Last week, the Committee on the Elimination of Racial Discrimination issued its Concluding Observations (full text) assessing U.S. compliance with the International Convention on the Elimination of All Forms of Racial Discrimination. Here are highlights of the report that concern U.S. national security issues.

Racial profiling and illegal surveillance

8. While welcoming the acknowledgement made by the State party that racial or ethnic profiling is not effective law enforcement practice and is inconsistent with its commitment to fairness in the justice system, the Committee remains concerned at the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), Transportation Security Administration, border enforcement officials, and local police (arts.2, 4(c) and 5(b)). 

The Committee urges the U.S. to:

… intensify efforts to effectively combat and end the practice of racial profiling by federal, state and local law enforcement officials, including by:

(a) Adopting and implementing legislation which specifically prohibits law enforcement officials from engaging in racial profiling, such as the End Racial Profiling Act;

(b) Swiftly revising policies insofar as they permit racial profiling, illegal surveillance, monitoring and intelligence gathering, including the 2003 Guidance Regarding the Use of Race by Federal Law Enforcement Agencies;

(c) Ending immigration enforcement programmes and policies, which indirectly promote racial profiling, such as the Secure Communities programme and the 287(g) programme; and

(d) Undertaking prompt, thorough and impartial investigations into all allegations of racial profiling, surveillance, monitoring, and illegal intelligence-gathering; holding those responsible accountable; and providing effective remedies, including guarantees of non-repetition.

The Committee further highlights its recommendations on racial profiling and illegal surveillance as having “particular importance,” requesting detailed information in the next periodic report on the measures undertaken to implement the recommendations [para 34]. 

Guantanamo Bay 

22. While welcoming the commitment made by the President of the United States to close the detention facilities at Guantanamo Bay in January 2009, the Committee remains concerned that non-citizens continue to be arbitrarily detained without effective and equal access to the ordinary criminal justice system and at the risk of being subjected to torture or cruel, inhuman or degrading treatment or punishment (arts. 2, 5 and 6).

The Committee urges the State party to end the system of administrative detention without charge or trial and ensure the closure of the Guantanamo Bay facility without further delay. Recalling its general recommendation No.30 (2004) on non-citizens and general recommendation No.31 (2005) on the prevention of racial discrimination in the administration and functioning of the criminal justice system, it also calls upon the State party to guarantee the right of detainees to a fair trial in compliance with international human rights standards, and to ensure that any detainee who is not charged and tried is released immediately.

National human rights institution

6. While taking note of the creation of the Equality Working Group, the Committee reiterates its concern at the lack of an institutionalized coordinating mechanism with capacities to ensure the effective implementation of the Convention at the federal, state and local levels (CERD/C/USA/CO/6, para.13). Noting the role that an independent national human rights institution can play in this regard, the Committee expresses regret at the lack of progress in establishing a national human rights institution as recommended in its previous concluding observations (CERD/C/USA/CO/6, para.12) (art. 2).

The Committee recommends that the State party create a permanent and effective coordinating mechanism, such as a national human rights institution established in accordance with the principles relating to the status of national institutions (the “Paris Principles”, General Assembly resolution 48/134, Annex), to ensure the effective implementation of the Convention throughout the State party and territories under its effective control; monitor compliance of domestic laws and policies with the provisions of the Convention; and systematically carry out anti-discrimination training and awareness-raising activities at the federal, state and local levels.

Other notable areas

The Committee:

  • Welcomes the termination of the National Security Entry-Exit Registration System in April 2011, as recommended by the Committee in its previous concluding observations [para 4(a)];
  • Expresses concern over the excessive use of force by law enforcement officials [para 17] and the “increasingly militarized approach to immigration law enforcement” [para 18];
  • Urges the U.S. to recognize the competence of the Committee to receive individual complaints [para 27]; and
  • Encourages the U.S. to ratify other international treaties, including the International Convention for the Protection of All Persons from Enforced Disappearances [para 29].