Tag Archive | international covenant on civil and political rights

Voter-approved election reforms push the U.S. closer to respecting international norms

Two election reforms were adopted by voters in Ohio and Maine this week, pushing the United States substantially closer to respecting international norms on holding free and fair, democratic elections.

In Ohio, a constitutional amendment was adopted by ballot initiative to ban gerrymandering districts for the state legislature – the politically charged and controversial process of drawing legislative districts to virtually guarantee certain electoral outcomes by packing votes in favor one political party over the other.

The amendment approved by voters on Tuesday will create a new, bipartisan commission to draw legislative districts that are compact and do not unfairly favor any party or candidate. It effectively said that district lines for the state legislature will be drawn to be competitive. Unfortunately, however, the reform only applies to elections to the state legislature and will not affect the undemocratic gerrymandering procedure for congressional elections.

gerrymandering 2

The new system, as explained by Ballotpedia, will consist of a seven-member Ohio Redistricting Commission:

The members are the governor, state auditorsecretary of state, one person appointed by the speaker of the House of Representatives, one person appointed by the legislative leader of the largest political party in the House of which the speaker is not a member, one person appointed by the president of the Ohio Senate and one person appointed by the legislative leader of the largest political party in the Senate of which the president is not a member. The new commission requires two members from the minority party or 29 percent of the commission seats, versus a single member under the former system.

To approve a redistricting plan for 10 years, at least two from each major political party have to agree to the plan. If the commission fails to pass a plan by a bipartisan vote, members must pass a plan by a simple majority vote of any four members, but this plan only lasts four years.

All legislative districts are required to be compact and made of “contiguous territory, and the boundary of each district to be a single nonintersecting continuous line.” The amendment forbids district plans from favoring or disfavoring either political party.

The reform, which will take effect in 2021 when the next redistricting occurs, will help ensure that the U.S. begins living up to its international election-related commitments, as spelled out in agreements such as the International Covenant on Civil and Political Rights and the 1990 OSCE Copenhagen Document. But because it does not apply to elections for the United States Congress, its effect will be limited.

Although some campaigners had advocated including congressional redistricting reform in the amendment, proponents backed off after Arizona State Legislature v. Arizona Independent Redistricting Commission was sent to the United States Supreme Court. Some critics believe Speaker of the House John Boehner pressured state lawmakers to drop any proposed changes to the corrupt system of drawing congressional districts.

gerrymandering drawingIn advocating that reformers drop their efforts to change congressional redistricting procedures, however, Boehner essentially admitted to the deep corruption embedded in the system of election-rigging known as gerrymandering.

“For 40 years the Democrat Party had the pencil in their hands and for the last 20 years we’ve had the pencil,” he said. “When you’ve got the pencil in your hand, you’re going to use it to the best of your advantage.”

International observers deployed by the OSCE to monitor U.S. adherence to commitments in the Copenhagen Document have long pointed to the prevalence of gerrymandered congressional districts as one of the major hindrances to holding democratic elections in the United States.

The OSCE’s final report on the 2010 midterm elections noted for example that due to gerrymandering, “There is a broad perception that a significant number of congressional districts are non-competitive as the outcome of the election could be predicted with a high degree of probability. In these mid-term elections, one senator and 27 candidates for members of the House were elected unopposed.”

The OSCE reiterated a recommendation contained in the final report on the 2006 midterm elections: “With a view to ensuring genuine electoral competition in congressional districts, consideration could be given to introducing procedures for drawing district boundaries that will be based on criteria other than voters’ voting histories and perceived future voting intentions.”

In a publication issued in 2013, the OSCE further outlined best electoral practices for member states (including the U.S.), including a tacit criticism of the American system of drawing congressional districts. “Electoral constituencies should be drawn in a manner that preserves equality among voters,” noted the OSCE, adding that “the manner in which constituencies are drawn should not circumvent the principle of equal suffrage.”

This would help ensure the U.S. lives up to its obligations in the 1990 OSCE Copenhagen Document, including the following:

To ensure that the will of the people serves as the basis of the authority of government, the participating States will

(7.1) — hold free elections at reasonable intervals, as established by law;

(7.2) — permit all seats in at least one chamber of the national legislature to be freely contested in a popular vote;

(7.3) — guarantee universal and equal suffrage to adult citizens;

Another important reform adopted on Tuesday was a clean elections amendment approved by the voters of Maine, which beefed up their state financing systems as an alternative to big money. Specifically, the initiative strengthened the Maine Clean Elections Act by increasing funding from $2 million to $3 million for the Maine Clean Elections Fund, increasing penalties for violating campaign finance disclosure rules, adjusting political ad disclosure rules, and allowing candidates to qualify for additional funds.

The reform establishes the state of Maine as a U.S. leader in clean elections and transparency in campaign financing, another area that has long been a concern of international observers monitoring U.S. elections. Following last year’s midterm elections, OSCE observers noted:

The ability of independent special interest groups to produce and air campaign-style advertisements without disclosing their sources of funding limited the ability of voters to judge the information that they were presented with. This lack of transparency undermined the ability of legally mandated bodies to provide accountability. Further, the purely legalistic interpretation of what constitutes co-ordination between campaigns and political action committees undermined the legal framework intended to bring transparency to campaign spending.

Although international election-related commitments are somewhat ambiguous on the topic of campaign finance laws, it is widely understood that unregulated private money has the potential for tilting the playing field in favor of a particular party or candidate, thus potentially violating the requirement in the Copenhagen Document for OSCE member states to “provide 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.”

In its 2013 guidelines, the OSCE warned of the impact that unregulated campaign financing can have on electoral systems, noting that “there is the risk of undue influence that can result from excessive or disproportionate contributions by a single contributor or group of contributors.”

Following the 2010 midterms, OSCE election observers noted that “Money played a significant role, creating an uneven playing field between candidates. About three-quarters of the total of upwards four billion dollars was spent on political campaign ads on television and radio. The ads inundated the airwaves, turning many voters off.”

In its statement on the 2012 general elections, the OSCE again stressed “the unprecedented and often negative role played by private campaign financing [which] has a potential to impact negatively on the fairness of the process.”

