Sylvester on the US Response to the Recommendations of the UN Human Rights Council

I’m very happy to present this very interesting and useful summary produced by Ryan Sylvester, a third-year student at Fordham Law: On March 10, 2011, the U.S. Department of State posted its Response to UN Human Rights Council Working Group Report (U.S. Response) as part of the Universal Periodic Review process.  The original working group report was issued on January 4, 2011 and can be found here (A/HRC/16/11).  Among the 228 recommendations by the working group, the U.S. Response categorizes 33 of them as related to national security.  Among these 33 recommendations, the U.S. Response indicates that 13 enjoy support, 17 enjoy support in part, and 3 do not enjoy support.  Below is a compilation of the national security related Working Group’s recommendations and U.S. Responses (most without comment). U.S. Response:  Support (13)

• 89.  Consider the possibility of inviting relevant mandate holders as follow-up to the 2006 joint-study by the 5 special procedures, in view of the decision of the current Administration to close the Guantanamo Bay detention facility (Malaysia);
• 90.  Respond and follow-up appropriately the recommendations formulated to the United States by the Special Rapporteur for the Protection of Human Rights and Fundamental Freedoms while Countering Terrorism (Mexico);
• 139.  That measures be taken to eradicate all forms of torture and ill-treatment of detainees by military or civilian personnel, in any territory of jurisdiction, and that any such acts be thoroughly investigated (Norway);
• 161.  Halt all transfer detainees to third countries unless there are adequate safeguards to ensure that they will be treated in accordance with international law requirements (Ireland);
• U.S. Response to 58 and 176, “insofar as they recommend compliance with our international law obligations.”
  • 58.  Make fully consistent all domestic anti-terrorism legislation and action with human rights standards (Islamic Republic of Iran);
  • 176.  Respect the human rights of prisoners of war, guaranteed by the penal norms (Nicaragua);
• U.S. Response to 66 and 146, “because existing Federal criminal laws comply with our obligations under the Convention against Torture.”
  • 66.  Enact a federal crime of torture, consistent with the Convention, and also encompassing acts described as ‘enhanced interrogation techniques’ (Austria);
  • 146.  Define torture as a federal offense in line with the Convention against Torture and investigate, prosecute and punish those responsible of crime of extraterritorial torture (Plurinational State of Bolivia);
• U.S. Response to 149, “although noting that some of the referenced points may not be fully applicable in every context.”
  • 149.  Observe the Amnesty International 12 points program to prevent torture perpetrated by government agents (Ecuador);
• U.S. Response to 159 and 160.  “We have made clear our desire to close the Guantánamo Bay detention facility and will continue to work with Congress, the courts, and other countries to do so in a responsible manner that is consistent with our international obligations. Until it is closed, this Administration will continue to ensure that operations there are consistent with our international legal obligations.”
  • 159.  Close without any delay all detention facilities at the Guantanamo Bay as President Barack Obama has promised (Viet Nam);
  • 160.  Find for all persons still detained in the Guantanamo Bay detention center a solution in line with the United States obligations regarding the foundations of international and human rights law, in particular with the International Covenant on Civil and Political Rights (Switzerland);
• U.S. Response to 188, “because our Constitution’s Fourth Amendment and existing U.S. law prohibit the use of modern technology for excessive and unjustified interference in individuals’ private lives.”
  • 188.  Adopt a set of legislative and administrative measures aimed at ensuring prohibition of the use by state and local authorities of modern technology for excessive and unjustified intervention in citizens’ private life (Russian Federation);

 U.S. Response:  Support in Part (17)

