ICCPR Article 1, Self-Determination and Native Americans1
Executive Summary
Due to continuing interference with the self-governance and property rights of
Native Americans, the U.S. government is in violation of Article 1 of the ICCPR. The
government has engaged in long-term mismanagement of Individual Indian Money (IIM)
accounts resulting in major losses from the Indian Trust. The Government continues to
attack access and ownership of traditional lands using methods ranging from “gradual
encroachment” to harassment via fines and property confiscation. These actions
constitute breeches of Indian treaties, violations of violations of indigenous rights to
property and culture and violations of Article 1(2) of the Covenant. The United States
must recognize Native American property, including rights over traditional lands and
resources, according to recognized human rights principles.
The Federal Government has also failed to recognize specific Native American
tribes as self-governing peoples. The established process for federal recognition was
established by the United States in 1934 under what is referred to as the “Indian
Reorganization Act”. This process, imposed upon Native communities, oftentimes
resulting in direct conflict with long-standing traditional forms of self-government. This
has resulted in the creation of significant obstacles to federal recognition that are not
easily overcome. Certain federally required criteria cannot be met because of actions
taken by the Government and majority factions of the population throughout this
country’s history.2 Refusal to recognize Native American peoples or Nations which do
not fit certain criteria because of historical actions represents a violation of Article 1(3) of
the Covenant.3 The United States must recognize and respect rights to self-determination
and allow for tailoring of any “recognition process” to the needs of the individual tribe
and allow for certain deviations from the established process. If the United States
continues to insist on formal federal recognition of individual “tribes”, the Federal
Government must take factors, such as the historical pressure to assimilate into the
greater American community into account in decisions for federal recognition.
Three current examples of the failure of the United States to abide by the
Covenant follow. The first is the case of the Western Shoshone. This case provides one
example of government efforts to extinguish Native American property rights through a
discriminatory and unjust agency process. The case also highlights government failure to
resolve the matter in good faith after being requested to do so by regional and United
1

T. Yvette Soutiere, with contributions by Julie Fishel, Western Shoshone Defense Project, and Lucy
Simpson, Indian Law Resource Center.
2
During the late 1800s and continuing through the early 1900s, the U.S. Government actively supported
the use of boarding schools in order to assimilate Native American children into Christian American
society. Students were required to conform to European dress and to become “civilized”. There was a
strict English-only language policy employed in the schools. See
http://www.twofrog.com/rezsch.html#Justification for more information. Also during this time, the
eugenics movement enjoyed increasing popularity. Many chose assimilation rather than to be targeted as a
lesser person by this movement. See http://www.indiancountry.com/content.cfm?id=1096410443.
3
The example of the Abenaki follows.

Nations human rights bodies, relying instead on the use of retaliatory measures when
indigenous peoples assert their rights under the law. The second case, still in U.S. Courts
after ten years, is Cobell v. Norton. This case involves efforts of Native Americans to
receive a full and accurate accounting of the Individual Indian Money trust after years of
malfeasance and mismanagement. It also highlights government retaliation when Native
Americans assert their rights. The last case demonstrates many of the obstacles
indigenous communities face when they seek federal recognition.

In Response to the Second and Third Periodic Reports of
the United States of America:
Shadow Report on U.S. Exceptionalism and Lack of Implementation4
EXECUTIVE SUMMARY
The United States has been intrinsically involved in the development of
the United Nations from its first incarnation as the League of Nations, to the
aftermath of World War II and the development of peaceful diplomacy. The U.S.
has also played the role of watchdog for the implementation of human rights
around the world. The U.S., however, has faltered in meeting its own
international human rights obligations. An example of this is the U.S.’s failure to
meaningfully implement the International Covenant on Civil and Political Rights
(“ICCPR”).
The United States ratified the International Covenant on Civil and Political
Rights in 1992. It appears that the signing of the treaty was a ceremonial act,
however, rather than a commitment to fully implement and comply with the
treaty’s provisions. Nearly 15 years after the signing of the treaty, the United
States has failed to acknowledge the full extent of the treaty’s legal significance
and has not taken the active steps necessary to ensure that treaty obligations are
enforced as U.S. law. Moreover, when the U.S. signed the treaty, it
simultaneously issued broad reservations, understanding and declarations
(“RUDs”) limiting the scope of its obligations and rendering the treaty
unenforceable. In essence, the RUDs strip the ICCPR of all its authority and
relevance to the U.S. As such, the U.S.’s RUDs have been criticized both by this
Committee and fellow signatory parties to the ICCPR.
This Committee criticized the U.S.’s widely formulated reservations. It
noted that the U.S.’s RUDs were “intended to ensure that the United States has
only accepted what is already law in the United States.”5 Additionally, 11 fellow
signatories and this Committee6 found the U.S. reservations to Article 6.5
4

Penny Venetis, Clinical Professor of Law and Clinical Scholar, Co-Director Constitutional
Litigation Clinic, Rutgers School of Law – Newark with the assistance of Cynthia Soohoo and
Connie de la Vega and is submitted on behalf of: Human Rights Advocates, Lawyers Committee
for Civil Rights Under Law, Washington, D.C., Penal Reform International, UN Working Group of
the National Lawyers Guild’s International Committee and WILD for Human Rights.
5

Concluding Observations of the Human Rights Committee: United
States of America: March 10, 1995.
6

Office of the High Commissioner on Human Rights, Concluding
Observations of the Human Rights Committee: United States of America, U.N.
Doc CCPR/C/79/Add.50,A/50/40, Paragraph 279(1995). U.S. Reservation
limiting application of Art. 7 to the extent that cruel, inhuman or degrading
treatment prohibited by the 5th, 8th and/or 14th Amendment.

regarding the juvenile death penalty and Article 7 regarding the use of torture and
cruel, inhuman and degrading treatment, as inconsistent with the Covenant’s
object and purpose, and in direct conflict with the non-derogable provision of the
right to life under Article 4.2.
Despite the clear statements by this Committee of what the U.S. needs to
do to comply with the ICCPR, the U.S. has not taken any of these considerations
into account. It continues to stand by its RUDs, even in situations when the U.S.
Supreme Court has rendered them unneccessary, as in the case of banning the
execution of juveniles.7
The U.S. also continues to assert that the treaty is non-self executing and
that it cannot be invoked in U.S. Courts to remedy a violation of the human rights
guaranteed by the ICCPR. This failure to implement the ICCPR and the
continued clinging to RUDs violates the ICCPR on its face. Additionally, the
U.S.’s failure to implement the treaty and the U.S.’s failure to ratify Optional
Protocol I leaves those whose human rights have been violated with no remedy.

7

Roper v. Simmons, 543 U.S. 551 (U.S. 2005).

The Lack of Access to the Courts to Enforce Civil Rights in the United States: A
Violation of the Right to Effective Remedy Under Article 2(3) of the ICCPR8
Executive Summary
•

Article 2(3) of the International Covenant on Civil and Political Rights (ICCPR)
requires the availability of an effective remedy for violations of rights protected
by the ICCPR.

•

Millions of individuals in the United States do not have the right to remedy
violations of federal civil rights laws as a result of Supreme Court opinions that
restrict the private right of action of individuals.

•

The inability to redress these civil rights violations constitutes a violation of
Article 2(3) of the ICCPR.
a. U.S. Supreme Court decisions that have prevented individuals from
obtaining an injunction to stop ongoing discriminatory conduct violate
Article 2(3) because under this provision of the ICCPR, remedies must be
accessible to individuals whose rights are protected.
b. U.S. Supreme Court decisions that have restricted the ability of individuals
to obtain compensatory damages against state actors violate Article 2(3)
because the provision requires remedies to be effective and the failure to
compensate an individual for harms caused by civil rights violations
means that the remedy is insufficient and thus inappropriate.
c.

Under the ICCPR, sovereign state immunity cannot be a defense against
the imposition of corrective measures aimed to effectuate the requirements
of Article 2(3).

d. The implementation of the effective remedy requirements of Article 2(3)
is particularly crucial when the individuals involved are vulnerable
persons.
•

8

We recommend that the Human Rights Committee require the U.S. to comply
with its obligations under Article 2(3) of the ICCPR to ensure and protect the
rights of individuals to an effective remedy.

National Campaign to Restore Civil Rights.

Report on the Death Penalty - Executive Summary
Although we welcome the Second and Third Periodic Report of the United States of
America to the United Nations Human Rights Committee, we are troubled by its failure
to adequately address human rights violations relating to the administration of the death
penalty nationwide.
In its Concluding Observations regarding the United States’ initial report under
Article 40 of the ICCPR, this Committee noted specific concerns about the way in which
death sentences were imposed in this country.9 In the eleven years that have passed since
then, the United States Supreme Court has taken important measures to prohibit the
application of the death penalty to juvenile offenders and to the mentally retarded. We
applaud those decisions, and welcome the Supreme Court’s newfound willingness to
consider international law in assessing whether certain aspects of the death penalty
violate the Eighth Amendment to the United States Constitution.
At the same time, and contrary to the Committee’s specific recommendations in
1995, the United States has failed to take measures to restrict the death penalty to the
most serious crimes and has failed to ensure that death sentences are carried out in full
compliance with the human rights obligations contained in the Covenant. While the
application of the death penalty in the United States raises many troubling questions, this
report focuses on only five issues: (1) the arbitrary and discriminatory imposition of
death sentences; (2) the application of the death penalty to offenses that do not constitute
the “most serious crimes;” (3) the execution of the severely mentally ill; (4) evidence that
the practice of executing prisoners by lethal injection amounts to cruel, inhuman or
degrading treatment or punishment; and (5) death row conditions and their effects on the
mental health of prisoners awaiting execution. These practices violate several provisions
of the ICCPR, including Articles 6(1), 6(2), 7, 10, and 26.
First, there is ample evidence that death sentences in the United States are imposed
arbitrarily and on the basis of impermissible factors such as race and poverty. These
systemic problems are compounded by the poor quality of legal representation routinely
provided to indigent defendants facing the death penalty. Moreover, there are no uniform
standards to guide the discretion of state prosecutors in seeking the death penalty. As a
result, there are enormous geographical disparities in the sorts of crimes for which the
death penalty is imposed. The administration of the death penalty in the United States
therefore violates Articles 6(1) and 26 of the ICCPR.
Second, the United States continues to impose capital sentences on individuals who
have not committed the “most serious crimes,” in violation of Article 6(2). The “felony
murder” rule allows for individuals to be sentenced to death, even if they did not kill,
intend to kill, or even contemplate that another human being would die as a result of their

9

Concluding Observations of the Human Rights Committee: United States of America, ¶¶281, 296, U.N.
Doc. CCPR/C/79/Add.50, A/50/40 (1995).

actions. And since the United States last appeared before this Committee, it has taken no
steps to reduce the number of crimes for which individuals are “death-eligible.”10
Third, executions of the severely mentally ill are commonplace in the United States,
despite a decision from the United States Supreme Court prohibiting the execution of the
“insane.”11 In the last ten years, the United States has put to death dozens of prisoners
suffering from schizophrenia, bipolar disorder, and other incapacitating mental illnesses.
Moreover, the United States has allowed at least one mentally ill prisoner to be forcibly
medicated with anti-psychotic medication so that he could be rendered “competent” for
execution. These practices constitute cruel, inhuman or degrading treatment or
punishment in violation of Article 7.
Fourth, there is mounting evidence that current lethal injection protocols violate
Article 7. Lethal injection is the most common method of execution in the United States.
While lethal injection was once believed to cause a painless death, experts have testified
that death by lethal injection can cause excruciating agony.12 Prisoners have sought to
obtain stays of execution while lethal injection is subjected to further study and analysis,
but courts in several states have repeatedly denied them even a temporary reprieve.
Fifth, death row prisoners in states such as Texas and California are routinely
subjected to inhumane and degrading treatment in violation of Articles 7 and 10. Of the
thirty-eight states that allow for the application of the death penalty in the United States,
Texas and California have, by far, the largest number of condemned inmates. The
prisons housing death row inmates in these two states have been severely criticized by the
federal judiciary for imposing inhumane and degrading conditions of detention, and for
failing to provide necessary mental health treatment for incarcerated prisoners. These
conditions have had grave effects on death row inmates’ mental and physical health.
The conditions of death row confinement cannot be viewed in isolation from the
length of time that prisoners spend on death rows awaiting their executions. As several
international tribunals have recognized, prisoners forced to anticipate their own deaths
face a unique form of mental torment. This Committee has stressed that the mere length
of time that a prisoner spends on death row does not give rise to a violation of Articles 7
and 10 of the ICCPR,13 and we do not quarrel with that conclusion in this report. Rather,
we contend that the inhumane conditions on death rows nationwide, coupled with the
cumulative effects of those conditions on prisoners who typically spend over a decade
awaiting execution, amount to cruel, inhuman or degrading treatment or punishment.14
10

See Concluding Observations at ¶281.

11

Ford v. Wainwright, 477 US 399 (1986).

12

A declaration from Dr. Mark Heath, describing these problems in detail, has been provided as an exhibit
to this report.
13

14

See, e.g., Johnson v. Jamaica, ¶8.4 (No. 588/1994), U.N. Doc. CCPR/C/56/D/588/1994 (1996).
Id. ¶8.5.

We are hopeful that the discussion in this report will assist the Committee in
evaluating the United States’ record of compliance with the International Covenant on
Civil and Political Rights (ICCPR).

