UN investigator criticises US justice system
Thalif Deen
After a two-week fact-finding tour of US prison and detention
facilities, a UN human rights investigator has blasted the
administration of President George W. Bush for a rash of shortcomings in
the country’s flawed justice system and continued violations of the rule
of law.
Professor Philip Alston, the UN special rapporteur on extra-judicial,
summary and arbitrary executions, singles out the existence of racism in
the application of the death penalty in the United States, and the lack
of transparency in the deaths of prisoners in the Guantanamo Bay
detention facility housing suspected terrorists.
Alston, a professor at the New York University School of Law and an
outspoken critic of human rights abuses worldwide, also complains about
the non-availability of information on civilian casualties in Iraq and
Afghanistan, and the refusal of the US Justice Department to prosecute
private security contractors who commit unlawful killings.
During his 14-day tour of the United States at the invitation of the
administration, he met with federal and state officials, judges and
civil society groups in New York, Washington DC, Alabama and Texas.
Alston was particularly critical of the state of Texas which has
refused to review the cases of foreign nationals on death row, most of
whom had been deprived of the right to consular assistance from their
home countries.
He specifically chose to visit Alabama “because it has the highest
per capita rate of executions in the United States, and Texas because it
has the largest number of executions and prisoners on death row.”
Exonerated
Still, 129 individuals waiting on death row have been exonerated
across the United States, since 1973, and the number continues to grow.
“Indeed, while I was in Texas, the conviction of yet another person
on death row was overturned by the Court of Criminal Appeals,” Alston
said. While in this case DNA testing ultimately prevented the execution
of an innocent man, Alston said, others may have been less fortunate.
“In Texas, I met a range of officials and others who acknowledged
that innocent people might have been executed,” he said, adding the
problem is that a criminal justice system with recognized flaws that the
government refuses to address will always be capable of mistakes.
In his report, Alston points out that studies across the United
States also suggest racial disparities in the application of the death
penalty. In particular, many studies suggest that a defendant is more
likely to receive the death penalty when the victim is white, and some
studies also suggest that a defendant is more likely to receive the
death penalty if he is African American.
“When I raised this issue with federal and state government
officials, I was met with indifference or flat denial,” said Alston, who
noted that many officials wrote off the results of studies showing
racial disparity as being biased because they were written by
researchers with anti-death penalty views.
“Given what is at stake, there is a need for governments at both the
state and federal levels to revisit systematically the concerns about
continuing racial disparities,” he said.
Meanwhile, to date, just six of the “enemy combatants” detained at
the US detention facility in Guantanamo Bay, Cuba have been charged with
capital offences under the Military Commissions Act (MCA).
War crime charges
They are being tried before military commissions on war crimes
charges, and if convicted, face the death penalty.
According to Alston, the United States has an obligation to provide
fair trials which afford all essential judicial guarantees.
“The fundamental principles of a fair trial may never be derogated
from. But the text of the MCA, which provides the rules which govern the
trials, and the experiences of those with whom I met during my mission
involved in the trial process to date, indicate clearly that these
trials utterly fail to meet the basic due process standards required for
a fair trial under international humanitarian and human rights law,” he
added.
There have been five reported deaths of detainees at Guantanamo Bay
in 2006-07. Four were classified as suicides, and one was attributed to
cancer.
In the custodial environment, Alston said, a state has a heightened
duty and capacity to ensure and respect the right to life. As a result,
there is a rebuttable presumption of state responsibility whether
through acts of commission or omission in cases of custodial death.
The state has an obligation to investigate the deaths, and publicly
report on the findings and the evidence upon which the findings are
based. “But the Department of Defence has provided little public
information about the causes or circumstance of any of these deaths,” he
said.
While it has been reported that autopsies were conducted in each
case, the results have not been made public or even provided to the
families of the deceased men, he added.
Investigations
It was also reported that the Naval Criminal Investigative Services
is conducting investigations into each of the deaths. But over two years
since the first deaths, no results of investigations have been released.
In Iraq and Afghanistan, Alston points to a string of human rights
abuses and violations of the rule of law. He said the “troublingly
opaque character of the U.S.
military justice system is well illustrated by a case described to me
by witnesses and investigators when I visited Afghanistan.”
On Mar. 4, 2007, U.S. Marines responded to a suicide attack on their
convoy, in which one soldier was wounded, by killing 19 people and
wounding many others in the space of a 10-mile retreat.
“I asked the regional commander in Afghanistan what follow-up had
occurred. He could not tell me and explained that his unit had just
arrived in Afghanistan and that accountability for incidents involving
the previous unit was its responsibility and that it had taken all the
relevant files when it left the country,” Alston said.
“Shortly after I returned from Afghanistan, the US military released
a short statement on this incident indicating that the commander of U.S.
Marine Corps Forces Central Command had conducted a thorough review
of the report of a Court of Inquiry and had determined that the soldiers
had acted appropriately and in accordance with the rules of engagement
and tactics, techniques and procedures in place at the time in response
to a complex attack.”
Unsurprisingly, he said, this conclusive and unsubstantiated response
to such a serious incident was met with dismay in Afghanistan.
“Afghans and Americans have a right to ask on what basis this
conclusion was reached,” Alston said. “But all of the documents produced
by the Court of Inquiry have remained classified.
Record of proceedings
The record of proceedings has not been released. The 12,000 page
report of the Court of Inquiry including recommendations and factual
findings has not been released.”
The US government has even disregarded the existing regulation
stating that the convening authority should ensure that an executive
summary of the report be made public in order to inform government
officials, the legislative branch, the media, and the next of kin of the
victims of the investigations findings and recommendations.
“Whether or not the decision not to initiate courts-martial was
justified, the manner in which the military justice system has operated
in this case is entirely inconsistent with principles of public
accountability and transparency,” he declared.
Regarding killings by private security contractors, Alston said:
“It’s the (US) Department of Justice’s job to prosecute private security
contractors who commit unlawful killings, but it has done next to
nothing.”
Inter Press Service (IPS)
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