Implementing the ICCPR: The Human Rights Committee’s 2013 Review of the U.S. Jamil Dakwar The International Human Rights Framework: Opportunities For Social Justice & Civil Rights Advocates June 11, 2013

What is the ICCPR? The International Covenant on Civil and Political Rights (ICCPR) came into effect in 1976. The United States has been a State Party to the ICCPR since 1992. Currently, there are 167 State Parties to the treaty. The ICCPR is part of the foundational documents of international human rights law, together with the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the Universal Declaration of Human Rights (UDHR) form the Int. Bill of Rights.

ICCPR Key Protections The right to self-determination for peoples. (article 1) Application to all persons in a state’s territory or under its jurisdiction without distinction as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (article 2) Gender equality. (article 3) Inherent right to life and protection from arbitrary deprivation of his life. (article 6)

ICCPR Key Protections Death penalty may be imposed for most serious crimes but not on children. (article 6) The right to seek pardon or commutation if sentenced to death by the State. (article 6) Protection from torture or cruel, inhuman or degrading treatment or punishment. (article 7) Prohibitions on slavery and servitude. (article 8) The right to liberty and security of persons. (article 9) Due process protections in arrest and detention and freedom from arbitrary detention. (article 9)

ICCPR Key Protections Right of persons deprived of liberty to be treated with humanity and with respect for the inherent dignity of human person. (article 10) The right of movement and choice of residence. (article 12) Equality and recognition before the law. (articles 14, 16) Fair trial rights and procedural guarantees. (article 14) No ex post facto application of the law. (article 15)

ICCPR Key Protections Freedom from arbitrary or unlawful interference with privacy, family or correspondence. (article 17) Freedom of thought, conscience and religion. (article 18) Freedom of speech, right to hold opinions, and freedom to seek, receive and impart information and ideas of all kinds. (article 19) Prohibition of propaganda to war, advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence. (article 20) The right of peaceable assembly. (article 21) Freedom of association. (article 22)

ICCPR Key Protections Marriage and family rights. (article 23) Protection of children rights including right to a nationality for children. (article 24) The right to participate in civil life, especially through voting and public service. (article 25) Rights of ethnic, religious, or linguistic minorities to enjoy their own culture, to profess and practice their own religion or use their own language. (article 27)

Optional Protocols to the ICCPR The First Optional Protocol to the ICCPR establishes the ability of individuals to bring qualifying claims against ICCPR State Parties to the Human Rights Committee (HRC) based on alleged violations of the ICCPR. There are currently 114 State Parties to the First Optional Protocol, excluding the United States. Under The Second Optional Protocol to the ICCPR, State Parties agreed to abolish the death penalty within their jurisdictions. There are currently 76 State Parties to the Second Optional Protocol, excluding the United States.

U.S. Reservations, Understandings, and Declarations (RUDs) Upon ratifying the ICCPR in 1992, the United States entered 5 reservations, 5 understandings, and 3 declarations. Reservations included: Protection of free speech under the U.S. Constitution. Right to impose capital punishment on any person (other than pregnant women), including juveniles. Limiting the prohibition against cruel, inhuman or degrading treatment or punishment to the constitutional prohibition under 5th, 8th, and 14th Amendments . Limits on the treatment of juveniles as adults in the criminal justice system.

U.S. Reservations, Understandings, and Declarations (RUDs) Understandings included: The treaty “shall be implemented by the Federal Government to the extent that it exercises legislative and judicial jurisdiction over the matters covered” by the treaty, “and otherwise by the state and local governments” but with support from the Federal Government for the fulfillment of the Covenant.

U.S. Reservations, Understandings, and Declarations (RUDs) Declarations included: "That the United States declares that the provisions of articles 1 through 27 of the Covenant are not self-executing.” Intended to limit the ability of litigants to sue in court for direct enforcement of the treaty. Congress has not passed enabling legislation to effectuate ICCPR treaty obligations.

