Human Rights Council-Archive Photo

Interactive Dialogue with the Special Rapporteur on Human Rights
While Countering Terrorism and the Special Rapporteur on Torture
Agenda Item 3

Statement by the Delegation of the United States of America
Delivered by Political Counselor Mark Cassayre
Human Rights Council 13th Session

Geneva, March 5, 2010

Thank you, Mr. President. Thank you also to the Special Rapporteurs for their presentations. The issues covered in this section are of great import to the United States.

While we may have disagreements on substantive issues, such substantive disagreements should not be misinterpreted as attacks on the independence of Special Procedures. We strongly support their work, and we recognize that these Special Mechanisms are often able to achieve results where others, including States, cannot. They provide an important resource for us all, in our efforts to comply with our international human rights obligations and to encourage respect for human rights and fundamental freedoms throughout the world.

While States may disagree with mandate holders over factual or legal issues, we encourage them to engage with special rapporteurs in a constructive manner, and we appreciate the efforts of mandate holders to do the same. States should defend the independence of the Special Mechanisms in general, even when it is not politically convenient to do so. For this reason, we supported the Special Rapporteurs’ efforts to present their report on Secret Detentions during the normal Interactive Dialogue process this session, even though over 50 pages contain allegations against our country, and despite serious substantive concerns and disagreements with the report. Similarly, we were concerned and dismayed by the account the Rapporteur on Torture gave of States not responding to or denying his visit requests, postponing visits at the last minute or obstructing his fact-finding activities during visits. We encourage States to welcome the Special Rapporteur to engage with them on matters within his mandate.

We turn now to the substantive issues in the reports presented today.

First, we note with great concern the Special Rapporteur on Torture’s conclusion that in the vast majority of States, torture not only occurs in isolated cases, but is practiced in a more regular, widespread or even systematic manner. We join in his recommendation that States that have not already done so become parties to the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and that all States Parties fully implement the Convention’s provisions.

The Special Rapporteur further states in his report complaint mechanisms are a safeguard where the legally required protection differs from reality in a glaring and devastating way. We would be interested in his elaboration on what he believes to be the key elements necessary for an effective complaint mechanism at the local, national, and international levels.

Secondly, regarding the report by the Special Rapporteur on the Protection of Human Rights while Countering Terrorism: We appreciate the depth and thoughtfulness of his analysis of privacy issues, and there is much in the report with which the United States Government can wholeheartedly agree.

For example, we agree with the connections made between privacy, freedom of expression and freedom of association in paragraph 33 of the report. We also believe strongly in promoting free expression on the Internet and recognize the chilling effect that government surveillance can have on such freedoms. We also believe that privacy and information security should be central considerations in information-sharing related to law enforcement and intelligence-gathering.

Ensuring protection from arbitrary or unlawful interference with privacy in the context of counterterrorism is an extraordinarily complicated issue, and the most effective tools and methods may vary for each state. We believe it is important to recognize that there may not be a “one size fits” all approach. For example, the Special Rapporteur’s report suggests that the “best practice” for any democratic society would be to adopt a very detailed constitutional right to data protection, which in some cases governs data processing in both the public and private or commercial sectors. This might be the best solution for some states, but we are not convinced that such a constitutional amendment would be effective, necessary or feasible for all states.

Furthermore, while we agree that data protection is indeed a growing area of concern, we would not necessarily agree that it is an independent human right distinct from the broader right to privacy. We would like to know whether the Special Rapporteur sees data protection emerging as a right separate from the right to privacy in contexts other than in European constitutional law and among EU member states. We disagree that there needs to be a new declaration on data protection and privacy, because the right to privacy is already enshrined in international human rights instruments. We also note that there are existing international and regional frameworks that deal specifically with personal data and privacy, from a technical as well as a human rights perspective.

Thank you once again for your presentations, and we look forward to continuing to work with you on these important issues. We also take this opportunity to thank Professor Nowak for his many years working in this capacity. We wish you well in your future endeavors.

Thank you, Mr. President.

Statement of United States Delegation

Remarks by Harold Hongju Koh
Legal Adviser, U.S. Department of State
followed by a statement by
Mr. Charles A. Allen, Deputy General Counsel
United States Department of Defense

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Remarks by Harold Hongju Koh
Legal Adviser, U.S. Department of State

Celebrations of the 60th Anniversary of the Geneva Convention are Underway in Geneva - Image: ICRC Logo for the Anniversary

I am the Legal Adviser of the United States Department of State. I am honored to speak today on behalf of the United States Government, along with my colleagues Charles A. Allen and W. Hays Parks of the Office of General Counsel of the United States Department of Defense. The United States thanks the Government of Switzerland for organizing this very important conference here in Geneva to mark the 60th anniversary of the Geneva Conventions. Today we also pay tribute to the work of an extraordinary organization, the International Committee of the Red Cross, which over 60 years has established an astonishing record of professionalism, neutrality, bravery, independence and sacrifice.

