Public questioning by the UN Human Rights Committee (UNHRC) of a delegation from the US government on the subject of US implementation (or not) of the International Covenant on Civil and Political Rights (ICCPR) began today in Geneva, Switzerland, and will continue tomorrow. The proceedings are part of the periodic review of each party to the ICCPR, which the treaty itself mandates be conducted every five years by the UNHRC.
The UNHRC consists of independent individual experts, not representatives of national governments as in the confusingly similarly-named UN Human Rights Council. The ad hoc 32-member US delegation consists of high-level but not top-level officials (e.g. the Acting Deputy Assistant Secretary of Homeland Security for Policy) from half a dozen Federal executive (administrative) agencies led by the Department of State, along with officials from one state (Mississippi) and one municipal (Salt Lake City, UT) government.
With well-designed symbolism, the members of the the US government delegation and the UN Human Rights Committee, facing each other across the central well of the circular Salle XVIII in the UN’s “Palais des Nations”, were almost encircled by rising rings of observers from an NGO delegation of unprecendented size and diversity. Almost 100 human rights activists, mainly from the the USA but also from other countries where people are concerned about human rights violations in the US and by the US government, came to the UNHRC session. Many more organizations who couldn’t afford to attend the session in Geneva in person made written submissions in advance to the UNHRC of suggestions for issues, questions, and “concluding observations”.
Members of the UNHRC welcomed the NGO presence — unprecedented in scale and diversity — despite describing it in their opening remarks as “overwhelming”. Human rights aren’t just an issue for women or for people of color, and the US rainbow is well represented. But it says a great deal about the unbalanced gender and racial burdens of human rights violations in the US that perhaps 80% of the US NGO delegation are women and a similar percentage are people of color. Traditional leaders and tribal governments of Native Americans, Native Alaskans, and Native Hawaiians are also in attendance, lumped together by UN procedural rules with “non-governmental” organizations.
The proceedings today were webcast, as those tomorrow will be, and will also be archived for streaming on demand. “Every animal is equal,” UNHRC Chair Nigel Rodley quipped as he called today’s session to order, “But not every animal can get UN TV to the Human Rights Committee,” a small and normally quiet corner of the complicated system of UN treaty bodies. But this is the US, and no other country’s actions have such extraterritorial impacts, good or bad, on the human rights of people around the world.
The UNHRC is authorized by the ICCPR to issue “Concluding Observations” after its review of each country’s implementation of the treaty, but has no power to enforce its recommendations. Despite this major limitation, the extreme reluctance of the US to accept any external oversight over its actions leaves the UNHRC as the sole international body with the authority to compel the US government, on a regular basis (albeit for only two days every five years), to respond publicly to cross-examination about its human rights record.
For those tuning in for the first time to the UN TV webcast today and tomorrow, it may seem like this is the culmination of the process of review of the US by the UNHRC. At first glance, it might even look like the public dialogue between the UNHRC and the US government is “the review”.
But those of us who’ve been part of the process know that this week’s events in Geneva are neither its start nor its end.
The US submitted its required periodic report to the UNHRC on implementation of the ICCPR on December 30, 2011, two days before the expiration of the five-year deadline since its previous report. At the end of 2012, after extensive preparation, training, and coordination by the US Human Rights Network, we were among several dozen organizations which made written submissions to the UNHRC to inform its choice of issues to raise with the US government. In March of 2013, we were among about a dozen of these NGOs from the US which sent representatives to Geneva to meet privately with members of the UNHRC to help them finalize the list of issues for their review of the US.
Once the UNHRC list of issues was adopted, the US made an initial written response, The UNHRC then entertained a second round of written submissions from NGOs in later 2013, providing updates about the issues under review, the US written response, and potential new issues to raise. (The UNHRC is not limited in its oral questioning to the list of questions adopted in advance, and already today some members of the UNHRC have asked questions that they noted were outside the scope of that list.)
There has also been some attempt by the US government to create at least the impression of “consultation” with civil society during this process. Most of the US government “engagement” with NGOs has been on a “don’t call us, we’ll call you,” basis. Except for a few favored individuals and organizations selected by the government, most human rights activists and affected individuals and organizations in the US have had vastly greater access to the UNHRC than to our own government — despite the miniscule resources available to the UNHRC compared to those of the US government.
Yesterday the US invited US NGOs to a “town hall” meeting at the US Mission to the UN, a fortress a short walk from the UN’s “Palais des Nations”. Those who were lucky enough to make it through the extravagant security theater at the gates in time (some people who were already in line when the guards began “processing” us didn’t get into the meeting until it had been underway for half an hour) had more than two hours to question the US delegation. For us and, we suspect, others, it was the first time these officials had ever been willing to talk with us or even been identified as the officials responsible for dealing with issues we have been trying to raise with their departments for many years.
Although we had been told the meeting at the US Mission would be public and on the record, we were required without warning to check all our recorders, cameras, and phones at the gatehouse, and the government has not released a recording of the meeting. They effectively rendered it an “off the record” meeting which the government could spin as it liked. You can see only those photos the government choose to release, reflecting the image of “engagement” it wants to portray. You can’t see, hear, or judge for yourself how the US government delegation responded to our questions or failed to do so.
Some of the most powerful interventions came from individuals directly affected by US human rights violations, including among others; the sister of one of the student protesters shot dead by soldiers at Kent State University in 1970, for which no one has ever been held accountable; advocates for victims of COINTELPRO framed and held in solitary confinement for as much as 40 years; people disenfranchised for decades-old convictions for nonviolent breaches of drug laws including a woman who had been chained to a bed while giving birth to her child in prison; people tied down, drugged, and otherwise tortured as adults and as children as part of nonconsensual psychiatric “treatment”; and many more.
