Esther Brimmer
Assistant Secretary, International Organization Affairs
Harold Hongju Koh
Legal Adviser, Office of the Legal Advisor
Michael H. Posner
Assistant Secretary, Bureau of Democracy, Human Rights and Labor
United States Department of State
2201 C Street NW
Washington, DC 20520
Re: Endorsing Recommendations in Draft UPR Report
Dear Assistant Secretary Brimmer, Mr. Koh, and Assistant Secretary Posner:
Human Rights Watch is writing to urge that the United States government be fully responsive to the recommendations made to the US during the Ninth Session of the Universal Periodic Review (UPR) in November 2010 and memorialized in the Draft Report of the Working Group on the Universal Periodic Review. The United States has shown a spirit of engagement during the UPR process, from the consultations that preceded the review to the civil society town hall held immediately following the UPR session. We now ask you to take the next step: to give full consideration to the recommendations and to accept all those that would significantly improve US compliance with international human rights standards. The United States is at an early and promising level of engagement as a member of the Human Rights Council. Sidestepping many recommendations from the UPR session would stifle this early promise.
Over 200 recommendations were documented in the UPR draft report. While we recognize that such a large number of recommendations will require some prioritization, we note that many of these recommendations represent the most pressing human rights challenges facing the United States and were repeated by a large number of countries throughout the session. They therefore deserve particular attention. They include recommendations on: 1) the death penalty; 2) the sentence of life without parole for juvenile offenders; 3) accountability for torture; 4) the closing of the prison at Guantanamo Bay; 5) the treatment of immigrants; and 6) ratification of major human rights treaties. We discuss these sets of recommendations below. We also strongly urge that the effort to address these recommendations not just be limited to the federal level, but that the effort engages state and local governments as well. As you know, the fact that a recommendation needs to be implemented by state or local government is no justification for failing to comply with an international human rights law obligation.
1. Death Penalty
Many countries during the session recommended a moratorium on or abolishment of the death penalty.[1] In response to the recommendations, the delegation stated that the subject of the death penalty was a policy matter and as a matter of law permitted for the most serious of crimes.[2] In defending the use of the death penalty within its borders, the US still needs to meet its obligations under the International Covenant on Civil and Political Rights (ICCPR)[3] and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).[4] As a party to ICERD, the United States is obliged to guarantee the right of persons to be free of harm by the government on the basis of race.[5] It is further obliged to take measures to review policies and amend laws that create or perpetuate racial discrimination.[6]
Race and racial discrimination are unavoidably intertwined with the sentence of death. A 2007 study of eight death penalty states by the American Bar Association concluded that "every state studied appears to have significant racial disparities in its capital system."[7] A study in North Carolina found that a person was three times more likely to receive the death penalty if convicted of killing a white person compared to killing an African American.[8] African Americans and other racial minorities continue to be excluded from capital juries.[9] Racial discrimination permeates the criminal justice system, and the United States cannot deny the linkage between the application of the death penalty and its commitments under ICERD.
The United States should accept the following recommendations:
- All recommendations related to the racial disparities inherent in the sentence of death; [10] and
- At a minimum, the recommendation from France "to study the factors of racial disparity in the application of the death penalty [and] to prepare effective strategies aimed at ending possible discriminatory practices." [11]
2. Juvenile Life without Parole
The United States is the only country in the world that continues to impose the sentence of life without parole for youth offenders. At the UPR review, several countries, including Austria, Belgium, and Switzerland, recommended an end to the imposition of the sentence of life without parole to offenders under the age of 18.[12] Slovakia further recommended that the United States review all existing sentences to provide for a possibility of parole.[13]
Currently over 2,200 people face life without parole in the US for crimes committed under the age of 18 that are not covered by the recent Supreme Court decision in Graham v. Florida.[14] We estimate that there are currently at least 40 people serving a federal sentence of life without parole for crimes committed under the age of 18. The UN Declaration of the Rights of the Child recognizes that children, by reason of "physical and mental immaturity, [need] special safeguards and care, including appropriate legal protection."[15] The US, as a party to the ICCPR, is obligated with respect to youth offenders to "take account of their age and the desirability of promoting their rehabilitation."[16] The sentence of life without the possibility of parole denies the opportunity for rehabilitation of juvenile offenders.
The United States should:
- Accept all recommendations related to the penalty of life without parole for juvenile offenders; [17]
- Immediately cease seeking application of the sentence at the federal level;
- Offer the opportunity of parole for persons currently serving such a federal sentence; and
- Push states to end application of the sentence for all crimes committed by individuals under the age of 18.
