Mr. Chairman, Subcommittee members:
Thank you for inviting Human Rights Watch to comment on the United States' implementation of international human rights treaties to which it is a party.
Human Rights Watch regularly monitors and reports on the human rights situation in about 80 countries around the world, including the United States. There are several areas in which the United States is failing to meet its obligations under international human rights treaties to which it is a party. Below, we describe some of our most serious concerns in this respect.
Implementation of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
Closing Secret Prisons
On January 22, 2009, his second full day in office, President Barack Obama issued an executive order to close the Central Intelligence Agency's secret detention program. CIA Director Leon Panetta confirmed that the president's order had been implemented in an April 9, 2009 memorandum to all CIA staff that stated unequivocally: "The CIA no longer operates detention facilities or black sites and has proposed a plan to decommission the remaining sites." The CIA's prisons, which are thought to have held some 100 detainees since 2002, were the sites of some of the Bush administration's most egregious human rights violations. Yet recent allegations concerning the existence of secret prisons, hidden from the International Committee of the Red Cross and operated by US Special Operations forces at Bagram Air Force Base in Afghanistan, emphasize the need for a government-wide commitment to transparent detention policies that comply with US treaty obligations.
Ban on the Use of Evidence Obtained by Torture or Cruel, Inhuman or Degrading Treatment
The Military Commissions Act of 2009 (MCA), which was largely supported by the Obama administration, expressly bans the use of statements obtained by torture or cruel, inhuman or degrading treatment. However, several other provisions of the MCA continue to be problematic. These include the retroactive nature of the legislation and provisions singling out non-US nationals for trial in a special court deemed inappropriate for US citizens. The law includes offenses that are not violations of the law of war and even though it includes improvements with respect to access to counsel and defense resources, the law continues to provide inferior process to defendants compared to that offered in civilian courts and courts-martial. Finally, the MCA permits the trial of child soldiers for war crimes without taking into account their status as alleged child offenders. These fundamental flaws suggest that the military commissions are not "regularly constituted courts" within the meaning of the Geneva Conventions and otherwise fail to comply with US treaty obligations.
Renditions Based on "Diplomatic Assurances"
In August 2009, the Obama administration announced that it would continue the Bush administration's practice of carrying out detainee transfers based on "diplomatic assurances"-non-binding promises from the receiving country that detainees will be treated humanely. Human Rights Watch's research has found that such assurances are ineffective at preventing torture, as exemplified by the cases of Maher Arar, Ahmed Agiza, and Mohammed al-Zari. We are concerned that continued reliance on diplomatic assurances to facilitate detainee transfers will result in the violation of US obligations under the Convention against Torture.
Accountability for Past Abuses
The Obama administration has shown little enthusiasm for establishing a commission of inquiry or for initiating criminal investigations of senior officials implicated in serious crimes against detainees at Guantanamo and elsewhere. President Obama initially signaled a willingness to set up a non-partisan commission to investigate these abuses, but his office quickly backed away from the idea.
In August 2009, the Obama administration released the 2004 CIA Inspector General Report. That report documented in unprecedented detail US government officials' approval of illegal and brutal interrogation methods in the post-9/11 fight again terrorism. With the release of the Inspector General's report, Attorney General Eric Holder announced that he had asked a federal prosecutor to conduct a preliminary review of post-9/11 interrogation abuses to determine whether federal laws were violated. It is critical that the prosecutor's investigation cover those who planned and authorized torture and other abuses, not just lower-level CIA operatives who used "unauthorized" techniques. Crimes such as "waterboarding" (near drowning) have for over a century been prosecuted and punished in the United States. Yet no senior government official has been held to account for these crimes, which violate both US and international law. Any investigation that failed to reach those at the center of the policy, while pinning responsibility on line officers, would lack credibility both domestically and internationally. The attorney general's investigation should be a full-scale and open-ended criminal investigation.
Denying Redress to Victims of Torture
The United States has continued to oppose redress for victims of torture by or with complicity of US officials. The US Court of Appeals for the Second Circuit recently threw out a suit brought by Maher Arar, the Canadian national of Syrian origin who was rendered to Syria by US officials and brutally tortured. (The Canadian government's inquiry into Arar's treatment resulted in a public apology and a settlement of $10 million.) The Second Circuit concluded, on the basis of US arguments, that permitting a civil suit against government officials responsible for torture and rendition would damage national security and force the disclosure of state secrets, a ruling that left Arar unable to obtain public acknowledgment or redress for his ordeal. The administration's continued opposition to civil suits filed by alleged victims of torture is contrary to its obligation under international law to provide victims of human rights violations with an effective remedy, including that of obtaining redress and compensation from a competent tribunal.