Functions of UNTB Courtesy of UN Human Rights Treaties ICERD (1965) CERD ECSCR (1966) OP CESCR ICCPR (1966) OP 1 & OP 2 HRCtte CEDAW (1979) OP CEDAW CAT (1984) OP CAT SPT CRC (1989) OP 1 & OP 2 CRC ICRMW (1990) CMW CRPD (2006) CRPD CPED (2006) CED Functions of UNTB Courtesy of The Centre for Civil and Political Rights (CCPR Centre), Patrick Mutzenberg

Functions of UNTB Courtesy of Main Treaty Bodies Functions Consider State Reports Consider Individual Complaints Adopt General Comments Conduct Enquiries Functions of UNTB Courtesy of The Centre for Civil and Political Rights (CCPR Centre), Patrick Mutzenberg

The Centre for Civil and Political Rights (CCPR Centre), Characteristics of the UNTB Independent experts Elected by State Parties 4-Year Terms Meetings GVA or NY Public Working Methods & Rules of procedure Support of the OHCHR Secretariat Functions of UNTB Courtesy of The Centre for Civil and Political Rights (CCPR Centre), Patrick Mutzenberg

Reprotting Process Courtesy of Submission of Initial Report Submission of Periodic Reports Submission of Periodic Reports Reprotting Process Courtesy of The Centre for Civil and Political Rights (CCPR Centre), Patrick Mutzenberg

Reprotting Process Courtesy of Draftig and Submission of the State Report Drafting and Adoption of the List of Issues Replies to the List of Issues Consideration of the State Report (dialogue) Adoption of the Concluding Observations Follow-up to the Concluding Observations Reprotting Process Courtesy of The Centre for Civil and Political Rights (CCPR Centre), Patrick Mutzenberg

U.S. review before the UN Human Rights Committee 2013 ICCPR Timeline U.S. review before the UN Human Rights Committee

U.S. Fourth Periodic Report The U.S. submitted its last periodic report in December 2011, after its prior review by the Human Rights Committee in 2006. The almost 450 page report demonstrated improvement in many issue areas since its 2006 review, especially in the areas of LGBT rights and DoJ civil rights enforcement, but: Lacked concrete information on state and local compliance with the treaty; Ignored serious ICCPR violations such those associated with Occupy protests across the country; and In some areas, even failed to respond to prior recommendations made by the Committee. A summary of the report is available here: http://www.ushrnetwork.org/resources-media/ushrn-iccpr-taskforce-summary-us-4th-periodic-report.

The ICCPR Task Force June 2012: The U.S. Human Rights Network created a special Task Force to coordinate U.S. civil society participation and advocacy in the U.S. ICCPR review process. Task Force members represent different geographic regions, issue areas and constituencies. The Task Force promotes the engagement of diverse constituencies and multiple perspectives in as inclusive and transparent a fashion as possible, to hold the U.S. accountable to its ICCPR obligations.

ICCPR Task Force Members Katrina Anderson - Center for Reproductive Rights Lauren Bartlett - Center for Human Rights and Humanitarian Law at American University Mary Gerisch - Vermont Workers Center Chief Gary Harrison - Chickaloon Village, Alaska Latrina Kelly-James - Junta for Progressive Action Kimi Lee - United Workers Congress Tina Minkowitz - Center for the Human Rights of Users and Survivors of Psychiatry Efia Nwangaza - Malcolm X Center for Self-Determination Jennifer Prestholdt - Advocates for Human Rights Alissa Escarce - Rights Working Group Sarah Paoliti – Transnational Legal Clinic, University of Pennsylvania Law School Nasrina Bargzie - Asian Law Caucus (co-chair) Jamil Dakwar – ACLU (co-chair)

Pre-Adoption of the List of Issues December 2012: NGOs submitted briefing materials to the Human Rights Committee. March 2013: Several NGOs attended the Committee’s 107th session in Geneva and participated in informal briefings as well as lobbied Committee members.

Adoption of the List of Issues by Human Rights Committee: Geneva March 20: Human Rights Committee adopted a list of issues for the U.S. review. April 28: List of Issues officially sent to U.S. Government. June 28: U.S. Government replies due.

The List of Issues The List of Issues covers key human rights issues, including: Immigration detention and enforcement, including racial profiling and shooting deaths on the U.S.-Mexico border The use of the death penalty and solitary confinement, especially on children and persons with mental disabilities Racial disparities in the criminal justice system The targeted killing program

The List of Issues Lack of accountability for torture Rights for detainees at Guantanamo Bay Criminalization of homelessness Gun violence Trafficking and domestic violence Measures restricting the right to vote NSA surveillance program

Post-Adoption of the List of Issues May 30: Consultation with U.S. State Department Members of civil society shared their perspectives regarding the List of Issues in order to influence U.S. replies to the Committee in advance of the review in October. June/July: Advocacy, public education and media campaign to publicize List of Issues in preparation for U.S. review Coordinated letter writing campaigns to state legislators and policy makers and bring the List of Issues and US review to attention of state and local governments. June: Letter to Administration re: consultations pre-U.S. review Letter to the Administration suggesting improvements for civil society consultations towards the U.S. review and preparation of the U.S. written reply to the List of Issues.

