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TO: FROM: DATE:

MEMBERS OF THE UN HUMAN RIGHTS COMMITTEE HUMAN RIGHTS FIRST JANUARY 18, 2006

RE: FOLLOW-UP TO HUMAN RIGHTS FIRSTS OCTOBER 18, 2005 MEMORANDUM TO THE HUMAN RIGHTS COMMITTEE TOPICS COVERED: I. LEGAL FRAMEWORKS APPLICABLE TO PERSONS DETAINED BY THE U.S. IN CONNECTION WITH THE SO-CALLED GLOBAL WAR ON TERROR APPLICATION OF THE ICCPR TO THE EXTRATERRITORIAL ACTIONS OF A STATE PARTY ICCPR IMPLICATIONS OF U.S. DETENTION OF ASYLUM SEEKERS.

II. III.

Human Rights First welcomes the opportunity to submit information on issues to be addressed to the United States at the Committees 86th session in March 2006. On October 18, 2005, Human Rights First submitted its Memorandum to the Committee on the human rights consequences of U.S. counter-terrorism measures since September 11, 2001. Shortly thereafter, the U.S. submitted a combined second and third periodic report to the Committee, including Annex I, in which the U.S. argues that the ICCPR has no application to the conduct of a State Party beyond its territory. In this Memorandum, we supplement our October submission with additional information on the topics mentioned above. I. LEGAL FRAMEWORKS APPLICABLE TO PERSONS DETAINED BY THE U.S. IN CONNECTION WITH THE GLOBAL WAR ON TERROR

The U.S. has asserted that the Global War on Terror (GWOT) is an armed conflict to which human rights law, including the ICCPR, has no application.1 In support of this proposition, the U.S. asserts that armed conflict is, instead, governed by the lex specialis of international humanitarian law (IHL).2 While
1

US authorities have occasionally referred to the GWOT as war in the sense that triggers application of the laws of war, otherwise known as international humanitarian law (IHL). In the vocabulary of international law, the term war has given way to the term armed conflict. Thus, it is the existence of armed conflict that is understood to trigger application of IHL. 2 See, Addl Response of the United States to Request for Precautionary Measures-Detainees in Guantanamo Bay, Cuba at 3-5, July 15, 2002 available at http://www.ccr-ny.org/v2/legal/september_11th/docs/7-2302GovtResponsetoObservations_andIACHR_Decision.pdf (last visited Oct. 11, 2005); see also Working Group Report

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IHL is, indeed, the lex specialis applicable to armed conflict, there are three reasons why it either may not apply at all or may not be the exclusive legal framework applicable to persons detained in the GWOT: First, not all aspects of the GWOT amount to armed conflict, therefore not all persons detained as suspected terrorists are subject to IHL - based rules of detention. Second, even where IHL does apply because a detainee is being held in connection with armed conflict, IHL does not entirely displace other legal frameworks, such as human rights and domestic criminal law. Rather, it will displace certain rules of human rights and domestic law that are inconsistent with applicable IHL. Third, even in armed conflict, non-derogable human rights rules continue to apply in any case and derogable rules continue to apply unless conditions for derogation are met. A. Many GWOT Detainees are Being Held Beyond the Bounds of any Armed Conflict IHL is primarily encompassed in the four Geneva Conventions of 1949 and the two Additional Protocols of 1977 and in customary international humanitarian law.3 It applies to armed conflict, be it international or non-international. IHL defines international armed conflict as any difference arising between two States and leading to the intervention of armed forces . . .even if one of the Parties denies the existence of a state of war.4 Non-international armed conflict is understood in IHL to exist when armed groups engage in hostilities against a State, or against one another within a State (although hostilities may extend beyond the boundaries of a single state), and where those hostilities exceed the scope of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.5 Since international armed conflict involves any intervention of armed forces of one State against another, its existence is relatively easy to determine. The existence of non-international armed conflict, however, may be more difficult to discern. Questions include the temporal and geographic scope of hostilities and the frequency and intensity of attacks. But the most important determinant is the ability to identify
on Detainee Interrogations in the Global War on Terrorism: Assessment of Legal, Historical, Policy, and Operational Considerations 6 (Apr. 4, 2003), available at http://www.defenselink.mil/news/Jun2004/d20040622doc8.pdf (last visited Oct. 8, 2005) (stating that the ICCPR does not apply to operations of the military during international armed conflict).
3

The United States is a party to the four Geneva Conventions of 1949. See Geneva Convention [I] for the Amelioration of the Condition of the Wounded and Sick in the Armed Forces in the Field, Aug. 12, 1949, 6 U.S.T. 3114, 75 U.N.T.S. 31; Geneva Convention [II] for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of the Armed Forces at Sea, Aug. 12, 1949, 6 U.S.T. 3217, 7 U.N.T.S. 85; Convention [III] Relative to the Treatment of Prisoners of War, Aug, 12, 1949, 6 U.S.T. 3116, 75 U.N.T.S. 135 [hereinafter Third Geneva Convention]; Geneva Convention [IV] Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949 6 U.S.T. 3516, 75 U.N.T.S. 287 [hereinafter Fourth Geneva Convention]. It is not a party to the two Additional Protocols, but important segments of Additional Protocol I are widely regarded as customary international law. See generally , JEAN-MARIE HENCKAERTS & LOUISE DOSWOLD-BECK, CUSTOMARY INTERNATIONAL HUMANITARIAN LAW (2005); see also William H. Taft, IV, Symposium: Current Pressure on Intl Humanitarian Law: The Law of Armed Conflict After 9/11: Some Salient Features , 28 YALE J. INTL L. 319, 321-23 (2003) (arguing that Article 75 of Additional Protocol I is customary international law). Mr. Taft was the Legal Advisor of the U.S. State Department from 2001 to 2005; see also, Matheson, The United States Position on the Relation of Customary International Law to the 1977 Protocols Additional to the 1949 Geneva Conventions, 2 AM. U. J. INTL L. & POLICY 419 at 420, 427 (1987) (with particular reference to the customary nature of Art. 75 of Additional Protocol I). 4 The Geneva Conventions of Aug. 12, 1949: Commentary I Geneva Convention 32 (Jean Pictet ed. 1994). 5 The Geneva Conventions of Aug. 12, 1949: Commentary III Geneva Convention 36 (Jean Pictet ed. 1994).