Extraterritorial Application of Human Rights Law
The administration of President George W. Bush long asserted that international human rights treaties, notably the ICCPR and the Convention against Torture, do not prohibit US officials abroad from using coercive interrogation techniques short of torture against non-US citizens.
During the confirmation process for attorney general in January 2005, Alberto Gonzales responded to queries by Senate committee members on the treatment of foreign detainees abroad by claiming that US officials were not bound by the prohibition against cruel, inhuman or degrading treatment. While asserting in written responses that torture by all US officials was unlawful, Gonzales indicated that no law would prohibit the CIA from engaging in cruel, inhuman or degrading treatment when interrogating non-citizens outside of the United States. Gonzales argued that when the US Senate gave its advice and consent to ratify the Convention against Torture in 1994, it made a reservation by which the United States defined the prohibited "cruel, inhuman or degrading treatment" as meaning the ill-treatment prohibited by the Fifth, Eighth or Fourteenth Amendments to the US Constitution.
The administration claimed that because the Constitution does not apply to US citizens outside the United States, the Convention against Torture's prohibition against ill-treatment does not apply either. Under this interpretation, US officials interrogating or detaining non-US nationals abroad would be free to engage in cruel and inhuman treatment short of torture without violating the Convention against Torture.
Abraham Sofaer, legal advisor at the State Department during the Reagan administration, disagreed publicly with Gonzales' analysis of the reservation's meaning. In a letter to the Judiciary Committee, Sofaer stated:
the purpose of the reservation [to the Convention] was to prevent any tribunal or state from claiming that the US would have to follow a different and broader meaning of the language of Article 16 than the meaning of those same words in the Eighth Amendment. The words of the reservation support this understanding, in that they related to the meaning of the terms involved, not to their geographic application (emphasis added).
Yet the Bush administration reiterated its position in State Department legal advisor John Bellinger III's May 5, 2006 statement to the Committee against Torture. Bellinger said that the Convention against Torture did not apply to detainees in the "war on terror" held abroad because "[i]t is the view of the United States that these detention operations [in Afghanistan, Guantánamo and Iraq] are governed by the law of armed conflict, which is the lex specialis applicable to those operations."
Such an interpretation undermines the aim of the Convention against Torture, which calls on governments to eliminate torture and ill-treatment to the fullest extent of their authority. It would also give the green light to the CIA to commit abuses in its secret detention facilities abroad. Thus, while claiming it was rejecting torture, the Bush administration was effectively seeking a loophole in international law that would allow US intelligence operatives abroad leeway to conduct abusive interrogations.
The UN Human Rights Committee and the Committee against Torture, as well as UN special rapporteurs, rightly criticized the Bush administration for claiming that the human rights treaties did not apply to US personnel (military and intelligence) operating outside the United States. The treaty bodies have been clear that the treaties extend to places where the US has either formal jurisdiction or "effective control," and that the human rights treaties still apply even where the law of armed conflict is applicable.
The same issues also apply to US implementation of the ICCPR.
Implementation of the Optional Protocol on the Involvement of Children in Armed Conflict
With one exception, US implementation of the Optional Protocol on the Involvement of Children in Armed Conflict, which the United States ratified in 2002, has been generally positive. In January 2003 each branch of the US armed services adopted new policies designed to keep soldiers under the age of 18 out of combat areas. After a couple of years, the Marines discovered their policy was inadequate, so they issued a new one. Now, none of the services even allow 17-year-olds into conflict areas and the Army will not deploy them outside the United States. In 2003 Human Rights Watch discovered that 70 underage troops had been deployed (apparently accidentally) to Iraq and Afghanistan, but the Department of Defense took fairly quick corrective action to pull them out.
Where US implementation has been far from adequate is in fulfilling the Protocol's requirements for rehabilitation and reintegration of former child soldiers in its jurisdiction. In particular, the United States has failed to live up to these requirements with its treatment of Omar Khadr, a Canadian citizen who was detained at age 15, at Guantanamo. Although most juvenile detainees have now been released from Guantánamo, Khadr has been detained for nearly seven years and is now facing charges before a military commission.
Sentencing children to life in prison without possibility of parole
The United States is the only country in the world to sentence children to life in prison without possibility of parole. Currently there are more than 2,500 people in US prisons serving sentences of life without parole for crimes committed before they were 18 years old.
The treaty bodies for the ICCPR and the International Convention on the Elimination of All Forms of Racial Discrimination have both found this practice to be in violation of those treaties.
The Committee against Torture has also stated that sentencing children to life in prison without possibility of parole may constitute cruel, inhuman or degrading treatment or punishment prohibited by the Convention against Torture.
