12 U.S.-related Human Rights Stories the Press is Missing
By H. Victor Condé
July 31, 2011 "Nieman Watchdog" -- The United States is, fortunately and unfortunately, the best friend and the worst friend of human rights all at the same time. Our leaders champion human rights across the globe, but at the same time they mold their concept of human rights to our national interests and make them not apply to us. This has become particularly true in this age of the so-called war on terrorism.
Our leaders preach obedience by others to rules we choose not to follow, and criticize other countries for violating treaty norms that we have not accepted to become bound by ourselves. When accused of acting inconsistently with human rights, our leaders employ plausible deniability, diplomatic doublespeak and spin, or the trump card of national or even global security.
Then those leaders ask people around the world -- as well as their own people -- to trust them, even though they resist any oversight of their own actions.
And they can count on getting away with it because of the American public's profound ignorance of what human rights really are.
Human rights are not a few vague liberal-sounding concepts. They are the fundamental rights of all men and women, articulated in the Declaration of Independence and, since World War II, established as 30-plus different normative standards in international treaties and customary international law.
The Universal Declaration of Human Rights, for instance, proclaims that all humans -- just because they are humans -- have the inherent right to such things as equal protection under the law, freedom of expression,and the freedom to work and form labor unions; to freedom from slavery, forced labor, torture, cruel, inhuman or degrading treatment and arbitrary arrest or detention; to a standard of living adequate for health and well being; and to be recognised as a person before the law. And all these rights are inalienable and have as their goal the protection of human dignity and fullest development of the human personality.
They are a distinct part of the body of international law. Their purpose is to limit the power of government vis a vis the individual human being to protect inherent human dignity and equality.
Human rights are the reason why America was established. They form a complete, though new, independent field of academic study in the world of education -- not only relating to law, but to philosophy, history, religion, anthropology and, of course, political science and international relations.
Here are 12 stories that the American press should be covering more aggressively:
1. Americans are human rights illiterate, even though we go all over the world killing and dying to protect human rights elsewhere.
The American public lacks sufficient understanding of international human rights -- what they are, how they are interpreted, and how to use them -- to gauge compliance by its own government.
What the U.S. government needs to do is establish a national human rights education policy and program to assure that states teach international human rights at all academic levels, not just law schools. Few state education systems, lost in the culture of “meeting the test standards”, teach human rights at all, and those that do don't do it well.
In California it is state law that students in grades 7-12 of all public schools be taught human rights in their history-social science curriculum. There is a state curriculum framework that which includes the teaching of human rights, and a model curriculum. But even there, the schools are not teaching human rights, because of lack of money to implement the curriculum, lack of teachers educated in the subject of human rights, and fear of parental or political backlash.
2. The U.S. has refused to establish a national human rights institution.
We need a non governmental focal point for international human rights compliance by the U.S. government and states. Right now, there is no central location of power and authority, no objective non-partisan agency or government or ombudsman or "human rights czar" to monitor the government to see that it is complying on an ongoing basis with its international legal obligations regarding human rights. Neither the State Department nor the Department of Justice fulfills this function.
America needs an independent institution based on the U.N. Paris Principles to help Americans feel that the protector of freedom, justice and peace in the world is itself being watched and held accountable. This was one of the recommendation of the Universal Review Process of the U.N. Human Rights Council recently, and U.S. officials just said "no thanks" -- after all, the U.S. military and intelligence communities in particular do not want anybody looking over their shoulders. But the creation of such an institution would greatly increase our credibility on the international stage, as well as at home.
3. Article VI of the U.S. Constitution makes international human rights treaties binding on states "any thing in the Constitution or laws of any State to the contrary notwith-standing" -- but you might not know it from the way the states act.
Earlier this month, for instance, the State of Texas executed a Mexican national who had been deprived of his right under the Vienna Convention on Consular Relations to contact his consulate for help. Texas acted despite the U.S. Department of Justice's insistence that doing so "would place the United States in irreparable breach of its international-law obligation."
Harold Koh, legal adviser at the State Department, wrote to the state governors last year reminding them about their obligations under the human rights treaties the U.S. has ratified. The department also last year reissued its rules for federal, state and local officials regarding compliance with the Vienna Convention in particular. State noncompliance had already led to the U.S. losing two cases before the International Criminal Court of Justice -- to Germany in 2001 and Mexico in 2004 -- for violating its duty under the treaty.
4. There is far too little coverage of the U.S. activity in relation to the U.N. human rights treaty bodies such as the U.N. Human Rights Committee, Committee against Torture and Committee on Elimination of Racial Discrimination and Committee on the Rights of the Child.
In the periodic state reports to these organizations, the U.S. tells the international community in detail what it is doing and what obstacles it faces in implementing international human rights legal obligations Few journalists have read those reports and the feedback provided by those committees regarding where the U.S. is falling short or violating human rights. Those reports are gold mines of information; but more than anything, they express the give and take, push-pull between the U.S. and the international community with regard to specific legal obligations the U.S. has voluntarily accepted to fulfill. That includes issues related to the human rights legitimacy of counter-terrorism measures such as extraordinary renditions and limited detainee access to justice; the international legality of drone assassinations (which led U.N. Special Rapporteur Philip Alston to warn of "a risk of developing a 'Playstation' mentality to killing"); whether chain gangs constitute cruel and inhuman treatment; whether immigration detention violates human rights.
5. Similarly, there is too little coverage of the visits and reports of various U.N. Special Rapporteurs who have come to the U.S. on fact finding missions.
These rapporteurs have submitted official, detailed reports about subjects such as counterterrorism measures, public housing, migrant workers, racism and racial discrimination, and religious freedom. These are part of what are known as the Special Procedures , or mechanisms, of the Human Rights Council. The U.N. uses these reports in the Council to understand the specifics of U.S. law and practice in light of human rights norms. These reports help shape how the international community sees us in these areas. But little is ever written about them.