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parties, since it is through the parties to armed conflict that the rights and responsibilities of IHL are administered. Thus, a war on terror is not ipso facto an armed conflict because regardless of the frequency or intensity of hostilities, terror, terrorism and even terrorists (as a generic class) cannot be said to be a party to an armed conflict. In any case, since the law of armed conflict permits (within limits) killing and the detention of persons without all the customary protections of due process applicable in peacetime, the assertion of armed conflict must be based on objective criteria, rather than upon a mere declaration that a state of war exists.6 Conversely, the lack of a declaration of war does not affect the applicability of IHL. There can be no doubt that the IHL of international armed conflict applied to the war in Afghanistan beginning in October of 2001 and to the war in Iraq, beginning in March of 2003. Detention of persons within the context of those conflicts is governed primarily by the rules of detention applicable in international armed conflict. As to other aspects of the GWOT, however, the law of non-international armed conflict cannot apply unless the intensity and frequency of attacks is sufficient, and unless the temporal and territorial scope of the conflict can be determined, and most importantly, unless the parties to the conflict can be identified. Thus, detention of persons suspected of terrorist activity and held by the U.S. outside the context either of these two international armed conflicts, or of a definable non-international armed conflict, is not governed by the law of armed conflict, notwithstanding classification of such persons by the U.S. as enemy combatants.7 Neither the IHL of international armed conflict nor the IHL of non-international armed conflict applies, and therefore, IHL does not supplant human rights rules applicable to persons detained beyond the contexts of such conflict. Thus, for example, the full measure of human rights rules, rather than those of IHL, applies to GWOT detainees suspected of terrorist activity and detained within the U.S. or brought to Guantanamo from such disparate places as the Gambia and Sarajevo. B. Human Rights Law Continues to Apply in and to Armed Conflict-Related Detention Despite assertions to the contrary by the U.S., it is well-established that human rights law complements IHL in times and situations of armed conflict.8 Rather than supplanting otherwise applicable human rights
6

See, Gabor Rona, Interesting Times for International Humanitarian Law: Challenges from the War on Terror , 17 TERRORISM & POL. VIOLENCE 157 (2005). 7 The US has loosely asserted that the GWOT is an international armed conflict. This is incorrect in two senses. First, certain manifestations of the GWOT do not amount to either type of armed conflict known to international law: international armed conflict and non-international armed conflict. (See Sec. I.A. of this Memorandum). Second, manifestations of the GWOT other than those within the context of the US and allied invasions of Afghanistan and Iraq, do not amount to international armed conflict because they to not involve the use of force by one state against another. If such manifestations rise to the level of armed conflict at all, it is armed conflict of the non-international variety. The fact that such armed conflict may transcend the borders of a single State does not render it international. There are many instances of non-international armed conflict spilling over into the territory of a second State. So long as the armed conflict remains a contest between a State and one or more non-State entities, or among two or more non-State entities, it continues to be noninternational even though it might be fought across State boundaries. Thus, if the conflict between the US and Al Qaeda, a non-State entity of transnational scope, is, indeed an armed conflict, it is non-international. It should be borne in mind, however, that there is significant disagreement among IHL scholars as to whether or not a state of armed conflict can exist between a State and a non-indigenous non-State entity, especially one so amorphously organized as Al Qaeda appears to be.
. . .the Covenant applies also in situations of armed conflict to which the rules of international humanitarian law are applicable . . .both spheres of law are complementary, not mutually exclusive. Human Rights Committee, General Comment No. 31 on Article 2 of the Covenant: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, UN Doc. CCPR/C/74/CRP.4/Rev. 6, April 21, 2004; see also, ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, para. 25; ICJ, Legal Consequences of the Construction of a Wall in the
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law in toto, IHL, as the lex specialis in armed conflict, merely displaces provisions of human rights law that are incompatible with applicable provisions of IHL, or requires that human rights rules, such as the legality of the deprivation of life, be interpreted with reference to the rules of IHL.9 1. Rules Applicable to Detention in International Armed Conflict Where the fact of detention in international armed conflict is established, one looks first to the IHL of international armed conflict for the rights and obligations of detaining authorities and detainees. Rules of international armed conflict concerning the determination of the status of detainees and their treatment are well-developed in the Third and Fourth Geneva Conventions and in their Additional Protocol I, as well as in customary international law. As concerns treatment of detainees, there is little difference between IHL and human rights law: both require detainees to be treated humanely, and specifically, prohibit torture and cruel, inhuman and degrading treatment. Thus, there is little need to consult ICCPR rules concerning either the treatment or the legal process due persons detained in international armed conflict.10 2. Rules Applicable to Detention in Non-international Armed Conflict Where the fact of detention in non-international armed conflict is established, one looks first to the IHL of non-international armed conflict for the rights and obligations of detaining authorities and detainees. Unlike the situation in international armed conflict, the rules of non-international armed conflict concerning the determination of status of detainees and to a lesser extent, their treatment is not well developed. The Geneva Conventions are almost exclusively devoted to rules governing international armed conflict. Only their Common Article 3 addresses treatment of persons detained in noninternational armed conflict, and it does so only in general terms. Additional Protocol II to the Conventions governs non-international armed conflict, but also says little about detention. There is logic in the relative dearth of detention-related rules in the IHL of non-international armed conflict a logic that naturally leads to the application of human rights and other rules applicable outside the context of armed conflict. In international armed conflict, certain detainees are accorded the status and rights of a prisoner of war, meaning that they are persons privileged to participate in hostilities and who may not be prosecuted for the mere fact of having done so. Other detainees are accorded the status of civilian. A civilian is not privileged to participate in hostilities, and may be prosecuted for having done so, but under domestic, rather than international law. Thus, persons detained in international armed conflict are generally exempt from the criminal laws of the detaining authority for their mere participation in hostilities. (They do remain subject to prosecution for war crimes.) On the other hand, the law of non-international armed conflict confers no right upon persons to participate in hostilities and no special status on those detained in connection with hostilities. Such persons remain subject to detention and prosecution under domestic law in the same manner as do persons detained for security reasons or criminal acts outside the context of armed conflict. It stands to reason, therefore, that there is no detention regime unique to the law of non-international armed conflict
Occupied Territory, Advisory Opinion of 9 July 2004, para. 106; see also, Juan Carlos Abella v. Argentina, Case No. 11.137, Report No. 55/97, Annual report of the IACHR 1997, para.158; Coard et al v. United States, Case No. 10.951, Report No. 109/99, Annual Report of the IACHR 1999, para. 38; see also Prosecutor v. Furundzija, International Criminal Tribunal for the former Yugoslavia, No. IT-95-17/i-T, Judgment, Para. 183 (Dec. 10, 1998), reprinted in 38 ILM 317 (1999). 9 ICJ, Legality of the Threat or Use of Nuclear Weapons, fn. 6 , supra. 10 The exception being the non-derogable rules of the ICCPR that may not also be reflected in applicable IHL (and even the derogable rules, unless requirements for derogation are met). See Sec. I.C, infra.

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 that the rules are those applicable in peacetime, as well. Thus, domestic law and international human rights law, including the ICCPR, govern the treatment and the due process rights of detainees held in the contexts of both peacetime and non-international armed conflict. C. Neither Substantive nor Procedural Conditions for Derogation from ICCPR Rules have been Met Regardless of the potential applicability of IHL, and thus, its operation as a lex specialis that displaces otherwise applicable legal frameworks, ICCPR rules continue to fully apply to the extent they are nonderogable.11 In addition, even derogable rules continue to apply in situations of armed conflict unless procedural conditions for derogation, contained in ICCPR Art. 4, are met. Substantively, a State may only derogate in time of public emergency which threatens the life of the nation, and only to the extent that the derogation is not inconsistent with the States other international legal obligations, which would include those of IHL. Procedurally, the state of emergency must be officially proclaimed and a notice of derogation, indicating the ICCPR provisions being made the subject of derogation and the reasons therefore, must be communicated by the State to the UN Secretary General. At no time since September 11, 2001 has the United States either declared the existence of an emergency, nor has it provided any notice of intent to derogate from its ICCPR obligations, as per Art. 4. D. Conclusion In considering 1) whether or not the ICCPR applies to any particular GWOT detainee held by the U.S., and 2) if so, what provisions of the ICCPR apply, the Committee should be guided as follows: 1. Regardless of whether or not the detention is in the context of armed conflict, the non-derogable provisions of the ICCPR must be applied to any such detainee in all respects, including determination of legal status, treatment and rights to due process of law. 2. In international armed conflict: in addition to its non-derogable provisions, the ICCPR applies to detainees to the extent its provisions are not inconsistent with the applicable provisions of the Third and Fourth Geneva Conventions and with customary international humanitarian law applicable to international armed conflict, including the fundamental guarantee provisions of Additional Protocol 1, Art. 75. 3. In non-international armed conflict: in addition to its non-derogable provisions, the ICCPR applies to the extent its provisions are not inconsistent with the requirements of Common Article 3 of the Third and Fourth Geneva Conventions and with customary international law applicable to non-international armed conflict. 4. With the exception of provisions from which derogation is taken in conformity with Article 4, the ICCPR applies in its entirety to detention beyond the context of armed conflict. II. THE ICCPR APPLIES TO THE EXTRATERRITORIAL ACTIONS OF A STATE PARTY

Article 2(1) ICCPR: Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without
11

ICJ, Legality of the Threat or Use of Nuclear Weapons, fn. 6 , supra.