Prison Litigation Reform Act
The federal Prison Litigation Reform Act (PLRA) creates a separate and unequal legal system for the more than 2.3 million incarcerated persons in the United States. The PLRA singles out lawsuits brought by prisoners in federal courts for a host of burdens and restrictions that apply to no other persons. For example, one provision of the PLRA provides that prisoners may not recover compensation for "mental or emotional injury" unless physical injury is also present. As one federal judge pointed out, this provision would bar compensation even in cases of deliberate mental torture:
Imagine a sadistic prison guard who tortures inmates by carrying out fake executions--holding an unloaded gun to a prisoner's head and pulling the trigger, or staging a mock execution in a nearby cell, with shots and screams, and a body bag being taken out (within earshot and sight of the target prisoner). The emotional harm could be catastrophic but would be non-compensable [under the PLRA].
The Convention against Torture defines torture as either "physical" or "mental." The Committee against Torture has called for repeal of this "physical injury" provision, citing article 14 of the Convention against Torture, which requires that "[e]ach State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation."
Execution by Lethal Injection
Executions carried out by lethal injection continue to be plagued by mishaps, some of which cause extreme suffering on the part of the condemned prisoner. Most recently, on September 15, 2009, the state of Ohio tried unsuccessfully to execute Romell Broom by lethal injection. Prison staff struggled for more than two hours to find a vein for the needle that would deliver the deadly chemicals to stop his heart. They stuck him at least 18 times, painfully striking muscle and bone. At one point Broom covered his face with his hands and cried. Ohio Governor Ted Strickland finally ordered the execution postponed, and a federal appeals court later stayed another Ohio execution pending investigation of what it called the "disturbing issues" raised by this incident.
The Committee against Torture has expressed concern over the pain and suffering that sometimes accompany executions in the United States, and urged the United States to review its execution methods, including in particular its use of lethal injection, accordingly.
Human Rights Watch opposes the death penalty in all circumstances because of its inherent cruelty and irreversibility.
Implementation of the International Convention on the Elimination of All Forms of Racial Discrimination and Racial Disparities in the Prevalence of HIV/AIDS
The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), which the United States ratified in 1994, requires states parties, when the circumstances so warrant, to take "special and concrete measures" to ensure the development and protection of racial groups "for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms." Article 5(e)(iv) of ICERD requires the United States to eliminate racial discrimination and guarantee to everyone, without distinction, the right to public health.
Yet the United States has failed to develop legislative or policy responses adequate to address the HIV/AIDS epidemic in the African-American community. In some instances, the United States promotes laws and policies that deny services and care to many African-Americans with HIV/AIDS. These US government actions exacerbate the disproportionate effect of HIV/AIDS upon the minority community in violation of the ICERD.
Marked racial disparities in the prevalence of HIV/AIDS in the United States are well documented. The African-American experience is the most dramatic. Black Americans are 45 percent of people newly infected, despite being only 13 percent of the US population. African-American men are diagnosed at a rate seven times higher than that of white men. HIV/AIDS is the leading cause of death of African-American women ages 25-34, and African-American women in all age groups have a 13 times greater risk of dying of HIV/AIDS than do white women. African-American children constitute 71 percent of all pediatric AIDS cases in the US.
As HIV/AIDS rages through African-American communities, the response of the US government ranges from neglect to undermining potential solutions. African-Americans with HIV-more than 500,000-outnumber those in 7 of the 15 countries targeted by the US PEPFAR program for financial assistance. Yet there is still no national HIV/AIDS plan and no comprehensive plan to address the epidemic in minority communities. Federal funding for the Minority AIDS Initiative has, in real terms, declined over the last eight years. Under the present system, Medicaid, which offers health insurance to low-income persons, denies eligibility until applicants are disabled from full-blown AIDS. The Ryan White CARE Act and the AIDS Drug Assistance Program (ADAP), designed to be "safety nets" for HIV/AIDS patients denied Medicaid eligibility, are chronically under-funded. And Ryan White funding formulas fail to account for the rapidly rising HIV infection in the southern United States, where most new infections are among the African-American population.
One in five new HIV infections among African-Americans is a result of injection drug use. In Washington, D.C., for example, 3 percent of the population and 7 percent of black men are HIV-positive, with injection drug use a leading, and increasing, mode of transmission. Yet until recently, the US government prohibited the use of federal funds for proven harm reduction programs such as needle exchange. Fortunately, the Congress recently took a critically important first step by repealing the ban. Now the federal government must take the next necessary steps, by supporting locally funded programs such as those in Washington, D.C. Promoting needle exchange without unreasonable restrictions is an example of a public health measure that would reduce transmission of HIV among African-Americans.
Child Labor in US Agriculture
Hundreds of thousands of children work on US farms yet are exempt from the legal protections granted to all other working children in the United States. The 1938 Fair Labor Standards Act (FLSA) specifically exempts farmworker youth from minimum age and maximum hour requirements, allowing children to work at younger ages, for longer hours, and under more hazardous conditions than children in other jobs. What protections children do have are often not enforced. State child labor laws also vary in strength and enforcement. As a result, child farmworkers often work for poor pay for 12- and 14-hour days, and risk pesticide poisoning, heat illness, injuries, and life-long disabilities. The work interferes with their education and many drop out of school. Girls may be subject to sexual harassment.