3. Accountability for Torture
The US government's use of torture and other cruel, inhuman, and degrading treatment in the "global war on terror" requires a full accounting. We recognize that a few low-ranking servicemembers have been held accountable for acts of torture. We also recognize Mr. Koh's statement during the UPR session that the US does not torture and will not torture.[18] We do, however, note the lack of discussion about full accountability for past acts and authorizations of torture. Rejection of impunity is a core principle in defending human rights. Specifically, the US is obliged as a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment to investigate and prosecute those responsible for torture.[19]
The United States should:
- Accept the recommendations related to accountability and impunity for acts of torture in the
"global war on terror," such as Norway's call for investigation of torture; [20] - Report on the status and pending timeline of the ongoing Durham investigation into the use of unauthorized interrogation methods; and
- Commit to a full investigation of allegations of torture and ill-treatment not covered by the Durham investigation.
4. Closing Guantanamo Bay
At the UPR review, the US delegation stated that the effort to close the Guantanamo Bay detention center is "enormously complex."[21] We also recognize that Congress has attempted to make the closure even more difficult by banning the use of Defense Department funds to transfer detainees to the US for prosecution and imposing restrictions on the use of those funds for repatriation and resettlement of other detainees. We acknowledge these hurdles, but urge the administration to continue working towards closure of the facility. Accepting the UPR recommendations on the issue of Guantanamo will reinforce the president's longstanding commitment to close the facility and meet US obligations under international law.
The United States should accept:
- The numerous recommendations to expedite closure of the prison at Guantanamo Bay; [22]
- The recommendation of Mexico to invite UN mandate holders to follow up on the 2006 joint study by the five special procedures on Guantanamo detainees; [23] and
- The recommendation of Switzerland to find for all Guantanamo detainees "a solution in line with the United States obligations regarding the foundations of international and human rights law, in particular with the International Covenant on Civil and Political Rights." [24]
5. Treatment of Immigrants
The negative impact on immigrants of indiscriminate and counter-productive immigration enforcement, detention policies that disregard due process protection, and poor workplace protections was raised often during the UPR session. Human Rights Watch has been reporting on various forms of mistreatment of immigrants by authorities in the United States for many years. For example, in 2010 we reported on sexual violence in immigration detention centers, lack of due process for immigrants with mental disabilities in immigration proceedings, and unsafe workplaces for child farmworkers, many of whom are immigrants or children of immigrants.
At the UPR session, Guatemala, Mexico, and Bolivia all raised concerns related to the use of racial profiling in immigration enforcement efforts.[25] Ecuador was more specific about immigrant profiling concerns by asking the federal government to repeal Arizona's immigration bill (SB 1070).[26] While we recognize that the US will likely decline to accept recommendations that are unenforceable due to limitations on federal restrictions on state law, it should respect the spirit of the stated recommendations.
The United States should accept:
- Recommendations to address racial profiling in immigration enforcement; [27]
- The recommendation of Guatemala to "[s]pare no efforts to constantly evaluate the enforcement of immigration federal legislation, with a vision of promoting and protecting human rights"; [28]
- The three recommendations of Switzerland regarding immigrant detention: [29]
- o To commit to "incarcerate immigrants only exceptionally";
- o To investigate each case of incarceration of an immigrant;
- o To "[a]dapt the detention conditions of immigrants in line with international human rights law"; and
- The recommendation of Guatemala to take the "necessary measures in favor of the right to work and fair conditions of work ... regardless of [the workers'] migratory status." [30]
6. Human Rights Treaty Compliance
The first 43 recommendations in the Draft Report urge the US to ratify the international human rights treaties to which it is not yet a party. These include the Convention on the Rights of the Child (CRC), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the Convention on the Rights of Persons with Disabilities (CRPD), and the International Convention for the Protection of All Persons from Enforced Disappearance (CAED). During the UPR session, Assistant Secretary Posner attempted to respond to the many recommendations regarding ratification, contending that while most countries ratify first and then work their way towards compliance, the United States first seeks to work towards compliance and then ratifies the treaty.[31]
While modification and reform of existing laws and state practices should be part of any country's ratification process, making full compliance a prerequisite for ratification disavows the value of treaties in encouraging compliance, and as a practical matter can make ratification nearly impossible, as evidenced by the core treaties still not ratified by the US. In any case, the US should actively be taking steps, such as reforming laws and developing measurable and public benchmarks, that would significantly advance treaty compliance. Simply stating intent to comply first and then to ratify is insufficient to address the universal concern displayed at the UPR with the current US stance on core human rights treaties.
The United States should:
- Accept all recommendations urging ratification of core human rights treaties, including CRC, CEDAW, CRPD, and CAED; [32] and
- Reform laws and develop benchmarks for moving towards compliance with core treaties.
7. State and Local Engagement
Finally, we would like to stress that responding to UPR recommendations will be impossible without intensive engagement with state and local government partners. The death penalty is almost exclusively administered at the state level, as is the sentence of life without parole for juveniles. Immigrants fear racial profiling at the local police level due to so-called 287(g) agreements. These and many other crucial issues raised during the UPR session should be addressed at the state and local level. As you are aware, under the core human rights treaties, the US cannot use federalism as an excuse to refuse to comply with its human rights obligations. The US should consistently engage its state and local partners as it works to address those recommendations.
