In 1993, Human Rights Watch reported on several types of human rights abuse in the United States. Together with the American Civil Liberties Union, Human Rights Watch published a major report detailing U.S. compliance and noncompliance with the International Covenant on Civil and Political Rights, whose ratification by the U.S. in 1992 significantly expanded the protection of human rights in this country. Americas Watch released "Frontier Injustice," a follow-up to its 1992 report on human rights abuses by U.S. Border Patrol agents. Human Rights Watch collaborated with three other non-governmental organizations to produce a study of physician participation in the death penalty, and the Prison Project continued to monitor U.S. prison conditions. Finally, Human Rights Watch participated in the U.S.-based litigation against Bosnian Serb military commander Radovan Karadzic, who stands accused of a multitude of crimes, including genocide, torture, and crimes against humanity.
U.S. Compliance with the International Covenant on Civil and Political Rights
· Immigration and Refugee Law. The U.S. policy of interdicting and summarily repatriating Haitian boat people violated Article 12 of the ICCPR, which states that "[e]veryone shall be free to leave any country, including his own." The indefinite detention of HIV-positive Haitian asylum-seekers at Guantánamo Bay Naval Base, a practice discontinued in the summer of 1993 by court order, violated Article 9, which requires a statutory basis for detention. It also violated Article 10, which forbids inhumane conditions of confinement, and Article 26, which forbids discrimination on the basis of national origin (only Haitians were subject to medical screening and detention based on HIV status; intercepted Cubans, for example, were not medically screened and were transported directly to the United States). Misconduct by agents of the Immigration and Naturalization Service (INS), detailed below with regard to border violence, violated Article 7 (the right to be free from torture or cruel, inhumanor degrading treatment), Article 9(1) (the right to liberty and security of the person), and Article 16 (the right to recognition everywhere as a person before the law).
· Prison Conditions. United States treatment of prisoners and conditions of confinement violated each of the three paragraphs of Article 10 of the ICCPR. Article 10(1) requires that all persons deprived of their liberty "be treated with humanity and with respect for the inherent dignity of the human person." Conditions of confinement in the U.S. increasingly violated this mandate, with extreme overcrowding stripping prisoners of dignity and privacy and endangering their health and safety. The brutal treatment of the new "maxi-maxi" high-security prisons also contravened this provision. Confinement of pretrial detainees in facilities that were often older, more crowded and more dangerous than prisons violated Article 10(2), which requires that pre-trial detainees be separated from convicted persons and accorded treatment "appropriate to their status as unconvicted persons." Finally, Article 10(3) states that prisoners must be given treatment that aims for "reformation and social rehabilitation." This stands in marked contrast to current U.S. law and practice, which had rejected an affirmative right to rehabilitation.
· Language Rights. Article 2 of the ICCPR requires that the rights of the covenant be recognized "without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status." Similarly, Article 26 forbids discrimination on the basis of any of these grounds. In contrast, domestic U.S. law provides no explicit protection against language discrimination. Those small pockets of protection that do exist reflect piecemeal legislation rather than a comprehensive policy, and have done little to stanch the ongoing attacks against minority language use in the schools, workplace and electoral arena. Federal courts have refused to equate language discrimination with national origin discrimination, which, like race and religion, warrants the highest level of judicial scrutiny; instead, language-based claims have been slotted into the lowest level of the three-tier system of evaluating discrimination claims, which requires only that the government show a "rational basis" for discriminatory government action. By attaching to its ratification an understanding that distinctions based on race, color, sex, language, religion, etc. are permissible when they are, "at minimum, rationally related to a legitimate governmental objective," the U.S. diluted the protection of the ICCPR to match that of the U.S. courts. Nonetheless, the ICCPR's specific prohibition on language discrimination adds a greater scope of protection than was previously available. The Human Rights Watch/ACLU report also examined U.S. compliance with the ICCPR in regard to free expression, race discrimination, women's rights, language rights, and religiousfreedom.
· Border Patrol agent Luis Santiago Esteves was reported to have sexually harassed or assaulted three different women whom he first encountered while on duty. The first incident was reported to his supervisor on October 9, 1989; no disciplinary action was taken against him. The second incident led to his arrest in December 1989 for rape. Although Esteves was temporarily suspended, the border patrol reinstated him when the victim failed to appear in court, forcing the prosecutor to drop charges. He was arrested a third time in 1991, again for rape. That arrest led to a conviction and, in July 1992, he was sentenced to twenty-four years in prison.
· On December 23, 1992, a border patrol agent allegedly beat an unarmed man who had been apprehended near the border. The agent then warned the man not to report the beating. Agents took him and his female companion, who was detained by a second agent and witnessed the beating, to the San Ysidro, California detention center, where they were held for several hours. Despite the man's obviously severe pain and his repeated requests for medical attention, no assistance was provided for several hours. He was eventually taken to a hospital, where he remained under observation for ten days, at which time his condition worsened and he underwent surgery to repair damage that had been done to his pancreas. Two weeks later the border patrol issued a statement claiming the man had injured himself by falling into a drainage ditch. Although both the Federal Bureau of Investigation (FBI) and the Office of the Inspector General of the Justice Department subsequently began investigations, the agent was reportedly still on active duty as of November 1993. In keeping with INS policy, the agent's name was withheld from the victim and his attorney.
· In February 1992, a customs agent injured a U.S. citizen whose car was being inspected at an El Paso/Juarez checkpoint. According to the victim and witnesses, the agent twisted the woman's arm behind her back and held it there for a long period of time, despite her protests that he was hurting her. She was taken by ambulance to a nearby hospital, where a cast was placed on her severely sprained arm. An investigator with the Office of Internal Affairs of the Customs Service took statements from customs agents at the scene, yet never contacted the victim, even though her name and phone number were available from police officers who had been called to the scene. When the victim returned to the checkpoint days later to ask whether the agent had been disciplined, she was told that he had been suspended; Customs Service officials later admitted that she had been misinformed and that the agentremained on duty.
· In December 1992, a federal court ruled that border patrol agents committed a number of abuses over a period of years against students and faculty at Bowie High School in El Paso, Texas, including the use of excessive force (beatings, rough physical treatment, and the unnecessary brandishing of a weapon), verbal abuse, and harassment. Murillo v. Musegades, EP-CA-319-B, (W.D. Tex. Dec 1, 1992). "Frontier Injustice" also reported numerous instances of border patrol agents' harassment on high school campuses in Phoenix, Arizona.
Americas Watch concluded that these and similar incidents of misconduct were fostered by a protective climate of impunity sustained by a variety of factors. First, incidents of abuse often went unreported, due both to victims' fears of deportation or further harassment and to the absence of information regarding complaint procedures. Second, attempts to lodge complaints were often obstructed by immigration officials. "Frontier Injustice" reported that complainants were ridiculed, given incomplete or wrong information, directly discouraged from filing complaints, and threatened with counter-charges. Reports by fellow agents were also rare, in adherence with the strict code of silence.