A few opponents of US implementation of the ICCPR also showed up at the US meeting with NGOs. In response to a question from the Heritage Foundation, the head of the US government delegation, Mary McLeod of the State Department, made clear that the US is not even considering establishing any sort of independent human rights body. Implementation (or not) of human rights treaties will, apparently, remain an internal matter within the same agencies that are now violating human rights.
That theme of unwillingness to submit to any independent or judicial accountability continued into the US opening statement today. Ms. McLeod began by telling the UNHRC that the US is not considering applying the ICCPR to actions outside US borders, even when they are carried out by the US government. The US has no plans to withdraw the “reservations” attached to its ratification of the ICCPR. These include, crucially, a declaration that the ICCPR is not “self-effectuating” and therefore cannot be invoked in any US court. Congress could enact a law to effectuate the ICCPR and allow it to be enforced by US courts, but no proposal for such a law has ever been introduced in Congress.
Members of the UNHRC divided up their list of issues, and took turns today asking their questions about the first half of the list. After a short break, the US government began its response to those questions before the session adjourned. Tomorrow the US will finish its answers to today’s questions before the UNHRC moves to the second half of its list of issues and then follow-up questions.
Some issues were bound to come up, such as Guantanamo, “targeted killings” by drones, the death penalty, use of force by police, the Border Patrol, and armed private individuals immunized by “stand your ground” laws; immigrants’ rights; the right to health care; workers’ right to organize; racial and gender disparities in criminal “justice”; rights of indigenous peoples and nations; and mass surveillance. (”We could be talking about my emails, my phone calls, and the metadata that is collected and retained about them, over which the US exercises control,” committee member Walter Kaelin noted.) The list of issues is much longer than this, however, and the questions asked of the US ranged widely. There was no suggestion by any member of the UNHRC that some rights are more important than others.
Some themes emerged, however, from the dirty laundry list and the way the items on it — all of them significant — were presented by members of the UNHRC.
Many of the questions asked by members of the UNHRC had been suggested by human rights activists (including one taken almost verbatim from one of our written submissions to the UNHRC). Other questions referred to cases, examples, and evidence supplied by NGOs in relation to issues on the UNHRC’s list. Neither the UNHRC nor members of the delegation we are part of from the US Human Rights Network had been quite sure how to manage their interaction without overwhelming the members of the UNHRC and their extremely limited staff. It was immediately clear, though, and explicitly acknowledged by each of the members of the committee who spoke today, that the contributions of US non-governmental organizations and activists made a substantial impact on what questions the US is being called on to answer.
What are those questions? As committee member Kaelin put it today in introducing his questions to the US, “Many of these concerns relate not to the framework but to the implementation.”
The US government professes support for most of the principles of the ICCPR except for its extraterritorial applicability to actions having effects abroad for which the US itself is responsible. This is a longstanding point of contention on which the US response to the UNHRC is essentially, “Can’t we agree to disagree?”
While this point wasn’t made today, the most unambiguous evidence that the US is, in this regard, misinterpreting the treaty, is the guarantee in Article 12 of the ICCPR (freedom of movement) of the right of citizens of any country to return to the country of their nationality. By definition, anyone seeking to exercise this right is outside the country of their nationality. This right of return would be meaningless, and there would have been no reason to include it in the ICCPR, if the treaty itself was, as the US claims, inapplicable to actions whose harmful effects are visited on people outside US borders. Eggregious recent examples of violations of this right by the US include US citizens Gulet Mohamed (placed on the “no-fly” list while visiting family abroad as a teenager, and detained and tortured when he was unable to return to the US before hsi visa expired) and Raihan Mustafa Kamal (US-citizen daughter of the plaintiff in the first trial of a case challenging the “no-fly” list, who the US government induced airlines to refuse to allow to travel to the US to observe and testify as a witness at the trial on her mother’s case, and who now says she is afraid to return to the US.
The US government wants the Human Rights Committee to accept the good intentions of the individuals on the US delegation, and their colleagues back in the US, as sufficient to “guarantee” human rights in the US. The US delegation referred repeatedly to executive and administrative measures to promote goals such as nondiscrimination, and to internal “safeguards” within the government.
But governments are not monolithic, and can themselves can be the infringers of human rights in some areas even while working diligently to uphold them in others. Good people can do bad things, sometimes with the most sincere belief in their own righteousness and in accordance with local law.
Members of the UNHRC repeatedly pressed the US delegation on what happens when the good intentions of some people in the government aren’t sufficient to keep the government from violating the rights of the people. What means of redress are available when rights are violated, Professor Kaelin asked, especially when violations of the ICCPR do not separately constitute violations of domestic US law? Are those remedies, if they exist, “effective”, as specifically required by the ICCPR? The inability to invoke the ICCPR in US courts allows US authorities to violate the treaty with impunity, Kaelin said.
And can purely internal executive and administrative safeguards ever be effective when the violations of rights are being carried out by senior executive and administrative officials? UNHRC Chair Nigel Rodley noted that at the Nuremberg trials, government lawyers had been found guilty of war crimes for defending the legality of criminal government policies. What mechanisms exist today, if any, to hold accountable those within the US government defending policies which violate human rights treaties?
Stay tuned. The public questioning of the US by the UNHRC continues tomorrow.