The United Nations Human Rights Committee has issued its Concluding Observations (full text) assessing US compliance with the International Covenant on Civil and Political Rights (ICCPR). For consideration of whether the Committee’s determination that the ICCPR covers US surveillance activities that occur outside US territory is novel, check out Ryan Goodman’s earlier post at Just Security.
Here are highlights of the report that concern US national security issues.
The report welcomes three positive steps taken by the US with regard to Guantánamo Bay:
- The recognition by the Supreme Court in Boumediene v. Bush of the extraterritorial application of constitutional habeas corpus rights to aliens detained at Guantánamo Bay;
- The Presidential Executive Orders 13491 (“Ensuring Lawful Interrogations”), 13492 (“Review and Disposition of Individuals Detained at the Guantanamo Bay Naval Base and Closure of Detention Facilities”) and 13493 (“Review of Detention Policy Options”), issued on 22 January 2009; and
- The Presidential Executive Order 13567 establishing periodic review for Guantánamo detainees.
Accountability for past human rights violations
“5. The Committee is concerned at the limited number of investigations, prosecutions and convictions of members of the Armed Forces and other agents of the U.S. Government, including private contractors, for unlawful killings in its international operations and the use of torture or cruel, inhuman or degrading treatment or punishment of detainees in U.S. custody, including outside its territory, as part of the so-called “enhanced interrogation techniques” program … (arts. 2, 6, 7, 9, 10, and 14).”
The report asks the US to ensure accountability in all cases, including independent and impartial investigations. It also asks the US to:
“[C]onsider the full incorporation of the doctrine of ‘command responsibility’ in its criminal law and declassify and make public the report of the Senate Special Committee on Intelligence into the CIA secret detention programme.”
Targeted killings using unmanned aerial vehicles (drones)
“9. The Committee is concerned about the State party’s practice of targeted killings in extraterritorial counter-terrorism operations using unmanned aerial vehicles (UAV) also known as ‘drones’, the lack of transparency regarding the criteria for drone strikes, including the legal justification for specific attacks, and the lack of accountability for the loss of life resulting from such attacks. … the Committee remains concerned about the State party’s very broad approach to the definition and the geographical scope of an armed conflict, including the end of hostilities, the unclear interpretation of what constitutes an “imminent threat” and who is a combatant or civilian taking a direct part in hostilities, the unclear position on the nexus that should exist between any particular use of lethal force and any specific theatre of hostilities, as well as the precautionary measures taken to avoid civilian casualties in practice (arts. 2, 6, and 14).”
The Committee recommends the US should:
“(a) ensure that any use of armed drones complies fully with its obligations under article 6 of the Covenant, including in particular with respect to the principles of precaution, distinction and proportionality in the context of an armed conflict; (b) subject to operational security, disclose the criteria for drone strikes, including the legal basis for specific attacks, the process of target identification and the circumstances in which drones are used; (c) provide for independent supervision and oversight over the specific implementation of regulations governing the use of drone strikes; (d) in armed conflict situations, take all feasible measures to ensure the protection of civilians in specific drone attacks and to track and assess civilian casualties, as well as all necessary precautionary measures in order to avoid such casualties; (e) conduct independent, impartial, prompt and effective investigations of allegations of violations of the right to life and bring to justice those responsible; (f) provide victims or their families with an effective remedy where there has been a violation, including adequate compensation, and establish accountability mechanisms for victims of allegedly unlawful drone attacks who are not compensated by their home governments.”
Detainees at Guantánamo Bay
“21. … the Committee regrets that no timeline for closure of the facility has been provided. The Committee is also concerned that detainees held in Guantánamo Bay and in military facilities in Afghanistan are not dealt with within the ordinary criminal justice system after a protracted period of over a decade in some cases (arts. 7, 9, 10, and 14).
The State party should expedite the transfer of detainees designated for transfer, including to Yemen, as well as the process of periodic review for Guantánamo detainees, and ensure either their trial or immediate release, and the closure of the Guantánamo facility. It should end the system of administrative detention without charge or trial and ensure that any criminal cases against detainees held in Guantánamo and military facilities in Afghanistan are dealt with within the criminal justice system rather than military commissions and that those detainees are afforded the fair trial guarantees enshrined in article 14 of the Covenant.”
“22. The Committee is concerned about the surveillance of communications in the interests of protecting national security, conducted by the National Security Agency (NSA) both within and outside the United States through the bulk phone metadata program (Section 215 of the PATRIOT Act) and, in particular, the surveillance under Section 702 of Amendments to the Foreign Intelligence Surveillance Act (FISA) conducted through PRISM (collection of the contents of communications from U.S.-based companies) and UPSTREAM (tapping of fiber-optic cables in the U.S. that carry internet traffic) programs and their adverse impact on the right to privacy. The Committee is concerned that until recently, judicial interpretations of FISA and rulings of the Foreign Intelligence Surveillance Court (FISC) have largely been kept secret, thus not allowing affected persons to know the law with sufficient precision. The Committee is concerned that the current system of oversight of the activities of the NSA fails to effectively protect the rights of those affected. While welcoming the recent Presidential Policy Directive (PPD-28) that will now extend some safeguards to non-US persons “to the maximum extent feasible consistent with the national security”, the Committee remains concerned that such persons enjoy only limited protection against excessive surveillance. Finally, the Committee is concerned that those affected have no access to effective remedies in case of abuse (arts. 2, 5(1), and 17).
The State party should:
(a) take all necessary measures to ensure that its surveillance activities, both within and outside the United States, conform to its obligations under the Covenant, including article 17; in particular, measures should be taken to ensure that any interference with the right to privacy complies with the principles of legality, proportionality and necessity regardless of the nationality or location of individuals whose communications are under direct surveillance;
(b) ensure that any interference with the right to privacy, family, home or correspondence be authorized by laws that (i) are publicly accessible; (ii) contain provisions that ensure that collection of, access to and use of communications data are tailored to specific legitimate aims; (iii) are sufficiently precise specifying in detail the precise circumstances in which any such interference may be permitted; the procedures for authorizing; the categories of persons who may be placed under surveillance; limits on the duration of surveillance; procedures for the use and storage of the data collected; and (iv) provide for effective safeguards against abuse;
(c) reform the current system of oversight over surveillance activities to ensure its effectiveness, including by providing for judicial involvement in authorization or monitoring of surveillance measures, and considering to establish strong and independent oversight mandates with a view to prevent abuses;
(d) refrain from imposing mandatory retention of data by third parties;
(e) ensure that affected persons have access to effective remedies in cases of abuse.”
Other notable areas
The Committee also recommends the US should:
- “review its legal position so as to acknowledge the extraterritorial application of the Covenant under certain circumstances, as outlined inter alia in the Committee’s general comment No. 31 (2004) on the nature of the general legal obligation imposed on States parties to the Covenant” [para 4(a)];
- “enact legislation to explicitly prohibit torture, including mental torture, wherever committed and ensure that the law provides for penalties commensurate with the gravity of such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons” [para 12]; and
- “strictly apply the absolute prohibition against refoulement under articles 6 and 7 of the Covenant, continue exercising the utmost care in evaluating diplomatic assurances, and refrain from relying on such assurances where it is not in a position to effectively monitor the treatment of such persons after their extradition, expulsion, transfer or return to other countries and take appropriate remedial action when assurances are not fulfilled” [para 13].