If more states begin following Maine’s lead, it could have a chance of finally leveling the playing field and improving the fairness of the process.

government-reform

Mass shootings and the U.S.’s international obligation to protect the right to life

massshootings_590_438

Everyone has the right to life, liberty and security of person.

Universal Declaration of Human Rights

The latest mass shooting in the United States – yesterday’s massacre at a community college in western Oregon – is another painful reminder of the U.S.’s inability or unwillingness to rein in its gun control problem and bring its laws into conformity with international norms.

The problem of U.S. gun violence has long caught the attention of the international community, including at recent review conferences examining U.S. compliance with various international conventions, with diplomats and experts repeatedly noting that U.S. laws may not fulfill international obligations of the United States government to protect life.

Following a review of the United States early last year by the UN Human Rights Committee for adherence to obligations under the International Covenant on Civil and Political Rights, the Committee’s concluding observations included the following passage on U.S. gun violence:

While acknowledging the measures taken to reduce gun violence, the Committee remains concerned about the continuing high numbers of gun-related deaths and injuries and the disparate impact of gun violence on minorities, women and children. While commending the investigation by the United States Commission on Civil Rights of the discriminatory effect of the “Stand Your Ground” laws, the Committee is concerned about the proliferation of such laws which are used to circumvent the limits of legitimate self-defence in violation of the State party’s duty to protect life (arts. 2, 6 and 26).

To bring the U.S. epidemic of gun violence under control and to fulfill its obligation to effectively protect the right to life, the UN recommended that the United States should:

(a)          Continue its efforts to effectively curb gun violence, including through the continued pursuit of legislation requiring background checks for all private firearm transfers, in order to prevent possession of arms by persons recognized as prohibited individuals under federal law, and ensure strict enforcement of the Domestic Violence Offender Gun Ban of 1996 (the Lautenberg Amendment); and

(b)          Review the Stand Your Ground laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when using deadly force in self-defence.

At a review of U.S. compliance with the International Convention on the Elimination of All Forms of Racial Discrimination, held later in 2014, the United States was again admonished for its failure to comply with international obligations on protecting the right to life. The Committee on the Elimination of Racial Discrimination (CERD) observed that gun violence disproportionately impacts racial and ethnic minorities:

The Committee is concerned at the high number of gun-related deaths and injuries which disproportionately affect members of racial and ethnic minorities, particularly African Americans. It is also concerned at the proliferation of “Stand Your Ground” laws, which are used to circumvent the limits of legitimate self-defence, in violation of the State party’s duty to protect life, and have a disproportionate and discriminatory impact on members of racial and ethnic minorities (arts. 2, 5 (b) and 6).

As a recommendation, the Committee urged the U.S.

to take effective legislative and policy measures to fulfil its obligation to protect the right to life and to reduce gun violence, including by adopting legislation expanding background checks for all private firearm transfers and prohibiting the practice of carrying concealed handguns in public venues; increasing transparency concerning gun use in crime and illegal gun sales, including by repealing the Tiahrt Amendments; and reviewing the Stand Your Ground laws to remove far-reaching immunity and ensure strict adherence to the principles of necessity and proportionality when deadly force is used for self-defence.

The United States was again reminded of these recommendations during UN Human Rights Council’s Universal Periodic Review of the U.S. human rights situation in May 2015.

The CERD, the UN reminded the United States,

was concerned at the large number of gun-related deaths and injuries, which disproportionately affected members of racial and ethnic minorities, particularly African Americans. It urged the United States to reduce gun violence by, inter alia, adopting legislation expanding background checks for all private firearms transfers and reviewing the “stand your ground” laws.57 The HR Committee58 and the Special Rapporteur on violence against women, its causes and consequences59 made similar recommendations.

Despite all of these recommendations, needless to say, the U.S. has not taken any meaningful steps to bring its gun laws into compliance with its international obligation to protect the right to life. The result: so far this year, there have been 294 mass shootings in America, including yesterday’s in Oregon.

shooting sprees

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.

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.

U.S. police display total disregard for international norms on law enforcement

Police attack protesters in the Missouri suburb of Ferguson on Aug. 17 Picture: Scott Olson/Getty Images

Police attack protesters in the Missouri suburb of Ferguson on Aug. 17
Picture: Scott Olson/Getty Images

 

 Everyone has the right to freedom of peaceful assembly and association.

The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.

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.

In response to protests in Ferguson, Mo., over the police murder of Michael Brown, an unarmed 18-year-old shot by Officer Darren Wilson on Aug. 9, police have employed highly threatening and repressive measures, including pointing military assault rifles at peaceful protesters, deploying armored vehicles in the streets, and targeting journalists and African Americans for arrest.

These measures, human rights observers on the ground point out, infringe on basic fundamental rights to peaceful assembly and expression. Amnesty International, which has a team of observers in Ferguson, “remains deeply concerned about government infringement on the community’s right to peacefully protest the killing by police of Michael Brown,” according to an Aug. 19 blog post, which contains details on how Ferguson police have engaged in arbitrary arrests and acts of violent repression in recent days.

Amnesty reiterated its calls for a prompt, thorough, independent and impartial investigation into the fatal shooting of Michael Brown, as well as independent investigations into any human rights abuses in connection with the policing of protests. Further, the group has urged a thorough review of all trainings, policies and procedures with regards to the use of force and the policing of protests.

Police point to a demonstrator who has his arms raised before moving in to arrest him on August 19.  (Photo by Joe Raedle/Getty Images)

Police point to a demonstrator who has his arms raised before moving in to arrest him on August 19. (Photo by Joe Raedle/Getty Images)

A statement issued by Human Rights Watch on Aug. 20 noted that although some scattered looting has been reported in the two weeks of demonstrations in Ferguson, most observers have described the protests as overwhelmingly peaceful. Nevertheless, the police have used “unnecessary or excessive force – including firing teargas and rubber bullets into crowds, and arbitrarily detained journalists covering the events,” according to HRW.

In the statement, HRW urged U.S. Attorney General Eric Holder to press state and local officials in Missouri to reform police practices to improve respect for basic rights. “Holder should also support federal reforms that could help address concerns about policing and racial discrimination raised during the Ferguson protests over the last 10 days,” HRW noted.