Prepared by Sandra L. Babcock
Co-Chair, International Committee
National Association of Criminal Defense Lawyers

UNITED NATIONS HUMAN RIGHTS COMMITTEE
EIGHTY-SEVENTH SESSION
REPORT ON WOMEN’S HUMAN RIGHTS UNDER THE
INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS15

EXECUTIVE SUMMARY
INTRODUCTION
This report is submitted by a coalition of US NGOs that work on issues of gender
equality in the United States. It focuses on several areas of concern in which the United
States Government has failed to implement the International Covenant on Civil and
Political Rights with respect to women’s human rights and discrimination. These issues
constitute violations under several articles of the Covenant in addition to indicating a lack
of implementation of Article 3 and General Comment No. 28.
The Working Group acknowledges that some of these matters were not covered in
the List of Issues prepared by the Committee in its eighty-sixth session in March 2006.
We respectfully submit that it remains important to offer this record to the Committee, to
the international community, and to the American public. Given the human rights record
of the United States in recent years, it is understood that some of the concerns indicated
in this report are not a priority for the Committee’s review in this session. However, the
Committee has indicated in its review of the first US report, in reviews of other States,
and in General Comment No. 28 that matters such as violence against women and
employment discrimination are within the ambit of the Covenant. We offer this
information to keep the record up to date as well as to provide US constituencies with
material to assist their growing understanding of the international context for their work
and to provide them with additional advocacy material.
ARTICLE 2(2) Remedies
The United States’ failure to guarantee an effective federal judicial remedy for genderbased violence is the result of two Supreme Court decisions. The absence of a federal
remedy is exacerbated by evidence that state courts, as a result of statutory immunities
and gender discrimination, often do not provide effective remedies. Notwithstanding the
Supreme Court decisions, we ask the Committee to explore with the U.S. the available

15

Human Rights Advocates International (New York); International Gender Organization
International Women’s Human Rights Law Clinic; Queens College, City University of New York;
International Women’s Rights Action Watch; Human Rights Center, University of Minnesota; Legal
Momentum; MASSCEDAW and Prof. Martha Davis, Northeastern University College of Law; National
Organization for Women Foundation; National Council of Women’s Organizations.

legislative and executive action that would provide such remedies and fulfill the
preventive as well as compensatory role they should play.
ARTICLE 3, 2(1) Equality and non-discrimination
The U.S. Constitution does not clearly prohibit sex discrimination. Efforts to add a sex
equality amendment had been continuous since 1923, but by a Congressionally-imposed
deadline in 1982, when 15 states failed to ratify, the Equal Rights Amendment was
defeated.
In the Second and Third Periodic Reports of the United States to the UN
Committee on Human Rights, the government. asserts that the Equal Protection and Due
Process Clauses of the Fourteenth Amendment of the Constitution guarantee equality for
men and women. However, the denial of equality under the Constitution, initially
understood but unspoken, was made explicit when the Fourteenth Amendment was
adopted in 1868 using the words “male citizens” in the second section. Although several
decisions of the Supreme Court have overturned particular gender-biased laws based on
the Constitution, sex discrimination per se is not explicitly unconstitutional in the
making, interpreting, and enforcing of U.S. law. Women won the right to vote with
passage of the Nineteenth Amendment in 1920 after an unprecedented seventy-two year
campaign. Except for the right to vote, there has been no other area in which an
amendment has guaranteed women’s right to legal parity with men.
The Fourteenth Amendment's equal protection provision has not been consistently
interpreted as protecting women from sex discrimination, and it has not been interpreted
to require strict scrutiny of sex-based classifications. Instead, the standard ranges from
requiring a "rational basis" for sex-based distinctions to requiring an “exceedingly
persuasive” justification.
The Fourteenth Amendment has not been interpreted to apply to sexual orientation or
gender identity discrimination. Nor does it protect women from discrimination on the
basis of pregnancy or childbirth. Further, the amendment has been interpreted to require a
demonstration of discriminatory intent; it is not sufficient that a law or policy has a
disproportionate impact on one sex. Given this history, the recent additions of John
Roberts and Samuel Alito to the Court, and the possibility of future Supreme Court
appointments during President George W. Bush’s term, reliance on judicial interpretation
of the Fourteenth Amendment to accord sex the recognition as a protected class that is
accorded to race and national origin classes is not realistic.
U.S. ratification of the Convention on the Elimination of All Forms of
Discrimination against Women would fully expose the inequality issue. The treaty was
signed by President Jimmy Carter in 1980, but has not been ratified by the Senate in the
more than twenty-five years since that time. This international 'Bill of Rights' for women
was been ignored, delayed and ultimately blocked from a final floor vote in 1994 and
again in 2002.
We request the Committee to recommend to the United States Government:

(1) that it initiate a national dialogue regarding the benefits of an equal rights
amendment, including full and fair Congressional hearings on the intent and
applicability of a Constitutional amendment assuring equal protection under the law
for women and men.
(2) that the U.S. Senate move legislation to a floor vote that would provide for
ratification of the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW), at the same time recommending removal of
the Reservations, Declarations and Understandings that have been attached to
CEDAW which would limit the application of most of the treaty’s provisions.
Violence against women
Violence against women is a violation of Articles 6 (Right to Life), 7 (Torture and
Cruel, Inhuman and Degrading Treatment), and 9 (Liberty and Security of Person), as
well as of the fundamental principles of equality and nondiscrimination. The federal
Violence Against Women Act (VAWA) is a valuable effort to support violence
prevention as well as services for women who are survivors of violence. As government
and nongovernmental service providers have gained experience, they have refined their
understanding of both women’s needs and effective approaches. Each round of VAWA
renewal provides an opportunity to improve it in light of this experience.
We request that the Committee note the current limitations that remain to be
addressed:
(1) The Department of Homeland Security must provide information on use of
the self-petition and other processes available to immigrant women, and publicize the
availability of those processes, in multiple languages.
(2) The Violence Against Women Act should be amended to provide for
protection of battered women from discrimination in housing and employment.

Government institutions and information relating to equality
The substantive equality guaranteed by the ICCPR can be achieved only if
governments are aware of, and take steps to remedy, sex-based discrimination. In recent
years, the United States government has taken a number of actions to eliminate the
official bodies established over a period of decades to monitor and ensure equality
between the sexes and to gather information that can be used to examine progress and
policy. With the elimination or modification of these offices, women have lost important
avenues to enlist the government in ensuring equality and have lost access to valuable
(and often otherwise unavailable) information that would enable them to take action
themselves and through nongovernmental organizations to address inequality.

For example, the Department of Labor has abolished its Equal Pay Matters
Initiative, removed information about narrowing the wage gap from its Web site, refused
to use available tools to identify violations of equal pay laws, and adopted regulations
that deprive millions of women the right to over time pay. In addition, efforts have been
made to eliminate the Department’s collection of data on working women, making it
more difficult to identify sex discrimination in employment and to measure women’s
progress – or lack of it – in the labor force. The Department also proposes to stop
collecting data on discrimination by federal contractors.
We request that the Committee note:
(1) the fundamental lack of a national human rights institution or any other
department or bureau with responsibility for monitoring and promoting women’s
human rights ;
(2) the dismantling and decommissioning of the bodies that existed, limited as
they were, to ensure that equality between the sexes remained an element of
government policy; and
(3) the elimination of data collection programs that illuminate discrimination
issues.

ARTICLE 7 (Cruel, Inhuman or Degrading Treatment);
ARTICLE 10 (Conditions of Imprisonment)
Of the almost two million people confined in U.S. prisons and jails, about 200,000 are
women, of whom 80% have committed non-violent crimes, such as shoplifting,
prostitution, illicit drug use, and welfare fraud. Many have been egregiously abused
throughout their lives, and they often end up with violent and abusive partners and suffer
from a cycle of incarceration and recidivism due to continued drug usage or crimes
related to their drug use. In short, these women are victims and continue to be victimized
in prison.
Reproductive rights issues loom large for incarcerated women. Approximately five
percent of women reportedly arrive pregnant in jail, and approximately 2,000 babies are
annually born to U.S. prisoners. They often are shackled while being transported to the
hospital, waiting to give birth, during labor and after birth. Female inmates frequently are
not provided with the means to exercise their rights to abortion services. The
consequences are extreme for both mother and child, as incarcerated women face, at best,
uncertain futures, and in some cases the certainty of long prison sentences.
Prisons are patriarchal systems which attempt to restrict women’s choices not only about
their bodies but also their offspring. After incarcerated women bear children, these
offspring are placed in either kinship or foster care. If a child is placed in foster care,
mothers often irreversibly lose their children without due process. Even worse,
reunification is often at the whim of individual case workers.

We urge the Committee to recommend that the United States Government:
(1) Mandate that all states comply with international standards for treatment of
incarcerated women;
(2) Restrict the use of shackles except as a reasonable precaution against escape
during a transfer; by order of medical personnel; or if other methods of control fail, in
order to prevent a prisoner from injuring herself or others or from damaging property,
and do not use them during the third trimester of pregnancy;
(3) Deliver adequate care for pregnant incarcerated women, including access to
abortion services;
(4) Protect incarcerated women’s reproductive rights, including the right to
abortion;
(5) Provide funds for incarcerated women who cannot afford abortions from
the Department of Corrections medical budgets in the same ways that the DOC covers
prenatal, delivery and post-natal costs;
(6) Repeal the Hyde Amendment as discriminatory against minorities, lowincome women and incarcerated women in Federal prisons;
(7) Inform women they can write to a judge and request to be present at any
court hearings regarding a child's care, including foster care status hearings and
parental termination proceedings.

ARTICLE 13 (Expulsion of Aliens)
U.S. asylum law and practice does not adequately consider or recognize the
protection needs of women fleeing gender-specific persecution. By failing to specifically
accommodate for gender as a contributing persecution ground, the U.S. stands in
violation of its obligations under ICCPR Articles 2(1), 7, 13, and 26, and Refugee
Convention Articles 3, 31, and 33 at a minimum. Moreover, the US has increasing
limited previously available protections under its asylum law. Where gender-based
violence resulting from conflict or personal situations is the cause of women’s flight
from persecution, the diminishing protections and harshness of the U.S. restrictions on
asylum fall disproportionately on women.
The Bush Administration enacts or narrowly interprets laws in the name of
fighting terrorism that has the effect of disproportionately denying asylum to female
victims of sexual violence, the very victims of terrorists. U.S. imposition of a “material
support” bar to asylum or refugee status adversely impacts women because of their status
as women. “Material support” provided under threat of violence, physical harm and, inter

alia, coercion denies them asylum protection. In conflicts, women become noncombatant victims. They are raped by invading forces for purposes of humiliating their
men and their nation, for “ethnic cleansing,” or for “recreation.” They are compelled by
captors to perform chores by day, suffering sexual indignities by night. Although they
work under duress, women are denied asylum because the U.S. will not recognize the
gender-specific vulnerability of rape or threat of rape as a duress defense.
The US requires that persons seeking protection from persecution file for asylum
within one year of entering the United States. This filing bar, even with its narrow
exceptions, contravenes U.S. treaty obligations and accepted international legal
standards. By refusing to implement a firm rule excepting from the bar women who have
experienced and are recovering from trauma-inducing gender-specific violence, the U.S.
denies asylum to women who by virtue of their immutable characteristics as a person
have been victimized as a group or for their opinion as women. Many of these women
cannot immediately upon entry discuss and place in writing with strangers the traumatic
gender-specific horrors they have suffered, frequently including sexual violence. The
traumatic nature of this gender-specific persecution, causes women to be unable to
confront their memories in a timely fashion in order to meet the one-year filing
requirement. Failure to recognize that a disproportionate number of women require
additional time to adequately deal with their memories and narrate their case, denies the
reality of their unique situation and constitutes de facto discrimination. This contravenes
ICCPR Articles 7, 13 and 26 and strips women of the nonrefoulement protections
provided for in the ICCPR.
We request the Committee to recommend the following to the U.S. Government:
(1) The Government must educate and sensitize immigration judges and asylum
adjudicators on issues relating to women asylum seekers. U.S. adjudicators must
continue to be educated about domestic violence as a threat to the life and safety of
women just like other forms of violence that are recognized as persecution.
Specifically:

•

The government must provide a program of mandatory, training on the
practices that give rise to gender-specific asylum claims (e.g., honor
killings, rape and marital rape, forced marriage, etc.), and the effects
post-traumatic stress disorder can play during the asylum interview or
immigration court hearing.

•

Particular attention must also be paid to the special role of women in
their societies and the life-threatening consequences of social
oppobration and exclusion for women who transgress their society’s
practices.

•

They must also be educated to understand that domestic violence
occurring in a marital situation is not a private matter to be
marginalized or dismissed as unworthy of international protection. A
marital home need not be sanctioned as a torture chamber.

