities on notice that they cannot expect their crimes to go unpunished,” the State Department said.
Lubanga had been turned over to the court by the Congolese government in 2006, the first individual to be taken into custody by the ICC. The Prosecutor of the ICC, Luis Moreno-Ocampo of Argentina, charged Lubanga with the war crime of enlisting children under the age of 15, conscripting children under the age of 15, and using children under the age of 15 to participate actively in hostilities.
In its March 14 verdict, the ICC noted,
The crime of “conscripting or enlisting children under the age of fifteen years into the national armed forces or using them to participate actively in hostilities” as set out in Article 8(2)(b)(xxvi) of the Statute falls within “the established framework of international law” as one of the “other serious violations of the laws and customs applicable in international armed conflict”. The prohibition is based on Article 77(2) of Additional Protocol I to the Geneva Conventions of 12 August 1949.
In addition to the Geneva Conventions, the Court cited Articles 38(2) and (3) of the UN Convention on the Rights of the Child, ratified by every country in the world except the United States and Somalia, as part of the relevant legal framework.
As Article 38 of the Convention on the Rights of the Child reads,
1. States Parties undertake to respect and to ensure respect for rules of international humanitarian law applicable to them in armed conflicts which are relevant to the child.
2. States Parties shall take all feasible measures to ensure that persons who have not attained the age of fifteen years do not take a direct part in hostilities.
3. States Parties shall refrain from recruiting any person who has not attained the age of fifteen years into their armed forces. In recruiting among those persons who have attained the age of fifteen years but who have not attained the age of eighteen years, States Parties shall endeavour to give priority to those who are oldest.
Immediately following the ICC’s verdict, its broader implications were being recognized by human rights groups and international lawyers. Géraldine Mattioli-Zeltner, the international advocacy director for Human Rights Watch, said, “Military commanders in Congo and elsewhere should take notice of the ICC’s powerful message: using children as a weapon of war is a serious crime that can lead them to the dock.”
But could the ICC ruling also hold ramifications for the United States?
The U.S. military has long been criticized for skirting the international prohibition against the conscription of child soldiers through questionable recruiting strategies such as the Junior Reserve Officer Training Corps (JROTC), the Future Soldiers Training Program, forced military testing in American schools through the Armed Services Vocational Aptitude Battery, and the Army Experience Center, which bills itself as an “opportunity to virtually experience many aspects of Army life.”
“The Army Experience Center is an abomination,” says Sergeant Jesse Hamilton, who served nine years in the Army including tours in Iraq. “It targets impressionable minors, and it propagates the glorification of war. I am utterly disgusted that the Army which I loved and in which I served so long has resorted to such a deceiving recruiting strategy.”
In a 2008 report, “Soldiers of Misfortune: Abusive U.S. Military Recruitment and Failure to Protect Child Soldiers,” the ACLU exposed the U.S. military’s recruiting tactics that target children as young as 11 and disproportionately target low-income youth and students of color.
The report demonstrated that the United States is failing to observe minimum safeguards for recruitment of youth under 18 as required by the Optional Protocol on the Involvement of Children in Armed Conflict, which the U.S. Senate ratified in 2002. It also documented the military’s practice of recruiting children without parents’ consent and exposing youth to misconduct by recruiters, including coercion, deception, and sexual abuse.
As the report explains:
The JROTC oversees the Middle School Cadet Corps (MSCC), in which children ages 11 to 14 can participate. The military has invited children as young as 11 to join MSCC, or pre-JROTC, programs at their elementary and middle schools. Florida, Texas, and Chicago, Illinois offer military-run after-school programs to sixth-, seventh-, and eighth-graders. In Chicago alone, about 26 MSCC programs are offered. These programs involve drills with wooden rifles and military chants.
Legal challenges to military recruiting of youth have largely been ineffective. While the New York Civil Liberties Union succeeded in pressuring the Hutchinson Central Technical High School in Buffalo, New York to release students from a mandatory JROTC program in October 2005, other attempts to more comprehensively prohibit recruiters from high schools have failed.
Local ordinances in Eureka and Arcata, two northern California cities, which attempted to ban U.S. armed services recruiters from initiating contact with youths under 18 anywhere within city limits were declared unconstitutional by a federal judge in Oakland in 2009. The judge declined to hear oral arguments in the case, instead basing her judgment on the legal briefings filed by the parties, and threw out the laws despite the fact that they had passed with 73 percent of the vote in Arcata and 57 percent in Eureka.
Dave Meserve, the former Arcata councilman behind the laws, said it was disappointing that the judge ruled without hearing arguments on the case. “She doesn’t respond to any of our arguments in any way,” he said. “The order reads like a restatement of the government’s case.”
The case stemmed from a suit filed by the U.S. Department of Justice first filed suit against the California towns, claiming that these Youth Protection Acts fail under Article VI of the Constitution, which makes federal law supreme over contradictory state or local legislation.
The cities, however, countered that current military policy violates the Convention on the Rights of the Child’s Optional Protocol on Children in Armed Conflict, a separate but related treaty to the UN Convention on the Rights of the Child.
“When the government enters into an international treaty or protocol, that becomes the law of the United States,” said Arcata counsel Brad Yamauchi, also citing Article VI. The cities claimed that the U.S. military is in violation of the Protocol’s prohibition on the recruiting of children for military service.
This countersuit constituted the first time since the 2002 ratification of the protocol that the federal government’s compliance with the treaty had been legally questioned.
The court’s ruling was later upheld by the US Court of Appeals for the Ninth Circuit.
The case has not made its way to the Supreme Court, but considering the fact that the ICC has just issued its first verdict on the practice of recruiting child soldiers, the U.S. military and domestic courts might do well to take note.
While there are obviously substantial differences between the exploitation of children in an African civil war and the targeted recruitment of high school kids in the USA, the verdict of the ICC in the Lubanga case makes a strong case that underage youth should be considered off-limits to any sort of armed forces conscription.
“The term ‘child soldiers,’” reads the verdict, “includes all children under the age of 18 who participate in any circumstances in an armed group or force. Therefore, it is argued that this protection is not restricted to those children who actively fight, but rather it includes any child whose role is essential to the functioning of the armed group.”