A member of the St. Louis County Police Department points his weapon in the direction of a group of protesters in Ferguson, Missouri, on Aug. 13.  AP Photo/Jeff Roberson

A member of the St. Louis County Police Department points his weapon in the direction of a group of protesters in Ferguson, Missouri, on Aug. 13.
AP Photo/Jeff Roberson

“A lot of the poor policing we’re seeing in Ferguson may be going on elsewhere in the United States,” said Alba Morales of Human Rights Watch, who has been monitoring the situation in Ferguson. “Holder should press state and local officials to review their regulations and policies on policing, but he should also look at ways the federal government may be contributing to the problems there.”

Indeed, the issue of the federal government’s responsibility for ensuring a minimum national standard in policing is also one that the United Nations has raised directly with the U.S. government, concerns that have so far apparently fallen on deaf ears.

Earlier this year, the United Nations Human Rights Committee issued a scathing report addressing serious human rights abuses in the United States, including the nationwide problem of police brutality. In a section of the report on “Excessive use of force by law enforcement officials,” the UN found that across the country, there is an unacceptably “high number of fatal shootings by certain police forces … and reports of excessive use of force by certain law enforcement officers including the deadly use of tasers, which have a disparate impact on African Americans.”

In order to bring its practices in line with international norms on law enforcement, the UN recommended that the U.S. government should “step up its efforts to prevent the excessive use of force by law enforcement officers by ensuring compliance with the 1990 UN Basic Principles on the Use of Force and Firearms by Law Enforcement Officers” and “improve reporting of excessive use of force violations and ensure that reported cases of excessive use of force are effectively investigated, alleged perpetrators are prosecuted and, if convicted, punished with appropriate sanctions, that investigations are re-opened when new evidence becomes available, and that victims or their families are provided with adequate compensation.”

The Basic Principles on the Use of Force and Firearms by Law Enforcement Officers that the Human Rights Committee referenced contains a number of guidelines that the U.S. must implement in order to meet its international obligations. For example,

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.

5. 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.”

Demonstrating the general ignorance (or indifference) of these principles within United States law enforcement agencies, Sunil Dutta of the Los Angeles Police Department recently provided some stunningly frank “practical” advice to civilians on how to avoid being brutalized or killed by cops.

In the context of the ongoing protests in Ferguson, Dutta wrote in a Washington Post op-ed on Tuesday, “If you don’t want to get shot, tased, pepper-sprayed, struck with a baton or thrown to the ground, just do what I tell you. Don’t argue with me, don’t call me names, don’t tell me that I can’t stop you, don’t say I’m a racist pig, don’t threaten that you’ll sue me and take away my badge.”

Acknowledging that police “field stops” can sometimes amount to unlawful and unconstitutional harassment, Dutta nevertheless advised civilians to never question the police about why they are being hassled, and above all, never contest  cops’ authority in any way. “I know it is scary for people to be stopped by cops,” he wrote. “I also understand the anger and frustration if people believe they have been stopped unjustly or without a reason,” adding that he is well aware that “corrupt and bully cops exist.”

However, “if you believe (or know) that the cop stopping you is violating your rights or is acting like a bully, I guarantee that the situation will not become easier if you show your anger and resentment,” he said. Instead of challenging the cop on the scene Dutta advises that order to avoid being killed you should “Save your anger for later, and channel it appropriately. Do what the officer tells you to and it will end safely for both of you.”

By placing the onus of avoiding being shot on the civilian rather than the police officer, Dutta is demonstrating the very problem with law enforcement in the United States. The mentality that he reveals among American police officers is this: when civilians get shot, it is their fault for mouthing off or being insufficiently deferential to the police’s authority. However, as made clear by the UN’s Basic Principles on the Use of Force and Firearms by Law Enforcement Officers, it is up to cops to always “apply non-violent means before resorting to the use of force and firearms.”

Police officers “may use force and firearms only if other means remain ineffective or without any promise of achieving the intended result,” not because they get annoyed with civilians who question their authority.

This basic ignorance on the part of police officers is why it may be necessary for the federal government to step in to make sure that there is some sort of national standard for policing across the country. But instead, of course, the federal government is arming police departments to the teeth with military combat gear.

In other words, federal government so far has demonstrated itself to be part of the problem, rather than part of the solution, so it may be naïve to think that it has any interest in dealing with this issue.

FCC’s proposed rule changes on net neutrality violate a host of international obligations

Net-Neutrality-Image-2

Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

— Article 19 of the International Covenant on Civil and Political Rights

With one month to go before the public comment period ends on the Federal Communications Commission’s recent vote to advance a proposal that would end net neutrality and create a system of paid-prioritization online, a new report has come out criticizing the FCC’s actions as potentially undermining the U.S. government’s international obligations regarding freedom of expression.

The legal analysis issued Monday by the Organization for Security and Cooperation in Europe – an inter-governmental organization that counts the United States as one of its 57 members – found that the rules on net neutrality (the principle that internet service providers treat all data equally and not discriminate based on content or price paid) proposed by the FCC may violate one or more of the following international accords to which the United States has subscribed: the Universal Declaration of Human Rights, the International Convention on Civil and Political Rights, and the 1990 OSCE Copenhagen Document.

Prepared for the Office of the OSCE Representative on Freedom of the Media by George Washington University Law School Professor Dawn Carla Nunziato, the report points out that Article 19 of both the Universal Declaration of Human Rights and the ICCPR protects the right to freedom of expression and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Despite this international obligation of the U.S. government, the FCC has proposed rules that would replace the so-called Nondiscrimination Rule with a No Commercially Unreasonable Practices Rule. As Prof. Nunziato explains it, “Permitting ‘commercially reasonable’ practices by broadband providers will allow – and indeed encourage – broadband providers to experiment with business models that include paid prioritization – and even exclusive paid prioritization – upon individualized negotiations with edge providers (providers of content, applications, and services).”

In practice, what this would mean is that broadband providers would be able to negotiate exclusive pay-for-priority arrangements with individual content providers, permitting broadband providers to anoint exclusive premium content providers “and effectively become censors of other disfavored, poorly funded, or unpopular content, by choosing not to favor such content for transmission to subscribers.”

For example, an internet service provider like Comcast “could enter into a deal with Foxnews.com to anoint it as the exclusive premium news provider for all Comcast subscribers, while comparatively disadvantaging all other news providers.”