The FLSA's two-tiered scheme of protection-one for farmworker children, one for all other working children-corresponds closely with race and ethnicity, as most child farmworkers are Latino. In that respect, it is inconsistent with the ICCPR, which states that "[a]ll persons are equal before the law and are entitled without any discrimination to the equal protection of the law," including on the basis of race, color, language, or national or social origin.
The present practice of child farmwork, including both that which occurs legally and that which results from the failure to enforce existing law, in many cases also constitutes a "worst form of child labor," prohibited by International Labour Organisation (ILO) Convention No. 182, Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (Worst Forms of Child Labor Convention). The convention, which the United States ratified in 1999, calls for all ratifying member states "to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency." It calls on member states to prevent children from engaging in the worst forms of child labor, provide direct assistance for the removal of children already engaged in the worst forms of child labor, identify and reach out to children at risk, and take account of the special situation of girls.
Under the convention, "the worst forms of child labour" include, among others, "work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children." Exactly what constitutes such types of work is left to be determined by member states, in consultation with employer and worker organizations and in consideration of international standards, particularly the 1999 ILO Worst Forms of Child Labour Recommendation. Children working in agriculture in the United States face the risks outlined in the Recommendation. These include: work with dangerous machinery, equipment, and tools (rec. c); work in an unhealthy environment, which includes exposure to hazardous substances (rec. d), notably pesticides; and work for long hours, during the night, or without the possibility of returning home each day (rec. e). Child farmworkers may also be exposed to sexual abuse (rec. a).
The US government, in response to the ILO Committee of Experts 2008 Observations on the Application of Conventions and Recommendations, acknowledged in 2009 that the FLSA allows children ages 16 and 17 "to perform all work" and that it excludes certain farmworker children from minimum age provisions and hours of work limitations. The government noted that "[t]here are currently no separate health and safety standards under federal law for child farm workers ages 16 or 17 engaging in hazardous work," and that it "has no special training or instructional requirements at the federal level specifically for 16- and 17-year-old agricultural workers engaged in hazardous labor." Regarding enforcement of existing laws and regulations, the government reported that in 2008 the Department of Labor found 4,737 children employed in violation of FLSA provisions, of whom 52 (1.2 percent) were employed in agriculture.
Summary Returns of Interdicted Boat Migrants without Adequate Screening, in Violation of the Protocol Relating to the Status of Refugees
The Refugee Convention and Protocol prohibit the return of refugees "in any manner whatsoever" to a place where their lives or freedom would be threatened. Yet the United States maintains a policy of interdicting boats in the Caribbean and summarily returning migrants-who may well include refugees-without adequately screening them to determine if they are seeking asylum or are otherwise vulnerable and without adequately monitoring what happens after they are returned directly to their countries of origin. The United States also applies discriminatory procedures to interdicted migrants depending on their country of nationality or habitual residence, such that "Cubans and Chinese migrants intercepted by the US Coast Guard are subject to special rules which automatically give them the opportunity to express any fears of persecution....However, all other migrants, including Haitians as the largest group, are only given a credible fear interview if they spontaneously show or state a fear of return." The US Coast Guard's method of screening Haitian and other non-Cuban and non-Chinese boat migrants is commonly known as the "shout test." Only those who jump up and down, wave their hands, and shout the loudest are accorded, even in theory, a shipboard pre-screening interview to determine if they might have a credible fear of return.
In Sale v. Haitian Centers Council, Inc., the US Supreme Court in 1993 countenanced this summary return of interdicted boat people by saying that the Immigration and Nationality Act, which transposes the nonrefoulement (non-return) principle from article 33(1) of the Refugee Convention into national law, does not extend beyond US borders and certain designated territories. Human Rights Watch agrees with Justice Blackmun's dissent, which characterized article 33(1) of the Refugee Convention as "unambiguous. Vulnerable refugees shall not be returned. The language is clear, and the command is straightforward; that should be the end of the inquiry." Writing as part of the UN High Commissioner for Refugees' Global Consultations on International Protection, and citing international case law, Sir Elihu Lauterpracht and Daniel Bethlehem wrote that "the principle of nonrefoulement will apply to the conduct of State officials or those acting on behalf of the State wherever this occurs, whether beyond the national territory of the State in question, at border posts, or other points of entry, in international zones, at transit points, etc."
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Human Rights Watch urges the Senate and the Obama administration to take appropriate action to address these failures and inadequacies in US implementation of human rights treaties.
Thank you very much.
