10-10-01Excerpts from United Nations reports on Human Rights in the US in preparation for the November 5, 2010 review session: 1. HRC Staff Report

 

November 2010 Universal Periodic Review of Human Rights in the United States by the Human Rights Council of the United Nations:

1.          Excerpts from Report by staff of the Human Rights Council

Human Rights Council, Working Group on the Universal Periodic Review

Ninth session, Geneva, 1–12 November 2010

Compilation prepared by the Office of the High Commissioner for Human Rights in accordance with
paragraph 15 (b) of the annex to Human Rights Council resolution 5/1

United States of America

I. Background and framework
A. Scope of international obligations

Universal human rights treaties	Recognition of specific competences of treaty bodies
ICERD	Individual complaints (art. 14): No
CAT	Individual complaints (art. 22): No
Rome Statute of the International Criminal Court	No (signature only)
Refugees and stateless persons	No, except 1967 Protocol
ILO fundamental conventions	No, except C.105 and C.182
UNESCO Convention against Discrimination in Education	No

1. In 2008, the Committee on the Rights of the Child (CRC) recommended that the United States of America proceed to become party to the Convention on the Rights of the Child.14 The Working Group of experts on people of African descent noted that the United States has not ratified the Convention or the ILO Convention No. 111 concerning Discrimination in Respect of Employment and Occupation.

2. In 2008, the Special Rapporteur on the human rights of migrants recommended that the United States consider ratifying the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families.

3. CRC recommended that the State consider ratifying Additional Protocols I and II to the Geneva Conventions of 12 August 1949.17

4. The Committee against Torture (CAT) invited the State to reconsider its intention not to become party to the Rome Statute of the International Criminal Court.18 CRC made a similar recommendation.

5. In 2006, CAT recommended that the State ensure that the Convention applies at all times, whether in peace, war or armed conflict20 and that the provisions of the Convention expressed as applicable to “territory under the State party’s jurisdiction” apply to all persons under the effective control of its authorities.

6. In 2006, the Human Rights Committee (HR Committee) encouraged the State to withdraw its reservation to article 6, paragraph 5, of ICCPR, which forbids imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed. Other committees recommended that reservations and understandings to relevant human rights treaties be withdrawn.

B. Constitutional and legislative framework

7. The Working Group of experts on people of African descent noted that the abolition of slavery is not absolute. The Thirteenth amendment allows slavery “as a punishment for crime whereof the party shall have been duly convicted... within the United States, or any place subject to their jurisdiction”.

8. The Committee on the Elimination of Racial Discrimination (CERD) recommended that the State review the definition of racial discrimination used in the federal and state legislation and in court practice, so as to ensure it is consistent with that of the Convention.

9. CRC recommended that the State define and prohibit child prostitution both at federal and state levels.

10. CRC encouraged the State to raise the minimum age for recruitment into the armed forces to 18 years, and recommended that the State ensure that violations of OP-CRC-AC regarding the recruitment and involvement of children in hostilities be explicitly criminalized in its legislation; and that it consider establishing extraterritorial jurisdiction for these crimes.

C. Institutional and human rights infrastructure

11. As of 12 July 2010, the United States does not have a national human rights institution accredited by the International Coordinating Committee of National Institutions for the Promotion and Protection of Human Rights. CERD recommended that the State consider the establishment of a national human rights institution in accordance with the Paris Principles. CRC31 and the Working Group of experts on people of African descent made similar recommendations.

12. CERD recommended that the State ensure a coordinated approach towards the implementation of the Convention at the federal, state and local levels.33 CAT noted that the State had a federal structure, but recalled that it had the obligation to implement the Convention against Torture in full at the domestic level.34 Likewise, CRC recommended strengthening coordination in the areas covered by OP-CRC-SC, both at federal and state levels.

D. Policy measures

13. CAT recommended that training on all provisions of the Convention be conducted on a regular basis, in particular for personnel involved in the interrogation of suspects.

14. UN-Habitat stated that the Helping Families Save Their Homes Act of 2009 aims to prevent mortgage foreclosures and enhance mortgage credit availability and contains provisions protecting tenants living in foreclosed buildings. Complaints on illegal discrimination on housing rights may be filed through a process administered by the Department of Housing and Urban Development.

II. Promotion and protection of human rights on the ground
A. Cooperation with human rights mechanisms

1. Cooperation with treaty bodies

15. CAT noted with satisfaction the contributions of the United States to the United Nations Voluntary Fund for the Victims of Torture.

2. Cooperation with special procedures.

16. CAT encouraged the State to invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment to visit Guantanamo and any other detention facility under its de facto control. In June 2004, the Chairperson-Rapporteur of  the Working Group on Arbitrary Detention, the Special Rapporteur on the independence of judges and lawyers, the Special Rapporteur on the question of torture, the Special Rapporteur on freedom of religion or belief, and the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health (hereinafter referred to as the five mandate holders) requested the United States to allow them to visit Guantanamo, but in the absence of assurances from the Government that it would comply with the terms of reference, the five mandate holders decided to cancel the visit in November 2005.

B. Implementation of international human rights obligations, taking into account applicable international humanitarian law

1. Equality and non-discrimination

18.  The HR Committee observed that the State should take all steps necessary to ensure the equality of women before the law and effective protection against discrimination on the ground of sex, particularly in employment.

19. CERD remained concerned about the persistent racial disparities regarding the imposition of the death penalty.  The Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance recommended mandatory minimum sentences be reviewed to assess disproportionate impact on racial and ethnic minorities.  The Working Group of experts on people of African descent was concerned by the ongoing structural discrimination that cannot be effectively addressed with the existing legal mechanisms and legislation.

20. The same Special Rapporteur said the Government should establish a bipartisan Commission to evaluate the progress and failures in the fight against racism and the ongoing process of re-segregation, particularly in housing and education, with broad participation from civil society.49 CERD reiterated that the adoption of special measures “when circumstances so warrant” is an obligation arising from article 2, paragraph 2, of the Convention.

21. The Working Group of experts on people of African descent found that the challenges faced by people of African descent related, inter alia, mainly to disproportionately high levels of unemployment, lower income levels, access to education and to quality health-care services. The Working Group recommended, inter alia, the adoption of an anti-discrimination act.

22. CERD recommended that the State guarantee the right of everyone to equal treatment before tribunals and all other organs administering justice.52 It urged the State to put an end to the National Entry and Exit Registration System for nationals of 25 countries, all located in the Middle East, South Asia or North Africa, and to eliminate other forms of racial profiling against Arabs, Muslims and South Asians.53 In its follow-up report to CERD, the United States provided information on measures to combat racial profiling.

23. The Special Rapporteur recommended that the Government clarify to law enforcement officials the obligation of equal treatment and, in particular, the prohibition of racial profiling,55 and recommended that adequate consultation mechanisms be put in place for a coordinated approach at the federal, state and local levels of government.

24. CRC recommended that the State ensure that recruitment in the armed forces does not occur in a manner which specifically targets minorities and children of low-income families, and that any reported irregularity or misconduct by recruiters be investigated.

2. Right to life, liberty and security of the person

25. CERD recommended that the State adopt all necessary measures, including a moratorium, to ensure that the death penalty is not imposed as a result of racial bias. The HR Committee, while welcoming the 2002 Supreme Court decision that executions of mentally retarded criminals are cruel and unusual punishments, made a similar recommendation, adding that the United States should review federal and state legislation ith a view to restricting the number of offences carrying the death penalty. CAT recommended that the State should carefully review its execution methods, in particular lethal injection, in order to prevent severe pain and suffering. The United States voted against the draft resolution on a moratorium on the use of the death penalty in 2007.

26. OHCHR expressed concerns, in August 2008, about the decision of the authorities in Texas to proceed with the execution of a national of a third country, despite an order to the contrary by the International Court of Justice. OHCHR recalled that the United States has an international legal obligation to comply with decisions of the International Court of Justice.

27. The Special Rapporteur on extrajudicial, summary or arbitrary executions and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism sent, in March 2006, a joint allegation letter regarding incidents of air strikes by United States unmanned aircrafts that had resulted in the death of 31 civilians near the Afghan border.65 The former also sent an allegation letter regarding a raid conducted by the multinational force in Iraq, in which American troops allegedly executed 10 civilians, including 6 children.

28. The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that for too long, there has been de facto impunity for killings by private contractors and civilian intelligence agents operating in Iraq, Afghanistan and elsewhere,67 and recommended that the Government explicate the rules of international law it considers to cover targeted killings.68 The Secretary-General stated that there were continued reports implicating private security companies in the killing of civilians or bystanders. Such incidents attracted wide media attention and official complaints by Iraqi authorities. He also stated that the result was a tightening of control over those companies by the United States and the extension of court-martial proceedings to some contractors for serious offences.

29. On 25 September 2007, the Working Group on mercenaries sent an allegation letter to the Government on the events of 16 September 2007 in Nisoor Square in Baghdad, in which employees of a private security company opened fire, killing 17 and injuring more than 20 civilians.70 The United States replied to the Working Group’s letter.

30. CERD remained concerned about allegations of brutality and use of excessive or deadly force by law enforcement officials against, inter alia, Latino and African American persons and undocumented migrants. It recommended increasing the State’s efforts to eliminate police brutality and to ensure that incidents of excessive use of force are investigated and that perpetrators are prosecuted.72 In 2006, the HR Committee73 and CAT74 expressed similar concerns. The Special Rapporteur on extrajudicial, summary or arbitrary executions recommended that all deaths in immigration detention should be promptly and publicly reported and investigated.

31. CAT noted with concern that the State did not always register persons detained in territories under its jurisdiction, depriving them of an effective safeguard against acts of torture.76 The United States provided the Committee with a follow-up reply.77 CAT recommended that the State adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under the United States’ jurisdiction, and prosecute perpetrators.

32. CAT recommended that the State enact a federal crime of torture consistent with the Convention, and investigate, prosecute and punish perpetrators under the federal extraterritorial criminal torture statute.79 The Committee also recommended that the State adopt clear legal provisions to implement the principle of absolute prohibition of torture without any possible derogation.

33. In 2006, the HR Committee81 and CAT82 expressed concerns over the use of enhanced interrogation techniques. The HR Committee was concerned, inter alia, that the State refused to acknowledge that such techniques violate the prohibition of torture.83 CAT called upon the State to rescind any interrogation technique that constitutes torture or punishment, in all places of detention under its de facto effective control.84 The five mandate holders made a similar recommendation.85 The United States provided CAT86 and the HR Committee87 with a follow-up reply. The United States also sent a letter to OHCHR concerning the report of the five mandate holders.

34. CAT was concerned about acts of torture or ill-treatment committed by certain members of the State’s military or civilian personnel in Afghanistan and Iraq, and recommended that the State take immediate measures to eradicate all forms of torture and ill-treatment of detainees by military or civilian personnel, in any territory under its jurisdiction, and thoroughly investigate such acts.89 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism urged the United States to ensure that all its officials and agencies comply with international standards, including article 7 of ICCPR, the Convention against Torture and, in the context of an armed conflict, common article 3 of the Geneva Conventions.

35. In March 2010, the United Nations High Commissioner for Human Rights indicated that the United States should conduct thorough investigations into allegations of torture and the detention in Guantanamo and Bagram.

36. CAT was concerned by allegations that the State had established secret detention facilities, and that those detained in such facilities could be held for prolonged periods and face torture. The HR Committee raised similar concerns. CAT recommended investigating and disclosing the existence of any such facilities and the authority under which they had been established. The HR Committee recommended that the State immediately cease this practice, grant the International Committee of the Red Cross access to detainees, and ensure that, regardless of their place of detention, they benefit from the full protection of the law. The United States replied to the HR Committee.96 The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism made similar recommendations.

37. CAT was concerned that the State considered that the non-refoulement obligation did not extend to a person detained outside its territory, and also by the State’s rendition of suspects to States where they face a real risk of torture. It recommended, inter alia, that suspects have the possibility to challenge decisions of refoulement.98 The HR Committee and CERD100 raised similar concerns. The United States provided CAT101 and the HR Committee102 with responses.

38. The HR Committee recommended that the State scrutinize conditions of detention in prisons, in particular in maximum security prisons, with a view to guaranteeing that persons deprived of their liberty be treated in accordance with article 10 of the Covenant and the United Nations Standard Minimum Rules for the Treatment of Prisoners. CAT recommended that the State should implement appropriate measures to prevent all sexual violence in all its detention centres.

39. The Working Group on Arbitrary Detention issued the following opinion: the deprivation of liberty of Mr. Antonio Herreros Rodríguez, Mr. Fernando González Llort, Mr. Gerardo Hernández Nordelo, Mr. Ramón Labaniño Salazar and Mr. René González Schweret is arbitrary, being in contravention of article 14 of the International Covenant on Civil and Political Rights.105 The Working Group requested the Government to adopt the necessary steps to remedy this situation.106

40. CERD remained concerned about the incidence of rape and sexual violence experienced by women belonging to minority groups, particularly regarding American Indian and Alaska Native women and female migrant workers, especially domestic workers, and recommended that the State increase its efforts to prevent and punish violence against them.

41. The HR Committee noted with concern allegations of violent crimes perpetrated  against persons of minority sexual orientation, including by law enforcement officials.

42. CRC was concerned at the number of children in United States-administered detention facilities in Iraq and Afghanistan, detained over extended periods of time and who may have been subject to cruel, inhuman or degrading treatment, without access to legal advisory services or recovery measures.109 CRC recommended, inter alia, that the State ensure that children be detained only as a measure of last resort and that a periodic review of their detention be guaranteed.

43. CRC was concerned, inter alia, that efforts to prevent child abuse and neglect did not cover sufficiently large groups of vulnerable children111 and recommended adopting measures to prevent exploitation of children, and assisting victims.

44. In 2010, the ILO Committee of Experts urged the United States to take immediate and effective measures to comply with article 1 of the Worst Forms of Child Labour Convention (No. 182), read with article 3 (d), to prohibit children under 18 years of age from engaging in dangerous work in agriculture.

3. Administration of justice, including impunity, and the rule of law

45.  On 22 January 2009, the High Commissioner for Human Rights welcomed the decision by the United States Administration to close the detention facility in Guantanamo, as well as the decision to ban methods of interrogation that contravene international law. She also called for a review of the United States’ approach to detaining individuals abroad, in third countries, as well as the practice of “rendition”.

46. On 12 June 2008, the High Commissioner for Human Rights welcomed the decision by the United States Supreme Court in Boumediene v. Bush that foreign detainees held in Guantanamo have the right to challenge their detention by habeas corpus in the civilian courts. She expressed the hope that the civilian courts will be able to move promptly to assess the situation of individual detainees.

47. CAT recommended that the State cease to detain any person at Guantanamo and close this detention facility, and permit access by the detainees to judicial process or release them as soon as possible.116 The five mandate holders made similar recommendations. In July 2010, the Special Rapporteur on the question of torture and the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism called on the Government to ensure that it does not forcibly transfer anyone to another State where a person could be subject to torture.118 The United States provided CAT with a follow-up reply,119 and sent a letter to OHCHR concerning the report of the five mandate holders.

48. The HR Committee recommended that the State conduct prompt and independent investigations into allegations concerning suspicious deaths in custody and torture and ill- treatment inflicted by United States military and non-military personnel or contract employees, in detention facilities in Guantanamo, Afghanistan, Iraq and other overseas locations, and recommended ensuring that those responsible be prosecuted and punished.

The Special Rapporteur on extrajudicial, summary or arbitrary executions made similar recommendations.  The United States provided the HR Committee with a follow-up reply.

49. Regarding the 2005 Detainee Treatment Act, CAT recommended that independent procedures of review be available to all detainees.124 It also recommended ensuring that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse.125 The five mandate holders stated that the United States should ensure that all victims of torture are provided with fair and adequate compensation, in accordance with article 14 of the Convention against Torture, including the means for a full rehabilitation.126 The United States sent a letter to OHCHR concerning the report of the five mandate holders.

50. The Special Rapporteur on extrajudicial, summary or arbitrary executions stated that the United States has an obligation under international law to provide detainees with fair trials, regardless of whether persons are to be tried for crimes allegedly committed during peace or armed conflict.

51. Regarding persons detained in Guantanamo, the HR Committee was concerned that proceedings before Combatant Status Review Tribunals and Administrative Review Boards may not offer adequate safeguards of due process. The Committee was further concerned that detention in other locations, such as Afghanistan and Iraq, is reviewed by mechanisms providing even fewer guarantees.129 CAT expressed similar concerns.

52. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism recommended that the categorization of persons as “unlawful enemy combatants” be abandoned. He called upon the United States to release or to put on trial those persons detained under that categorization.131 CERD made a similar recommendation.

53. The ILO Committee of Experts asked the Government to supply information on any measures to ensure that there is no discrimination in the imposition of prison sentences involving an obligation to perform labour.133 The Working Group of experts on people of African descent was concerned with aspects of the administration of justice that adversely affect the African American population, particularly the disproportionate incarceration rates compared to the general population.

4. Right to privacy

54. The HR Committee was concerned that the State had monitored and still monitors private communications of individuals both within and outside the country, without any judicial or other independent oversight. The Committee recommended ensuring that any infringement on an individual’s rights to privacy is strictly necessary and duly authorized by law, and that the rights of individuals in this regard are respected.

5. Freedom of expression

55. On 25 September 2006, the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression sent an urgent appeal concerning the imprisonment of a freelance journalist for refusing to provide to a Grand Jury his unedited video footage of a protest in San Francisco. The Government replied to that communication.

56. On 24 August 2007, the same Special Rapporteur, jointly with the Special Rapporteurs on health and on the question of torture, sent an urgent appeal concerning a cameraman who had been detained in Guantanamo since June 2002.137 The Government replied to that communication.

6. Right to work and to just and favourable conditions of work

57. The Working Group of experts on people of African descent stated that African Americans are still underrepresented in employment. While people of African descent made up 11 per cent of the labour force in 2009, they represented 18 per cent of the unemployed and 25 per cent of the long-term unemployed (persons unemployed for 27 weeks or longer).

58. CERD regretted that workers belonging to minorities, in particular women and undocumented migrant workers, continue to face discriminatory treatment and abuse in the workplace.

7. Right to social security and to an adequate standard of living

59. CERD made reference to the high incidence of unintended pregnancies and greater abortion rates affecting African American women, and the growing disparities in HIV infection rates for minority women and recommended that efforts be continued to address wide racial disparities, which still exist in the field of sexual and reproductive health.

60. The UN-Habitat Advisory Group on Forced Evictions found allegations of instances of forced evictions caused by, inter alia, the demolition of public housing and the unequal distribution of hurricane recovery funds.

61. The Special Rapporteur on adequate housing considered that, given the crisis in affordable housing, an immediate moratorium is required on the demolition and disposition of public housing until the right to return is guaranteed to all residents.143 The Special Rapporteur recommended that residents of public housing should have effective participation in decision-making process affecting their access to housing.

62. CERD urged the State to intensify its efforts aimed at reducing the phenomenon of residential segregation based on racial, ethnic and national origins.  The HR Committee was concerned that some 50 per cent of homeless people are African American although they constitute only 12 per cent of the population.

8. Right to education

63. CERD remained concerned about the persistence of de facto racial segregation in public schools, and recommended that the State elaborate effective strategies aimed at promoting school desegregation and providing equal educational opportunity. In 2006, the HR Committee raised similar concerns.

9. Minorities and indigenous peoples

64. CERD recommended, inter alia, that the State recognize the right of Native Americans to participate in decisions affecting them, and consult in good faith with them before adopting and implementing any activity in their lands, and that the United Nations Declaration on the Rights of Indigenous Peoples149 be used as a guide to interpret the State obligations under the Convention relating to indigenous peoples.

10. Migrants, refugees and asylum-seekers

65. The Office of the United Nations High Commissioner for Refugees (UNHCR) was concerned over the United States immigration and asylum laws that have been amended in a variety of ways that are inconsistent with international standards. It urged the State to ensure that new asylum regulations to be issued in 2010 would not require overly restrictive conditions for meeting the refugee definition.

66. UNHCR noted that the State is currently detaining over 380,000 non-citizens in the United States for removal proceedings, using over 300 different facilities, the majority of which are in remote locations.152It urged the United States to provide legal representation to all such children who are seeking asylum or in immigration court removal proceedings.

67. The Special Rapporteur on the human rights of migrants recommended that immigration detainees placed in removal proceedings have the right to appointed counsel.

Migrant women who are suffering the effects of persecution or abuse, or who are pregnant, should not be detained.155 Children should be placed in home-like facilities.

68. UNHCR urged the United States to provide a pathway to permanent legal status for stateless persons within the country. For those who may not qualify for legal status, it recommended adopting suggested administrative reforms to ease restrictions placed on stateless persons.

11. Internally displaced persons

69. The Representative of the Secretary-General on the human rights of internally displaced persons, in the aftermath of Hurricane Katrina, stated that the main challenges for persons still displaced, belonging to ethnic minorities or living in poverty, were decent housing at affordable prices, access to jobs, low-level incomes and poor prospects in the medium and long term.

70. CERD remained concerned about many low-income African American residents who continued to be displaced after Hurricane Katrina, and recommended that the State increase its efforts to facilitate their return to their homes or to guarantee access to adequate and affordable housing.  The HR Committee shared similar concerns and made a similar recommendation. In its follow-up response to CERD161 and to the HR Committee the United States reported on measures taken to assist victims.

12. Human rights and counter-terrorism

71. The Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism urged the Government to restrict definitions of “international terrorism”, “domestic terrorism” and “material support to terrorist organizations” in a way that is precise and restricted to the type of conduct identified by the Security Council as conduct to be suppressed in the fight against terrorism.

72. The HR Committee expressed concerns about the potentially overbroad reach of the definitions of terrorism under domestic law and recommended that the legislation adopted be limited to crimes that would justify being assimilated to terrorism. UNHCR made a similar recommendation.

73. The HR Committee was also concerned that, following the 9/11 attacks, many non- United States citizens suspected to have committed terrorism-related offences have been detained for long periods pursuant to immigration laws with fewer guarantees than in the context of criminal procedures.

74. The HR Committee noted that the decision of the Supreme Court in Hamdan v. Rumsfeld, according to which Guantanamo detainees accused of terrorism offences are to be judged by a regularly constituted court, remains to be implemented.  The United States provided the Committee with a follow-up response.