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distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. (Emphasis added) In its Annex 1 submitted in connection with its combined second and third periodic reports to the Committee, the U.S. argues that the ICCPR has no application to the conduct of a State Party beyond its territory. Its argument is based almost exclusively on a misreading of the travaux prparatoires of the Covenant concerning the negotiating history of Article 2(1). A reading of the travaux that is more inclusive than that made by the U.S. makes clear that the purpose of adding the words within its territory to the pre-existing text within its jurisdiction was not to negate extraterritorial responsibility of a State for its own actions, but to merely exclude state responsibility under the ICCPR for acts committed, for example, against a citizen of that State, by others acting beyond the control of that State. It was never suggested or intended that a State should be immune from responsibility for its own actions taken beyond its own territory. In addition, customary rules of construction expressed in the Vienna Convention on the Law of Treaties and other expressions of customary international law that post-date the more-than 50 year-old travaux, clearly and unequivocally establish the requirement that States comply with their ICCPR obligations when acting beyond their national borders. A. The Travaux Prparatoires The primary issue raised by the delegates in the travaux prparatoires was that states would not have the capacity to fulfill their obligations under the ICCPR to persons nominally subject to their jurisdiction (such as their citizens), but located in foreign territory. Many states were concerned that absent the words within its territory Article 2(1) might be construed to obligate parties to the ICCPR to ensure the human rights of their nationals abroad by other than regular diplomatic means. The travaux prparatoires make it clear that the delegates supported the inclusion of the words within its territory in order to ensure that they would not be obliged under the ICCPR to coercively interfere abroad to protect the human rights of their citizens.12 This is evidenced by the dialogue between Mr. Mendez (representative of the Philippines) and Mrs. Roosevelt (Chairman and representative of the U.S.) in which Mr. Mendez remarked that a United States citizen abroad would surely be entitled to claim United States jurisdiction if denied the rights recognized in the Covenant. In response, Mrs. Roosevelt stated that if such a case occurred within the territory of a State party to the Covenant, the United States government would be unable to do more than make representations on behalf of its citizens through normal diplomatic channels.13, 14 The examples used by Mrs. Roosevelt serve to further illustrate the point that the dialogue surrounding inclusion of the words within its territory centered on the ability to implement the ICCPR extraterritorially. Mrs. Roosevelt used the examples of Germany, Austria and Japan stating that persons within those countries were subject to the jurisdiction of the occupying states in certain respects, but were outside the legislation of those states. Mrs. Roosevelt continued by stating that another illustration would be the case of leased territories: some countries leased certain territories from others for limited purposes, and there might be questions of conflicting authority between the lessor nation and the lessee nation.15 Mr. Nisot (the representative for Belgium) raised the question of whether troops maintained by a State in foreign areas were under the jurisdiction of that state. In response, Mrs.
Luigi Condorelli and Pasquale de Sena, The Relevance of the Obligations flowing from the U.N. Covenant on Civil and Political Rights to U.S. Courts Dealing with Guantanamo Detainees , JOURNAL OF INTERNATIONAL CRIMINAL JUSTICE 2 (2004), page 111. 13 Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 194th mtg. UN Document, E/CN.4/SR.194 (1950) 15, 16. 14 Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 194th mtg. UN Document, E/CN.4/SR.194 (1950) 32.
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Roosevelt held that such troops, although maintained abroad, remained under the jurisdiction of that state.16 There is nothing in the travaux prparatoires to indicate that the delegates even considered that the ICCPR would not apply to acts committed by a state party to the ICCPR on foreign territory; or to situations of belligerent occupation.17 The inclusion of the words within its territory was intended to clarify to the delegates that states would be obliged to use diplomatic means in an attempt to satisfy their obligations under the ICCPR to their citizens living abroad, but that there was no obligation on states to use coercive means in order to comply with their obligations. The travaux prparatoires certainly elucidated that the inclusion of the words within its territory was never intended to grant states unfettered power to attack the personal freedom and integrity of their citizens living abroad. 18 B. The Vienna Convention on the Law of Treaties The U.S. asserts that application of Article 31 of the Vienna Convention on the Law of Treaties (The Vienna Convention)19 leads to the conclusion that the obligations outlined in the ICCPR apply only within the territorial bounds of a State party to the ICCPR. In fact, Article 31(3) of the Vienna Convention suggests the contrary. In the case of Bankovic,20 the court held that the elements of interpretation in Article 31 all relate to the agreement between the parties at the time when or after it received authentic expression in the text. As is indicated by the travaux prparatoires, which is evidence of the agreement between the delegates at the time of the establishment of the ICCPR, the obligations under the ICCPR were not intended to have territorial exclusivity, but rather to ensure that a State would not be obliged to use coercive measures as against violations committed by others.. Further, the U.S. fails to mention article 31(3) of the Vienna Convention: There shall be taken into account, together with the context (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding this interpretation; (c) any relevant rules of international law applicable in the relations between the parties. There is a comprehensive body of jurisprudence reflecting extraterritorial application of the ICCPR. The International Court of Justice (ICJ), the Human Rights Committee (HRC) and the European Court of Human Rights (ECHR) have all held that the ICCPR has extraterritorial application. 1. International Court of Justice The ICJ has held that in adopting the wording chosen, the drafters of the Covenant did not intend to allow states to escape from their obligations when they exercise jurisdiction outside their national
Summary Record of the Hundred and Thirty-Eighth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 138th mtg. UN Document, E/CN.4/SR.138 (1950) 34. 16 Summary Record of the Hundred and Ninety-Fourth Meeting, U.N. ESCOR Hum. Rts. Comm., 6th Sess., 194th mtg. UN Document, E/CN.4/SR.194 (1950) 31, 32. 17 Orna Ben-Naftali & Shany Yuval, Living in Denial: The Application of Human Rights in the Occupied Territories , 37 ISRAEL LAW REVIEW 1 (2003-2004), page 34. 18 Christian Tomuschat, Human Rights between Idealism and Realism (Oxford: Oxford University Press, 2003) pages 109110. 19 Vienna Convention on the Law of Treaties, May 23, 1969, 1155 UN Treaty Series 331. 20 Bankovic and Others, Council of Europe/Conseil dEurope, European Court of Human Rights, Grand Chamber Decision, Application No.52207/99, pages 5-6.