Similarly, the FCC’s Proposed Rules would allow a broadband provider like Verizon to enter into an arrangement with the Republican National Committee to anoint it as the exclusive premium political site for all Verizon subscribers, while disadvantaging the Democratic National Committee’s and other political sites.

She goes on to describe other possible effects of this rule change:

Otherwise protected speech – a blog critical of Verizon’s latest broadband policies, a disfavored political party’s website – could be disfavored by broadband providers and not provided to Internet users in a manner equal to other, favored Internet content – subject only to the Proposed Rules’ vague prohibition against commercially unreasonable conduct. Such a regime would endanger the free flow of information on the Internet, would threaten freedom of expression and freedom of the media, and would herald the beginning of the end of the Internet as we know it.

The possibility of being sidelined by the ISPs could lead to “further entrenched market power by dominant content and applications providers, self-censorship by content providers who might alter their content to make it more palatable to broadband providers, and a reduction in the overall amount of speech that is meaningfully communicated as a result of content not being delivered effectively to its intended audience.”

These very real prospects led the OSCE Representative on Freedom of the Media, Dunja Mijatovic, to weigh in on the controversy yesterday.

“The proposed rules will allow telecommunications providers to discriminate against content which may conflict with their political, economic or other interests,” Mijatovic said in a letter to FCC Chair Tom Wheeler. “This would contradict international standards, OSCE commitments on free expression and freedom of the media and longstanding U.S. First Amendment principles.”

Besides U.S. international commitments on freedom of information, the net neutrality controversy spurred by the FCC and its chairman Tom Wheeler raises questions of U.S. compliance with its anti-corruption obligations under the UN Convention against Corruption. As a state party to this Convention, the United States has agreed to taking measures to prevent conflicts of interest and corruption in both the public and private sphere. In particular,

Each State Party shall, in accordance with the fundamental principles of its domestic law, endeavour to adopt, maintain and strengthen systems that promote transparency and prevent conflicts of interest.

Each State Party shall endeavour, where appropriate and in accordance with the fundamental principles of its domestic law, to establish measures and systems requiring public officials to make declarations to appropriate authorities regarding, inter alia, their outside activities, employment, investments, assets and substantial gifts or benefits from which a conflict of interest may result with respect to their functions as public officials. …

Preventing conflicts of interest by imposing restrictions, as appropriate and for a reasonable period of time, on the professional activities of former public officials or on the employment of public officials by the private sector after their resignation or retirement, where such activities or employment relate directly to the functions held or supervised by those public officials during their tenure.

Yet, the powerful chairmanship of Wheeler at the FCC demonstrates once again how the United States routinely flouts this obligation to prevent conflicts of interests. Prior to joining the FCC, Wheeler worked as a venture capitalist and lobbyist for the cable and wireless industry, with positions including President of the National Cable Television Association (NCTA) and CEO of the Cellular Telecommunications & Internet Association (CTIA). He also raised over $500,000 for Barack Obama’s two campaigns.

As a reward for this financial backing, President Obama then appointed him to his current position where is empowered with rewriting the rules for the industry that once employed him. This sort of patronage is not only prohibited under the Convention against Corruption, but now, as we see, is leading to multiple violations of international principles, as documented by the OSCE in its report issued Monday.

“The Internet was conceived as an open medium with the free flow of information as one of its fundamental characteristics,” Mijatovic said upon the report’s release. “This should be guaranteed without discrimination and regardless of the content, destination, author, device used or origin.”

Mijatovic expressed her hope that her recommendations will be taken into consideration by the FCC.

The legal analysis of the proposed net neutrality rule changes is available here. To comment to the FCC regarding its proposed rules regarding net neutrality, click here.

A very accessible, succinct explanation of the FCC’s proposed rule changes was offered recently by John Oliver on his cable show Last Week Tonight:

Obama rejects growing international concern over drones, unleashes carnage in Yemen

Anti-drone graffiti in Yemen

Anti-drone graffiti in Yemen

Despite a recent flurry of international criticism of the U.S. drone assassination program and some tentative domestic attempts to force more transparency regarding the program, no significant policy changes are being made to bring drone strikes in line with U.S. and international law. In fact, the Obama administration seems intent on demonstrating its continued obstinacy by intensifying the use of killer drones in counter-terrorist operations in Yemen, killing scores of people recently in the bloodiest spate of strikes since March 2012.

As the Bureau of Investigative Journalism reported on April 22,

The Yemeni Ministry of Interior said air strikes had killed dozens of suspected al Qaeda in the Arabian Peninsula (AQAP) militants, including several allegedly high-ranking militants.

‘The security authorities stated that the air strikes, which lasted for several hours, killed around 55 terrorists from [AQAP], including three movement leaders,’ the interior ministry said. Unnamed US officials told the New York Times CIA drones were used in the airstrikes.

But as Rooj Alwazir of the Support Yemen media collective pointed out, there is no way of really knowing how many of the victims obliterated by U.S. drones were actually militants and how many were innocent civilians.

The Yemeni government “is saying pretty much what the US government wants to hear, which is that 55 militants were killed over the weekend in southern province of Yemen,” said Alwazir on the Unauthorized Disclosure podcast.

What you’re not hearing is that included in these 55 are civilians. What you’re not hearing are the names of people who were killed. The Ministry of Interior in particular has come out and claimed that the strike in al Bayda, south of the Yemeni capital, killed ten militants and he actually for the first time acknowledged three civilians were killed. In al Marib and al Shabwah they claimed that over 23-30 militants were killed. When asked who they were, when asked who their names were and if any investigations have happened, they don’t comment. They’re still saying that they are doing DNA tests and etc.

What’s interesting about these particular air strikes that happened over the weekend is that this is the first time that we actually saw special operations on the ground, meaning when air strikes had happened in the past in Yemen air strikes are usually just laying there. No investigations are happening ever. This is the first time where the military came after the air strikes and picked up the dead bodies. So this is what’s really getting us activists and journalists, etc, people we question what happened this time around.

Yemeni human rights researcher Baraa Shiban noted that “the Yemeni government has not provided any names, or at least any names even to the public, to show that those people who are targeted in those drone strikes are an imminent threat to the security of the country.”