(2) The United States must provide for a duress and de minimus defense or
exception to the “material support” bar for refugees and asylum applicants who
involuntarily provide “material support” to alleged terrorist groups, especially as many
being excluded or deemed ineligible for protection are women compelled by, inter-alia,
violent and repeated sexual assaults to render simple aid to their captors.
(3) The US Government must take immediate steps to remove restrictions and
impediments to asylum claims based on the arbitrary one-year filing deadline,
including providing gender-sensitive guidelines that recognize the impact and aftereffects of gender-specific trauma that many female asylum applicants have
suffered.
(4) The United States must more expansively and appropriately define and
recognize in practice what the meaning/s of persecution are likely to be within the
context of “social group,” chiefly in the area of domestic violence occurring to women
in what some consider personal conduct or action. In weighing the appropriateness of
a “social group” definition the United States must look to the culture and practice of
the society a woman is escaping from and consider that her actions may also constitute
“political opinion.”
ARTICLE 26 (with reference to ARTICLES 2.1 and 3) Equal Protection of the Law
The United States has maintained for many decades one of the strongest and most
stable economies in the world, generating significant employment and income growth for
much of the population. But despite the country’s economic might and unparalleled
wealth, gains have not been equitably shared. The confluence of embedded patterns of
sex and race discrimination, together with a shift in income distribution, has meant that
millions of women and their families bear the brunt of policies producing deep inequality.
Since U.S. ratification of the International Covenant on Civil and Political Rights
(ICCPR) in 1992 when the U.S. became obligated to bring its laws and policies into
conformance with the Covenant's sex equality provisions, little has been accomplished
towards those ends. In fact, in recent years repeated efforts have been mounted by
conservative legislators and policy-makers to undermine and repeal laws and policies
intended to promote sex equality.
The U.S. government has failed to adopt effective laws to address the problem of
persistent and pervasive pay inequity. Both benign neglect and willful government
actions have prevented the adoption of legislative and administrative remedies that would

address broad-based wage and salary discrimination disproportionately harming women.
Laws against sexual harassment and sex discrimination in employment and education are
inadequate and poorly enforced, and there has been a steady stream of attacks on those
laws and policies which, if successful, would make conditions even more unequal.
Family support policies are seriously lacking in the U.S., and their absence makes
it nearly impossible for women to achieve equality in the workplace. Family and medical
leave provisions affecting women and their families are among the most unfriendly of all
developed nations, providing only unpaid leave and available to fewer than half of
working women.
Lesbians are not protected from sexual-orientation bias in the workplace and
suffer from a counter-productive policy of "Don't Ask; Don't Tell" in the military. Other
restrictions on women regarding combat and combat-support positions constrain their
military careers.
We request that the Committee recommend that the US Government:
•

Adopt legislation that would strengthen and expand laws against sex-based
employment discrimination, in particular addressing the problem of wage
discrimination in various occupational categories that exists merely because
they primarily employ women and people of color. Strengthen the Equal Pay
Act to address comparable work, improving remedies and enforcement
provisions.

•

Provide more effective enforcement of Title VII of the Civil Rights Act of 1964
and other laws prohibiting sex discrimination in the workplace, including
sexual harassment, discrimination in hiring and promotion, and pregnancy
discrimination.

•

Protect equal education goals of Title IX of the Education Amendments of 1972
from any regulations that would undermine its provisions; adopt an aggressive
compliance review schedule for all educational institutions; restore funding and
technical assistance to the Title IX coordinator network; restrict conditions
under which single sex classes and schools that receive federal aid may operate
to reflect the original intent of Title IX; and conduct vigorous enforcement
activities, including prompt and thorough investigations of systemic
discrimination, adopting sanctions against violators and assisting plaintiffs in
Title IX violations litigation – both in the academic and athletic fields.

Domestic Workers’ Rights in the United States:
A report prepared for the U.N. Human Rights Committee
In response to the Second and Third Periodic Report of the United States

EXECUTIVE SUMMARY
Employed in private homes to perform household tasks that historically have been
assigned a diminished value, domestic workers frequently face exploitation and abuse, a
problem further exacerbated by their association with particular groups (women,
minorities, and migrants) who suffer multiple forms of discrimination. Domestic workers
experience abuses ranging from verbal abuse and economic exploitation to physical and
sexual assault and forced servitude. Although U.S. laws should protect them, domestic
workers find that they are often excluded from legal protections or that the laws are not
enforced. This reprehensible abuse of domestic workers violates Articles 2, 3, 7, 8, 9, 12,
17, 19, 21, 22, and 26 of the International Covenant on Civil and Political Rights.
Violations of Workers’ Rights (Articles 2, 3 ,8, 21, 22, and 26)
Forced Servitude (Articles 8 and 2)
Article 8 prohibits slavery, servitude, or forced labor; yet, many domestic workers suffer
these conditions. Trapped in economically abusive employment, domestic workers may
receive little pay while working long hours in dangerous conditions. Some employers
forbid domestic workers from leaving the house, confiscate their passports, or threaten
deportation to keep them imprisoned and financially enslaved in their abusive positions.
Without English language skills, contacts in the community, or information about
resources, domestic workers are often left without recourse.
Substandard Working Conditions (Articles 8, 2, 3, and 26)
Domestic workers often endure various inhumane work conditions including lack of
food, medical care and sleep in violation of Article 8. They have been forced to sleep in
rooms without heat, on hard floors, or in moldy basements. At times they use hazardous
materials without any safety warnings. Domestic workers are often severely underpaid
and without overtime wages. Unfortunately, U.S. laws are inadequate and their
enforcement is insufficient, which violates Articles 2, 3, and 26 of the ICCPR.
Right to assembly and association (Articles 21, 22, and 2)
The right to assembly and association are protected under Articles 21 and 22, and are to
be read broadly. In contravention of those directives, the United States excludes
domestic workers from laws that would protect the right to assemble, associate, and form
a union. Domestic workers are excluded from the National Labor Relations Act (NLRA)
which is the primary guarantee of workers’ right to organize. Any possible contract
remedy available to workers has been recognized by the Committee as an insufficient
guarantee of these rights.

Violations of Personal Rights (Articles 2, 7, 9, 12, 17, 19)
Domestic Violence (Articles 7, 9, and 2)
Article 7 prohibits cruel, inhuman or degrading treatment while Article 9 guarantees “the
right to liberty and security of person.” Both Articles are violated when domestic
workers suffer psychological, verbal, physical, and sexual abuse. Employers may engage
in control tactics, such as regulating the workers’ food consumptions or confiscating their
passports. Others use verbal abuse, including insults and name-calling. Some domestic
workers experience physical and sexual assaults. These abuses are essentially unregulated
and often remain unreported.
Limitations on Freedom of Movement (Articles 12 and 7)
Article 12 protects domestic workers’ freedom of movement and is applicable to both
state and private actors. The State Department requires that employers who are foreign
diplomats or the staff of international organizations must sign employment contracts with
domestic workers that state that the employee cannot be required to stay on the premises
without additional compensation and that her passport cannot be confiscated. Such
regulations, however, fail to cover a substantial number of domestic workers, and
enforcement and monitoring of those regulations are almost non-existent. Private
employers use other means of restricting their workers’ freedom of movement including
requiring an escort when leaving the premises and misrepresenting U.S. laws, culture,
and the dangers of the streets.
Privacy Invasions (Article 17)
Article 17 protects the domestic worker from “arbitrary or unlawful interference with her
privacy, family, home or correspondence.” Due to the nature of her work, the domestic
worker is particularly vulnerable to privacy invasions. Employers have been documented
to interfere with workers’ rights in a number of different ways, including monitoring
phone conversations, restricting access to others, opening mail, and searching the
workers’ private effects and rooms. Some employers have interfered with domestic
workers’ families by threatening or harassing the workers’ families, often in an attempt to
get them to persuade the worker to drop a complaint.
Limitations on Freedom of Expression (Article 19)
Freedom of expression is protected by Article 19. Employers limit a domestic worker’s
freedom of expression by restricting her communication, limiting her freedom of
movement, and threatening deportation or retaliation against her family if she reports
abuses. Article 19 also includes the freedom to seek, receive, and impart information and
ideas. These rights are denied because the United States has failed to provide adequate
access to legal and social services and to create a safe and effective reporting model by
which workers can complain of abuses. Without these resources, workers cannot fully
realize their rights under Article 19.
Denial of Effective Remedies (Article 2)

Barrier to Effective Remedies: Scope of Protection Under the ICCPR as adopted by
the United States
U.S. declarations, reservations and understandings have lessened the protection of
domestic workers under the ICCPR. In addition, the United States has failed to ratify the
ICCPR’s first Optional Protocol. By narrowing of the scope of ICCPR protection and by
denying recourse for the individual, the United States has violated the spirit of Article 2
and has hindered individuals, including domestic workers, in their quest to attain justice.
Barrier to Effective Remedies: Diplomatic Immunity (Article 2)
Employers of domestic workers who are protected by diplomatic immunity are not
subject to the civil, criminal or administrative jurisdiction of the United States, a
protection that denies domestic workers the ability to obtain a remedy against them. U.S.
courts have aggravated this problem by interpreting the commercial activity exception
contained in Article 31(c) of the Vienna Convention on Diplomatic Relations to exclude
domestic workers.
Barrier to Effective Remedies: Immigration Status
The connection between domestic workers’ immigration status and her employment is
exploited by employers to discourage the reporting of violations. The United States
exacerbates this vulnerability by: (1) allowing inquiry into the domestic workers
immigration status should she report a violation and (2) failing to provide a vehicle
through which domestic workers fired after reporting abuses can obtain another visa and
stay in the United States to pursue a remedy.
Barrier to Effective Remedies: Practical Obstacles
The private nature of domestic work means that there is a greater need for an effective
monitoring system and for greater access to information. The United States has failed to
recognize these unique needs and thus far has not provided either an adequate means of
monitoring domestic work nor sufficient access to social or informational services. Thus,
domestic workers lack the means to report violations or obtain remedies.

Executive Summary LGBTI Report
Discriminatory animus permeates nearly all categories of human rights violations
directed at lesbian, gay, bisexual, transgender and intersex (LGBTI) Americans, whether
committed by state or non-state actors. In many cases the discriminatory intent behind
other seemingly distinct categories of human rights violation – including deprivations of
life, liberty, health and opportunity – may not be easily or even logically separated from
the animus that encourages the violation.
In considering the first periodic report of the United States in 1995, the Human Rights
Committee noted “the serious infringement of private life in some states which classify as
a criminal offence sexual relations between adult consenting partners of the same sex
carried out in private, and the consequences thereof for their enjoyment of other human
rights without discrimination.” Since that last periodic examination, the U.S. Supreme
Court has significantly altered the legal framework in the United States through its
decisions in the 1996 case of Romer v. Evans16 and the 2003 case of Lawrence v. Texas.17
The failure of the United States to explain such major legal advances in its most recent
periodic report is highly unusual and raises some concern over U.S. Government
commitments to enforcing the rights protected in those cases and echoed in the ICCPR.
In Romer v. Evans, the U.S. Supreme Court struck down a voter-enacted provision that
would have permanently prevented lesbian, gay and bisexual residents of the state of
Colorado from claiming anti-discrimination protections under state laws. In the more
recent decision of Lawrence v. Texas, the U.S. Supreme Court overturned one of its
earlier decisions by striking down homosexual sodomy statutes in the United States. As
in the Toonen case before the Human Rights Committee, the U.S. Supreme Court also
found a link between privacy rights and equality, noting that “[e]quality of treatment and
. . . respect for conduct protected by the substantive guarantee of liberty are linked in
important respects, and a decision on the latter point advances both interests.”
While the U.S. Supreme Court has now invalidated the country’s sodomy statutes, police
authorities and prosecutors have in many circumstances selectively made use of other
criminal provisions involving morals offenses to target LGBTI individuals. Other
discriminatory criminal provisions also seem to have survived after the Lawrence
decision, raising serious ongoing concerns over the protection afforded to consensual
adult sexual activity in the United States.
In addition, the legislative framework for protecting equality in the United States still
contains significant gaps that fail to protect non-discrimination rights found in articles 2
and 26 of the ICCPR. At the national level, the United States Congress has yet to pass
the Employment Nondiscrimination Act (ENDA), which would make it illegal for private
employers to discriminate against employees on the basis of their sexual orientation.
This leaves employment non-discrimination provisions to the states, but a study by the
16
17

517 U.S. 620 (1996).
539 U.S. 558 (2003).

Policy Institute of the National Gay and Lesbian Task Force (NGLTF) estimates that as
many as 170 million Americans (62% of the population) have no legislative protection
against sexual orientation discrimination when seeking private employment
opportunities.18 And many of the existing state-level employment non-discrimination
initiatives are also subject to regular challenge and occasional setback. Until
standardized non-discrimination protections based on sexual orientation, gender identity
and gender expression are passed into law at the federal level, human rights enforcement
in this area will remain highly uneven and arbitrarily subject both to geography and to
qualifying employer requirements that differ from state to state if they exist at all.
The U.S. report also failed to reference limited non-discrimination protections that exist
for federal employees and federal job applicants. Unfortunately the Bush Administration
has created roadblocks to these protections and introduced other limitations affecting
LGBTI employees within the federal workforce. At least one influential member of the
U.S. Congress has accused the Bush Administration of waging a “covert war” on
homosexuals in federal employment.
Violence, torture and extrajudicial killings of persons because of their sexual orientation,
whether committed by state authorities or non-state actors, including deaths in prison that
may be attributed to the failure of prison officials to adequately protect LGBTI inmates,
all raise serious concerns under Articles 6, 7 and 10 of the ICCPR. State acquiescence to
private misconduct that results in such severe abuse is described extensively in an
Amnesty International report, entitled Stonewalled, Police Abuses and Misconduct
Against Lesbian, Gay, Bisexual and Transgender People in the U.S.
According to the federal Hate Crimes Statistics Act of 1990, during 2003, the most recent
date for which complete data is available, 7,489 hate crime incidents were reported to the
FBI by law enforcement agencies. Of those, 1,239 were reportedly motivated by sexual
orientation bias, representing approximately 16.5% of all reported hate crimes that year.
While the statistics are almost certainly underestimating the total number of sexual
orientation motivated hate crimes committed in the country, the proportion of sexual
orientation hate crimes to the total number of all bias motivated crimes is substantial.
Unfortunately a bill that would have empowered the federal government to investigate
and prosecute hate crimes motivated by sexual orientation bias, as it does with hate
crimes motivated by other forms of discrimination, was defeated in a contentious session
of the U.S. Senate in May 2006. That leaves protection to state officials, but the National
Gay and Lesbian Task Force reports that only twenty-nine states and the District of
Columbia have hate crimes statutes that cover real or perceived sexual orientation, and
only seven of those states and the District of Columbia cover gender identity. This leaves
a significant gap in the protections afforded to LGBTI Americans under articles 6 and 7
of the ICCPR.
Amnesty International’s Stonewalled report also investigates sexual, physical and verbal
abuses committed against LGBTI persons in detention. Abuses carried out under these
18

Legislating Equality,” by Wayne van der Meide for the Policy Institute of the National Gay and Lesbian
Task Force.

circumstances constitute intersecting violations of ICCPR provisions. In particular,
violations of article 9 are most common when police or custodial officers fail to protect
LGBTI persons or deliberately place them in harm’s way. Amnesty International has
also denounced common police reliance on an individual’s “deviance” from stereotypical
gender norms as a ground for suspicion or police targeting in a variety of cases.
The compounded impact of discrimination against women because of their sexual
orientation requires unique attention, as do the various other intersecting forms of
discrimination based on race, disability, health status, gender identity, gender expression
and sexual orientation. Within the criminal justice system, for example, lesbian and
transgender women face significantly heightened risks of sexual violence from male
officers immediately upon arrest and in custodial detention.
The United States generally recognizes asylum claims based on past persecution or likely
future persecution as a result of an individual’s sexual orientation or gender identity.
Nonetheless, U.S. immigration advocates note the difficulty of proving such claims, and
the insensitivity of some immigration officials to sexuality-based cases. Asylum
applicants must also generally seek protection within one year of arriving in the United
States. This short timeline for filing asylum claims can be particularly difficult for
LGBTI asylum applicants who may find it difficult to reconcile the extreme persecution
they faced in their home communities with the possibility of a more “open” sexual
orientation or identity in the United States.
With only a few exceptions, state legislation generally prevents transgender individuals
from changing their sex unless they have undergone surgery for genital reattribution. In
some cases, pre-operative transgender individuals are also prevented from legally
changing their names. As reported by Amnesty International, this difference between
personal appearance and the legal name or identified sex of many transgender persons
often leads to police abuse during identification procedures.
The “Don’t Ask, Don’t Tell, Don’t Pursue, Don’t Harass” policy in the United States is
part of a 1993 law banning LGBTI Americans from serving openly in the U.S. military.
This constitutes a discriminatory limitation on freedom of expression that was originally
intended to loosen federal restrictions by allowing lesbians, gays and bisexuals to serve in
the military so long as they did not publicly disclose their sexual orientation. Hundreds
of Americans are still discharged every year under this policy.
Surprisingly, in its periodic report the U.S. Government offers as examples of its
protection of the right to “expressive association” two highly controversial decisions of
the U.S. Supreme Court in Boy Scouts of America v. Dale, and Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston. In both cases the Supreme Court was
required to balance freedom of expressive association, which protects the right of
individuals to associate freely with those expressing similar political, social or cultural
views, with state prohibitions on discrimination based on sexual orientation. The
outcome in each of those decisions raises serious non-discrimination concerns, and it is
particularly offensive that the U.S. Government’s periodic report raises the decisions

within such a positive context and without a more complete discussion of their impact on
LGBTI Americans.
The recently re-introduced amendment to the Constitution of the United States to ban
same-sex marriage, along with similar initiatives that have been proposed and passed in a
variety of states, are having a significantly detrimental impact on a broad range of human
rights protections. The periodic report mentions the complexities of the marriage debate,
but it fails to consider the debate’s acrimonious tone, its discriminatory underpinnings or
the potential consequences on the lives of ordinary LGBTI Americans following such a
politicized national dialogue. The federal debate also appears to be driving another round
of state-level initiatives that seek to ban a variety of legal protections for LGBTI
Americans and their families.
The uncertainty of the legal status of transgender people under state law also has a
significant impact on family life. As an example, the National Center for Lesbian Rights
highlights a 1999 case in which a Texas court invalidated a seven-year marriage between
a transgender woman and her deceased husband and refused to recognize damage
compensation that was awarded to her for her husband’s death in a medical malpractice
case.
Discrimination, abuse and misconduct against LGBTI youth remains particularly sever.
Several recent human rights reports have documented the prevalence of verbal, physical
and sexual violence directed at LGBTI youth in schools, in juvenile detention facilities
and in foster care. The government’s failure in this context to guarantee adequate
protection to LGBTI youth raises serious concerns under article 24 of the ICCPR.
LGBTI associations in schools have also come under attack. And an increasing number
of children face economic challenges due to the government’s failure to recognize samesex relationships involving their parents, or their same-sex de facto step-parents. If a
parental figure is unable to establish a legal relationship, a child is often unable to claim
health insurance or social security survivor benefits.
As extensively described by Human Rights Watch and Immigration Equality in a recent
report, the refusal of the federal government of legally recognize same-sex couples for
U.S. immigration purposes also strains the enjoyment of family life, specially with
reference to binational couples.

Executive Summary
“Conditions and Conduct in the California Criminal Justice System: A Report on
U.S. Government Compliance with the United Nations International Covenant on
Civil and Political Rights (ICCPR)”

California-based WILD for Human Rights, Justice Now, Legal Services for
Prisoners With Children, and the Transgender Gender Variant and Intersex Justice
Project welcome the opportunity to comment on the 2nd and 3rd Periodic Report of the
United States of America to the United Nations Committee on Human Rights concerning
its compliance with the International Covenant on Civil and Political Rights (ICCPR),
submitted in October 2005. This report will examine identity-based discrimination in the
California prison system, the failures of medical care, sexual violence and misconduct,
and egregious conditions of confinement facing youth. It will highlight the gravity of
human rights concerns facing California’s imprisoned populations, as the mistreatment of
inmates has resulted in a spectrum of abuses that particularly impact marginalized
populations including transgender persons, women19, the elderly, youth, the disabled, and
the mentally ill. This report also demonstrates that prisoners face multiple forms of
discrimination and subjection to violence based on their gender and racial identities,
economic status, age and sexual orientation. California not only houses a prison
population that is 1/10th that of the nation’s incarcerated, but historically the state also has
influenced the political landscape and social policies of the rest of the country.
Context
Due to the increased imprisonment of drug offenders and other low-level
offenders, the dismantling of California’s mental health system as well as a trend toward
imposing long prison sentences, California’s inmate population has swelled to over 500
percent since 1980. The number of institutions has nearly tripled from 12 to 33, currently
holding 164,000 inmates. In addition, there are marked racial disparities in sentencing
and incarceration in California. The 2000 national census reported that only 6.7% of
California’s population was African American20, but African Americans account for
more than 29% of California’s prison population.21 In contrast, white persons make up
59.5% of the population, but make up 28.4% of the state’s incarcerated22. California has
also implemented the Three Strikes Law, which incarcerates repeat offenders for a term
of 25 years to life for any third felony. Under Three Strikes, where sentencing is solely
under the discretion of the prosecutors, this has resulted in a disproportionate number of
African Americans sentenced under the law. Of the 7,736 men serving Three Strike 25
years to life sentences, 44% are African American, while only 25% are white.23
19

For the purposes of this report, "women" also includes transgender women, and all those persons who identify as women whether or
not they are biologically female while incarcerated.
20
See 2000, US Census.
21
See, Summary Statistics On Adult Felon Prisoners and Parolees, Civil Narcotic Addicts and Outpatients and Other Populations,
2004, supra.
22
Ibid.
23
Second and Third Strikers in the Adult Institution Population. December 31, 2005. Department of Corrections and Rehabilitation
Offender Information Services Branch Estimates and Statistical Analysis Section Data Analysis Unit.

California prisons are approximately 195% over capacity.24 Between 15 and 30% of the
inmates in the system suffer from mental illness. Another 15 to 30% suffer from
substance addiction. And at least another 2/3 are in custody for non-violent offenses. The
numbers for women are even more stark; more than 2/3 of women are imprisoned for
nonviolent offenses and the majority are the primary caretakers for children under 18.
The system operates without the necessary management structure, policy standardization,
training and capacity of staff, information technology, health care services and
rehabilitative programming to comply with its obligations under the International
Covenant on Civil and Political Rights (ICCPR). In addition, individual wardens wield
extensive independent authority to determine standards and operating procedures and
often act without impunity. This lack of accountability has created a health care system
with a more than US$1 billion annual budget with widespread medical malpractice and
neglect that results in, on average, at least one needless inmate death every 6 to 7 days.
Consequently, the medical system was taken from state control by a federal court as of
June 2005. Moreover, Federal courts, state legislators, the Governor of California,
auditors, and California Department of Corrections and Rehabilitation (CDCR) officials
all concur that the Juvenile Justice system is also broken beyond repair. The system is
plagued by excessive violence, overcrowding, and fails to provide imprisoned youth
adequate medical and mental health care, safety, or educational and rehabilitative
programming.
Systemic Failures to Uphold Human Rights: Priority Concerns Under the ICCPR
The California Department of Corrections is unable to provide a minimum
standard for the humane and safe treatment of incarcerated persons. In California prisons,
women, including transgender women in men’s prisons, experience rape, sexual assault
and abuse by both correctional officers and other inmates, and often receive punitive
treatment or administrative segregation for filing a complaint. Staff fails to inform
women prisoners of correctional policies on sexual misconduct and the processes
available to report abuse. In the provision of medical care, women experience sexually
inappropriate pat and strip searches, sexualized treatment and assault by medical
personnel, and unwarranted invasions of their privacy. Medical personnel delay treatment
and medication to elder women and transgender prisoners, thereby obstructing access to
adequate care. Incarcerated mothers experience substandard pre and post-natal care,
including physically violent treatment such as shackling during labor. Hepatitis C
infected prisoners experience negligence and inadequate medical treatment, which too
often results in premature deaths. California correctional facilities for youth are
overcrowded and marked by excessive violence. Safety concerns have contributed to
increasing rates of teen suicides. Youth also lack access to school programs and sufficient
mental health treatment and rehabilitative programming, particularly gender-specific
programming for young women offenders.

24

Summary Statistics On Adult Felon Prisoners and Parolees, Civil Narcotic Addicts and Outpatients and Other Populations, 2004
Department of Corrections and Rehabilitation, Offender Information Services Estimates and Statistical Analysis Section.

We urge the Human Rights Committee to critically analyze the United States’
Periodic Report concerning its compliance to the following articles under the ICCPR, as
it pertains to areas of concern in the California criminal justice system:
Article 6—the right to life—is implicated by the high rate of premature deaths of
prisoners due to medical neglect and malpractice, and overcrowding;
Article 7—the obligation to protect against torture or cruel, inhuman or degrading
treatment or punishment—is implicated by the failure to provide adequate medical
care, or a safe environment free of gang violence; the use of excessive force; sexual
harassment and violence; verbal degradation and abuse; and the excessive use of
administrative segregation (isolation), particularly as punishment for reporting cases of
assault or abuse by correctional staff.
Article 9—the right to liberty and security of person—is implicated by the failure to
provide due process protections to offenders who are facing parole violations, arbitrary
arrests and detentions, and prolonged segregation and isolation.
Article 10—the requirement to treat persons deprived of their liberty with
humanity and with respect for their inherent dignity, including the aim to socially
rehabilitate and reform incarcerated youth—is implicated by negligence and
insensitivity in medical care; sexualized and/or degrading verbal humiliation of
transgender people, women, and elder women prisoners; and the failure to ensure
incarcerated youth are in a safe and nonviolent environment.
Article 17—the right to privacy—is implicated when women are subjected to
inappropriate pat and strip searches, and sexualized treatment and assault by medical
personnel, and unwarranted invasions of privacy; and
Article 19—the right to information—is implicated when prisoners are not informed of
the available remedies and/or processes to report abuse; the deprivation of medical
information; and the failure to train staff in the special needs of prisoners, particularly
youth, the elderly, and transgender persons.
Limitations of Domestic Remedies to Address ICCPR Obligations
The United States has ratified the ICCPR in a way that precludes the treaty from having
any real effect domestically. Under the “federalism understanding,” the U.S. government
pledges that it will implement the ICCPR to the extent that it has legislative and judicial
jurisdiction, and allow state and local governments to implement the treaty where they
have respective jurisdiction. However, the federal government has yet to name the types
of matters where state and local governments have unique jurisdiction and therefore
specific obligations under the ICCPR treaty. Nor has the federal government taken steps
to pass implementing legislation to ensure that all branches of government understand
their human rights obligations. Finally, should states and local governments fail to uphold

their obligations under the ICCPR, the federal government has not clarified its authority
to ensure the treaty is upheld and enforced.
In direct opposition to its obligations under the ICCPR, U.S. legislation such as
the Prison Litigation Reform Act (“PLRA”) effectively prevents many prisoners from
seeking redress in federal court. Under the PLRA, federal court supervision over prison
systems failing to maintain humane conditions in their facilities automatically terminates
unless the court can make detailed factual findings of a current and on-going
constitutional violation. This drastically reduces the ability of the courts to remedy
human rights violations in prisons. In addition, the PLRA caps the attorney fees that can
be recovered in cases filed by prisoners and limits the tasks for which fees can be
awarded. In effect, this discourages attorneys from representing even prisoners with
strong cases. Congressional legislation like the Prison Rape Elimination Act (PREA) of
2003 exists to address sexual violence, however the State of California has not taken
action to implement PREA-based recommendations to provide safety in its correctional
complex or to hold perpetrators accountable for custodial sexual misconduct.

General Recommendations
This report seeks to support the State of California to take affirmative steps to fulfill
its obligations under the ICCPR. Towards that end, this report sets forth the following
opportunities for impact:
Implement decarceration strategies to address excessive burdening of the
correctional system, including but not limited to, the creation of local
treatment alternatives and early release for all low risk, disabled and
nonviolent prisoners.
Take steps to effectively improve the correctional medical care system, with
specific attention to providing appropriate and non-discriminatory care for
HCV-positive, transgender, elder and pregnant women prisoners, and
rehabilitative treatment for youth.
Improve administrative oversight, employee training and response
procedures to effectively address sexual misconduct, violence and abuse in
the correctional system.
Establish minimum standards for correctional operations compliant with
international obligations by which all prison officials must abide.
Create effective oversight mechanisms to ensure compliance with
international obligations.

Criminalization of Dissent in the United States: A Shadow Report on the United
States’ Obligations under Articles 19 and 21 of the ICCPR25
The right to assembly and expression are protected under Articles19, 21, and are to be
read broadly. In contravention of those directives, the United States and other local "law
enforcement" agencies which, acting jointly, have participated in illegal tactics to disrupt
lawful protest and assembly and unlawfully use mass arrests as a means to sweep
political activists off the street and as a tool for mass intelligence gathering operations.
Tactics used in these sweeps include collecting fingerprints, identity information,
photographs, and information on political associations for all those who are rounded up,
which is then placed in the F.B.I.'s files. Such methods employed by the United States on
those who lawfully assemble to express their political opinion clearly violate the
Covenant’s protections of freedom of speech and assembly.
According to a Nov. 23, 2003, New York Times report citing a confidential bureau
memorandum and several interviews, the FBI has been collecting information on the
tactics, training and organization of anti-war demonstrators who have done nothing
illegal.26 Faced with growing opposition to the war and occupation of Iraq, the Bush
administration has apparently targeted its political enemies by unleashing the FBI. The
memo was circulated to law enforcement agencies on Oct. 15, 2003 ahead of antiwar
demonstrations in Washington and San Francisco. It reportedly detailed how protestors
have sometimes used "training camps" to rehearse, used the Internet to raise funds, and
employed gas masks to defend against police tear gas, according to the report. Peaceful
political demonstrators in the United States have been profiled by government agencies
based on their political or ideological viewpoints; organizations to which they belong are
being infiltrated by local and federal law enforcement; and they are being illegally
detained, arrested and sometimes beaten based on their participating in politically
expressive activity and/or peaceable assembly.
This chilling criminalization of the right to assembly by the United States, and its lack
of adherence to its obligations under Article 19, and 21 ICCPR can be seen in three
instances in the past five years at which peaceful protesters have been illegally arrested
and interrogated by local and federal agents based on their political opinions: the January
2001 Inaugural protests in Washington D.C., the April 2002 anti-war protests also in
Washington, D.C. and the anti-Free Trade Association of the Americas (FTAA) protests
held in Miami, Florida in November 2003.
In these three cases, all currently being litigated by the Partnership for Civil Justice
and the National Lawyers Guild, local law enforcement has acted in conjunction with the
25

Criminalization of Dissent in the United States: A Shadow Report on the United States’ Obligations
under Articles 19 and 21 of the ICCPR, National Lawyers Guild and International Association of
Democratic Lawyers prepared by Merrilyn Onisko with pleadings from NLG Mass Defense Committee and
Partnership for Civil Justice.
26
See Eric Lichtblau, “FBI Scrutinizes Anti-War Rallies,” New York Times, November 23, 2003.

federal government to stifle the right of people to assemble to convey their political
opinions and rights of expression under the ICCPR.
This criminalization and stifling of political expression violates Articles 19 and 21
of the International Covenant on Civil and Political Rights. Because of repeated incidents
of such violations by the United States, the Human Rights Committee must hold the US
accountable and require it to adhere to its obligations under international law, specifically
Articles 19 and 21 of the ICCPR.

GRASSROOTS MOVEMENT

Submission to the United Nations Human Rights Committee
on the occasion of its review of the
U.S. Government’s Second & Third Periodic Report
concerning its compliance with the ICCPR
Political Prisoners in the United States

Introduction
Political prisoners in the United States (U.S.) have been incarcerated for having
dissenting political views and being advocates for change on behalf of various oppressed
communities. Based on their organizational affiliations, these women and men were
targeted in the 1950s to the 1980s by a U.S. government program run by the Federal
Bureau of Investigation (F.B.I.) known as the Counter Intelligence Program
(COINTELPRO). Many political activists of the time were arrested and tried on
fabricated charges and received disproportionately long sentences for crimes they did not
commit. Detailed government files were kept on their private and public lives, and their
political beliefs and activities were central themes at their criminal trials.
In 1978, a petition to the United Nations filed by the National Conference of Black
Lawyers, the National Alliance Against Racist and Political Repression, and the United
Church of Christ Commission for Racial Justice exposed the existence of political
prisoners in the United States, their political persecution, and the cruel, inhuman and
degrading treatment and punishment they suffer in U.S. prisons. Today, there are more
than 100 political prisoners in the U.S. Some of these prisoners have been held for over
three, and sometimes as long as four decades (Ruchell Cinque Magee, who has served 46
years, is the longest serving political prisoner in the world). Six political prisoners:
Richard Williams, Warren Wells, Teddy Jah Heath, Albert Nuh Washington, Merle
Austin Africa and Kuwasi Balagoon have died in prison over the last ten years. Eight
women continue to be held on politically motivated charges.
This report highlights violations of the U.S. government’s obligations under international
customary law, the Universal Declaration on Human Rights (UDHR), and the
International Covenant on Civil and Political Rights (ICCPR). We call on the Human
Rights Committee to find that the U.S. government has failed to comply with its
obligations to not target citizens for arbitrary arrest, trial, and incarceration for their
political views and to not subject any person to torture or to cruel, inhuman or degrading
treatment or punishment.

Political Prisoners
Of the 100 political prisoners still languishing in prisons across the United States of
America, nearly half were members of Black civil and human rights movements of the
1960s and 1970s. Many had political affiliations with the Black Panther Party and similar
groups working towards the right to self determination27 (article 1, ICCPR) of persons of
African descent in the United States, and toward full realization of the rights enshrined in
the UDHR including the “right to a standard of living adequate for the health and wellbeing of [one]self and of one’s family,”28 and the “right to education.” In addition to
political prisoners of African descent, political activists in the American Indian
Movement, a social justice movement established to bring about the full realization of the
American Indian peoples’ right to self-determination,29 including the right to practice
their religion, use their language, and enjoy their culture as guaranteed by article 2730 of
the ICCPR were targeted for politically-based criminal prosecutions. White antiimperialists, some of whom were members of Students for a Democratic Society (SDS)
and others supporters of the Black Panthers party were also targeted, and many remain in
prison today for their political views. Further, three political prisoners who were involved
in the Puerto Rican independence movement, Oscar Lopez Rivera, Carlos Alberto Torres,
Haydee Beltran Torres, remain incarcerated, despite President Clinton’s grant of
clemency and conditional release to eleven of fifteen Puerto Rican political prisoners in
2000.
The United States government, in an attempt to silence opposition voices, infringed on
the right of these individuals to express their opinions31 through a systematic, widespread

27
International Covenant on Civil and Political Rights: Article 1 provides, in relevant part, that:
1. All peoples have the right of self-determination, and by virtue of that right, the right to freely determine their political status and
freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations
28
Universal Declaration for Human Rights: Article 25 provides that:
1. Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food,
clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness,
disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
29
International Covenant on Civil and Political Rights: Article 1 provides that:
1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising
out of international economic co-operation, based upon the principle of mutual benefit, and international law. In no case may a people
be deprived of its own means of subsistence.
3. The States Parties to the present Covenant, including those having responsibility for the administration of Non-Self-Governing and
Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the
provisions of the Charter of the United Nations
30
International Covenant on Civil and Political Rights: Article 27 provides that:
In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the
right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to
use their own language.
31
International Covenant on Civil and Political Rights: Article 19 provides that:
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and
ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his
choice.

policy and practice of “neutralization” of ‘dissident’ groups through COINTELPRO, the
illegal precursor to the current Patriot Act I and II.
As a testament to the political nature of their incarceration, several incarcerated political
prisoners were rounded up, put in administrative detention - solitary confinement,
restricted to their cells for between twenty three to twenty four hours a day - and held
incommunicado within hours of the September 11, 2001 attacks on the World Trade
Center and Pentagon notwithstanding the fact that no charges or allegations made against
them.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may
therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or morals.
And, the Universal Declaration for Human rights: Article 19 provides that
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to
seek, receive and impart information and ideas through any media and regardless of frontiers.

REPORT ON FAILURE OF COMPLIANCE WITH ARTICLE 20 PROHIBITING
PROPAGANDA FOR WAR32
prepared for the
UNITED NATIONS HUMAN RIGHT COMMITTEE
Eighty-seventh session
for its review of the
Second and Third Periodic Report of the United States of America under the
International Covenant of Civil and Political Rights
June 2006

INTRODUCTION
This report regarding United States violations of Article 20, paragraph one, is
submitted to the Committee to inform and support its consideration of the
paramount issues the Committee requested the United States to address in its
written and oral presentation to the Committee in July, 2006. Article 20 of the
Covenant on Civil and Political Rights implicitly recognizes that the condition of
war jeopardizes the integrity and exercise of all of the political and civil rights
elsewhere declared in the Covenant.
The Committee has expressed concern and requested clarification of actions and
policies of the United States which are in apparent violation of even the core,
non-derogable protections States Parties undertake to assure under the treaty.
The US government has sought to justify its actions and policies on the basis of
the “war on terror” and the exigencies of its illegal war in Iraq. Because of the
pervasive impact of war the propaganda campaign prohibited by Article 20, the
fear and xenophobia it stoked, and the resulting illegal war have all contributed to
violations, both here and abroad, of many other rights protected by this Covenant
including articles 1, 2, 6, 7, 9, 10, 13, 14, 17, 19, 21, 24, 26 and 27.
The non-governmental organizations which have prepared this report regarding
US violation of Article 20 are filing it with the Committee in order to bring greater
visibility and attention to the full significance and implications of the Covenant’s
prohibition of propaganda for war. We are women’s human rights groups, [peace
and justice coalitions, and civil liberties and media advocacy organizations]
concerned to insure the democratic imperative: that public discourse relating to
32

The International Women’s Human Rights Law Clinic of the City University of New York School
of Law, Women’s International League for Peace and Freedom – United States Section, The
Center for Constitutional Rights, Madre, International Federation for Human Rights, Women’s
Environment and Development Organization, National Lawyers Guild and American Humanist
Association.

international conflicts be based on information and knowledge free from distortion
by governmental propaganda for war.
SUMMARY
This report discusses the centrality of Article 20, the civil and political rights
consequences of the United States violation, the illegality of the war in Iraq, the
inapplicability of the United States reservation to Article 20, and the propaganda
campaign waged by the United States government that produced the Iraq War. It
concludes with recommendations to the Committee suggesting actions the
United States government should take to prevent such violations in the future.

To: Members of the U.N. Human Rights Committee
From: Judge Claudia Morcom for the Meiklejohn Civil Liberties Institute and the
International Association of Democratic Lawyers.
Date: May 31, 2006
SUMMARY (with citations to paragraphs ¶¶ in attached Report)
Right to self-determination and rights of persons belonging to minorities (Art. 1 and
27); Non discrimination and right of equality before the law and to the equal protection
of the law (Art 2 and 26).
1. In 1995 the Committee was interested in determining how the right to selfdetermination and the rights of persons belonging to minorities could be implemented under
U.S. law. (¶ 1). Specifically the Committee was concerned about the blockade against Cuba.
Since 1995 this issue has come into clearer focus with the arrest and conviction of five Cuban
men (the “Cuban Five”). The “Cuban Five” were charged with conspiracy to commit murder
and espionage, using false identity and documents, and being unregistered agents of Cuba.
Their trial was held in Miami, Florida, a city where the dominant ideology is anti-Castro. On
appeal the question is whether these men were convicted for the crimes with which they were
charged or whether the political ideologies of the jurors, the media, and the district attorney
led to the jury verdict against them. (¶¶ 2-5). The three judge panel of the U.S. 11th Circuit
Court of Appeals reversed their conviction on appeal and ordered a retrial in a venue
removed from Miami. The U.S. Government appealed this decision and on February 13th,
2006, the 11th Circuit reheard the argument en banc. In March 2006, the City Council of
Detroit, Michigan, unanimously adopted a resolution urging the 11th Circuit to retry the
“Cuban Five” in a different venue. The opinion of the 11th Circuit is pending at this time.
(¶¶ 6-8)
2. There is another issue of self-determination exemplified in the case of Leonard
Peltier, who was convicted in 1977 for killing two FBI agents (which Peltier consistently
denies). Numerous NGOs and the American Indian Movement who support the release of
Peltier note that even though two FBI officers were killed, the killings occurred in a “war-like
atmosphere” in which FBI agents had been terrorizing residents of the Pine Ridge Indian
reservation in the wake of the Pine Ridge protest in the early 1970s. In April 2006, the U.S.
8th Circuit Court of Appeals determined that the U.S. District Court where Leonard Peltier
was tried had subject matter jurisdiction even though the killings occurred on Native
American land and even though Peltier was convicted under statutes that required the crime
to take place in special maritime and territorial jurisdiction of the United States, jurisdictions
that do not include Native American land. (¶¶ 11-12).
Recommendations: ¶¶ 2, 3, 4, 9, 10, 13, 14, 15
Treatment of persons deprived of liberty (Art. 10); Prohibition of torture and cruel,
inhuman or degrading treatment or punishment (Art. 7).
3. Abuse of prisoners in detention is an issue of supreme importance. In its 2d/3d
Report the U.S. noted that the government prohibits overcrowding and cruel and unusual
punishment. However, disturbing new statistics from the Department of Justice and
disturbing new situations indicate that overcrowding in prisons and other acts of abuse are
occurring. (¶¶ 16-17). Regarding overcrowding, the U.S. has seen a steady increase in the
number of persons placed in prisons in the last 10 years with an increase of 2.6% from June
of 2004 to June of 2005. (¶ 18). Regarding cruel and unusual punishment two recent issues
have come into focus: (A) out of the five Cuban men arrested in 1998 (see ¶ 1 above) two
have wives in Cuba and one has a daughter who is a U.S. citizen. One of these men has not
been permitted to see his wife since his arrest in 1998, the other has not been permitted to see

his wife or daughter since 2000 because the U.S. Government refuses to grant visas to these
two women. Denying these men contact with their families is contrary to Articles 10, 23, and
24.1 and a long history of U.S. law. (¶¶ 17-19). (B) At the time of the Katrina flooding some
of the guards working in prisons threatened and attacked prisoners with police dogs and
tasers and forced prisoners to wade through and in some cases remain for days in toxic
sewage water without food or potable water. (¶¶ 20-21).
Recommendations: ¶¶ 22, 23, 24

Problems with United States Compliance with the International Covenant on
Civil and Political Rights – Violations of the Rights of Aliens: A report to the
United Nations Human Rights Committee on the Second and Third Report of
the United States of America

I.

EXECUTIVE SUMMARY

ICCPR General Comment 15 (Twenty-seventh session, 1986) sets forth the position
of aliens under the Covenant. The general rule is that each one of the rights of the
Covenant must be guaranteed without discrimination between citizens and aliens.
Further, Article 13 requires certain due process guarantees for lawfully present aliens
who are being removed from the country. ICCPR General Comment 15 also states
that States parties should give attention to the position of aliens, both under their law
and in actual practice. This report identifies and makes recommendations to address
the following violations in U.S. law and practice:
VIOLATIONS OF ARTICLE 13 RIGHT TO DUE PROCESS FOR ALIENS IN
REMOVAL PROCEEDINGS
•

•
•
•

•
•

•
•

•
•
•
•

The U.S. expedited removal procedure does not provide sufficient due process to
enable aliens with valid asylum claims to effectively pursue their right against
expulsion.
Immigration inspectors fail to consistently 1) refer asylum seekers for a credible
fear review; and 2) inform asylum seekers of their right to credible fear review.
Detained aliens in expedited removal are not always provided with interpreters.
Asylum seekers are detained under unsuitable conditions and personnel at the
institutions where they are detained are not given adequate training to understand
and work with asylum seekers.
Asylum seeker are denied the right to challenge parole decisions.
Procedural changes at the Board of Immigration Appeals (“BIA streamlining”)
has undermined asylum seekers’ due process rights and may be leading to denials
of meritorious asylum claims.
Limitations on judicial review deny many aliens the ability to challenge the
legality of detention and removal orders.
Whole categories of aliens (for example, asylum seekers who apply after one year
in the U.S.) are denied any access to federal court review based on an array of
procedural bars.
The application of the “Material Support of Terrorism” bar to admissibility
violates U.S. obligations to ensure access to refugee protection.
The closure of public immigration court hearings for “special interest removal
hearings” violates articles 14 of the ICCPR.
The U.S. imposes heightened standards that limit the ability of torture survivors to
access protection from refoulement under the Convention Against Torture (CAT).
Legislation such as the IIRARA and REAL ID Act have limited the ability of
individuals who may be eligible for CAT relief to avail themselves of protection.

•
•

As implemented in the U.S., CAT Article 3 provides an extremely limited form of
protection from refoulement.
Additionally, please note that gender based asylum issues are covered in the
"Report on Women's Human Rights in the United States under the International
Covenant on Civil and Political Rights."

VIOLATIONS OF ARTICLE 13 RIGHT TO EFFECTIVE REMEDY
(ACCESS TO COUNSEL) IN REMOVAL PROCEEDINGS
•
•
•

The U.S. denies access to counsel in expedited removal proceedings.
The U.S. provides no meaningful access to counsel for individuals in removal
proceedings.
Faced with prolonged confinement in poor conditions, individuals who have valid
asylum claims are effectively forced to stipulate to removal.

VIOLATIONS OF RIGHTS OF JUVENILE ALIENS IN REMOVAL
PROCEEDINGS (Articles 10, 13 and 24)
•
•
•

Children’s detention facilities fail to meet the requirements of the ICCPR.
The manner in which children are detained discourages them from pursuing their
right to seek asylum and other forms of relief.
Juvenile aliens’ access to counsel is insufficient.

VIOLATIONS OF THE RIGHTS OF LAWFUL PERMANENT
RESIDENTS IN REMOVAL PROCEEDINGS (Articles 13, 17, 23 and 24)
•
•
•

The expansion of deportable offenses and limitations on discretionary relief
violates lawful permanent residents’ right to family integrity.
Mandatory removal violates legal permanent residents’ right to individualized
review.
The U.S. failure to consider the interests of any minor children violates the right
of the child to special protection.

VIOLATIONS OF THE RIGHTS OF MIGRANT WORKERS (Articles 2, 14, 22
and 26)
The U.S. discriminates against migrant workers through its exclusion of
categories of workers from full protection under its labor laws.
• U.S. Supreme Court’s decision in Hoffman Plastic Compounds, Inc. v. NLRB,
has both directly and indirectly affected the rights to equal protection and
nondiscrimination for this vulnerable group of migrant workers in irregular status.
• Hoffman Plastics has limited judicial remedies for undocumented workers.
The U.S. has failed to protect the existing labor rights of migrant workers on the
Gulf Coast following Hurricane Katrina.
•

Report on Juvenile Criminal Sentences, the Right to Vote, the Right to
Life on the Border and Freedom of Association in the United States:
A Shadow Report

Executive Summary
Introduction
1. Human Rights Advocates (“HRA”), on its own behalf and on behalf of Minnesota
Advocates for Human Rights and the National Employment Law Project, urges the
Human Rights Committee to consider the United States’ policies regarding four areas of
grave concern when examining the periodic report of the U.S. and its compliance with the
ICCPR: juvenile sentencing, voting rights, freedom of association, and the right to life
along borders. HRA also recommends that the Human Rights Committee take into
account how racism permeates each of these areas of concern.
Violation of Juvenile Offenders Rights (Articles 10, 14, and 24)
2. Article 10 requires that juvenile offenders “be accorded treatment appropriate to their
age and legal status.” Article 14 (4) provides that in the case of juvenile persons, the
criminal “procedure shall be such as will take account of their age and the desirability of
promoting their rehabilitation.” Article 24 bestows children with “the right to such
measures of protection as are required by his status as a minor, on the part of his family,
society and the State.” The prohibition on juvenile sentences of life without the
possibility of release has risen to the level of a jus cogens norm, providing that
deprivation of liberty and protection for child offenders be a measure of last resort and
that juvenile justice include rehabilitation as its core component. The U.S.’s practice of
sentencing juveniles to life without the possibility of release, therefore, is inappropriate to
the age or legal status of these juveniles.
3. The number of juveniles serving life without possibility of release sentences began to
increase sharply in the 1990’s as states enacted legislation enabling juveniles to be tried
as adults. Today at least 2,225 child offenders are sentenced to spend the rest of their
lives in prison in the U.S.. Forty-two of the 50 states have laws which allow child
offenders to be sentenced to life without possibility of release. Ten states set no
minimum age, and thirteen states set a minimum of 10 to 13 years of age. Racial
minorities are disproportionately represented among juvenile offenders serving life
without possibility of release sentences. The U.S.’s sentencing of juvenile offenders
violates Articles 10 and 24 of the ICCPR.

Violation of the Right to Vote (Articles 22, 25)
4. The U.S. policy of denying voting rights to convicted criminal offenders violates
Article 25’s right to vote by universal and equal suffrage, without distinction or
unreasonable restrictions. An estimated 3.9 million U.S. citizens are denied the right to
vote, including over one million who have fully completed their sentences. Seven states
of the U.S. deny the right to vote to all criminal offenders after completion of their
sentences, and over 30 states prohibit felony offenders from voting while they are on

parole or probation. Disenfranchisement laws in the U.S. create an impact that is racially
disproportionate. African Americans constitute almost one-third (1.4 million) of those
disenfranchised based on a previous criminal conviction, yet the group accounts for only
12.8 percent of the U.S. population.
5. Voting rights are also abridged in the U.S. through fraudulent means. For example, in
the state of Ohio, political parties may legally challenge individual voters on their
citizenship, age, or residency. During the 2004 presidential elections, Republican Party
challengers targeted polling stations in largely African-American communities, leading to
massive delays and causing those voters to leave polls without casting a ballot.
6. Voting rights were further abridged through the use of electronic voting machines
without adequate security, transparency, and true verifiability. During the 2004
presidential elections, for example, an electronic voting machine in Ohio inexplicably
added 4,000 votes for George Bush. In the state of North Carolina, more than 4,500 votes
were irretrievably lost due to a storage problem with the system. And across the country,
reports emerged of systems incorrectly recording their votes. Almost no electronic
voting software provides verifiable paper ballots to permit voters to ensure that their
votes are being recorded as intended. Most election workers are under-trained regarding
potential problems, and vendor technicians frequently have unsupervised access to voting
equipment. Local election officials routinely deny attempts to examine electronic voting
audit data. Although voting technology continues to improve, the current system remains
a fundamentally closed and hidden process that introduces an unacceptable risk of error
and manipulation.
Right to Freedom of Association
Right to Assembly and Association (Articles 21, 22, and 23)
7. The right to assembly and association are protected under Articles 21 and 22, and are to
be read broadly. The 2002 U.S. Supreme Court case Hoffman Plastic violates Article 22’s
right to freedom of association, including the right to form and join trade unions.
Hoffman removed the traditional back pay remedy for undocumented workers whose
rights have been violated under the National Labor Relations Act, effectively eliminating
any association rights for these workers. Without these rights, undocumented migrant
workers have little incentive to report workplace abuses, which in turn decreases the
accountability of employers who exploit the migrant workforce. Many employers in the
United States have attempted to use the Hoffman decision as a way to weaken other
workplace protections for migrant workers.
8. The Inter-American Court of Human Rights and the ILO’s Committee on Freedom of
Association have issued opinions stating that the Hoffman decision violates the country’s
international and regional treaty obligations. The General Comments to the ICCPR
(VERIFY) have repeatedly stated that “the enjoyment of Covenant rights is not limited to
citizens of States Parties but must also be available to all individuals, regardless of
nationality” including migrant workers, “who may find themselves in the territory or
subject to the jurisdiction of the State Party.”

9. Additionally, twenty-two states in the U.S. have undermined the right to freedom of
association by enacting so-called “right-to-work” laws. These laws prevent unions from
collecting fees from nonmember employees, while still guaranteeing those employees the
benefits of union membership. The result is weaker unions with inadequate resources to
represent their members. Consequently, workers in states with so-called “right-to-work”
laws have lower wages, fewer people with health care, higher poverty and infant
mortality rates, lower workers’ compensation benefits for workers injured on the job, and
more workplace deaths and injuries.
Right to Life on the U.S. Border
Right to Life (Article 6)
10. The high number of migrant deaths attributed to both the change in U.S. border
policy and the violence of vigilante groups violates Article 6’s inherent right to life.
After the U.S. changed its border policy in 1994, entry points in major cities closed and
migrants were forced to cross the U.S.-Mexico border in remote areas such as the
Sonoran desert. During the past year alone, the U.S. Customs and Border Protection
agency reported that 464 migrants had died as of September 30, 2005, most of whom
perished from the extreme temperatures of the Arizona desert. Following the September
11, 2001 terrorist attacks on the U.S., there was an increase in the number of militia-like
groups forming along the U.S.-Mexico border, some of which have gained the support of
white supremacists. Vigilante groups formed and started hunting, detaining, beating, and
sometimes killing immigrants.

IN THE SHADOWS OF THE WAR ON
TERROR:
PERSISTENT POLICE BRUTALITY AND ABUSE
IN THE UNITED STATES
A report prepared for the United Nations Human Rights Committee
on the occasion of its review of the

The United States of America’s Second and Third Periodic
Report to the Human Rights Committee
May 2006

Executive Summary
This report was prepared by U.S. non-governmental organizations in response to
the USA’s Second and Third Periodic Report to the Human Rights Committee
(the “Committee”) regarding its compliance with the International Covenant on
Civil and Political Rights (the “ICCPR” or “Covenant”). It focuses on ongoing and
pervasive police brutality and abuse in communities of color across the U.S.
which, despite this Committee’s previous expression of concern about this issue,
continues to take place, in violation of Articles 2, 3, 6, 7, 9, 10, 17, 20, 25, and 26
of the Covenant.
This report focuses exclusively on issues relating to policing in order to highlight
the widespread violations of human rights guaranteed by the Covenant which
take place outside of courts and prisons, on the streets, in patrol cars, and in
police precincts across the U.S. Additionally, we emphasize how the persistent
and pervasive police abuse and misconduct in the U.S. interferes with the
enjoyment of other rights guaranteed by the Covenant. We refer the Committee
to reports submitted on “Domestic Criminal Justice Issues and the ICCPR” and
the administration of the death penalty for more information on criminal justice
issues and violations arising in courts and prisons.
The organizations participating in the preparation of this report are deeply
concerned about the torture and cruel, inhuman, and degrading treatment
perpetrated and condoned by the U.S. government overseas in the context of the
“war on terror” and U.S. occupations of Iraq Afghanistan, and Guantanamo Bay
in Cuba, as well as the lack of effective remedies for such abuses.
However, we wish to specifically call the Committee’s attention to ongoing and
pervasive violations of the Covenant which continue to take place on U.S. soil, in
the shadows of the U.S. government’s extraterritorial activities, at the hands of
local, state, and federal law enforcement agents. We urge the Committee to focus
significant attention on abuses of human rights on U.S. soil during its review of
the U.S. government’s report. We believe that there are significant similarities –
in practices, personnel, targets, and rationales – between the U.S. government’s
human rights abuses overseas and at home. The U.S. government’s recent
practices overseas did not spring from whole cloth, but rather are rooted in
pervasive and systemic patterns of human rights abuses in the U.S.
The overall climate of the U.S. government’s “war on terror” has led to
considerable abridgment of civil liberties in the US.1 It has fostered torture and
abuse of individuals detained by local and federal law enforcement agencies in
the wake of the events of September 11th,2 as well as ongoing targeting of Arab and
Muslim populations in the U.S.3 It has also created a generalized climate of
impunity for law enforcement officers, and contributed to the erosion of what few
accountability mechanisms exist for civilian control over law enforcement
agencies. As a result, police brutality and abuse persist unabated and undeterred
across the country.

43

The U.S. government refers this Committee the two reports it has submitted to
the UN Committee Against Torture (CAT)4 for information concerning its
compliance with Article 7 of the ICCPR5. In its report to the CAT, the U.S.
government concedes that complaints of police violence and abuse continue to be
made, but states
In a country of some 280 million people with a prison population of over 2
million people it is perhaps unavoidable, albeit unfortunate, that there are
cases of abuse.6
The organizations who participated in the preparation of this report take issue
with the notion that such abuse is unavoidable. Rather, the U.S. lacks both the
requisite legislation and the political will to enforce existing laws to prevent such
abuse and provide adequate redress to the individuals and communities affected.
This report seeks to provide the Committee with a glimpse of the prevalence of
police brutality in the U.S., as well as the profound limitations of the remedies
cited by the U.S. government in its report to the Committee.
Principal Areas of Concern & Recommendations
• Persistent and pervasive use of excessive force by police, often
with impunity, in violation of Articles 6, 7, 9, 10, 14, 17 and 26;
Recommendations
• Enact a federal crime of torture and allocate sufficient and impartial
resources to document, investigate, and prosecute allegations of torture by
local, state, and federal law enforcement officers;
• Adopt national measures to prevent and provide effective redress for acts
of torture and cruel, inhuman and degrading treatment by law
enforcement agents;
• Develop and mandate national training standards for federal, state and
local law enforcement agents.
• The U.S. government’s failure to regulate the use of electroshock
weapons (TASERs) by law enforcement agents, in violation of
Articles 6, 7, 10, and 26;
Recommendation
• Impose an immediate moratorium on TASER use by law enforcement
officers pending a rigorous, independent and impartial inquiry into their
use and effects, or, at a minimum, implement federal regulation of
TASERs, restricting their use to instances in which they would substitute
for lethal force.
• The prevalence, as yet undocumented by the U.S. government, of
rape and sexual abuse of women, including transgender women,
by law enforcement officers outside of prisons and jails, in
violation of Articles 3, 7, 10 and 26;
Recommendations
• Take immediate steps to document, systemically review, and prevent
rape, sexual assault, and abusive and unlawful strip searches by law
enforcement officers;

44

• Failure to collect data on a national level to document, monitor
and prevent violations of the Covenant, to provide for thorough
and impartial investigation of allegations of violations, to punish
officers who commit acts of torture or cruel, inhuman and
degrading treatment, and to provide for adequate remedies and
redress, in violation of Articles 3, 7, and 25;
Recommendations
• Provide adequate funding to allow the U.S. Department of Justice to
fulfill its mandate under the Police Accountability Act provisions of the
Violent Crime Control and Law Enforcement Act of 1994 to compile,
publish and regularly analyze national data on police use of excessive force
(including all fatal shootings and deaths in custody, use of force during
street encounters as well as traffic stops, and incidents of rape, sexual
harassment, and unlawful searches of persons). The reporting should also
include comprehensive details of disciplinary actions and prosecutions of
excessive force by police officers;
• Provide adequate resources to the U.S. Department of Justice in order
that it effectively and comprehensively pursue and enforce “pattern and
practice” actions against police departments engaging in widespread or
systematic abuses.
• Persistent racial and gender profiling by law enforcement
officers, in violation of Articles 2, 3, 7, 10 and 25.
Recommendations
• Take affirmative steps beyond creating remedies at law at both the
federal and state levels to address police brutality and other custodial
torture and other cruel, inhuman and degrading treatment that is shown
to be occurring in a racially discriminatory manner or in a manner
evidencing discrimination based on gender, gender identity, sexual
orientation, or some combination of all of these factors;
• Increase its use of Title VI of the Civil Rights Act of 1964 to eliminate
racially discriminatory practices by law enforcement agencies;
• Enact the End Racial Profiling Act, with amendments providing for
tracking and analysis of data by gender and race.
Additionally, throughout this report, we highlight the disproportionate numbers
of people of color, immigrants, women, lesbian, gay, bisexual and transgender
people, sex workers, and youth who are subjected to violations of civil and
political rights and freedoms by law enforcement officers in the U.S., in violation
of the Covenant’s non-discrimination provisions.

45

Hurricane Katrina and Violations of ICCPR Articles 6 and 26: A Response to the
Third Periodic Report of the United States of America33

Introduction
1. Hurricane Katrina ripped through the Gulf Coast area of the United States on
August 29, 2005.34 The resulting floods, deaths, displacement, and humanitarian
crisis made this hurricane one of the most devastating the United States has ever
experienced. The public watched on their televisions as death and destruction
unfolded in New Orleans and its surrounding areas. The question asked by nearly
every viewer during those days was, “if the media can get there, why can’t any
assistance? Why are these people dying?” The fact was that assistance could reach
the people of New Orleans. It simply didn’t.
2. Although death and destruction was inevitable given the magnitude of this
hurricane, a great many deaths were a direct result of the State party’s failure to
provide adequate evacuation plans, evacuation assistance, and humanitarian aid.35
These failures constitute a violation to the State’s obligation under article 6 of the
International Covenant on Civil and Political Rights (the “Covenant”) to protect,
and fulfill the right to life. Further, the failure of the State party to provide
appropriate remedies to the victims of article 6 violations constitutes a separate
violation under article 2, paragraph 3 of the Covenant.36
3. In addition to violations of the right to life, the State party also violated article 26
by violating the principle of non-discrimination in the way it prepared for
Hurricane Katrina. The State party’s evacuation plans discriminated on the basis
of property ownership, which resulted in discrimination based on race.37

33

By Jean Carmalt, Esq; jcarmalt@u.washington.edu for the U.S. Human Rights Network. This response
is to the following report: United States of America. Third Periodic Reports of States Parties due in 2003.
U.N. Doc. No. CCPR/C/USA/3 28 November 2005 (hereinafter “US Report”).
34
Please see Appendix A for a complete timeline of events surrounding Hurricane Katrina.
35
A bipartisan Congressional report found that the Bush Administration failed to take the needed initiative
required for adequate governmental response to Hurricane Katrina. See Select Bipartisan Committee to
Investigate the Preparation for and Response to Hurricane Katrina. A Failure of Initiative: Final Report of
the Select Bipartisan Committee to Investigate the Preparation for and Response to Hurricane Katrina.
U.S. House of Representatives 102nd Session (February 2006) (hereinafter “Failure of Initiative”). For a
copy of this report and all other sources cited in this Response, please see the enclosed CD-ROM.
36
International Covenant on Civil and Political Rights. Adopted and opened for signature, ratification and
accession by General Assembly resolution 2200A (XXI) of 16 December 1966. Entry into force 23 March
1976, in accordance with Article 49 (hereinafter “the Covenant”). See also United Nations Human Rights
Committee. General Comment No. 31: Nature of the General Legal Obligation Imposed on States Parties
to the Covenant (hereinafter “HRC General Comment 31”): 26/05/2004; CCPR/C/21/Rev.1/Add.13 at
paragraph 15.
37
United Nations Human Rights Committee. General Comment 18: Non-Discrimination. (hereinafter
“HRC General Comment 18”): 10/11/89.

46

To: Members of the U.N. Human Rights Committee
From: Rev. Daniel Buford for the Meiklejohn Civil Liberties Institute, International
Association of Democratic Lawyers, Peoples Institute, and Allen Temple
Date: May 31, 2006
Re: Update on Issue 16 cited in CCPR/C/USA/Q/3 related to Articles 2 and 26 (and issues
14, 18, and 19 related to articles 7, 6, 2, and 26) concerning facts about Katrina (and Rita)
disaster victims not covered in the 2d/3d U.S. Report or the presentation by Rev. Buford at the
2006 March Committee meeting.
SUMMARY (with citations to paragraphs ¶¶ in attached Report)
1. The U.S. Report did not mention that U.S. Pres. Bush within 2 weeks of the Katrina
hurricane made a strong pledge to deal with all of the problems created by Katrina, and
mentioned specifically the additional effects of poverty and racial discrimination on the
victims; he did not mention the underlying U.S. and UN laws requiring such affirmative
action. Neither the President, FEMA, Corps of Engineers, Health and Human Services
Department, National Guard, nor other federal agencies involved in Katrina have followed up
on this pledge by holding conferences in their agencies to discuss relevant U.S. and UN
human rights laws, or to listen to victims describe the discrimination they faced -- and
continue to face -- based on race, social origin, or age. (¶¶ 1, 3).
Recommendation: ¶ 2
2. Officials and agents of the U.S. federal, state, parish, and city governments have not held
conferences to discuss the revisions necessary in many regulations and practices to change
the present discriminatory system, nor have they used affirmative action to deal with pending
problems. (¶ 1)
Recommendation: ¶ 2
3. Congress member Barbara Lee reported to Congress that Congress members are unfamiliar
with ICCPR and Human Rights Committee reporting rules. The federal government has done
nothing effective to inform state, parish, and city officials of the law and reporting
requirements in the ICCPR so that these bodies are not beginning to enforce many of the
rights enunciated in the ICCPR or to file the required reports under the ICCPR. (¶ 4).
Recommendation: ¶ 5
4. Congress member Lee's report was issued as Katrina victims continue to need help in
filling out forms for financial assistance to rebuild their homes, in obtaining copies of lost
legal documents they need to apply for government assistance (e.g., in paying for rental
housing far from their homes), even in obtaining copies of medical prescriptions lost in
Katrina. (¶ 6).
Recommendation: ¶ 7
5. During evacuation, many victims suffered humiliation and threats of arrest and shooting,
unwarranted arrest and detention, for which virtually no perpetrators have been arrested or
tried, and no compensation has yet been paid. At the same time, many Afro-Americans,
including juveniles, have been held for long periods without trial or appointment of public
defenders. (¶¶ 8, 9, 11, 13).
Recommendations: ¶¶ 10, 12, 14
6. FEMA has yet to deal adequately with the families that were separated in the course of the
evacuation. And only 26 of 117 public schools had reopened by May 2006, leaving the lives

47

of many children empty, and multiplying the problems of their parents, who now must
supervise their children 24 hours a day. (¶ 15)
Recommendation: ¶ 16
7. The federal and state governments have not issued press releases to the media condemning
racial slurs and incitement to discriminatory actions published by private organizations or
issued on the internet or other media. While they have issued press releases describing
mistakes they have made, they have not issued any statements as to how or when these
mistakes will be corrected in the future. (¶ 17).
Recommendation: ¶ 18
8. The total number of New Orleans registered voters able to vote in the spring 2006
elections was much smaller than ever before. Voters from African American and poor
neighborhoods repeatedly expressed frustration at the difficulties they faced in voting by
absentee ballots in distant states. (¶ 19).
Recommendation:¶20

48

Homelessness and United States Compliance with the
International Covenant on Civil and Political Rights
Submitted to the Human Rights Committee by the

National Law Center on Homelessness & Poverty
May 31, 2006
Introduction
The National Law Center on Homelessness & Poverty (the “NLCHP”) submits the
following shadow report to the Human Rights Committee.38 Established in 1989,
NLCHP’s mission is to serve as the legal arm of the nationwide movement to prevent and
end homelessness in the U.S. Based in Washington, D.C., NLCHP works with thousands
of local level advocacy and service provider groups across the country.
Executive Summary
This shadow report focuses on homelessness in the United States. In particular, this
report details the failure of the U.S. federal government, over a number of decades, to
adequately address the need for affordable housing in this country and the impact that
failure has had on the lives of millions of Americans. A number of concerns relevant to
U.S. compliance with the International Covenant on Civil and Political Rights (the
“Covenant”) arise as a result of the federal government’s approach to housing and
homelessness. These concerns include:
•

Article 6 of the Covenant: Right to Life
Homeless people suffer serious health problems that are directly related to their
lack of housing. Being subjected to the elements contributes to illness and death
among the homeless population.

