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Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston: Addendum - Mission to the United States of America (A/HRC/11/2/Add.5)

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ADVANCE UNEDITED VERSION

HUMAN RIGHTS COUNCIL
Eleventh session
Agenda Item 3

PROMOTION AND PROTECTION OF ALL HUMAN RIGHTS, CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS, INCLUDING THE RIGHT TO DEVELOPMENT

Summary

There is a good deal to commend about the record of the United States of America on extrajudicial killings: in most instances there is no lack of laws or procedures for addressing potentially unlawful killings and, at least domestically, data is generally gathered systematically and responsibly. I found, however, three areas in which significant improvement is necessary if the U.S. Government is to match its actions to its stated commitment to human rights and the rule of law.

First, the Government must ensure that imposition of the death penalty complies with fundamental due process requirements; the current systems' flaws increase the likelihood that innocent people will be executed. Second, the Government must provide greater transparency into law enforcement, military, and intelligence operations that result in potentially unlawful deaths. Third, the Government must overcome the current failure of political will and provide greater accountability for potentially unlawful deaths in its international operations; political expediency is never a permissible basis for any State to deviate from its obligation to investigate and punish violations of the right to life.

It is widely acknowledged that innocent people have likely been sentenced to death and executed. Yet, in Alabama and Texas, I found a shocking lack of urgency about the need to reform glaring criminal justice system flaws. Each state should undertake a systematic inquiry into its criminal justice system and ensure that the death penalty is applied fairly, justly, and only for the most serious crimes. Deficiencies that should be remedied include the lack of adequate counsel for indigent defendants and racial disparities in sentencing. The system of electing judges in both states should be reconsidered because it politicizes the death penalty and unfairly increases the likelihood of a capital sentence. Given the inadequacies of state criminal justice systems, Congress should enact legislation permitting federal court habeas review of state and federal death penalty cases on the merits.

I am also concerned that the death penalty could be imposed under the Military Commissions Act of 2006, the provisions of which violate the due process requirements of international human rights and humanitarian law. I welcome the Government's stay of commission proceedings. It should not resort to prosecutions under the Act again.

Significant attention needs to be given to promoting transparency into potentially unlawful killings. Domestically, although the Government does a strong job of collecting data generally, it fails to provide timely and meaningful information about deaths in immigration detention or arising out of law enforcement activities.

Transparency failures are far more acute in the Government's international military and intelligence operations. First, the Government has failed to track and make public the number of civilian casualties, or the conditions under which deaths occurred. Second, the military justice system fails to provide ordinary people, including U.S. citizens and the families of Iraqi or Afghan victims, basic information on the status of investigations into civilian casualties or prosecutions resulting therefrom. Third, the government has refused to disclose the legal basis for targeted killings conducted through drone attacks on the territory of other States, or to identify any safeguards in place to reduce collateral civilian casualties and ensure that the Government has targeted the correct person.

These transparency failures contribute to the lack of accountability for wrongful deaths. They represent a lost opportunity to learn from mistakes and apply policies and practices that reduce casualties. Unsurprisingly, they have undermined support for U.S. operations. Such failures are remedied relatively easily, and the measures I recommend should be implemented expeditiously.

All States have an obligation to effectively investigate, prosecute, and punish violations of the right to life, including in situations of armed conflict. It is important, of course, to acknowledge the unique characteristics and challenges of armed conflict, including that intentional killing may be permitted. But the obligation to enforce the law does not change: the rule of law must be upheld in war as in peace.

Some aspects of the rule of law have been taken seriously during U.S. military operations. Thus, after visiting Afghanistan in May 2008, I noted that I saw no evidence that international forces in Afghanistan, including those of the United States, were committing widespread intentional killings in violation of human rights or humanitarian law. In addition, the Government has implemented compensation programs for civilian victims of U.S. military operations. While these programs should be improved, the United States has shown admirable leadership in relation to compensation payments.

However, there have been chronic and deplorable accountability failures with respect to policies, practices and conduct that resulted in alleged unlawful killings - including possible war crimes - in the United States' international operations. The Government has failed to effectively investigate and punish lower-ranking soldiers for such deaths, and has not held senior officers responsible under the doctrine of command responsibility. Worse, it has effectively created a zone of impunity for private contractors and civilian intelligence agents by failing to investigate and prosecute them.

These accountability failures arise in part from a lack of political and prosecutorial will that is utterly inconsistent with the Government's stated commitment to upholding the rule of law. The new administration's expressed desire to "move forward" from past unlawful policies and practices is understandable, but cannot be accomplished without accountability. It would set a dangerous precedent, domestically and internationally, if the Government were to bow to political pressure and fail to enforce its own laws against wrongful deaths and illegal abuse.

Although there is no substitute for prosecution of violations of the right to life, in the short-term there are other steps the Government can take toward transparency and accountability. One step is the creation of a national "commission of inquiry" to conduct an independent, systematic and sustained investigation of policies and practices that lead to deaths and other abuses. Another is the appointment of a special prosecutor independent of the pressures on the political branches of Government. Adoption of both mechanisms would send the strong message that the United States truly is "moving forward."