He said that neither the United States nor the Yemeni government knows who they are killing in these attacks. “These drone strikes and the drone programs inside Yemen violate both the Yemeni constitution and the international law,” he pointed out.

An April 21 BIJ report provided some detail on confirmed civilian casualties in the recent Yemeni attacks:

Multiple sources including military officials and eyewitnesses described how a US drone attacked a truck that was carrying alleged members of al Qaeda in the Arabian Peninsula (AQAP) and also hit a vehicle carrying civilians. At least 10 – and possibly as many as 21 – were reportedly killed in the attack, including at least three civilians. They were described as ‘construction workers‘ or ‘labourers’ by some reports.

This is the highest death toll of any confirmed drone strike in Yemen so far this year.

Cautious attempts at forcing more transparency and disclosure from the White House on these matters have recently been abandoned by the U.S. Congress, which apparently has caved to pressure from the military and intelligence establishment.

“At the behest of the director of national intelligence,” the Guardian reported on Monday, “U.S. senators have removed a provision from a major intelligence bill that would require the president to publicly disclose information about drone strikes and their victims.”

When it passed out of the Senate intelligence committee in November, the bill originally required the president to issue an annual public report clarifying the total number of “combatants” and “noncombatant civilians” killed or injured by drone strikes in the previous year.

But after receiving a letter from Director of National Intelligence James Clapper, who assured them that the Obama administration was seeking its own ways to increase transparency about its highly controversial drone strikes, Senate leaders meekly removed the language as they prepare to bring the bill to the floor for a vote. The senators evidently took Clapper’s word, despite the fact that he is a known perjurer who has been caught lying to Congress in relation to NSA surveillance activities.

The fresh carnage in Yemen was unleashed in spite of a number of recent attempts by the international community to rein in the lawless U.S. drone assassination program, obviously to no avail.

For example, in a report issued February 28 by Ben Emmerson, the UN’s Special Rapporteur on human rights and counter-terrorism, the U.S. was urged to ensure that “any measures taken to counter terrorism, including the use of remotely piloted aircraft, comply with their obligations under international law, including international humanitarian law and international human rights law, in particular the principles of precaution, distinction and proportionality.”

The Special Rapporteur also urged the U.S. to ensure that, “in any case in which there is a plausible indication from any apparently reliable source that civilians have been killed or injured in a counter-terrorism operation, including through the use of remotely piloted aircraft, the relevant authorities conduct a prompt, independent and impartial fact-finding inquiry, and provide a detailed public explanation.”

Needless to say, this recommended inquiry is not taking place in relation to the civilians recently incinerated by U.S. drones in Yemen.

Another UN report, issued by the UN Human Rights Committee in late March, expressed grave concern about the U.S.’s practice of targeted killings by drones, particularly “the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks.”

According to the Human Rights Committee’s concluding observations on the United States’ periodic review on its compliance with the International Covenant on Civil and Political Rights,

The Committee remains concerned about the State party’s very broad approach to the definition and geographical scope of “armed conflict”, including the end of hostilities, the unclear interpretation of what constitutes an “imminent threat”, who is a combatant or a civilian taking direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6 and 14).

Due to these concerns, the UN Committee urged the U.S. to “revisit its position regarding legal justifications for the use of deadly force through drone attacks.”

In particular, it should:

(a)          Ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including, in particular, with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict;

(b)          Subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used;

(c)           Provide for independent supervision and oversight of the specific implementation of regulations governing the use of drone strikes;

(d)          In armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties;

(e)          Conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible;

(f)           Provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.

On the domestic front, a U.S. court has ordered the release of key portions of a classified Justice Department memorandum that provided the legal justification for the targeted killing of a United States citizen, Anwar al-Awlaki. U.S. intelligence officials contend al-Awlaki had joined Al Qaeda and Obama ordered his assassination without trial in a September 2011 drone strike in Yemen. Two weeks later, his 16-year-old son Abdulrahman al-Awlaki, another U.S. citizen was assassinated in a separate strike.

As the ACLU explained the April 21 opinion,

The U.S. Court of Appeals for the Second Circuit roundly rejected the government’s extreme claims of official secrecy over information about the program. In ordering the release of a 2010 legal memorandum by the Office of Legal Counsel analyzing the potential targeted killing of an American citizen, as well as other information about records the government has previously refused to describe at all, the Second Circuit became the first court to order the release of a document related to the government’s targeted killing program. It also became the second federal appeals court in the last 13 months to hold that the government has pushed its secrecy claims surrounding the targeted killing program past their breaking point.

In today’s opinion, the Second Circuit panel held that the government’s repeated public assurances that the targeted killing program is lawful, and its disclosure of a “white paper” that summarized its legal conclusions, had waived its right under the Freedom of Information Act to keep secret its legal analysis authorizing the killing of U.S. citizens. This is a victory for common sense, and a reminder that the courts have an important role to play in scrutinizing government claims about national security.

Also somewhat promising in terms of increasing transparency over these strikes is the fact that more and more individuals – including a number of drone operators themselves – are stepping forward to reveal their inside knowledge about this controversial program. As Heather Linebaugh, a former drone operator, recently wrote in the Guardian,

What the public needs to understand is that the video provided by a drone is not usually clear enough to detect someone carrying a weapon, even on a crystal-clear day with limited cloud and perfect light. This makes it incredibly difficult for the best analysts to identify if someone has weapons for sure. One example comes to mind: “The feed is so pixelated, what if it’s a shovel, and not a weapon?” I felt this confusion constantly, as did my fellow UAV analysts. We always wonder if we killed the right people, if we endangered the wrong people, if we destroyed an innocent civilian’s life all because of a bad image or angle.

She also discussed the heavy emotional toll of launching missiles and ending human lives on a daily basis, even when operating the drones from thousands of miles away:

I know the feeling you experience when you see someone die. Horrifying barely covers it. And when you are exposed to it over and over again it becomes like a small video, embedded in your head, forever on repeat, causing psychological pain and suffering that many people will hopefully never experience. UAV troops are victim to not only the haunting memories of this work that they carry with them, but also the guilt of always being a little unsure of how accurate their confirmations of weapons or identification of hostile individuals were.

As the Obama administration continues to ignore the pleas from the international community to rethink the lawless approach to drone strikes, these haunting memories will only continue to grow for the drone operators like Heather Linebaugh tasked with deciding whether to end someone’s life based on grainy, pixelated images.