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territory. They only intended to prevent persons residing abroad from asserting, vis--vis their state of origin, rights that do not fall within the competence of that State, but of that of the state of residence. 21 In short, the ICCPR is applicable to acts committed by a state in the exercise of its jurisdiction outside its territory.22 All fifteen judges of the ICJ, including Judge Burgenthal of the U.S., agreed that the ICCPR and other human rights treaties apply extraterritorially. In its judgment regarding the construction of a wall in the Occupied Palestinian Territories, the ICJ held that Article 2(1) can be interpreted as covering both individuals present within a States territory and those outside that territory but subject to that States jurisdiction.23 The ICJ acknowledged that a states jurisdiction is primarily territorial, but that jurisdiction may also be exercised outside the national territory. It continued in stating that considering the object and purpose of the ICCPR, it would seem natural that, even when such is the case, states parties to the Covenant should be bound to comply with its provisions.24 2. Human Rights Committee The HRC has interpreted Article 2(1) of the ICCPR disjunctively in stating that the Convention extends to both those persons who are within their territory and to all persons subject to their jurisdiction. The HRC has further held that a state party must respect and ensure the rights laid down in the Covenant to anyone within the power or effective control of that State party, even if not situated within the territory of the State Party.25 In the cases of Sergio Euben Lopez Burgos v Uruguay and Lilian Celiberti de Casariego, which concerned the revocation of passports by Uruguayan policemen in Argentina and Brazil, the HRC applied the ICCPR extraterritorially condemning the actions to be breaches of the Covenant.26 The extraterritorial application of the ICCPR by the HRC was repeated in the passport cases which concerned the issue of the revocation of passports performed by consular agents of the defendant states.27 More recently, in its observations on Croatia, the HRC held that responsibility under the ICCPR also extends to acts of the military in foreign territories. The HRC held that clear instructions should be issued to all military personnel as to their obligations under the Covenant. 28 3. European Court of Human Rights The ECHR has held that a state is responsible under the European Convention on Human Rights and Fundamental Freedoms for acts committed outside its territory.29 In Loizidou v Turkey, the ECHR held that the state has jurisdiction if it exercises effective control in an area outside its national territory, whether directly, through its armed forces, or through a subordinate local administration.30 The ECHR asserted that the responsibility of jurisdiction extends to securing the complete range of substantive rights
International Court of Justice, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory , 9 July 2004, General List, No.131 109. 22 Ibid. 111. 23 Ibid. 108. 24 Ibid. 109. 25 Human Rights Committee General Comment 31 on Article 2 of the ICCPR, adopted on 29 March 2004, CCPR/C/21/Rev.1/Add.13. 26 Sergio Euben Lopez Burgos v Uruguay , Communication No.R 12/52 (6 June 1979), UN Doc. Supp. No. 40 (A/36/40) 12.1. 27 Guillermo Waksman v Uruguay , 28 March 1980, Comm. 31/1978, U.N. Doc. CCPR/C/OP/1 (1984) 9; Samuel Lichtensztein v Uruguay , 31 March 1983, Comm 77/1980, U.N. Doc, Supp 40 (A/38/40) (1983). 28 Human Rights Committee Concluding Observations on Croatia, 28/12/92. U.N. Document CCPR/C/79/Add.15 (1992) 9. 29 International Commission of Jurists: Israel/Palestine: Israels Separation Barrier: Challenges to the Rule of Law and Human Rights: Executive Summary : Part I and Part II, http://www.icj.org/news.php3?id_article=3410&lang=en, page 23. 30 Id.
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set out in the Conventions ratified by the State Party.31 Further, the ECHR has conclusively stated that extraterritorial application is imperative in order to avoid a regrettable vacuum in the system of human rights protection [in which individuals are excluded] from the benefits of the Convention safeguards and system which they had previously enjoyed.32 As such, individuals within the jurisdiction of a State Party to the European Convention for Human Rights and Fundamental Freedoms, but not necessarily within the territory of the Convention will be protected by the rights endowed within the Convention. The ECHR places great emphasis on the nexus between the individuals and the state. In Sergio Euben Lopez Burgos v Uruguay, the ECHR held that in determining applicability of the Convention, the nature of the relations between the state and the individual is of greater importance than the place of the commission of the alleged violations.33 Further, in Bankovic, the court held that the real connection between the applicants and the respondent state is the impugned act which, wherever decided, was performed or had effects outside the territory of those states.34 There is a growing trend within international jurisprudence towards the adoption of this nexus argument. As such, if a state makes a decision in regard to an individual subject to its jurisdiction, and the foreseeable outcome of such a decision is the violation of that individuals rights in another state, the state making the decision will be held responsible for the human rights violations. 4. The U.N. Secretary General The U.N. Secretary Generals Annotations on the Text of the Draft Covenants on Human Rights asserts that a state should not be relieved of its obligations under the Covenant to persons who remained within its jurisdiction merely because they were not within its territory.35 C. Article 2(1) was Intended to be Read Disjunctively The disjunctive interpretation of Article 2(1) also finds support in the HRC's analysis of Article 1 of the First Optional Protocol to the ICCPR, which authorizes the HRC to review communications from individuals subject to the jurisdiction of States parties to the Optional Protocol. The right to bring communications cannot exceed the rights endowed by the ICCPR. As such, it would be illogical for the ICCPR to be construed more narrowly than the First Optional Protocol. 36 It is also necessary to recall that the ICCPR was developed in reaction to the atrocities of World War Two and the Holocaust. Most of the abuses committed by the Nazis were perpetrated extraterritorially and directed at individuals residing abroad. To now claim that the ICCPR was not intended to protect victims of such violations is simply to ignore the negotiating history and the harms the Covenenant was designed to address.37 D. Jurisdiction has Extraterritorial Scope If indeed a disjunctive approach is adopted by the U.S., it is necessary to clarify the meaning of the term jurisdiction and to ensure that it is applied appropriately. Jurisdiction relates to a governments power to exercise authority or a geographic area within which political or judicial authority may be exercised.38
Id. Cyprus v Turkey , Application No.25781/94, May 10, 2001. 33 Sergio Euben Lopez Burgos v Uruguay , Communication No.R 12/52 (6 June 1979), U.N. Doc. Supp. No.40 (A/36/40) 34 Bankovic and Others, Council of Europe/Conseil dEurope, European Court of Human Rights, Grand Chamber Decision, Application No.52207/99 54. 35 United Nations, Official Records of the General Assembly, Tenth Session, Annexes , A/2929, Ch. V (1955) 4. 36 Orna Ben-Naftali & Shany Yuval, fn.8 , supra, page 34. 37 Ibid, page 30. 38 B.A. Garner (ed.), Blacks Law Dictionary (St. Paul, 7th ed., 1999).
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In Coard et.al. v United States, the Inter-American Commission held that jurisdiction may refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state. 39 The Inter-American Commission highlighted that neither the nationality nor geographic location of the applicant were decisive in determining jurisdiction, but rather the level of authority and control exercised by a state was the decisive factor. In Sergio Euben Lopez Burgos v Uruguay and Lilian Celiberti de Casariego, the HRC held that jurisdiction implies that states can be held accountable for violations of rights under the Covenant which its agents commit upon the territory of another state, whether with the acquiescence of the government of that state or in opposition to it.40 Further, Alejandre v Cuba held that jurisdiction may be determined by ascertaining the level of authority and control a state exercises over certain individuals.41 The jurisdiction of a state extends to include law enforcement operations taking place in the territory of a foreign state, military operations as well as the exercise of authority by diplomatic and consular staff with respect to individuals seeking their services.42 As such, it is evident that the term jurisdiction has extraterritorial scope. E. An Intraterritorial Interpretation of Article 2(1) Leads to Fundamental Conflicts with Other Articles of the ICCPR Article 5(1) of the ICCPR states that nothing in the present Covenant may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms recognized herein In light of Article 5(1), it would be unconscionable to interpret Article 2(1) as permitting a state to violate the ICCPR on the territory of another state. 43 Further, Article 12(1) of the ICCPR states that no one shall be arbitrarily deprived of the right to enter his own country. Per definitionem, article 12(1) requires that an individual be outside their own territory in order to be protected by the provisions of the ICCPR. The right endowed on individuals by Article 12(1) is devoid of meaning if it can not be exercised unless an individual is within the territory of their own country.44 III. ICCPR IMPLICATIONS OF U.S. DETENTION OF ASYLUM SEEKERS

