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Item 3: Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions
June 3, 2009

Statement by Lawrence Richter
Delegation of the United States of America

Human Rights Council 11th Session
Geneva, June 3, 2009
Thank you, Mr. President.

We appreciate this opportunity to respond to Professor Alston’s presentation on the United States. During the Special Rapporteur’s country visit to the United States from June 16-30 of 2008, my government was pleased to offer access to senior officials from many different U.S. government agencies, including the Departments of State, Justice, Defense, and Homeland Security, as well as access to state officials. We appreciate that Professor Alston engaged in constructive dialogue with civil society organizations.

As a result of this review, his report acknowledges the extensive U.S. legal frameworks for addressing potentially unlawful killings, and recognizes that the United States is a leader in the area of compensation to individuals and communities that suffer injuries as a result of military operations.

Other parts of the report identify important areas of concern. Unfortunately, some parts of the report also repeat sweeping criticisms that don’t take into account important information. In addition to the factual corrections we have already provided, we offer these few additional substantive comments to correct some remaining misimpressions.

In response to the report’s criticisms of capital punishment: while we believe that the death penalty itself does not violate international law per se, we fully agree with Professor Alston that such a penalty should be carried out only in the most serious of cases and only with full procedural safeguards. We believe the U.S. system does provide robust safeguards, such that, for example, if the death penalty were disproportionate to the severity of the underlying offense, it could be challenged under the 8th Amendment of the U.S. Constitution as being cruel and unusual punishment. For example, the United States Supreme Court last year found that even the heinous crime of raping a juvenile where the child was not killed was not of sufficient severity under the U.S. Constitution to warrant the use of the death penalty.

We fully share Professor Alston’s concerns about the need to address the issue of wrongful convictions, and indeed the U.S. government has made this a priority. We are one of only five countries in the world that belong to the Innocence Network, a group of countries that are working to embrace modern forensic science and reforms to prevent wrongful convictions.

As for the report’s discussion of consular notification practices, we are working hard with representatives of the fifty U. S. states to ensure ever better compliance with our obligations to provide consular notification. However, the report confuses our obligations under the Vienna Convention on Consular Relations (VCCR), with the review and reconsideration obligation under the Avena decision.

As for the report’s general criticisms about our prosecution and sentencing practices, we agree that this issue is of tremendous importance and that the United States should continue to work to ensure that racial disparity is not a factor in sentencing, but we do not believe that all of the statements in Professor Alston’s report are supported by the facts.

In response to the report’s criticisms of our immigration detention systems, we note that the Department of Homeland Security (DHS) created a Special Advisor position to focus exclusively on the significant growth in the detention population, including arrest priorities and detention practices. The Special Advisor is completing an assessment of the detention and removal system, including health care standards, policies and practices.

As for the report’s discussion of the lack of transparency in custodial procedures that lead to deaths, we note there is currently proposed legislation before Congress: the “Death in Custody Reporting Act of 2009.” This bill would require federal agencies and state law enforcement agencies receiving federal funds to report custodial deaths to the Attorney General.

Turning to the report’s discussion of U.S. international operations, we continue our objection to the scope of this report, as we do not believe that military and intelligence operations during armed conflict fall within the Special Rapporteur’s mandate.

That said, there are significant portions of the report’s discussion of the Military Commissions Act with which we agree. As President Obama noted, military commissions under the Military Commissions Act of 2006 (MCA) were flawed. Therefore, per the President’s executive order, current cases before the military commissions were stayed, and the U.S. Administration is developing a revised legal framework for military commissions that will be established in collaboration with the Congress.

As for the report’s discussion of detainee deaths, the Department of Defense (DOD) has provided redacted copies of internal investigation documents and autopsies on the five reported deaths of detainees in U.S. custody at Guantanamo.

In response to the report’s assertions about a lack of transparency regarding civilian casualties, we note that the United States does try to collect accurate information on civilian casualties in DOD reports. Moreover, the United States has been actively working to address concerns that have been raised about the regulation and oversight of private security contractors. In the last several years, the number of incidents has greatly diminished, and the Department of Justice continues to actively prosecute wrongdoing. Contrary to the report’s statement concerning the ease of investigating overseas contractor cases, the United States has found, especially in Iraq and Afghanistan, that many witnesses are reluctant to work with American investigators or to travel to the United States to provide testimony in an American court. Additionally, the United States has frequently found that by the time American investigators are aware of the incident and report to the scene, crime scenes have been tampered with or never secured. We wish to be clear that the prosecution of private contractors who commit crimes is an important priority of the Department of Justice, and despite the difficulty of these cases, the United States continues to attempt to bring private contractor cases to justice.

In conclusion, we thank the Special Rapporteur for his work on this important issue and look forward to participating in a continuing dialogue as the United States continues to work to improve in many of the areas discussed in this report.

Thank you, Mr. President.