Shadow Reporting June 6: Training call I Early July: Training Call II Basic overview of the shadow reporting process. (recorded) Early July: Training Call II More detailed training and discussion of lessons learned from prior shadow reports. August 23: Human Rights Network deadline for submission of shadow reports or updated submissions September 6: Suggested Human Rights Committee deadline for submission of shadow reports or updated submissions Shadow reports submitted, including updated versions of List of Issues submissions and other advocacy documents.

Shadow Report Template The following is a suggested template for NGO shadow reports to the Human Rights Committee. This report can either be an initial submission to the Committee or an update to the List of Issues Submission. This submission should be a short summary of an issue that you recommend the Human Rights Committee address during its review of the U.S. Government’s compliance with the ICCPR in October 2013. The submission should be no longer than 3-5 pages, and should include links to existing materials, reports, and other resources that further elaborate on the topic. If your submission covers an issue that was not included in the list of issues and/or was not covered in an NGO list of issues report, feel free to exceed the 3-5 page limit in order to adequately brief your issue. Note that even if you did not submit a list of issue report in December, it is not too late to submit a shadow report.

Shadow Report Template Title Reporting Organization(s) Note whether this is an individual or coalition submission. List and briefly describe the organization or coalition of organizations and advocates authoring and/or endorsing this submission, including the geographic scope of the organization(s), focus issues, location and mission. If the coalition is large, include the full list of organizations and individual signatories as a footnote or annex. Introduction and Issue Summary Note whether this is an update to a prior submission. Briefly summarize (1-2 paragraphs) the human rights issue your submission addresses. Focus on providing updates since your previous submission (if applicable). In particular, highlight the following aspects: roles played by federal, state and local government in your issue; legislation that could remedy the human rights situation; relevant data; charts; and stories from victims and survivors. Relevant Question in List of Issues If issue was included in the List of Issues, note which question in the list your issue pertains to. If the language in the question did not sufficiently address the issue, suggest modified language and other suggested questions to be raised during the US review.

Shadow Report Template U.S. Government Response If the U.S. government submits its replies on time (expected by June 27th), reference the U.S. position in respect to your issue. If the U.S. government has not submitted its report, reference the U.S. position based on outside information (if you feel comfortable). Explain how the U.S. position comports with its obligations under the ICCPR, keeping in mind Committee’s questions, prior concluding observations, and (if applicable) general comments. Recommended Questions List, in order of priority, 2-3 questions you recommend the Human Rights Committee ask the U.S. Government during the review. Suggested Recommendations List, in order of priority, 2-3 recommendations you suggest the Human Rights Committee provide to the U.S. Government upon its review. Recommendations may include changes to law, policy, or practice at the local, state, or federal level. Recommendations should include specific policies, laws and even legislation or programs that you want the Committee to include in the concluding observations. For example, if you are working on fighting racial profiling it would be important to recommend the passage of the End Racial Profiling Act which was recently re-introduced in U.S. Congress.

Pre-U.S. Review September 23: Day of Action in several states in advance of U.S. review highlighting issues covered in shadow reports and updated submissions Coordinated events in several states highlighting the ICCPR submissions. September/Early October: Pre-Geneva Review strategy call Strategy call to prepare for the U.S. review before the Committee in Geneva for individuals who submitted List of Issue submissions and/or shadow reports.

U.S. Review by Human Rights Committee: Geneva October 14-November 1: 109th Session of the Human Rights Committee U.S. Review dates TBD; will consist of six hours over two days during this session. U.S. review to be livecast for those not attending the session in Geneva.

Post-U.S. Review Early November: Post-review report back December 6-8: ICCPR report back and implementation workshop at USHRN National Conference in Atlanta.

Questions? To join the U.S. Human Rights Network ICCPR listserv, email: candace@ushrnetwork.org or ICCPR@ushrnetwork.org Comments/Suggestions? Feel free to email me at: jdakwar@aclu.org For additional resources, visit: http://www.ushrnetwork.org/iccpr-newsletter-3.