We encourage the US delegation's continued engagement in the UPR process. We would like to schedule a meeting to discuss these points with you, and with your partners in relevant agencies, at your convenience.
Sincerely,
Antonio M. Ginatta
Advocacy Director, US Program
Human Rights Watch
cc: US UPR delegation members
[1] These include the United Kingdom, Belgium, Switzerland, Italy, Uruguay, New Zealand, Russia, Cyprus, Australia, Hungary, Norway, Slovakia, Turkey, Germany, France, Ireland, Holy See, Nicaragua, Spain, Denmark, Venezuela, Netherlands, Algeria, and Sweden. Human Rights Council Working Group on the Universal Periodic Review, Ninth session, Draft report of the Working Group on the Universal Periodic Review, United States of America (Draft report), A/HRC/WG.6/9/L.9, November 10, 2010, http://lib.ohchr.org/HRBodies/UPR/Documents/session9/US/A_HRC_WG.6_9_L.9... (accessed January 18, 2011), paras. 59, 92.118, 92.119, 92.120, 92.121, 92.122, 92.123, 92.124, 92.125, 92.126, 92.127, 92.128, 92.129, 92.130, 92.131, 92.133.
[2] Ibid., para. 55.
[3] International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by the United States on June 8, 1992, http://www2.ohchr.org/english/law/ccpr.htm (accessed January 25, 2011), art. 6 (permitting the death penalty "only for the most serious crimes"). The US ratified the ICCPR with reservations to article 6.
[4] International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), adopted December 21, 1965, G.A. Res. 2106 (XX), annex, 20 U.N. GAOR Supp. (No. 14) at 47, U.N. Doc. A/6014 (1966), 660 U.N.T.S. 195, entered into force January 4, 1969, ratified by the United States on June 24, 1994, http://www2.ohchr.org/english/law/cerd.htm , (accessed January 25, 2011).
[5] Ibid., art. 5(b).
[6] Ibid., art. 2(1)(c).
[7] Letter from Human Rights Watch to the Secretary of the Committee on the Elimination of Racial Discrimination, February 26, 2008, https://www.hrw.org/en/news/2008/02/26/united-states-was-not-forthcoming-... (accessed January 18, 2011).
[8] Death Penalty Information Center, "Research Shows that Race of the Victim Matters in North Carolina Death Penalty," http://www.deathpenaltyinfo.org/studies-research-shows-race-victim-matte... (accessed January 18, 2011).
[9] Equal Justice Initiative, "Racial Discrimination in Jury Selection Remains Widespread, According to New EJI Study," June 22, 2010, http://www.eji.org/eji/node/397 (accessed January 18, 2011).
[10] Draft report, paras. 92.95, 92.96.
[11] Ibid., para. 92.95.
[12] Ibid., para. 92.180.
[13] Ibid., para. 92.180.
[14] Graham v. Florida, Supreme Court of the United States, 560 U.S. __, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), http://www.supremecourt.gov/opinions/09pdf/08-7412.pdf (accessed January 19, 2011).
[15] UN Declaration on the Rights of the Child, November 20, 1959, G.A. res. 1386 (XIV), 14 U.N. GAOR Supp. (No. 16) at 19, U.N. Doc. A/4354 (1959), http://www.un-documents.net/a14r1386.htm (accessed January 25, 2011), preamble.
[16]ICCPR, art. 14(4).
[17] Draft report, paras. 92.180, 92.181.
[18] Human Rights Council, "Ninth Session of the Universal Periodic Review, United States of America," webcast, November 5, 2010, http://www.un.org/webcast/unhrc/archive.asp?go=101105#am (at 1:01:45, accessed January 19, 2011).
[19] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, ratified by the United States on October 21, 1994, http://www2.ohchr.org/english/law/cat.htm (accessed January 25, 2011), art. 5.
[20] Draft report, paras. 92.66, 92.89, 92.139, 92.145, 92.146, 92.147, 92.148, 92.149, 92.150, 92.155.
[21] Ibid., para. 32.
[22] Ibid., paras. 92.88, 92.89, 92.136, 92.155, 92.156, 92.157, 92.158, 92.159, 92.160.
[23] Ibid., para. 92.89.
[24] Ibid., para. 92.160.
[25] Ibid., paras. 92.79, 92.101.
[26] Ibid., para. 92.110.
[27] Ibid., paras. 92.68, 92.79, 92.101, 92.108.
[28] Ibid., para. 92.80.
[29] Ibid., paras. 92.182, 92.183, 92.184.
[30] Ibid., para. 92.81.
[31] Ibid., para. 28.
[32] Ibid., paras. 92.1-92.43.