6. There is actually no U.S. law criminalizing torture committed within the United States.
The U.S. Code criminalizes only torture committed outside the U.S. The criminal provision is mainly aimed at giving our courts jurisdiction to try foreigners who commit torture against Americans, though it could also cover Americans who committed such acts abroad. The U.N. Convention against Torture , signed by Ronald Reagan in 1988, requires that each state party "shall ensure that all acts of torture are offences under its criminal law". The U.S. says that any act of torture could be prosecuted under other federal or state laws, such as those regarding assault and battery. But there needs to be a separate criminal torture statute covering domestic torture, particularly to dissuade those in government to commit such acts here.
Moreover, the U.S. definition of torture is narrower than the internationally accepted definition in the Torture Convention. This allows the U.S. to claim that acts falling in that gap are not legally torture. The U.S. needs to expand its definition torture to be consistent with the international definition. When we say we are totally against torture, we apparently mean torture as we define it, not as the rest of the world defines it. (I call this the exceptionalist fallacy, others call the U.S. standard “torture light”).
7. The U.S. has never ratified the International Covenant on Economic, Social and Cultural Rights.
If it had, the debates on such issues as health care and the minimum wage might well be dramatically different, because those issues would be seen as involving basic human rights, not simply decisions about private markets. The U.S. recognizes a human right to own property, but not a human right to not die for lack of medical treatment. In the absence of this recognition, the debate within U.S. is based on economic and public-private sector issues pitting major financial interests against the rest of us. The debate needs to be human rights based instead of market based. Jimmy Carter signed the covenant in 1979, but the U.S. Senate never ratified it, so it does not have the force of law. It also established as basic human rights the right to self-determination, to a living wage, to equal pay for equal work, adequate housing, to equal opportunity for advancement, to form trade unions, to strike, to get parental leave, and so on. This is a gaping hole in the U.S. human rights tapestry.
8. The U.S. has also not yet ratified many other important international human rights treaties.
These include the Convention on Discrimination against Women, the Convention on the Rights of the Child, (though it has ratified two amendments to that treaty), the Convention on the Protection of All Persons from Enforced Disappearance, Convention for the Protection of the Rights of Migrant Workers, Convention on the Rights of Persons with Disabilities, American Convention on Human Rights, and the Statute of the International Criminal Court, which makes the worst violations of human rights and humanitarian law subject to punishment at the international level. This creates an area of great moral-political weakness in our own attempt to promote human rights internationally.
9. The U.S. is in denial about the human rights considerations involved in the issue of global climate change.
Within the international community, there is a growing recognition that dealing with climate change is not just a matter of environmental law, but human rights law. The U.S. 's resistance is understandable, as bringing in human rights considerations could lead to international demands to act, and even to make reparations for damage caused by greenhouse gas emissions. But environmental law only deals with the impact of man-made global warming on the air, land, and sea. It's important for Americans to start appreciating the profound humanitarian effects and the applicability of human rights law.
10. American journalism offered far too little coverage of the U.S.'s own Universal Periodic Review before the U.N.'s Human Rights Council in Geneva last year.
What little attention there was appeared to be largely from the conservative press, expressing outrage that countries with deeply troubled human rights records (e.g. Libya) were judging us, rather than the other way around, and decrying the fact that anyone would dare question the perfection of our human rights record and that we would admit to the world that we are flawed. It was the first time in history the U.S. has stood before an international body to present and defend its general human rights record.
U.S. officials said that we have room to improve, that input from others was welcome, and that the U.S. considers itself bound by the same standards as other states. But at the same time, the members of the 47 states sitting in judgment knew that not to be true -- and made a record 228 recommendations, many of them related to the U.S.'s continued failure to ratify the above referenced human rights conventions, especially the International Covenant on Economic, Social and Cultural Rights. The U.S. will appear for its next UPR in four years and will be expected to describe what it did to meet the recommendations it accepted.
11. Aliens, both legal and illegal, have human rights.
In the discussion of the treatment of aliens such as non-citizen terror suspects and the undocumented. there is seldom ever any reference to what their human rights are. At most, their U.S. Constitutional rights and rights under immigration law will be discussed. But tere are also international human rights norms that apply to aliens. There is a U.N. Declaration on the Human Rights of Individuals who are not Nationals of the .Country in Which they Live (1985) and a brilliant study from the U.N. Office of the High Commissioner for Human Rights on that issue, written by Minnesota Law Professor David Weissbrodt on The Rights of Non Citizens . These issues should figure into any debate about how aliens are treated.
12. No state -- not even the United States -- can grant immunity from international law.
The failure to seriously investigate and prosecute acts of torture, cruel, inhuman and degrading treatment and punishment committed by U.S. government officials, both as perpetrators and under the doctrine of command responsibility, was a huge blow to the rule of law in this country. But these acts didn't just violate U.S. law, they were human rights violations, and more importantly individual criminal violations of International Criminal Law. As the latter they constitute crimes against all of humankind and give rise to Universal Jurisdiction, meaning that every country in the world can prosecute those individuals who commit them, and there is no statute of limitations. (George W. Bush canceled a trip abroad in February amid threats of protests and legal actions for his anti terrorism acts).
The attempted grant of complete criminal and civil immunity in the Detainee Treatment Act of 2005 is invalid under international law. Political calculations led both parties to reject any attempt at accountability, depriving the public of an opportunity to come to terms with the wrongs that were committed, perpetuating a culture of impunity for the rich and powerful, and validating the international accusation the U.S. has different rules for itself. But we cannot let politics deprive us and the rest of the world of justice.
© 2011 by the President and Fellows of Harvard College