Welcoming UN observations, civil society urges greater U.S. commitment to human rights

A demonstrator protests against Guantanamo Bay prison during a Stop the War rally in Trafalgar Square, central LondonFollowing last week’s release of the UN Human Rights Committee’s “concluding observations” on the compliance of the United States with the International Covenant on Civil and Political Rights (ICCPR), U.S. civil society groups have urged greater commitment by the U.S. government in meeting its international obligations.

The American Civil Liberties Union (ACLU) said that the “scathing report” called into question the legitimacy of a wide range of current U.S. policies, including counterterrorism operations, immigrants’ rights, voting rights, and the criminal justice system.

“The committee’s recommendations highlight the gaps between U.S. human rights obligations and current laws and practices,” said ACLU Human Rights Program Director Jamil Dakwar.

“The Human Rights Committee rightly called out the United States for setting dangerous examples from counterterrorism operations to an unfair criminal justice system to inhumane treatment of migrants. President Obama now has an opportunity to reverse course and reshape his human rights legacy by taking concrete actions like declassifying the Senate report on CIA torture and ending dragnet surveillance and unlawful targeted killings,” Dakwar said.

Writing at the ACLU’s Blog of Rights, Astrid Reyes noted the extremely serious nature of the U.S.’s ICCPR violations:

The committee condemned the United States’ lack of accountability for disappearance, torture, and unlawful killings of terrorism suspects, and its failure to apply the ICCPR to international operations. In addition, the committee denounced racial disparities in law enforcement that have led to the incarceration of a disproportionate number of minorities (particularly Blacks and Latinos), effectively denying them basic human rights throughout the criminal justice process. This includes severe sentencing such as the death penalty and life without parole for juveniles; improper use of solitary confinement; and denial of civil rights following incarceration (most notably, the right to vote).

While the committee noted several areas where the U.S. record has improved since its last review in 2006, the Concluding Observations include important structural recommendations, such as creating an independent human rights monitoring body and expanding existing mechanisms to monitor the implementation of human rights at federal, state, local and tribal levels – providing them with adequate human and financial resources.

The U.S. Human Rights Network (USHRN), which has long been advocating for full implementation of the ICCPR at the federal, state and local levels, called the UN’s concluding observations “a strong reflection of the important work being done by human rights defenders across the country.”

“We welcome the UN Human Rights Committee’s recommendation that the U.S. ensure effective remedies for violations under the ICCPR and to take steps to bring U.S. domestic law in line with its human rights obligations,” said Ejim Dike, Executive Director of USHRN.

“We urge the Administration to follow up on the recommendations by the Committee which make clear that the US has significant work to do to fully comply with its human rights obligations in a broad range of issues including racial discrimination in the criminal justice system, gun violence, excessive use of force by law enforcement in communities of color and on the border, access to healthcare for immigrants, criminalization of the homeless, and forced psychiatric treatment,” she said.

The Center for Constitutional Rights (CCR) “applaud[ed] the UN and the international community for holding the US accountable to its international obligations and shedding a necessary light on areas where it is falling short,” describing the UN report as “highly critical.”

The UN’s main areas of concern, CCR noted, included:

  • the U.S. “targeted killing” program;
  • the lack of progress in the closure of Guantánamo, urging the U.S. to expedite the process of transferring detainees out of the prison, including to Yemen, and reiterating its position that the U.S. must end its practice of indefinite detention without charge or trial;
  • the secrecy and lack of accountability around Bush-era abuses, including the limited number of investigations, prosecutions and convictions of contractors and high ranking U.S. officials for killings and torture of detainees;
  • the imposition of the death penalty in a racially discriminatory manner and the conditions on death row;
  • reports of criminalization of people living on the street for everyday activities such as eating, sleeping, and sitting in particular areas, raising concerns of discrimination and cruel, inhuman, or degrading treatment;
  • the use of prolonged solitary confinement, particularly for at-risk people and those in pretrial detention, urging the abolition of solitary for people under 18 and for people with serious mental illness, and strict limitations on its use, overall; and
  • the targeting of Muslims by the NYPD, and racial profiling overall (while underlining its support for recent plans to reform the use of stop and frisk).

Human Rights Watch (HRW) said “the United States should heed calls issued on March 27, 2014, by an important UN human rights body to ensure that its surveillance activities are consistent with the right to privacy, both within and outside its borders.”

HRW noted that the UN Human Rights Committee’s “conclusions address a wide range of serious human rights problems in the US, but the findings on surveillance are notable, as they are the committee’s first statement on the extent to which privacy rights are affected by widespread communications surveillance.”

The committee called on the United States to comply 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. It also criticized the lack of transparency in U.S. laws, urging the United States to reform its system of oversight of surveillance to protect the rights of those affected.

“The US insists it has no international legal obligations to respect the privacy rights of foreigners outside its borders, but one of the UN’s most important human rights bodies has now made clear it disagrees,” said Andrea Prasow, HRW’s senior U.S. national security counsel. “It’s time for the U.S. to recognize that people outside the country have just as much right to have their privacy respected as those inside the US, and that any surveillance must be strictly necessary and proportionate to achieve a legitimate aim.”

The Electronic Frontier Foundation (EFF) concurred, with EFF’s International Rights Director, Katitza Rodriguez, welcoming the Committee’s observations on U.S. violations of privacy rights.  “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.

According to an EFF statement:

It’s very disappointing that the United States maintain its views that its human rights obligations under the ICCPR do not extend to its actions abroad, a view that defeats the object and purpose of the treaty. The Committee agreed and reiterates that the United States has an extraterritorial duty to protect human rights—including the right to privacy— to its action abroad regardless of the nationality or location of the individuals.

The Committee rightly criticized the current system of oversight for NSA surveillance activities, highlighting concern with the judicial interpretations of the Foreign Intelligence Surveillance Act (FISA) and secret rulings of the Foreign Intelligence Surveillance Court (FISC). These secret rulings prevent individuals from knowing the law with sufficient precision. Knowledge of and clarity in the law is a crucial principle that is clearly defined in our 13 Necessary and Proportionate Principles.

