(Geneva) – The United Nations Human Rights Committee should conclude that US electronic surveillance and intelligence gathering violate fundamental civil and political rights, including the right to privacy.
The United States will appear before the committee on March 13 and 14, 2014, for a periodic review of its compliance with the International Covenant on Civil and Political Rights (ICCPR), a core international human rights treaty that the US ratified in 1992.
“The mass communications surveillance revealed by Edward Snowden demonstrates a shocking disregard by the US for the privacy rights of both those inside the country and those abroad,” said Andrea Prasow, senior national security counsel and advocate at Human Rights Watch. “The US review is the perfect time for the Human Rights Committee to make clear that mass communications surveillance, whether against a country’s own citizens or another country’s, violates basic rights.”
Documents released by Snowden, the former National Security Agency contractor, have revealed several programs that systematically gather private information on many millions of people worldwide without any particular justification.
The committee should urge the US to acknowledge its extraterritorial obligations to respect the right to privacy, under article 17 of the ICCPR, given the extraordinary US ability to intercept in bulk the electronic communications of people who live around the world.
In December 2012 Human Rights Watch submitted to the committee a detailed analysis of US violations of its obligations under the ICCPR, which protects various basic human rights, including the rights to a fair trial, to be free from torture, and to freedom of expression and association. On February 14, 2014, Human Rights Watch filed a supplemental submission specifically on surveillance practices, jointly with the Electronic Frontier Foundation.
In its submissions, Human Rights Watch noted that the US has taken some positive steps toward compliance with the ICCPR, including formally banning torture, taking measures to address rampant prison rape, and making progress in protecting the rights of women and of lesbian, gay, bisexual, and transgender people. Several US states have abolished the death penalty in recent years, and the US government has made efforts to address disproportionate sentencing in some areas.
However, the US engages in many practices that fail to respect human rights under the ICCPR, as listed below.
The US has failed to fully repudiate abusive counterterrorism policies developed after September 11, 2001. The US government holds detainees indefinitely without charge at Guantanamo Bay, in violation of its obligations to extend the protections of the ICCPR to people under its control but outside US territory. The US also prosecutes detainees before fundamentally flawed military commissions at Guantanamo that do not comply with due process rights, and is blocking accountability for torture and other ill-treatment of terrorism suspects.
Targeted killings, including by aerial drones, conducted outside of an armed conflict may violate the right to life under article 6 of the ICCPR. The US government refuses to acknowledge unlawful deaths, conduct appropriate investigations, or provide compensation when warranted.
The US fails to protect children by treating many as adults in the criminal justice system. Almost every US state allows officials to try children as adults, and 15 states make it mandatory in some circumstances. An estimated 250,000 children are prosecuted as adults every year for crimes ranging from shoplifting to homicide.
While articles 10 and 14 of the ICCPR provide thatgovernments should take into account a child’s age in all criminal proceedings, the US included a reservation when it adopted the ICCPR, asserting the right to try and sentence children as adults in “exceptional circumstances.” This exception has been vastly overused to the detriment of the country’s children and broader society.
The US supports arbitrary and excessive sentencing and detention policies that do not take into account a person's individual circumstances. The expansion of mandatory minimum sentences, especially for drug offenses, has caused the US prison population to skyrocket in recent decades. Mandatory minimum laws often result in arbitrary sentences, since they eliminate judicial discretion and consideration of an offender's individual circumstances.
Immigration detention has also grown, driven by misguided mandatory detention laws that fail to consider an offender's individual circumstances.
In a landmark ruling, the US Supreme Court eliminated the sentence of life without parole in certain cases involving youth offenders, and the federal government has passed legislation to reduce excessively harsh and racially disparate drug sentencing for crack cocaine-related offenses. These sentencing reforms often do not apply retroactively, though, leaving many prisoners serving what the US now recognizes to be unfair sentences.
The US ignores the consequences of discriminatory state and federal laws, policies, and practices. Profound racial disparities cut across the criminal justice system in the US, where racial and ethnic minorities have long been disproportionately represented. Whites, African Americans, and Latinos have comparable rates of drug use but are arrested, prosecuted, and incarcerated for drug offenses at vastly different rates. For example, African Americans are arrested for drug offenses, including possession, at three times the rate of whites.
The committee should press the US to act swiftly to bring its policies and practices in line with the prohibition against discrimination in articles 2 and 26 of the ICCPR.
“The US holds itself out as a leader on civil and political rights, but its record is rife with failings and contradictions,” Prasow said. “The US still has a long way to go before its practice meets its rhetoric.”