• U.S. Response Paragraph 4:  “Some countries added to their recommendations inaccurate assumptions, assertions, or factual predicates, some of which are contrary to the spirit of the UPR. In such cases, we have decided whether we support a recommendation by looking past the rhetoric to the specific action or objective being proposed. When we say we “support in part” such recommendations, we mean that we support the proposed action or objective but reject the often provocative assumption or assertion embedded in the recommendation.”
• U.S. Response to 59, “as explained in paragraph 4. Our Constitution and laws contain appropriate rules to protect the privacy of communications, consistent with our international human rights obligations.”
  • 59.  Legislate appropriate regulations to prevent the violations of individual privacy, constant intrusion in and control of cyberspace as well as eavesdropping of communications, by its intelligence and security organizations (Islamic Republic of Iran);
• U.S. Response to 88, “as explained in paragraph 4. The United States has consistently invited United Nations Special Rapporteurs to tour the detention facility at Guantánamo, to observe detention conditions, and to observe military commission proceedings. That invitation remains.”
  • 88.  Invite United Nations Special Rapporteurs to visit and investigate Guantanamo Bay prison and United States secret prisons and to subsequently close them (Islamic Republic of Iran);
• U.S. Response to 60, 137, 138, 140, 155, 166, and 217, “as explained in paragraph 4. The U.S. supports recommendations calling for prohibition and vigorous investigation and prosecution of any serious violations of international law, as consistent with existing U.S. law, policy and practice. We reject those parts of these recommendations that amount to unsubstantiated accusations of ongoing serious violations by the United States.”
  • 60.  Take effective legal steps to halt human rights violations by its military forces and private security firms in Afghanistan and other States (Islamic Republic of Iran);
  • 137.  Prosecute the perpetrators of tortures, extrajudicial executions and other serious violations of human rights committed in Guantanamo, Abu Ghraib, Bagram, the NAMA and BALAD camps, and those carried out by the Joint Special Operations Command and the CIA (Cuba);
  • 138.  Heed the call of the High Commissioner to launch credible independent investigations into all reliable allegations made to date of violations of international human rights law committed by American forces in Iraq, including extrajudicial killings, summary executions, and other abuses (Egypt);
  • 140.  Stop the war crimes committed by its troops abroad, including the killings of innocent civilians and prosecute those who are responsible (Cuba);
  • 155.  Close Guantanamo and secret centers of detention in the world, punish agents that torture, disappear and execute persons who have been arbitrarily detained, and compensate victims (Bolivarian Republic of Venezuela);
  • 166.  Take effective measures to put an end to gross human rights abuses including violence against women, committed for decades by the United States military personnel stationed in foreign bases (Democratic People’s Republic of Korea);
  • 217.  Halt serious violations of human rights and humanitarian law including covert external operations by the CIA, carried out on the pretext of combating terrorism (Islamic Republic of Iran);
• U.S. Response to 136, 147, 148, 156, and 157.  “We intend to close the Guantánamo Bay detention facility. The President has closed all CIA detention facilities and has prohibited CIA operation of such facilities. We allow the International Committee of the Red Cross access to individuals detained by the United States pursuant to armed conflict. We investigate allegations of torture, and prosecute where appropriate. We cannot accept portions of these recommendations concerning reparation, redress, remedies, or compensation. Although mechanisms for remedies are available through U.S. courts, we cannot make commitments regarding their outcome. We cannot accept the part of 136 that we close all detention centers; the United States maintains certain internment facilities abroad, consistent with applicable U.S. and international law. We cannot agree to the part of 156 that we release all individuals detained pursuant to an armed conflict who are not promptly brought to trial. Regarding recommendation 157, transfers of detainees to their home countries will only be conducted in accordance with our humane treatment policies.”
  • 136.  Take legal and administrative measures to address civilian killings by the US military troops during and after its invasion of Afghanistan and Iraq by investigating and bringing perpetrators to justice and remedying the victims and to close its detention facilities in foreign territories like Guantanamo, including CIA secret camps (Democratic People’s Republic of Korea);
  • 147.  Conduct thorough and objective investigation of facts concerning use of torture against imprisoned persons in the secret prisons of United States of America and detainees of the detention centres in Bagram and Guantanamo, bring those who are responsible for these violations to justice, and undertake all necessary measures to provide redress to those whose rights were violated, including payment of necessary compensation (Russian Federation);
  • 148.  Take measures to ensure reparation to victims of acts of torture committed under United States’ control and allow access to the International Committee of the Red Cross to detention facilities under the control of the United States (Brazil);
  • 156.  Expedite efforts aimed at closing the detention facility at Guantanamo Bay and ensure that all remaining detainees are tried, without delay, in accordance with the relevant international standards (Egypt); Proceed with the closure of Guantanamo at the earliest possible date and bring to trial promptly in accordance with the applicable rules of international law the detainees held there or release them (Ireland);
  • 157.  Quickly close down Guantanamo prison and follow the provision of the United Nations Charter and the Security Council Resolution by expatriating the terrorist suspect to their country of origin (China);
• U.S. Response to 142, “as explained in paragraph 4. Our contractors are not authorized to engage in direct hostilities or offensive operations or to commit assassinations. Like U.S. Government personnel, contractors may only use force consistent with our international and domestic legal obligations. We have expressed support for the International Code of Conduct for Private Security Service Providers.”
  • 142.  Halt selective assassinations committed by contractors, and the privatization of conflicts with the use of private military companies (Bolivarian Republic of Venezuela);
• U.S. Response to 143, “as explained in paragraph 4. In U.S. military operations, great care is taken to ensure that only legitimate objectives are targeted and that collateral damage is kept to a minimum.”
  • 143.  End the use of military technology and weaponry that have proven to be indiscriminate and cause excessive and disproportionate damage to civilian life (Egypt);
• U.S. Response to 187, “as explained in paragraph 4, and noting that we collect information about our citizens only in accordance with U.S. law and international obligations.”
  • 187.  Guarantee the right to privacy and stop spying on its citizens without judicial authorization (Bolivarian Republic of Venezuela);

 U.S. Response:  Do Not Enjoy Support (3)

• 141.  Halt immediately the unjustified arms race and bring to justice those responsible for all war crimes and massacres against unarmed civilians, women, children as well as acts of torture carried-out in prisons such as Abu Ghraib, Bagram and Guantanamo (Nicaragua);
• 158.  The closure of Guantanamo prison as the detention conditions violate the UDHR and ICCPR and the European Convention on Human Rights (ECHR) and all other related human rights instruments (Sudan);
• 170.  Guarantee civilians to be tried by their natural judge and not by military commissions (Bolivarian Republic of Venezuela)