The NAACP, the nation’s oldest and largest civil rights organization, applauded the concluding observations, noting that the UN report identifies issues of felony disenfranchisement, stand your ground laws, the death penalty and more.

“This report reiterated what those in the civil rights community have known for too long – the United States has more work to do to meet its human rights obligations,” stated Lorraine C. Miller, NAACP Interim President and CEO.

“From felony disenfranchisement and stand your ground laws to voter suppression and the school to prison pipeline, we are pleased the Human Rights Committee has elevated these issues on the international stage. This gives us leverage in the United States to more aggressively address these issues at home,” she said.

While the reaction to the UN report was overwhelmingly positive, the U.S. human rights community was not entirely satisfied with the concluding observations. The Center for Constitutional Rights, for example, regretted that the Human Rights Committee failed to question the U.S. government on the devastation the invasion and occupation of Iraq has brought to both Iraqi civilians and U.S. veterans.

A “shadow report” submitted by CCR to the Human Rights Committee, entitled “US Veterans and Iraqi Organizations Seek Accountability for Human Rights Crisis Resulting from a Decade of US-Led War,” noted “the lack of any recognition whatsoever by the US government of the disastrous and tragic consequences” caused by the war against Iraq.

“Despite having waged an illegal war based on false justifications, no civilian or military official has been investigated or held accountable for their role in fabricating the justification to go to war in Iraq. In fact, the current administration recently argued in a legal case brought by victims of the Iraq war that officials responsible for planning and waging the war in violation of international law should be afforded immunity and shielded from suit,” CCR noted in its shadow report.

The full concluding observations of the UN Human Rights Committee are available here. For more information about U.S. obligations under the International Covenant on Civil and Political Rights, see the ACLU’s FAQ page.

Scathing criticism of U.S. human rights record at UN review

guantanamo-bay-calls-for-its-closure-london_993425

The United States came under sustained criticism last week during a two-day review by the United Nations Human Rights Committee for its compliance with the International Covenant on Civil and Political Rights (ICCPR), a legally binding treaty ratified by the United States in 1992.

Much of the attention that the review has received in the media has focused on the U.S.’s refusal to recognize the ICCPR’s mandate over its actions beyond its own borders, using the “extra-territoriality” claim to justify its actions in Guantánamo and in conflict zones.

Walter Kälin, a Swiss international human rights lawyer who sits on the committee, criticized the U.S. position. “This world is an unsafe place,” Kälin said. “Will it not become even more dangerous if any state would be willing to claim that international law does not prevent them from committing human rights violations abroad?”

Besides its controversial counter-terrorism tactics, including indefinite detention and the use of drones to kill terrorist suspects far from any battlefield, the U.S. also came under criticism for a litany of human rights abuses that included NSA surveillance, police brutality, the death penalty, rampant gun violence and endemic racial inequality.

The U.S. government was also reprimanded for the treatment of youth in the criminal justice system, with committee members pointing out that the sentence of life without parole for child offenders may raise issues under article 7 of the ICCPR, which prohibits “cruel, inhuman or degrading treatment or punishment.” While this matter is left to the states under the U.S. system of federalism, the national government should require that juveniles be separated from adult prisoners, the U.S. was told.

Corporal punishment of children in schools, detention centers and homes was also raised, with the U.S. delegation asked what policy has been adopted to eliminate corporal punishment and treat children as minors rather than adults in the criminal justice system. To this criticism, the U.S. responded that it is still “exceptional” in the U.S. for children to be tried in adult courts.

Concern was also expressed over mandatory deportation of immigrants convicted of nonviolent misdemeanors without regard to individual cases. Further, the U.S. has failed to meet international obligations for freedom of religious belief in relation to indigenous communities, the committee said.

The U.S. was asked for a timeline for closing the Guantanamo detention center, and concern was raised over the fairness of the military commissions set up to try terrorism suspects. The majority of Guantanamo detainees approved for transfer remain in administrative limbo, the U.S. was reminded.

When it comes to mass surveillance being conducted by the National Security Agency, the U.S. delegation was asked if the NSA surveillance is “necessary and proportionate,” and whether the oversight under the FISA court could be considered sufficient.

NSA surveillance raises concerns under articles 17 and 19 of the ICCPR, the U.S. was told. According to article 17,

1. No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.

2. Everyone has the right to the protection of the law against such interference or attacks.

Article 19 guarantees that,

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

Committee members also highlighted the Obama administration’s failure to prosecute any of the officials responsible for permitting waterboarding and other “enhanced interrogation” techniques under the previous administration.

The committee weighed in on the ongoing conflict between the CIA and the Senate Intelligence Committee, calling in particular for the U.S. to release a report on a Bush-era interrogation program at the heart of the dispute.

“It would appear that a Senator Dianne Feinstein claims that the computers of the Senate have been hacked into in the context of this investigation,” Victor Manuel Rodriguez-Rescia, a committee member from Costa Rica, told the U.S. delegation.

“In the light of this, we would like hear a commitment that this report will be disclosed, will be made public and therefore be de-classified so that we the committee can really analyze what follow-up you have given to these hearings.”

Committee chair Nigel Rodley, a British law professor and former UN investigator on torture, suggested lawyers in the Bush administration who drew up memorandums justifying the use of harsh interrogation techniques could also be liable to prosecution.

“When evidently seriously flawed legal opinions are issued which then are used as a cover for the committing of serious crimes, one wonders at what point the authors of such opinions may themselves have to be considered part of the criminal plan in the first place?” Rodley said.

“Of course we know that so far there has been impunity.”

This impunity stems in part from the U.S. position that the treaty imposes no human rights obligations on American military and intelligence forces when they operate abroad, rejecting an interpretation by the United Nations and the top State Department lawyer during President Obama’s first term.

“The United States continues to believe that its interpretation — that the covenant applies only to individuals both within its territory and within its jurisdiction — is the most consistent with the covenant’s language and negotiating history,” Mary McLeod, the State Department’s acting legal adviser, said during the session.

This narrow legal reasoning drew criticism from the UN panel, with committee member Yuji Iwasawa, Professor of International Law at the University of Tokyo, pointing out that “No state has made more reservations to the ICCPR than the United States.”

The review last week, held on March 13-14, is a voluntary exercise, repeated every five years, and the U.S. will face no penalties if it ignores the committee’s recommendations, which will appear in a final report in a few weeks’ time.