The rule of law is the cornerstone of President Obama’s approach to national security policy. As everyone here is aware, the relationship between the United States and the Geneva Conventions has been the subject of much international commentary since September 11, 2001, which ICRC President Jakob Kellenberger has called a “new challenge for IHL.” Today, it is clear that individuals taken into custody by the United States must, as a matter of law, be treated humanely. The entire United States Government has worked to achieve this result, which is true to the letter and spirit of the Geneva Conventions. By the presence of the three of us here today, we symbolize the strong partnership between the U.S. military and its civilian leadership to carry forward our absolute commitment to fulfilling and implementing the Common Article 3 prohibitions on torture, as well as on cruel, inhumane, and degrading treatment. As you will hear in a moment from Mr. Allen, all attorneys in the U.S. government, both civilian and military, are committed to obeying the rule of law in general, and the Geneva Conventions in particular.

As President Barack Obama declared before the United Nations General Assembly in September, the United States is determined to live its values. As our President recognized, “a new era of engagement has begun.” In that era, “living our values doesn’t make us weaker, it makes us safer and it makes us stronger.” President Obama has called for the world to “stand together to demonstrate that international law is not an empty promise, and that treaties will be enforced.” If there is any doubt about our character as a nation, it is revealed in the array of concrete actions this Administration has taken to enforce our treaty commitment to the Geneva Conventions during the past nine months:

• First, on his second full day in office President Obama ordered that the detention center at Guantanamo Bay be closed. We remain firmly committed to completing that assignment.

• Second, President Obama directed an investigation to ensure that the detention center at Guantanamo Bay is in compliance with Common Article 3 of the Geneva Conventions.

• Third, the President directed that all interrogations of detainees by anyone in the U.S. Government be conducted in accordance with our Army Field Manual. He subsequently accepted a consensus recommendation from the Task Force on Interrogations that this policy become permanent.

• Fourth, in August, the President’s Special Task Force on Interrogations and Transfer Policies issued a series of recommendations for changes to U.S. policy and procedures to help ensure that U.S. practices comply with U.S. law, policy and international obligations and do not result in the transfer of individuals to face torture.

• Fifth, the Administration has worked with the U.S. Congress to reform the law governing our military commissions, and in particular to bar the admissibility in evidence of any statements taken as a result of cruel, inhuman and degrading treatment and the President has now signed the bill enacting those changes.

• Sixth, all branches of the U.S. government have worked to provide more robust review procedures for U.S. detainees in Afghanistan, and in particular to permit them an opportunity to challenge the evidence that is the basis for their detention and to have the assistance of personal representatives to help them navigate the detention review process.

• Seventh, the United States government has modified its application of the state secrets privilege to strike a better balance between open government and the need to protect vital national security information.

• Eighth, the U.S. has reaffirmed its commitment to the development and implementation of IHL by becoming a party earlier this year to the Convention on Conventional Weapons and all its protocols upon the ratifications of Protocols III, IV, V and the amendment to Article I of the CCW. The U.S. remains committed to negotiating a legally binding protocol on Cluster Munitions in the CCW.

• Madame Chair, before this historic conference concludes, we may have additional information to report with regard to the United States’ efforts to implement the Geneva Conventions. With the indulgence of the Chair, we would ask you permission to reserve time to complete our national statement until your opening plenary session at 9 AM tomorrow morning.

We know that we have more work to do, but we consider these to be significant accomplishments for our first nine months, and a sign of our deep national commitment to fulfilling our duties as a state party to the Geneva Conventions and to improving the effectiveness of those Conventions on their Sixtieth Anniversary. We very much look forward to working with the ICRC and others to complete that work.

And now, with your indulgence, Madame Chair, Mr. Charles Allen will conclude our remarks today by making a statement on behalf of the United States Department of Defense.

Statement of Mr. Charles A. Allen, Deputy General Counsel (International Affairs)
United States Department of Defense:

On behalf of the U.S. Department of Defense and the civilian and military attorneys of the Department and the Departments of the Army, Navy, and Air Force, we expressly associate ourselves with the comments by the State Department’s Legal Adviser, Mr. Koh. We in the Department of Defense are committed to the rule of law in general, and the Geneva Conventions in particular.

Answering the call to all parties to conflict and to all states to provide real-time protection to all persons affected by armed conflict, U.S. military attorneys, and those of many other nations, are fulfilling the letter and the spirit of the Geneva Conventions every day in some of the most dangerous places in the world.

I would note the strong military-civilian partnership, where together, across departmental lines and through these strong ties, we are absolutely committed to fulfilling and implementing the Geneva Conventions in regard to ensuring humane treatment in every respect.

Thank you, Madame Chair, for making possible this important event commemorating the Geneva Conventions, indeed a cornerstone of the rule of law around the world.

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