In this memorandum sent to the UN Committee on the Elimination of Racial Discrimination prior to its discussion on the rights of non-citizens, Human Rights Watch outlines its concerns regarding discrimination against selected categories of non-citizens in the United States since September 11. In the memorandum, Human Rights Watch urges the Committee to adopt a General Comment that, among other things, 1) expresses concern about counterterrorist measures that distinguish between particular groups of non-citizens and 2) resolves whether distinctions among non-citizens on the basis of religion can constitute prohibited discrimination when religious communities are closely identified with particular countries, ethnic groups, or races.
Human Rights Watch has welcomed the Committee’s attention to the human rights impact of measures to combat terrorism. In a statement of January 11, 2002, the Committee emphasized that such measures should reflect requirements of international human rights and humanitarian law, including the prohibition of racial discrimination. Indeed, the Committee pointed out that this prohibition is a peremptory norm from which no derogation is permitted. It insisted that states and international organizations ensure that counter-terrorist measures did not discriminate in purpose or effect on grounds of race, color, descent, or national or ethnic origin, and pledged to monitor the potentially discriminatory effects of legislation and practice in its work. The Committee has since taken these issues up with several countries during its examination of their periodic reports under the Convention. For example, in December 2003, the Committee expressed deep concern about provisions in the United Kingdom’s anti-terrorism legislation that permit the indefinite detention without charge or trial of non-nationals suspected of terrorism-related activities.
Since the attacks of September 11, 2001, many governments have adopted counter- terrorist policies that subject certain non-citizens -- primarily those who are citizens of countries in North Africa, the Middle East and Asia -- to special immigration rules. Those targeted include migrants, temporary visitors, asylum seekers and refugees. Government policies that distinguish among non-citizens on the basis of their country of origin or citizenship are not per se violations of CERD. Indeed CERD has no provisions expressly addressing distinctions among non-citizens. However, the Committee has stated that article 1.2 of CERD prohibits discrimination against any particular nationality of non-citizens. However, Human Rights Watch believes the Committee must consider whether CERD’s definition of racial discrimination embraces distinctions among non-citizens that appear to be predicated on considerations of race, colour, descent, or national or ethnic origin, or where that is in fact their effect.
Special anti-terrorist measures targeting individuals coming from overwhelmingly Muslim countries in North Africa, the Middle East and South Asia, reflect the belief that people who share certain characteristics with members of al-Qaeda, including nationality, ethnicity and religion, raise special national security concerns. While we recognize the urgency of anti terrorism efforts, we think that the Committee should review policies that subject hundreds of thousands of non-citizens from selected countries to special treatment and requirements that restrict their rights simply because they are from the same country and may share the same ethnicity and religion as certain terrorists.
The Committee has already confronted policies that subject non-citizens to differential treatment based on their country of origin or citizenship, and which cause them to suffer impaired rights. For example, the Committee has criticized policies in Austria that distinguish between asylum seekers based on their national origin when they seek public assistance. Similarly, the Committee has raised serious concerns about Switzerland’s “three-circle” immigration policy “which classifies foreigners on the basis of their national origin.” The Committee found the Swiss policy, which creates more preferential categories of labor migrants coming from Europe, the United States and Canada than those coming from the rest of the world, “to be stigmatizing and discriminatory, and therefore contrary to the principles and provisions of the Convention.”
As case studies for your discussion, Human Rights Watch wishes to draw your attention to several measures adopted by the United States in response to the September 11 attacks. In each case, the United States government has made legal distinctions based on country of origin or citizenship between non-citizens who are applying to enter or who are already present in the United States. The first of these policies has now been terminated, the second may or may not be continuing, and the third remains in place to this day.
I. Discrimination against Selected Non-Citizen Asylum Seekers
On March 17, 2003 the U.S. Department of Homeland Security announced a new policy called “Operation Liberty Shield,” which required that asylum seekers from a list of Asian, North African, and Middle Eastern nations and territories be detained for the duration of their asylum proceedings without the possibility of an individualized review before an impartial adjudicator of the need for their detention. The United Nations High Commissioner for Refugees criticized this policy, stating “blanket mandatory detention based on nationality varies from accepted international human rights norms and standards.” Human Rights Watch and other non-governmental organizations raised concerns that the policies violated long-standing norms against the mandatory detention of asylum seekers. We also believe the prolonged and arbitrary detention of asylum seekers based solely on their home country may well constitute a violation of article 2 of CERD. On April 29, 2003, Secretary for Homeland Security Tom Ridge publicly stated that this program of mandatory detention of asylum seekers from designated countries without judicial review had been terminated on April 17, 2003.
II. Discrimination against Non-Citizen “Special Interest” Detainees
In response to the attacks of September 11, the U.S. government questioned and arrested thousands of Muslim non-citizens coming from a handful of Middle Eastern and contiguous countries. Of these non-citizens, some 752 were arrested and placed in custody for routine immigration violations because they were “presumed guilty” of links to terrorism. Because of their “special interest” to the September 11 investigation, these detainees were subjected to unique practices and rules not used for other visa violators, and which caused them to suffer a number of human rights abuses.
For example, “special interest” detainees were subjected to prolonged and sometimes arbitrary detention. Of the 752 “special interest” detainees held on immigration violations, 317 were held without charge for more than forty-eight hours, thirty-six were held for twenty-eight days or more without charge, thirteen were held for more than forty days without charge, and nine were held for more than fifty days without charge. One Saudi Arabian detainee was held for 119 days without charge. Even after final deportation orders were issued, non-citizens remained in detention for weeks or months until the DOJ decided to deport them.
Some of the non-citizen detainees were ill-treated. For example, correctional officers at the Metropolitan Detention Center (MDC) in Brooklyn, New York “slammed” special interest detainees against the MDC walls, causing pain and bodily harm. Other detainees had their fingers and wrists painfully twisted, or their restraints pulled to cause pain and injury to their legs and arms, or were tripped so that they fell to the floor. Detainees subjected to this treatment were not resistant and had been cooperative with correctional personnel.
Almost all of the special interest detainees were Muslim men from a handful of Middle Eastern and South Asia countries – i.e. they shared the same religious, ethnic and national origin profile with the nineteen alleged September 11 hijackers. We urge the Committee to consider whether their treatment – and mistreatment -- constituted a violation of CERD.
III. Discrimination against Selected Non-Citizens in the National Security Entry-Exit Registration System
The United States has instituted a new National Security Entry-Exit Registration System (NSEERS) that imposes new registration requirements on non-citizens from certain designated countries who are either already admitted to or who are applying to enter the United States. The listed countries are all primarily Muslim. In addition to special registration requirements, NSEERS, which began in the fall of 2002, also includes a complex set of subsequent reporting requirements, mandatory filings of address or employment changes, and calls for all registered non-citizens to leave the United States through specific, often remote, ports of departure. The U.S. lifted some of these reporting requirements on December 2, 2003, but otherwise the NSEERS program remains in place. Non-citizens who violate the NSEERS requirements face deportation. For example, NSEERS requires non-citizens from the designated countries who are in the United States to re-register within ten days after notice of the requirement to register is given. Failure to do so renders a person deportable, even if they never received the notice (under the law, publication in an obscure government publication called the U.S. Federal Register constitutes sufficient notice for the purpose of triggering the ten–day requirement).
As with the other policies described above, NSEERS appears incompatible with the purpose and provisions of CERD. It establishes immigration rules that have severe ramifications for important rights, including the right to be free of arbitrary detention and deportation, based solely on the home country of the non-citizen. And the countries whose citizens face these burdens when they come to the United States are overwhelmingly Muslim, Middle Eastern and south Asian countries.
Human Rights Watch urges the Committee to adopt a General Comment which:
• Reaffirms that, among non-citizens, the International Convention on the Elimination of all forms of Racial Discrimination prohibits discrimination against any particular nationality;
• Resolves whether distinctions among non-citizens on the basis of religion or against particular religious communities can constitute prohibited discrimination when religious communities are closely identified with particular countries, ethnic groups, or races;
• Expresses concern about counter-terrorist or other measures that distinguish, exclude, restrict or create preferences between particular groups of non-citizens on the basis of the country of their citizenship or origin and considers whether these measures may constitute violations of Article 2 and Article 5 of the Convention;
• Calls on states parties to ensure that counter-terrorist measures do not discriminate in purpose or effect on grounds of race, color, descent, or national or ethnic origin;
• Calls on states parties to monitor the effects of legislation and practice to safeguard against such discrimination.
Global Advocacy Director