The Guardian noted however that “the U.S. is clearly sensitive to suggestions that it fails to live up to the human rights obligations enshrined in the convention – as signalled by the large size of its delegation to Geneva this week. And as an act of public shaming, Thursday’s encounter was frequently uncomfortable for the U.S.”

Did Manning’s court-martial meet international fair trial standards?

bradley manning jail cell

“Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.”

— Universal Declaration of Human Rights

With a sentence expected to be handed down in Bradley Manning’s court-martial this week, the presiding judge, Col. Denise Lind, is coming under criticism for possible lack of judicial independence, calling into question the fairness of the trial and any sentence that he receives.

Trevor Timm, executive director of the Freedom of the Press Foundation, said that throughout the trial, it has been “disappointing to see that almost every ruling, whether they’re major or minor, seems to go against the defense.” Others have noted that despite spending three years in pretrial confinement, Lind ruled that the delays had been “reasonable.”

Before the trial even began, President Barack Obama declared Manning’s guilt by flatly stating, “He broke the law.” The president’s declaration was widely picked up by the media, likely having significant influence over the public perception of Manning’s case, as well as potentially sending a message to the judge, a direct subordinate of Obama as Commander-in-Chief of the U.S. Armed Forces.

As Glenn Greenwald noted at the time, “The impropriety of Obama’s public pre-trial declaration of Manning’s guilt (‘He broke the law’) is both gross and manifest. How can Manning possibly expect to receive a fair hearing from military officers when their Commander-in-Chief has already decreed his guilt?”

He called it “reckless in the extreme for him to go around decreeing people guilty who have not been tried: especially members of the military who are under his command and who will be adjudged by other members of the military under his command.”

Steven Aftergood, a classified information expert at the Federation of American Scientists, told Politico.com, “The comment was not appropriate because it assumes that Manning is guilty. The president got carried away and misspoke. No one should mistake a charge for a conviction — especially the nation’s highest official.”

Beyond simply inappropriate, the president’s comment may have breached the United States’ commitments to international fair trial standards. According to Article 14(2) of the International Covenant on Civil and Political Rights, “Everyone charged with a criminal offense shall have the right to be presumed innocent until proved guilty according to law.”

As the Lawyers Committee on Human Rights explains this provision of the ICCPR, “The presumption of innocence must … be maintained not only during a criminal trial vis á vis the defendant, but also in relation to a suspect or accused throughout the pre-trial phase. It is the duty of both the officials involved in a case as well as all public authorities to maintain the presumption of innocence by ‘refrain[ing] from prejudging the outcome of a trial.’”

Obama’s declaration may have had an undue command influence over the proceedings, a possibility that has been compounded by the fact that Judge Lind was given a promotion while the trial was underway. As the Washington Post reported last month, “Lind has already been informed that she will take up a new position, as a judge on the U.S. Army Court of Criminal Appeals, when the Manning trial ends.”

Attorney Michael Ratner said that he found the promotion “pretty extraordinary” considering the context of the case and the possible conflicts of interest involved.

“I don’t know whether it’s—I don’t think it’s necessarily illegal,” he said, “but it does—it’s interesting to me that she’s going upstairs during the very trial that’s going on, and given that promotion.”

Lind’s promotion raises the possibility of whether there may have been a quid pro quo. Is it possible that she was promised the appellate court job contingent upon her decisions in the Manning case? This, of course, speaks to the question of judicial impartiality and independence, key components of international fair trial standards. As the Lawyers Committee explains,

Independence presupposes a separation of powers in which the judiciary is institutionally protected from undue influence by, or interference from, the executive branch and, to a lesser degree, from the legislative branch. …

While independence primarily rests on mechanisms aimed at ensuring a court’s position externally, impartiality refers to its conduct of, and bearing on, the final outcome of a specific case. Bias (or a lack thereof) is the overriding criterion for ascertaining a court’s impartiality. It can, thus, be prima facie called into question when a judge has taken part in the proceedings in some prior capacity, or when s/he is related to the parties, or when s/he has a personal stake in the proceedings. It is also open to suspicion when the judge has an evidently preformed opinion that could weigh in on the decision-making or when there are other reasons giving rise to concern about his/her impartiality.

Another key component of international fair trial standards is the right to a speedy trial as outlined in Article 9 (3) of the ICCPR, which states:

Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

Despite this requirement, Manning spent his entire pre-trial period of three years in jail. This, despite the fact that the Human Rights Committee of the United Nations has held that confinement of more than six months is incompatible with the ICCPR.

Manning’s mistreatment during that unlawful pre-trial detention was also a cause for concern, with his prolonged solitary confinement regime “constitut[ing] at a minimum cruel, inhuman and degrading treatment in violation of article 16 of the convention against torture,” according to Juan Mendez, the UN Special Rapporteur on Torture.

The treatment, which included prolonged solitary confinement, forced nudity and denial of meaningful exercise or work opportunities, also constituted a breach of the ICCPR, which states that “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”

Another issue that arose during Manning’s court-martial, raising questions of whether it abided by international standards, was the lack of transparency that surrounded many aspects of the case.

Article 14 of the ICCPR provides for the right to a fair and public hearing, but Manning’s court martial was surrounded by secrecy and security, with Judge Lind and the military declining to even release official transcripts of the proceedings.

Many other documents were withheld or heavily redacted and significant portions of the sentencing testimony against Manning were closed to the public. Because of this, it remains unknown what damage the government claims that he caused by sending classified material to WikiLeaks.

His supporters maintain that Manning was acting in the public interest, but the court secrecy means that there is little public evidence about whether his leaks on balance helped or hurt the world.

“The public’s ability to understand the sentence is going to be permanently impaired by that fact that, unfortunately, there are large pieces of this that are going to be off the public record,” said Eugene Fidell, a visiting professor in military law at Yale Law School. “There are going to be missing pieces of the jigsaw puzzle.”

With a potential 90-year prison sentence being handed down by Judge Lind this week and the possibility of a long-term campaign for his freedom, it’s worth remembering that Manning’s rights have been violated every step of the way and that the U.S. has systematically abrogated fundamental components of international fair trial standards.

free bradley manning

%d bloggers like this: