« War on Terror » and Fight Against Undocumented Migration Where the United States Fails to Respect Human Rights and Disregards its International Obligations

In its dialogue with the United States delegation, the Council of the European Union, the European Commission, and the French Presidency have a duty to address the serious human rights violations committed by the American government in the context of the « War on terror » and the fight against illegal migration.

The International Federation for Human Rights (FIDH) and its member organization in the United States, the Center for Constitutional Rights (CCR) are presenting in this document the human rights issues that should be prioritized in this dialogue. These concerns ought to be resolved urgently in order to avoid that illegitimate, unfair, and unlawful practices become established precedents.

I. Human Rights Violations Perpetrated with Complete Impunity in the Context of the so-called "War on Terror"

1) Lack of Accountability for Torture and Cruel, Inhuman, and Degrading Treatment

The United States prosecuting authorities and Congress have failed to effectively investigate and prosecute high level officials responsible for war crimes, torture and cruel, inhuman, and degrading treatment, and have set up a series of show trials against the subordinates who perpetrated abuses they were tacitly encouraged and allowed to carry out. Until now, criminal and military court investigations and trials have taken place exclusively against low-ranking members of the military. At least 600 U.S. personnel are credibly alleged to have been involved in abuse in hundreds of cases occurring in Afghanistan, Iraq, and Guantánamo Bay. Yet, only a handful of them have been prosecuted and even fewer sentenced to more than one year. Of greater concern, no high-ranking official has been prosecuted.

According to news reports, the most senior Bush administration officials including Vice President Cheney and former Secretary of Defense Rumsfeld, held dozens of secret meetings to discuss the torture of detainees held in CIA custody, and provided explicit approval of specific interrogation techniques to be used on individual detainees, including waterboarding, as well as the use of a combination of abusive techniques. [1] The existence of so-called "torture memos" drafted by administration officials to re-define what torture is, or the direct authorization by former Secretary of Defense Rumsfeld and military higher-ups of "enhanced" interrogation techniques that violate humanitarian and human rights law, are only some of the examples that make clear that responsibility for abusive treatment at Abu Ghraib and the other U.S. facilities reaches all the way to the top. Yet the United States still refuses to investigate the role of those at the top of the chain of command who have elaborated, ordered, supervised, and implemented these interrogations techniques.

The American two-star General Antonio Taguba, who led an Army investigation into the Abu Ghraib scandal, recently declared that: "After years of disclosures by government investigations, media accounts, and reports from human rights organizations, there is no longer any doubt as to whether the current administration has committed war crimes. The only question that remains to be answered is whether those who ordered the use of torture will be held to account." [2]

To this date, efforts to hold American officials accountable, whether in the United States or abroad under universal jurisdiction laws, have all failed due to political pressure and despite the United Nations’ repetitive calls for justice. The passage by the U.S. Congress of the Military Commissions Act of 2006 retroactively redefining war crimes with lower standards of responsibility is only one of the many illustrations of the United States’ unwillingness to prosecute its war criminals.

While we urge you to bring these accountability issues to the U.S.’ attention, we deplore the fact that some countries in the EU have failed in this respect. In fact, last year a complaint, with a solid foundation in fact and in law, was filed in France under legislation implementing the Convention against Torture, alleging that Mr. Rumsfeld was responsible for torture. In what unfortunately appeared as a politically motivated decision, France’s prosecuting authorities – without questioning the torture allegations – dismissed the complaint on the grounds of immunity, ignoring the principle according to which there is no immunity for international core crimes such as torture. It is crucial that this well-established principle, originating from the Nuremberg trials, be strongly reaffirmed at the European level, in order to avoid an « à la carte » fight against impunity.

The European Union should be pressing the next American Administration to commit to launching serious and independent investigations and prosecutions into abuses of detainees that will look all the way up the chain of command, and that will uphold the principle that there is no immunity for serious human rights violations.

2) Six Years Later: Untenable Situation at Guantánamo

A refugee crisis: detainees with nowhere to go

After over six years of detention, approximately fifty Guantánamo detainees are trapped by government inaction. Many of these men have even been "cleared for release" by the U.S. government but continue to languish in Guantánamo simply because they have nowhere to go – their home countries would torture or abuse them if they were returned, and the United States has refused to provide them safe haven.

Some Guantánamo detainees have been forcibly returned to countries that are recognized to have committed egregious human rights abuses – including extrajudicial killings, torture, and "disappearances" – despite the pleas of these men not to be sent there. In cases where these countries have given « diplomatic assurances » that detainees would be treated humanely, such assurances have proven ineffective and detainees have been tortured and abused upon their return. Further, the U.S. government has vehemently resisted any attempt by detainees and their attorneys to halt transfers, even where very specific and verifiable fears of persecution and torture exist, and U.S. courts have failed to intervene.

European Union member States are all bound with the obligation to help realize the principle of non-refoulement that derives from the 1951 Refugee Convention and is now a principle of international customary law. We call upon EU member states to intervene in virtue of this principle. EU member states should offer humanitarian protection to some of Guantánamo’s refugees in EU countries with urgency.

Unfair Military Commissions proceedings

In 2006, Congress passed legislation authorizing Military Commissions to try those captured in the "War on Terror" and held at Guantánamo with procedures deviating from the traditional rules of the American Uniform Code of Military Justice and of international law. The Military Commissions procedures allow for the introduction of coerced evidence at hearings, deny the accused full access to exculpatory evidence, allow reliance on classified evidence the defendant never has a chance to see or rebut, permit the introduction of hearsay evidence, and allow a trial to continue in the absence of the accused. Yet, the detainees subjected to these unfair proceedings face potential execution if convicted.

In addition, the U.S. government has underfunded and understaffed the military defense counsel charged with representing the men, while providing more than ample resources for the military prosecutors, and Military Commissions judges are subject to command influence and other impediments to their independence.

These rules and practices are a direct violation of the U.S.’s obligations under international treaty law – and in particular the International Covenant on Civil and Political Rights providing for minimum standards for fair trials. Many cases of extremist violence – either past acts or future plots – have been successfully tried in U.S. criminal courts in the past, with defendants now serving life sentences. If the U.S. government has a case against the men it seeks to charge before the Military Commissions, they should be tried in an impartial court using fair procedures, instead of further undermining the U.S.’s credibility and dismantling the rule of law.

3) Proxy Detention: the Case of Afghanistan. What will happen after Guantánamo Closes?

Bush administration officials have said they want to close Guantanamo, but how? The case study of Afghan prisoners at Guantanamo is a troubling indication of one way the government may be "emptying" the prison.

Beginning in April 2007, under the terms of a repatriation agreement negotiated between the U.S. and Afghan governments, but largely pressed by the United States, every Afghan detainee "released" from Guantánamo and returned to Afghanistan has been sent directly to the Afghan National Detention Facility ("ANDF"), a U.S.-built detention facility located within Pul-e-charkhi prison outside of Kabul, where they have been detained with Afghan prisoners transferred from the U.S. Air Base at Bagram, Afghanistan. More than 200 men formerly imprisoned at Guantánamo and Bagram are currently held in the ANDF, some for over one year, without charge or trial.

Those who have been tried have gone through a patently unfair process. For example, prosecutions have been based largely, if not solely, on flawed and inadequate evidence provided to the prosecution by the U.S. military, including evidence obtained through torture, and prisoners have been prevented from questioning and confronting the evidence against them. Not surprisingly, the majority of trials that have gone forward have resulted in convictions, with sentences as high as 20 years.

More than 200 men continue to be arbitrarily detained, under close American monitoring, after already years of illegal detention at Guantánamo and Bagram for many. For these men, justice has already been delayed and denied indeed.

Both candidates for the U.S. presidency have also expressed a commitment to closing Guantánamo. But the current and future U.S. administrations have a duty to do so responsibly. The United States should refrain from pressuring other countries to detain indefinitely or prosecute transferred prisoners as a condition of repatriation, as well as from facilitating convictions in foreign courts with evidence that would not be admissible in U.S. courts, as the current administration is doing in Afghanistan.

As the United States "empties" Guantánamo and other widely-criticized prisons such as Bagram, the broader international community should closely monitor the transfers and the situation of prisoners once returned to ensure that the men are either released or afforded the fair process they have been denied for years, and not simply detained or convicted under a different but still wrongful guise.

4) Black Sites: Upfront illegality of CIA’s secret detention program

Authorized by a September 17, 2001 classified presidential directive, which remains undisclosed to the present day but justified by the so-called "war on terror," the Central Intelligence Agency (CIA) launched its secret detention program. Since the operation first began, a large number of people have been abducted from various locations and transferred to secret prisons outside of the United States, known as "black sites," whose specific locations they may never know. These people disappear for indefinite periods – often years – and are barred from communication with family, legal counsel, or anyone in the outside world. After being subjected to harsh interrogations, involving physical and psychological abuse, some are released, without any sort of apology or compensation, because they were simply not the people being sought. Others are still, to this day, held as "ghost detainees."

CIA-operated black sites exist in several countries outside of the U.S., including member states of the Council of Europe, as highlighted in the Secret detentions and illegal transfers of detainees involving Council of Europe member states: second report by Mr. Dick Marty, member of the Parliamentary Assembly of the Council of Europe. Extensive evidence, including flight data and various other documentary sources, has been gathered to prove secret detention facilities existed in Poland and Romania from 2003 through 2005. The secret detention facilities are run exclusively by the CIA, which means local staff and authorities are not supposed to have any knowledge of the specifics of the program, such has the number of people secretly detained. In September 2006, long after information about the program reached the public, President George W. Bush officially and publicly acknowledged the CIA’s secret program.

CIA’s illegal secret detention program, which involves abducting, detaining, and torturing of detainees, is a violation of international customary and treaty law, including the Convention against Torture, the Geneva Conventions, the International Covenant on Civil and Political Rights, the European Convention of Human Rights, and the newly adopted (but not yet ratified by the United States) International Convention for the Protection of All Persons From Enforced Disappearances. We urge the Council of the European Union, the European Commission, and the French Presidency to demand that the United States terminates its secret detention program, and request that European countries shed light on their involvement with the CIA program.

II. Violations of the Rights of Undocumented Migrants on their Way to the United States [3]

1) Deaths and "Deterrence Policy"

In the last decade, and especially following 9/11, the United States has implemented a so-called "deterrence policy" against illegal entry at the U.S. border that has involved strong militarization, and the construction of a wall at the Southern border with Mexico. This expensive policy has turned out to be mostly costly in human terms, as it forces thousands of migrants each year to avoid urban areas and to instead cross the border by foot through the most inhospitable and dangerous deserts of the South, which results in the deaths of hundreds of men, women, and children each year. For many of them, the forced crossing of deserted or mountainous regions under extreme weather conditions has become a "death sentence" and, for all of them, it is a disastrous physical and psychological experience.

The death of migrants crossing this way was officially foreseen as an efficient deterrent in this federal strategy. Yet, the "deterrence policy" has proved to be inefficient, since the number of immigrants crossing the border has more than doubled since 1993, which shows how desperate migrants are to flee their own countries. Therefore, the solution will not be found at the border, but instead, the U.S. government should address and work on the root causes of migration.

Furthermore, the presence of about 12 millions of officially "unauthorized" immigrant workers in the United States is one of the most striking illustration of the incoherence and hypocrisy of policies – including the repeated raids conducted by Immigration and Customs Enforcement (ICE) inside the country – that intend to forbid and repress "illegal" immigration without offering coherent alternatives such as legalization, but instead allow American companies and numerous employers to exploit and violate the rights of hard-working undocumented men and women.

2) Human Rights Violations During the Arrests of Border-Crossers

U.S. Customs and Border Protection’s Border Patrol agents utilize unbridled showing of deadly force against border crossers, including excessive use of armed force. In fact, throwing rocks at agents officially justifies the use of firearms. Despite numerous reports by the media, border communities, and non-governmental organizations on the killings of migrants by the Border Patrol, the U.S. government does not disclose figures of migrants killed by their agents at the border, and no independent investigatory entity has ever been established to shed light on this and hold perpetrators of such illegal violence or killings accountable for their actions.

3) Detention Conditions of Migrants Caught at the Borders

ICE now applies a policy of quasi-systematic detention of undocumented migrants and their families caught at the borders, which has created an explosive growth in ICE detention centers. Last year, ICE detained about 26,500 persons a day. The average detention length is 2 or 3 months, but some can be detained for years. These detentions take place without systematic access to judicial review, and in cases where such review does happen, it is almost systematically without access to a lawyer (84% of detained immigrants are not represented).

Migrants detained in ICE centers – which are prison-like facilities – are victims of abuses such as rape. Moreover, the disciplinary process is problematic, means of communication are not appropriate, and recreation and visiting times are disproportionally restricted. Reports – including by Homeland Security – have shown that there are seriously unhealthy conditions and proper health care is often denied, which has led to the deaths of many migrants in detention. Yet, ICE still refuses to adopt and implement legally binding detention standards respectful of human rights to govern its detention centers, despite the many repeated requests made by pro-bono lawyers and major U.S. human rights groups.

4) Deportations to "Deter Terrorism"

The immigration landscape changed dramatically in 1996 with the Antiterrorism and Effective Death Penalty Act (AEDPA) & the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) (1996), both of which were enacted in part to "deter terrorism." One of the most controversial provisions of the IIRIRA was to expand the categories of criminal activity ("aggravated felony") for which both documented and undocumented immigrants can be deported. Under this law, minor offenses, such as shoplifting, justify deportation of individuals after they served their sentence, even when they are U.S. residents, married to American citizens, have American children, and have almost never lived in their country of origin.

This practice is in violation of all international human rights standards on the right to family life, the rights of the child, and the prohibition of double jeopardy (see the International Covenant on Civil and Political Rights and the Convention of the Rights of the Child). The most distressing part of this legislation is the suppression of immigration judges’ discretion to apply considerations of equity in making their decisions – unlike what the European Court of Human Rights strongly advocates for.

Other IIRIRA provisions have created "expedited removal," a procedure by which an undocumented migrant caught at the border will be immediately removed from the country, without any judicial review or access to legal representation – placing refugee seekers at greater risk of seeing their cases dismissed without a chance of review or legal help. Finally, recent figures are showing greater prosecution of the misdemeanor of illegal entry – thereby arbitrarily criminalizing migrants crossing without documents.

FIDH and CCR believe that a deep reform of U.S. immigration law is a must. The challenge will be to apply what the U.S. authorities’ official policy on human rights proclaims in many ways to the situation of undocumented migrants. In order to achieve this, the reform should:
  Take the issue of migration out of the prism of fear and security to place it in the area of development, cooperation, and respect for human rights,
  Stop the construction of the wall and the militarization of the border,
  Hold perpetrators of violence and killings at the borders criminally accountable,
  Provide for the due process and fair treatment of detained migrants,
  Stop the systematic detention of undocumented border-crossers in prison-like facilities and ensure their legal representation,
  Repeal the IIRIRA provisions violating international human rights law, in particular the deportation of legal residents for criminal offenses,
  Forbid the criminalization of migrants for lacking legal documentation,
  Adopt a comprehensive reform providing for the legalization of undocumented migrants working and living in the United States.

FIDH – Permanent delegation to the EU, Antoine Madelin, amadelin@fidh.org, GregoireThery gthery@fidh.org
tel. +32 2 609 44 22 / fax. +32 2 609 44 33

FIDH in the US – Claire Tixeire, ctixeire@fidh.org +1 212 614 64 20 – Also working with the CCR

CCR – tel +1 212.614.6434 / fax. +1. 212.614.64.99, ccr@ccr-ny.org

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