A submission to the UN Human Rights Committee for the 109th session of the Committee (14 October to 1 November 2013)
In its Common Core Document submitted with its Fourth Periodic Report to the United Nations (UN) Human Rights Committee (the Human Rights Committee or the Committee), the USA asserts that it is a "nation built on the moral truths of the Universal Declaration of Human Rights" and is committed to "the cause of human rights" and to "international human rights law". The USA was indeed one of the countries instrumental in the drafting and adoption of the Universal Declaration, and its modern history includes examples of remarkable advocacy and progress for human rights.
The USA ratified the International Covenant on Civil and Political Rights (ICCPR) in June 1992. Two decades later, the USA is failing to live up to its human rights obligations on a range of issues. This submission highlights a number of concerns under domestic law and practice, from long-term isolation against prisoners in maximum security prisons, to the treatment of immigrants, to the abuse of electro-shock weapons in law enforcement. Amnesty International has submitted a separate document on the death penalty.
This submission also addresses certain US counter-terrorism policies and practices. In the past decade, the USA's response to the crime against humanity committed on 11 September 2001 (9/11) has amounted to an assault on human rights principles. This response was itself built on the USA's long-standing reluctance to bind its own conduct to international human rights law. This antipathy was present in the USA's ratification of the ICCPR, which was freighted with numerous limiting conditions, including a reservation to the prohibition of cruel, inhuman or degrading treatment or punishment and a declaration – amounting to a reservation – that "the provisions of articles 1 through 27 of the Covenant are not selfexecuting", that is, none of the substantive provisions of the ICCPR would be enforceable in the US courts. The absence of implementing legislation means that this remains the case.
The USA's post-9/11 assault on human rights principles continued even after the Human Rights Committee reviewed the USA's combined Second and Third Periodic Reports in 2006, although some – but not all – of the policies and practices criticized by the Committee were ended by executive order in 2009. Moreover, there has been no real progress since 2006 towards full accountability for crimes under international law committed by US personnel in the counter-terrorism context, particularly in relation to the programme of secret detention operated under presidential authority by the Central Intelligence Agency (CIA) and authorized until 2009. Additionally, US courts have systematically refused to hear the merits of lawsuits seeking redress for egregious human rights violations committed in this programme and the wider counter-terrorism context. The courts have done so at the urging of government lawyers, citing national security secrecy and various forms of immunity under US law.
It is worth recalling how 21 years ago, the US Senate Committee on Foreign Relations met to consider the ICCPR, and voted to recommend ratification. Noting that more than 100 countries had already ratified the treaty, its report of that meeting asserted the following:
"In view of the leading role that the United States plays in the international struggle for human rights, the absence of US ratification of the Covenant is conspicuous and, in the view of many, hypocritical. The Committee believes that ratification will remove doubts about the seriousness of the US commitment to human rights and strengthen the impact of US efforts in the human rights field."
Each year since 1977, the year that the USA signed the ICCPR, the US Department of State has published an assessment of the human records of other countries, as measured against the provisions of the Universal Declaration, the ICCPR and other international instruments. For example, an entry in the report covering the year 2002 documented that:
"The Government's human rights record remained poor, and it continued to commitnumerous, serious abuses. The security forces committed many unlawful killings, and they were accused of the disappearances of numerous persons… Security forces frequently tortured, beat, and otherwise abused or humiliated citizens. The Government investigated some of the alleged abuses by the security forces; however, abusers rarely were charged or disciplined… Security forces continued to use arbitrary arrest and detention, and lengthy pretrial detention remained common… Political prisoners held from previous years were released; however, numerous persons during the state of emergency were denied habeas corpus and held indefinitely as ‘illegal combatants'…"
When it published this critique of Liberia's human rights record in 2003, the USA was itself using torture and other ill-treatment, enforced disappearance and arbitrary detention against detainees it called "enemy combatants" in what it then called the "war on terror". It was denying habeas corpus to hundreds of detainees held at its naval base in Guantánamo Bay, Cuba and elsewhere and building impunity into its detention and interrogation programs. It had already conducted a "targeted killing" operation by drone in Yemen in what a UN expert concluded had resulted in extrajudicial executions. The double standards continue – for example, the State Department's human rights reports criticize impunity for human rights violations in other countries, even as the USA itelf fails to ensure accountability.
In July 2007, a year after the Human Rights Committee's conclusions on the USA's Second and Third Periodic Reports, including condemnation of secret detention and "enhanced" interrogation, the US Department of Justice gave the CIA a classified memorandum, one in a long line of documents relating to the secret detention programme disclosed in recent years. The Department of State, it wrote, had "informed us" that its human rights assessments "are not meant to be legal conclusions, but instead they are public diplomatic statements designed to encourage foreign governments to alter their policies in a manner that would serve United States interests." US public condemnation of torture and of the "coercion of confessions in ordinary criminal cases", it said, "is not inconsistent with the CIA's proposed interrogation practices". The CIA programme, it continued "is designed to subject detainees to no more duress than is justified by the Government's paramount interest in protecting the United States and its interests from further terrorist attacks." As such, the CIA's conduct "fundamentally differs from the conduct condemned in the State Department reports". The memo gave legal approval for forms of physical assault and prolonged sleep deprivation against detainees already being subjected to enforced disappearance.
A reluctance to acknowledge the equal application of international human rights standards to the USA has been described as a form of "American exceptionalism". Such exceptionalism may be based in part on an assumption that universal human rights principles are somehow inferior to the constitutional and other laws and values of the USA. The grave dangers of reliance on any such assumption has been starkly demonstrated in recent years when the invocation of "American values" as a sole point of reference by public officials became a familiar refrain even as the USA adopted counter-terrorism detention policies that clearly contradicted basic rules of international human rights and humanitarian law.
The Fourth Periodic Report recalls that in 2009, then US Secretary of State Hillary Clinton said that "a commitment to human rights starts with universal standards and with holding everyone accountable to those standards, including ourselves." In 2010, the State Department Legal Adviser said that the "Obama-Clinton doctrine" meant that the USA would follow "universal standards, not double standards".8 Since the Committee last reviewed the US record, there has been progress on ending some practices which concerned it last time. However there is much that remains incompatible with the ICCPR, the result of the USA's failure to recognize and implement its international human rights obligations.
In filing its Periodic Report, the USA states that it "has taken this opportunity to engage in a process of stock-taking and self-examination. The United States hopes to use this process to improve its human rights performance." There is much room for improvement.