The U.S. detention system for asylum seekers lacks the kinds of safeguards that prevent detention from being arbitrary within the meaning of the International Covenant on Civil and Political Rights (ICCPR). ICCPR Article 9(1) prohibits the United States from subjecting asylum seekers to arbitrary detention. Article 9(4) requires that those who are detained are entitled to proceedings before a court which will decide on the lawfulness of the detention and order release when detention is not lawful.

Coard et.al. v United States, Case 10.951, Report No. 109/99, September 29, 1999, Inter-Am. C.H.R. Sergio Euben Lopez Burgos v Uruguay , Communication No.R 12/52 (6 June 1979), UN Doc. Supp. No.40 (A/36/40); Lilian Celiberti de Casariego v Uruguay , Communication No. 56/1979, UN Doc. CCPR/C/OP/1 at 92 (1984). 41 Alejandre et.al. v Cuba , Case 11.589, Report No. 86/99, September 29, 1999. 42 Orna Ben-Naftali & Shany Yuval, fn.8 , supra, page 31. 43 Sergio Euben Lopez Burgos v Uruguay , Communication No. R. 12/52 (6 June 1979), UN Doc. Supp No. 40 (A/36/40) at 176 (1981) 12. 44 Dominic McGoldrick, Extraterritorial Application of the ICCPR , Coomans and Kamminga (eds.) (Intersentia, 2004), page 48.
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Yet, nowhere in the U.S.s recent report to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights does it address the arbitrary nature of the U.S. detention system for asylum seekers.45 Under current U.S. law, asylum seekers are subject to mandatory detention upon their arrival in the U.S. While they can request release on parole from the immigration authority once they pass through a screening procedure, the release process varies widely across the country, and in some areas of the country, asylum seekers are rarely released. A report, issued in 2005 by the bi-partisan U.S. Commission on International Religious Freedom (USCIRF), confirmed the wide variations in these release practices. 46 Neither the decision to detain initially, nor the subsequent decision to deny parole can be appealed to an independent judicial authority, or even to an administrative immigration judge. To further exacerbate the situation, there is no limit on the length of time that asylum seekers can be detained while their proceedings are progressing.47 The U.S. has also initiated several discriminatory detention policies that have targeted asylum seekers based on their nationality. Finally, asylum seekers are detained in immigration jails in conditions that are inappropriate for the population a central finding of the U.S. Commission on International Religious Freedom. A. Detention is Automatic for Arriving Asylum Seekers Under a 1996 immigration law, known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (the 1996 immigration law), immigration inspectors at U.S. airports and borders were given the power to order the immediate deportation of people who arrive in the United States without proper travel documents. Many refugees arrive without proper travel documents, unable to obtain them from the governments which they flee. Even asylum seekers who arrive on valid passports have been subject to expedited removal.48 While genuine asylum seekers are not supposed to be deported under this summary process called expedited removal the process is so hasty and lacking in safeguards that mistakes can and do happen.49
Second and Third Periodic Report of the United States of America to the UN Committee on Human Rights Concerning the International Covenant on Civil and Political Rights (2005), available at http://www.state.gov/g/drl/rls/55504.htm (last visited Jan. 11, 2006). 46 U.S. Comm'n on Int'l Religious Freedom, Report on Asylum Seekers in Expedited Removal (2005), available at http://www.uscirf.gov/countries/global/asylum_refugees/2005/february/ERS_RptVolII.pdf (last visited January 11, 2006) [hereinafter USCIRF report]. 47 Eleanor Acer, Living up to Americas Values: Reforming the U.S. Detention System for Asylum Seekers , REFUGE, May 2002, pages 48-49 [hereinafter Living up to Americas Values]; HUMAN RIGHTS FIRST, REFUGEES BEHIND BARS (1999), available at http://www.humanrightsfirst.org/pubs/descriptions/behindbars.htm (last visited Jan. 11, 2006) [hereinafter REFUGEES BEHIND BARS]; Petition to the INS Seeking a Rule on Procedures for Parole of Detained Asylum Seekers, submitted to the INS and DOJ by the Lawyers Committee for Human Rights, January 1996 (Petition Seeking Rule on Parole); Frederick N. Tulsky, Uncertain Refuge: Asylum seekers Face Tougher U.S. Laws, Attitudes. San Jose Mercury News, December 10, 2000; Mirta Ohito, Inconsistency at INS, The New York Times, June 22, 1998; Toby Beach & Peter Yost INS Jailing Many Asylum Seekers, The Boston Globe, November 17, 1998, at A27. 48 Asylum seekers who arrive on valid passports have been detained and put into the expedited process when immigration inspectors decided that their visas were invalid for instance, if the individual had not departed the U.S. on time during a prior visit or if the asylum seeker told inspectors that he wanted to apply for asylum thereby showing an immigrant intent and making the non-immigrant visa invalid in the eyes of the immigration inspector. See HUMAN RIGHTS FIRST, IN LIBERTYS SHADOW (2004), page 12, available at http://www.humanrightsfirst.org/asylum/libertys_shadow/Libertys_Shadow.pdf (last visited Jan. 11, 2006) [hereinafter IN LIBERTYS SHADOW]; see also USCIRF report, fn. 46, supra page 52. 49 See Eric Schmitt, When Asylum Requests are Overlooked, The New York Times, August 15, 2001, at A6; John Moreno Gonzalez, Amityville Woman Seeks $8 Million in JFK Mix-Up. Newsday, July 12, 2000; HUMAN RIGHTS FIRST, IS THIS
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The ICCPR looks beyond the technical legality of detention under domestic law, presupposing a fair review of the circumstances of the individual to determine the necessity of detention.50 The UN Human Rights Committee, in examining the detention for over four years of a Cambodian asylum seeker in Australia, concluded that detention should be considered arbitrary when it was not necessary in light of all the circumstances of the individual asylum-seekers case: The Committee recalls that the notion of arbitrariness must not be equated with against the law but be interpreted more broadly to include such elements as inappropriateness and injustice. Furthermore, remand in custody could be considered arbitrary if it is not necessary in all the circumstances of the case, for example to prevent flight or interference with evidence: the element of proportionality becomes relevant in this context . . .51 Consistent with Article 9, Article 31 of the UN Convention relating to the status of refugees provides that, Contracting States shall not apply to the movements of such refugees restrictions other than those which are necessary and such restrictions shall only be applied until their status in the country is regularized or they obtain admission into another country. 52 The Executive Committee of the United Nations High Commissioner for Refugees (UNHCR), of which the United States is a member, has concluded that detention of asylum-seekers should normally be avoided and may only be resorted to if necessary and on grounds prescribed by law for certain specified reasons relating to the individual asylum-seeker.53 The UNHCR Detention Guidelines similarly provide that, in order to ensure consistency with Article 31, detention should only be resorted to in cases of necessity.54 A November 2001 roundtable of experts assembled by the UNHCR confirmed that a determination of whether detention is necessary for purposes of Article 31 can only be made by considering the individual case of an asylumseeker.55
AMERICA (2000), available at Http://www.humanrightsfirst.org/refugees/reports/due_process/due_process.htm (last visited Jan. 11, 2006). 50 See Manfred Nowak, U.N. Covenant on Civil and Political Rights: CCPR Commentary (N.P. Engel: 1993), page 172 (It is not enough for deprivation of liberty to be provided for by law. The law itself must not be arbitrary, and the enforcement of the law in a given case must not take place arbitrarily.) 51 A. v. Australia , United Nations Human Rights Committee, Communication No. 560/1993, U.N. Doc. CCPR/C/59/D/560/1993 (Apr. 30, 1997), available at www.unhchr.ch/tbs/doc.nsf/ (jurisprudence library) (emphasis added). 52 United Nations Convention and Protocol Relating to the Status of Refugees, 1951 Convention and 1967 Protocol, art. 31(1) available at http://www.unhcr.ch/cgi-bin/texis/vtx/protect/opendoc.pdf?tbl=PROTECTION&id=3b66c2aa10 (last visited Jan. 11, 2006) (emphasis added). 53 United Nations High Commissioner for Refugees Executive Committee Conclusion on Detention of Refugees and Asylum-seekers No. 44 (1986) (If necessary, detention may be resorted to only on grounds prescribed by law to verify identity; to determine the elements on which the claim to refugee status or asylum is based; to deal with cases where refugees or asylum-seekers have destroyed their travel and/or identity documents or have used fraudulent documents in order to mislead the authorities of the State in which they intend to claim asylum; or to protect national security or public order.) [hereinafter UNHCR Exec. Comm. Concl. 44]. 54 UNHCR REVISED GUIDELINES ON APPLICABLE CRITERIA AND STANDARDS RELATING TO THE DETENTION OF ASYLUM SEEKERS Guideline 3 (1999) available at http://www.unhcr.ch/cgi-bin/texis/vtx/protect/opendoc.pdf? tbl=PROTECTION&id=3bd036a74 (last visited Jan. 11, 2006) [hereinafter UNHCR Detention Guidelines]. 55 [A]ppropriate provision should be made at the national level to ensure that only such restrictions are applied as are necessary in the individual case, that they satisfy the other requirements of [Article 31], and that the relevant standards, in particular international human rights law, are taken into account. Summary Conclusions on Article 31 of the 1951 Convention Relating to the Status of Refugees, Geneva Expert Roundtable: Organized by the UNHCR and Graduate Institute of International Studies (Geneva: Nov. 89, 2001), available at www.westnet.com.au/jackhsmit/roundtable-