•

Article 23 of the Covenant: Right of Family
Without affordable housing, many families are unable to remain together while
the federal and state governments have established programs to specifically
prevent family separations due to lack of housing. These programs are underfunded and fail to meet the needs of homeless individuals.

•

Article 24 of the Covenant: Barriers to Homeless Children’s Right to Education

38

Maria Foscarinis, Executive Director; Tulin Ozdeger, Civil Rights Staff Attorney; Naomi Stern,
Domestic Violence Staff Attorney; and Joy Moses, Children’s Staff Attorney, contributed to this
submission. Assistance was also provided by David Hubb, a Partner at DLA Piper Rudnick Gray Cary US
LLP.

49

Homeless children face many barriers to receiving an education in the U.S. The
Department of Education has not taken an active role to ensure that state and local
officials remove obstacles such as residency requirements and lack of
transportation so that homeless children can attend school and obtain an
education.
•

Article 25 of the Covenant: Restrictions on the Right to Vote
Voting requirements established by federal, state, and local authorities effectively
deprive homeless people of their right to vote.

•

Article 26 of the Covenant: Discrimination Based on Property or Other Status
Local laws prohibiting sleeping, camping, and sitting in public places discriminate
against homeless people based on their status. In addition, without a permanent
residence, homeless people find it difficult to obtain identification cards, and
therefore, housing, employment, and other services.

•

Article 26 of the Covenant: Discrimination Based on Gender
Domestic violence is a leading cause of homelessness among women. When
these women are denied housing or evicted from their residence because of the
violent acts of their abusers, it constitutes a form of sex discrimination in housing.

50

Submission of the Disability Working Group
To the Human Rights Committee
Prepared by Tina Minkowitz and Al Galves, with the assistance of Celia
Brown, Myra Kovary and Eve Remba
On behalf of:
New York Organization For Human Rights and Against Psychiatric Assault
Mind Freedom International
Law Project for Psychiatric Rights
ALERNATIVE REPORT ON FORCE DRUGGING, FORCED ELECTROSHOCK
AND MENTAL HEALTH SCREENING OF CHILDREN:
VIOLATION OF ARTICLE 7
Executive Summary
1. The United States has a double standard on the use of mind-altering
drugs. On the one hand, the U.S. understands the intentional infliction of
mental suffering by administration of mind-altering drugs on a person as
torture; yet on the other hand it condones the practice of force drugging
when the victim is a person with psychosocial disabilities.
2. A report by five UN special rapporteurs condemned the force drugging of
Guantánamo detainees as a violation of the right to free and informed
consent and its “logical corollary, the right to refuse treatment”.
3. Force drugging and forced electroshock violate article 7 and article 18 of
the Covenant; maintaining separate standards in relation to people with
psychosocial disabilities violates article 2. A standard of legal capacity
that disqualifies people with psychosocial disabilities from exercising free
and informed consent denies equal protection of the law in violation of
article 26.
4. Neuroleptic drugs39 and electroshock inflict severe mental suffering and
cause permanent neurological damage. Neuroleptics drugs can cause
paralysis of the will along with uncontrollable restlessness. Electroshock
leaves many people with irrevocable memory loss and cognitive disability.
5. Gender and racial disparities intersect with disability-based discrimination.
Electroshock is administered twice as often to women as it is to men, often
under circumstances that demonstrate a gender-related motive. Force
drugging in the community by court order is used in New York State
disproportionately against people of color, mostly African Americans.
39

Neuroleptic drugs are a major category of drugs used in psychiatry and are among the most severe in
their disruptive effects on consciousness. However, the principles at issue apply to any force drugging.

51

6. A new model of legal capacity being developed by people with disabilities
would eliminate incapacity determinations and instead provide support to
all who need it to facilitate their decision-making. The support model is
based on choice in a context of interdependence, rather than selfsufficiency, as a paradigm for legal capacity. Since everyone has a will
and is capable of making choices, legal capacity is accessible to all on an
equal basis, with the applicable standard for children being articulated in
CRC article 12, a right to freely express their views, which are to be given
due weight in accordance with the child’s age and maturity.
7. Adoption of the support model of legal capacity is necessary to eliminate
discrimination in the right to free and informed consent, which underlies
protection against medical practices amounting to torture or cruel,
inhuman or degrading treatment or punishment.
8. Mass screening of children for mental illness with only passive consent by
their parents (i.e. parents can opt out but no affirmative consent is
required, and there is no requirement of consultation with the children at
all), with the result that children are drugged with psychotropics, violates
their rights under article 7.

52

DOMESTIC CRIMINAL JUSTICE ISSUES AND THE ICCPR
Introduction
1. The Criminal Justice Policy Foundation, Open Society Policy Center, Penal Reform
International, and The Sentencing Project welcome the opportunity to comment on the
periodic report of the United States submitted to the Human Rights Committee in
October 2005 report (“Report”),40 as it pertains to domestic criminal justice issues.
2. The US is a wealthy country that has chosen to commit substantial resources to a
prison-centered penal system. Nationally, the United States sentences more than 1
million people to state and federal prison every year, and there are currently 7 million
people under correctional supervision, including more than 2 million in prison and jail.
Six percent of the American adult population have a felony conviction. As the American
criminal justice system continues to expand, its burden has fallen most heavily on the
poor and people of color. Their powerlessness and lack of resources make even more
urgent their need for human rights protections at trial, at sentencing and while being held
in custody. We urge the committee to critically analyze the United States’ periodic report
regarding its compliance with Articles 7, 10, 14, and 24 of the ICCPR.

Executive Summary
Article 14
3. The rights enumerated under Article 14 are generally supported by United States
constitutional jurisprudence. This includes the right to be represented by counsel at trial
and, for indigent defendants facing the possibility of imprisonment, to have counsel
provided to them. However, this basic requirement of a fair trial is often not met. With
three-quarters of criminal cases requiring the public provision of counsel, a system
without a vibrant and well-funded indigent defense system is not sufficiently meeting the
requirements of guaranteeing counsel. In practice, the United States does not make
adequate resources available for indigent defense and there are no mechanisms to ensure
that states provide competent counsel.
4. Effective counsel is necessary at all stages of a criminal court proceeding. Ninety five
percent of all criminal cases are settled not at trial but through plea bargains. Defendants
facing long mandatory sentences determined by legislation or strict sentencing guidelines
are very vulnerable to pressure from prosecutors and the assistance of a skilled and
knowledgeable attorney during the negotiation process is essential.
5. A competent attorney with the resources to mount an adequate defense can also
challenge police interrogation measures, coerced confessions, erroneous eye-witness
40

Second and Third Periodic Report of the United States of America to the United Nations Committee on
Human Rights Concerning the International Covenant on Civil and Political Rights, at § 281 (Oct. 21,
2005).

53

identification, perjury by police officers and other unjust practices that frequently deny
the defendant those aspects of a fair trial required by the ICCPR. Without adequate
resources to meet the growing need for effective assistance of counsel for indigent
defendants, the US cannot meet its obligations under the ICCPR.
Article 26
6. Article 26 of the ICCPR recognizes that “all persons are equal before the law and are
entitled without any discrimination to the equal protection of the law.” Despite this
internationally accepted norm, a double standard of justice has been evident in criminal
sentencing in the United States, particularly for drug offenses. The national prison
population has more than tripled since 1980, with nearly half of that population being
black, although African Americans constitute only 12 percent of the U.S. population. The
increase in the prison population is not in response to rising crime and, nor an indication
of more criminal activity by blacks. Instead, it is a reflection of more stringent penalties
in the form of mandatory minimum sentences, particularly the penalty disparity between
crack and powder cocaine.
Articles 7 and 10
7. The United States has more than 2.2 million people in its prisons, jails, immigration
detention and juvenile facilities. The rapid growth of the prison population has taken
place at the same time as crime and punishment has become deeply politicized, with
increasing disrespect for the dignity and humanity of prisoners. As a result, both
deliberate policy and inadequate resources have led to increasingly inhuman conditions
within the United States prison and jail system that frequently contravene both Article 7
and Article 10 of the ICCPR.
8. Endemic overcrowding leads to greater levels of violence, lack of privacy, excessive
noise, inadequate programs and lack of essential services, including healthcare.
Especially at risk in these conditions are the large number of mentally ill within prisons
and jails. The mentally ill are overrepresented among those sent to super maximum
security (“Supermax”) prisons. In these prisons, people spend a minimum of 23 hours a
day in small cells with almost no interaction with other people, limited activities, sensory
deprivation, and harsh security restrictions. Confinement in a supermax can be
devastating for anyone, but for the mentally ill it surely constitutes torture.
9. In addition to the inhuman treatment suffered by all prisoners, women are especially at
risk for sexual abuse and humiliation, inadequate medical and obstetric care, including
shackling during childbirth, and loss of contact with their children. The separation from
children and risk of losing parental rights is gravest for those in private, for-profit prisons
who are often held in different states from where their families reside making it almost
impossible to maintain contact with their children.
10. Confining children within adult prisons and jails not only contravenes Article 14 but
also Articles 7 and 10 as their youth and vulnerability make the conditions they face

54

particularly inhuman and damaging. Children in adult prisons and jails are at increased
risk of suicide and sexual and physical abuse by guards and other prisoners. The sentence
of life without the possibility of release for children is an extreme form of cruel and
inhuman punishment that denies any possibility of rehabilitation.
Articles 14 and 24
11. The United States fails to recognize the right of children in conflict with the law to
procedures that take account of their age as required by Article 14 or the more general
requirements for the special protection of minors required under Article 24 of the ICCPR.
State legislation routinely allows children, in some cases as young as ten years old, to be
subject to adult criminal proceedings. Once in the jurisdiction of criminal court, child
offenders lose the protections that they would have received in the juvenile court which
takes account of their status as children and are eligible for adult sentences including life
in prison without the possibility of release.
12. While the number of new commitments of children to adult prisons has declined
from its peak, the Department of Justice’s latest figures show more than 9,000 children in
adult prisons and jails with more than 4,000 children per year entering the adult system,
70% of them youth of color.41 When the United States ratified the ICCPR, it attached a
limiting reservation stipulating that it “reserve[d] the right, in exceptional circumstances,
to treat juveniles as adults.” Clearly, however, given the numbers involved, the
circumstances in which children are treated as adults is far from exceptional. It is a
routine and everyday occurrence.

41

Howard Snyder and Melissa Sickmund, Juvenile Offenders and Victims: 2006 National Report, (March
2006), US Dept. of Justice, Office of Justice Programs.

55

Violations of Article 25:
A response to the U.S. Second and Third Periodic Report and to CCPR/C/USA/Q/3
On issues related to the right to vote and participate in public affairs

Organizations and individuals endorsing this report:
Asian American Justice Center
Terry M. Ao
Jamie D. Brooks, Esq.
National Health Law Program
Global Rights
Margaret Huang
Lawyers Committee for Civil Rights Under Law
Jon Greenbaum
The Sentencing Project
Ryan King

Executive Summary
1. Upon review of the Committee’s List of Issues to be taken up in connection with the
consideration of the Second and Third periodic reports of the United States of
America, adopted on March 30, 2006, this update was drafted to address the
Committee’s priority concerns under Article 25. While we believe that there are
other significant concerns about violations of this Article by the U.S. government, in
the interests of being concise we have limited this update to the following issues: (1)
felony disfranchisement; (2) loss of voting rights for victims of Hurricane Katrina;
and (3) lack of voting rights for Washington, D.C., residents.
2. In the United States, felony disfranchisement laws are adopted at the state level and
thus have resulted in wide disparities in both the terms and the application of the
laws. Serious problems exist in the procedures for removing voters from electoral
databases because of a felony conviction, as well as in the education of public
officials charged with upholding the laws. There is also significant variance in state
determinations of which crimes will result in disfranchisement.
3. Recommendation: To respond to this violation of Article 25, the U.S. Government
must ensure that local governments are informed about and uphold their obligations
under the ICCPR, and it must adopt measures to make reasonable and uniform

56

throughout the country the procedures for disfranchisement of those who convict a
crime, as well as the procedures for restoring the rights of those individuals.
4. In the April elections in Orleans Parish, tens of thousands of voters were denied
access to voting because the U.S. Government failed to take actions to accommodate
those displaced by Hurricane Katrina. Despite precedents set by the responses to
other disasters including the September 11 attacks in New York City, the federal
government chose to provide only a fraction of the financial assistance requested by
the Louisiana State government to hold these elections. Of particular concern, the
impact of the denial of voting rights for the displaced population was racially
disparate; a review of the April voter turnout shows a significant drop among
African-American voters and an actual increase in the percentage of white voter
turnout.
5. Recommendation: The U.S. Government must take immediate action to prepare for
the national and state elections in the autumn and ensure that the right to vote of all
persons displaced by Hurricane Katrina is protected.
6. The residents of Washington, D.C., pay taxes like any other U.S. resident, but they
are denied representation in the federal legislature. In December 2003, the InterAmerican Commission on Human Rights ruled that the U.S. Government is in
violation of international law because Washington, D.C., residents have no
representation.
7. Recommendation: The U.S. Government should support and enact federal legislation
to extend equal voting rights to all citizens residing in Washington, D.C.

57