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The law calls for mandatory detention of all asylum seekers who are subject to expedited removal. As a result, asylum seekers who arrive at U.S. airports and borders are held in detention facilities and immigration jails around the country. Those who request asylum after entering the United States are not generally detained. 56 B. The Parole Process for Detained Asylum Seekers is Arbitrary While the 1996 law requires the detention of asylum seekers during the expedited removal process, asylum seekers are no longer subject to expedited removal once they have shown a credible fear of persecution a process that can take several weeks or longer. At this point, they are technically eligible for release on parole once they satisfy the criteria for parole. 57 These criteria are contained in written guidelines which state that release from detention on parole is a viable option and should be considered for asylum seekers who meet the credible fear standard, can establish identity and community ties, and are not subject to any possible bars to asylum involving violence or misconduct. 58 Over the years, the parole guidelines for asylum seekers, which were issued in a series of Immigration and Naturalization Services (INS) memoranda rather than in formal regulations have been applied inconsistently by local immigration offices, with some local officials routinely failing to apply the guidelines.59 The press, attorneys, human rights organizations, and refugee protection experts have reported extensively on inconsistencies and deficiencies in the administration of the asylum parole guidelines.60 A 2004 report issued by Human Rights First revealed that the parole guidelines continued to be disregarded in many locations -- with pro bono attorneys in California, Louisiana, Michigan, Minnesota, New Jersey, New York, Pennsylvania, and parts of Texas reporting that the asylum seekers they represented were regularly denied parole from detention despite meeting the parole guidelines.61 The results of this survey were later confirmed by a major report issued by the US Commission on International Religious Freedom in February 2005. The comprehensive statistical analysis conducted by USCIRF showed that while asylum seekers in some areas were routinely released, in other parts of the country, asylum seekers are rarely released, with release rates as low as 0.5% in New Orleans, 3.8% in
summaries.pdf (emphasis added) [hereinafter Summary Conclusions]. 56 In 2002 and 2003, at least 16,000 new asylum seekers were subjected to mandatory detention upon their arrival in the United States. The number of asylum seekers in general, and the number seeking protection at U.S. airports and borders has declined significantly in the last few years. In fiscal year 2002, 10,000 asylum seekers were referred for credible fear interviews, and in fiscal year 2003, 6,000 asylum seekers were referred for credible fear interviews meaning that at least this many asylum seekers were subject to expedited removal and the mandatory detention provisions. Meeting with Joseph Langlois, Director, Asylum Division, United States Citizenship and Immigration Services, on November 12, 2003, copy of minutes on file with LCHR. 57 See Immigration and Nationality Act (INA) 235(b)(1)(B)(iii)(IV); INA 212(d)(5)(A); 8 Code of Federal Regulations (CFR) 235.3(c); 8 CFR 212.5(a); Memorandum from Office of INS Deputy Commissioner, Implementation of Expedited Removal, March 31, 1997, reprinted in 74 Interpreter Releases (April 21, 1997). 58 Memorandum from Michael A. Pearson, Immigration and Naturalization Service (INS) Executive Associate Commissioner for Field Operations, to Regional Directors, District Directors, and Asylum Office Directors, Expedited Removal: Additional Policy Guidelines, December 30, 1997. 59 Living up to Americas Values, fn. 47, supra, page 48-49; REFUGEES BEHIND BARS, fn. 47, supra; Tulsky, Uncertain Refuge: Asylum seekers Face Tougher U.S. Laws, Attitudes fn 47, supra; Ohito, Inconsistency at INS, fn. 47, supra; Beach & Yost INS Jailing Many Asylum Seekers, fn. 47, supra. 60 Id.; see IN LIBERTYS SHADOW, fn. 48, supra, page 12-13; see also Human Rights Watch, Locked Away: Immigration Detainees in Jails in the United States (September 1998); Womens Commission for Refugee Women and Children, Forgotten Prisoners: A Follow-Up Report on Refugee Women Incarcerated in York County , July 1998; Nina Bernstein and Marc Santora, Asylum Seekers Treated Poorly, U.S. Panel Says, The New York Times, February 8, 2005, at A1. 61 See IN LIBERTYS SHADOW, fn. 48, supra, page 13.

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New Jersey, and 8% in New York. 62 The statistics in the USCIRF report also showed a significant drop in the rate at which local immigration officers have released asylum seekers from these jail-like facilities on parole in the years since September 11.63 C. Lack of Independent Review Under U.S. procedures, the decision of whether or not to parole an arriving asylum seeker is entrusted to the Department of Homeland Security (DHS) (and previously to the INS), the same authority that is charged with seeking to detain and deport the individual. The DHS, in effect, acts as both judge and jailer with respect to parole decisions. And, when the DHS denies parole to an arriving asylum seeker, the law does not provide for an appeal of this determination to an independent or judicial authority.64 While immigration judges can review DHS custody decisions for other immigration detainees, they are precluded from reviewing the detention of so-called arriving aliens, a group that includes asylum seekers who arrive at airports and borders.65 Federal courts have refused to review parole denials for asylum seekers, in some cases citing a lack of jurisdiction and in other cases emphasizing that they are obligated to defer to the judgment of immigration officials.66 This lack of meaningful independent review of decisions to detain asylum seekers is a clear violation of U.S. obligations under international law. Article 9(4) of the ICCPR provides that: Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may, decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.67 This provision applies to all detainees, including immigration detainees.68 The UN Human Rights Committee in its decision in Torres v. Finland,69 explained that Article 9(4) of the ICCPR envisages that the legality of detention will be determined by a court so as to ensure a higher degree of objectivity and independence. In the case of A v Australia, the UN Human Rights Committee, in finding that a limited court review did not satisfy the requirements of Article 9(4), emphasized that court review must
USCIRF report, fn. 46, supra. Id. Between 2001 and 2003, the release rate fell by 27%. 64 8 C.F.R. 3.19; 8 C.F.R. 3.19(h)(2)(i)(B). 65 8 CFR 1003.19 (h)(2)(i)(B). 66 While asylum seekers have tried to file federal court habeas petitions, it often takes months or longer for federal courts to decide a petition, making the effort pointless for many asylum seekers. Federal courts have in some cases have deferred to INS parole determinations as long as the immigration agency cites a reason for its parole denial. See Veerikathy v INS , 98 Civ. 2591, 1998 U.S. Dist. LEXIS 19360 (E.D.N.Y. Oct. 9, 1998); see also Bertrand v. Sava 684 F.2d 204 (2d Cir. 1982); Zhang v. Slattery , 840 F. Supp. 292 (S.D.N.Y. 1994). 67 International Covenant on Civil and Political Rights (ICCPR), art. 9(4), Dec. 16, 1966 , 999 U.N.T.S. 171, 6 I.L.M. 371 (entered into force Mar. 23, 1976), available at http://www.unhchr.ch/html/menu3/b/a_ccpr.htm (last visited Jan. 11, 2006) [hereinafter ICCPR]. 68 See United Nations Human Rights Committee, General Comment 8/16 (the important guarantee laid down in paragraph 4 [of article 9], i.e. the right to court control of the legality of detention, applies to all persons deprived of their liberty by arrest or detention.); United Nations Commission on Human Rights, resolution 1997/50, Commission on Human Rights, UN doc. E/CN.4/RES1997/50, 15 April 1997 (requesting that Working Group on Arbitrary Detention devote all necessary attention to reports concerning the situation of immigrants and asylum seekers who are allegedly being held in prolonged administrative custody without the possibility of administrative or judicial remedy .). 69 Torres v. Finland, UN Human Rights Committee, Communication No. 291/1988, 2 April 1990 (concluding that asylum seekers detention during period in which he was unable to appeal detention order to court violated ICCPPR Article 9(4)).
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include the possibility of ordering release, is not limited to mere compliance of the detention with domestic law, and must be in its effects, real and not merely formal.70 The UNHCR Detentions Guidelines call for procedural guarantees, when a decision to detain is made, including automatic review before a judicial or administrative body independent of the detaining authorities.71 D. No Limit on the Length of Detention Neither U.S. statutes nor regulations specify a limit on the length of time an asylum seeker may be detained while his or her removal and asylum proceedings are pending.72 The press and human rights groups have documented numerous examples of asylum seekers who have been detained for lengthy periods of time.73 Statistics contained in the USCIRF report revealed that about 32% of arriving asylum seekers are jailed for 90 days or more.74 However, others are held for significantly longer periods of time. The absence of a limit on the length of detention is problematic under international law. In A v. Australia, the UN Human Rights Committee recognized that every decision to keep a person in detention should be open to review periodically so that the grounds justifying detention can be assessed.75 The UN Working Group on Arbitrary Detention, in its Deliberation No. 5, has set forth a number of guarantees to be considered in assessing whether an asylum seekers deprivation of liberty is arbitrary under international law. One of these guarantees provides that: A maximum period should be set by law and the custody may in no case be unlimited or of excessive length.76 E. U.S. Practices Discriminate against Asylum Seekers Based on Nationality The principle of non-discrimination is central to both international refugee law and international human rights law. Article 3 of the Refugee Convention (incorporated through the 1967 Protocol) requires signatory nations to apply the provisions of [the] Convention to refugees without discrimination as to race, religion or country of origin. In accordance with this central tenet, the UNHCR Detention Guidelines recommend that any decision to detain an asylum-seeker should only be imposed in a nondiscriminatory manner.77 The November 2001 expert roundtable convened by UNHCR agreed,
A v. Australia, fn. 51, supra (finding that a court review, which was limited to a finding that the asylum seeker was indeed a designated person within the meaning of Australias Migration Amendment Act did not satisfy the requirements of Article 9, paragraph 4, of the ICCPR). 71 See UNHCR Detention Guidelines, fn. 54, supra; see also UNHCR Exec. Comm. Concl. 44, fn. 53, supra (detention measures taken in respect of refugees or asylum seekers should be subject to judicial or administrative review.). 72 While the U.S. Supreme Court recognized that indefinite detention raises serious due process concerns under the U.S. Constitution, the U.S. Department of Justice has refused to recognize the applicability of this decision (which involved aliens who had been admitted to the U.S.) to the detention of non-citizens who have not yet been admitted to the U.S. See Zadvydas v. Davis , 533 U.S. 678, 121 S. Ct. 249 (2001); 66 Fed. Reg. 56967 56982, Continued Detention of Aliens Subject to Final Orders of Removal, 14 November 2001 (excluding arriving aliens from regulations issued pursuant to Zadvydas decision); See Living up to Americas Values, supra note 14, at 50. 73 See REFUGEES BEHIND BARS, fn. 47, supra, page 6-7; M. Clancy, Nigerian Finally Wins Asylum After Long Fight The Herald News (20 July 2001) (Nigerian refugee granted asylum after 3 years and 4 months in detention); D. Malone, Man Locked up for Four Year but Convicted of Nothing The Dallas Morning News, (1 April 2001) (Sri Lankan asylum seeker detained for four years); C. Hedges, Immigrant Detained for 3 and years Emerges from Labyrinth, The New York Times (6 November 2000) (Congolese refugee granted asylum after three and on-half years in jails and detention facilities); B. Walth, Asylum Seekers Greeted With Jail, The Oregonian (10-15 December 2001) (Liberian asylum seeker detained for six years, Chinese asylum seeker detained over two years, Sri Lankan asylum seeker detained for four years); Dan Mallone, 851 Detained for Years in INS Centers Many are Pursuing Asylum, The Dallas Morning News, April 1, 2001. 74 See USCIRF report, fn. 46, supra, page 75. 75 A v. Australia, fn. 51, supra. 76 UN Working Group on Arbitrary Detention, Deliberation No. 5, Principle 7, UN doc. E/CN.4/2000/4, 28 December 1999, Annex II. 77 UNHCR Detention Guidelines, fn. 54, supra.
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concluding that [r]efugees and asylum-seekers should not be detained on the grounds of their national, ethnic, racial or religious origins . . . .78 Consistent with the 1967 Protocol and Refugee Convention, the ICCPR obliges all contracting states to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant without distinction of any kind . . .79 The ICCPR also specifies that this principle of non-discrimination includes national or social origin, birth or other status. 80 In the months following September 11, the press began documenting cases in which asylum seekers from Arab or Muslim backgrounds who would previously have been released from detention on parole were denied release. For instance, two Christian women who fled Iraq were denied parole in Miami, even though one of the women had strong community ties her sister is a U.S. citizen and her mother a U.S. legal permanent resident. A young Iraqi man who had fled forced conscription by the Iraqi regime was denied parole even though he had a U.S. citizen brother and parents who also lived in the United States. 81 In the wake of the September 11 attacks, over 1,200 non-citizens primarily men of Arab or Muslim background were detained by the U.S. government. The Justice Departments Inspector General has extensively documented a range of disturbing abuses, including lengthy detentions without charges, denial of access to counsel, and abusive treatment.82 While the vast majority of these individuals were not asylum seekers, some refugees were caught up in this wave of detentions.83 Over the last few years, the Department of Justice and DHS have initiated nationality based detention policies targeting Haitian asylum seekers and asylum seekers from thirty-three nations and two territories mostly Middle Eastern and other Islamic countries and territories.84 Under these initiatives, federal authorities invoked national security concerns to justify new policies that called for the detention of asylum-seekers who presented no risk to the public.85 In fact, these policies have actually deprived those
Summary Conclusions, fn. 55, supra, at 11(c). ICCPR, fn. 67, supra, at Art. 2(1). 80 Ibid. at Art. 26. 81 Richard A. Serrano, Ashcroft Denies Wide Detainee Abuse, Los Angeles Times, October 17, 2001; Richard A. Serrano, Judge Denies Young Iraqis Bid to Join Family, Los Angeles Times, January 14, 2002; Andres Viglucci and Alfonso Chardy, Iraqi Christians get caught up in a Security Web, Miami Herald, December 26, 2001; Jody Benjamin, Mideast Detainees Await Freedom, The South Florida Sun-Sentinel , Dec. 8, 2001. 82 Amnesty International, Amnesty Internationals Concerns Regarding post September 11 detentions in the USA , March 2002 (AI Index: AMR 51/044/2002); Jim Edwards, Attorneys Face Hidden Hurdles, New Jersey Law Journal , Dec. 3, 2001. 83 Jody A. Benjamin, Iraqi Refugees Cleared by FBI Could Still Face Deportation, South Florida Sun-Sentinel , December 12, 2001. 84 See Press Release, DHS, Operation Liberty Shield (Mar. 17, 2003), available at http://www.dhs.gov/dhspublic/interapp/press_release/press_release_0115.xml (last visited Apr. 25, 2005) (stating that [a]sylum applicants from nations where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated will be detained for the duration of their processing period.). 85 Press Release, Operation Liberty Shield: Statement by Homeland Security Secretary Tom Ridge (Mar. 17, 2003), available at http://www.dhs.gov/dhspublic/display?content=519 (last visited May 14, 2005) (noting that DHS refused to officially disclose the list of affected nationalities, stating that the complete list was law enforcement sensitive). The list appears to have included Afghanistan, Algeria, Bahrain, Bangladesh, Djibouti, Egypt, Eritrea, Indonesia, Iran, Iraq, Jordan, Kazakhstan, Kuwait, Lebanon, Libya, Malaysia, Morocco, Oman, Pakistan, Philippines, Qatar, Saudi Arabia, Somalia, Sudan, Syria, Thailand, Tajikistan, Tunisia, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan, and Yemen as well as Gaza and the West Bank. See Ricardo Alonso-Zaldivar, Showdown With Iraq; Rights Groups Blast Policy to Detain Asylum Seekers, L.A. Times, Mar. 19, 2003, at 12. See also IN LIBERTYS SHADOW, fn. 48, supra, pages 24-25.
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asylum-seekers of the opportunity to demonstrate that they do not present a risk and instead merit release on parole. One of these initiatives was launched in March 2003, on the eve of war with Iraq. As part of Operation Liberty Shield, DHS announced that it would detain for the duration of their asylum proceedings, asylum-seekers from the thirty-five nations and territories where al-Qaeda, al-Qaeda sympathizers, and other terrorist groups are known to have operated. 86 The effect of Operation Liberty Shield was to deprive asylum-seekers from these mostly Arab or Muslim nations of the opportunity to have the necessity of their detention assessed on an individualized basis. After much public criticism, this policy was officially terminated, though attorneys around the country continued to report that asylum-seekers from Arab and Muslim countries were being routinely detained for the duration of their asylum proceedings.87 The other initiative is a special policy aimed at Haitians who flee to the U.S. by sea. Following the arrival in Florida of two boats carrying Haitian asylum seekers, the U.S. took a series of steps which had the effect of depriving these and other Haitians of meaningful and individualized assessments of the need for their detention. These steps are detailed in various Human Rights First publications, including In Libertys Shadow and in Human Rights Firsts amicus brief submitted to the U.S. Court of Appeals for the Eleventh Circuit in the case of Moise v Bulger.88 These policies are still in effect, as is a sweeping decision issued by former U.S. Attorney General John Ashcroft in April 2003 to prevent the release of Haitian asylum seekers from U.S. immigration jails. 89

See DHS, Press Release, Operation Liberty Shield (Mar. 17, 2003), available at http://www.dhs.gov/dhspublic/display? content=4234 (last visited Jan. 18, 2006); see also IN LIBERTYS SHADOW, fn. 48, supra, page 24. 87 See IN LIBERTYS SHADOW, fn. 48, supra, pages 24-25, for a detailed discussion of Operation Liberty Shield. 88 IN LIBERTYS SHADOW, fn. 48, supra; HUMAN RIGHTS FIRST, Amicus brief, Haitian Detention Policy (July 2002) available at http://www.humanrightsfirst.org/asylum/amicus/haitian_am_brief.pdf (last visited Jan. 18, 2006). 89 See In re D- J-, 23 I. & N. Dec. 572, 579-81 (BIA 2003); see Florida Immigrant Advocacy Center, Press Release Post9/11 Laws and Policies are Closing United States to Refugees and Immigrants Nationwide, Says Major New Report (May 6, 2005), available at http://fiacfla.org/pressreleases.php#85 (last visited Jan. 11, 2006); Womens Commission for Refugee Women and Children, Forgotten Prisoners: A Follow-Up Report on Refugee Women Incarcerated in York County , fn. 60, supra.; Megan McKenna and Joanne Kelsey, An opportunity for U.S. to finally do right by Haitian refugees, The Baltimore Sun, January 11, 2006, available at http://www.womenscommission.org/newsroom/articles/BaltSun.shtml.
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