The International Law of Genetic Discrimination: The Power of ‘Never Again’

TECHNOLOGY AND HUMAN RIGHTS

The International Law of Genetic Discrimination: The Power of ‘Never Again’

This Working Paper traces the regulation of genetic discrimination through the lens of international human rights law, situating it in the broader historical context of eugenics and the compounding vulnerabilities of marginalized groups and evaluating the gap between existing international instruments and their operationalization in domestic legal frameworks governing employment, insurance, and criminal investigation. This essay argues that genetic discrimination warrants distinct legislative treatment within the general human rights framework, carrying foundational significance through the intertwined principles of human dignity and the right to benefit from scientific progress, generating an urgent need for comprehensive privacy protections, clarified consent standards, and targeted safeguards for vulnerable populations including women, children, indigenous peoples, and persons with disabilities.

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The goal of this Woking Paper is to offer an approach to genetic discrimination based on international law. Many studies have been written on the topic of genetic discrimination, either from a comparative law perspective or from a utilitarian perspective of medical research development. Others have tackled the problem from the perspective of social justice. Although all of these contain elements of international law, they do not provide a comprehensive overview: hence the need for this study.

The relationship between new technologies and the protection of human rights is complicated. In part, this is because history shapes that relationship: the legal regime of genetic discrimination is influenced by the history of genetic discrimination, specifically its use during the genocide and crimes against humanity during World War II. More controversially, it might also be argued that this history is also the reason why the legal regime relating to genetic discrimination should be analysed more thoroughly than other types of discrimination that may arise from other uses of technology.

Perhaps this can be put another way: imagine if the science underpinning eugenic thought had been right—what would our critique be then? If we could not summarily dismiss eugenics as hegemony based on ignorance and as instrumentalist science, what arguments would we marshal to defeat its programme? What principled distinctions can we make between their institutionalization efforts and ours? What difference is there between their pedigree counselling and our genetic counselling? What distinction can be drawn between their race betterment agendas and our hope for alleviation of suffering through genetic therapy? Such questions are not posed to suggest that there is no difference. Rather, they are posed in order to remind us that we must consciously and deliberately respond to eugenics not only so that we avoid repeating the mistakes of the past, but also so that unwarranted fear and guilt do not render us incapable of properly appropriating and incorporating genetic information into our social structure, our policies, and our jurisprudence.

Main questions

The main questions asked in this paper are:

What is the meaning of genetic discrimination?
How can efficient legislation on privacy protection prevent genetic discrimination?
What is the relationship between international law and domestic law in fields such as insurance, employment and criminal investigation and what is the best way to protect individuals?
How are various groups, such as women, indigenous people and persons with disabilities, affected by or vulnerable to genetic discrimination?

Part 1

In Part 1, the main texts in international law will be outlined. Particular emphasis will be placed on the 1997 Universal Declaration on the Human Genome and Human Rights (UDHGHR), the first international instrument in this field. This will lead into an examination of the controversies surrounding the definition of genetic discrimination. By contrast with those who argue that it is not necessary to single out this type of discrimination, I will suggest that it should be legislated for separately within the general human rights framework. Arguments referring to the recent eugenic past, as well as the fundamental principle of human dignity and the rights ‘of everyone to enjoy the benefits of scientific progress and its applications, provide further support for adopting an individual approach to this type of discrimination.

Part 2

The second part analyses the protection of genetic privacy. The 2003 International Declaration on Human Genetic Data (IDHGD) of UNESCO, which has been described as ‘a sequel’ to the UDHGHR, provides the main international legal framework in this regard. The most sensitive issues arise when consent to genetic data use is involved. Express consent is stipulated by the IDHGD but, as Hélène Boussard explains in her chapter in this volume, there are still many issues which remain unclear, especially as regards the relationship between individual consent and the interests of third parties, and also collective consent.

Part 3

Part 3 deals with how international law against genetic discrimination becomes operational in domestic law in the fields of employment, insurance and criminal investigation. In accordance with Article 23 of the IDHGD,‘[s]tates should take all appropriate measures, whether of a legislative, administrative or other character, to give effect to the principles set out in [the] Declaration, in accordance with the international law of human rights’. To date, the European tendency has been to prohibit the use of genetic data in employment and insurance; by contrast, in the US, state legislation provides a regulatory approach with variable definitions and degrees of prohibition of genetic discrimination. Criminal investigation is another field which raises concerns about possible discrimination. DNA databases are a valuable instrument for criminal investigations and bring major benefits. Yet, as emphasized by the IDHGD, certain practices bring up rights concerns, including: retaining full DNA samples, rather than just the DNA profiles used for identification; retaining people’s records on the database without consideration of the nature of their offence and also including those who have been arrested but not charged, or those who have been acquitted; and using the database for genetic research without consent.

Part 4

The last part deals with the issue of vulnerable groups, specifically, women, children, indigenous peoples and disabled persons.

September 16, 2008 Youssef Farhat Product

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

PREVENTION AND CONFLICT

On the Record: US Disclosures on Rendition, Secret Detention, and Coercive Interrogation

This report is a joint effort between the Center for Human Rights and Global Justice and Amnesty International, Cageprisoners, the Center for Constitutional Rights, Human Rights Watch, and Reprieve.

This report aims to shed light both on what has been revealed and what has been obscured by the U.S. government. It also seeks to demonstrate the enormous range of information that is in the public sphere about the nature and scope of the U.S. rendition, secret detention, and coercive interrogation activities. This exercise makes it increasingly evident that the threats of disclosure of “state secrets” and harm to national security are ill-founded, and that the real concern lies in the very fact that a program of this nature exists and continues to operate.

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According to the United States (U.S.) government, shortly after September 11, 2001, the Central Intelligence Agency (CIA) was tasked with planning a “separate” program to begin secretly detaining and interrogating individuals outside of the United States. At that time, the CIA was also reportedly authorized to forcibly transfer individuals to foreign countries for interrogation in a practice commonly known as “rendition” or “extraordinary rendition.” Starting with the rendition of Ibn al-Shaykh al-Libi to Egypt in January 2002, and the detention and interrogation of Abu Zubaydah in March 2002,4 the U.S. post-9/11 rendition, secret detention, and coercive interrogation program has since swept up many individuals, the vast majority of whom are still unaccounted for by the United States.

Between 2001 and September 2006, information about CIA rendition, secret detention, and coercive interrogation operations emerged piecemeal. The U.S. government was the source of some of this information: officials discussed rendition in the media and on Capitol Hill, but gave only partial accounts; they announced the capture of individuals, but refused to disclose their whereabouts; and they informed the National Commission on Terrorist Attacks Upon the U.S. (the 9/11 Commission) that certain individuals were “currently in U.S. custody,” but refused to give the Commission the access it sought to the detainees themselves. The U.S. government also provided “statements” culled from interrogations on behalf of certain secret CIA detainees in the cases of United States v. Paracha and United States v. Moussaoui. Media, inter-governmental bodies (such as the Council of Europe and the United Nations (UN)), human rights organizations, and former detainees also provided comprehensive insights into the CIA’s activities.

In an effort to obtain further information from the U.S. government about its rendition, secret detention, and coercive interrogation activities, in 2004, 2006, and 2007, Amnesty International USA (AIUSA), the Center for Constitutional Rights (CCR), and the International Human Rights Clinic at NYU School of Law Center for Human Rights and Global Justice submitted Freedom of Information Act (FOIA) requests to several U.S. agencies, including the CIA. Following a refusal to disclose the majority of the information sought, AIUSA, CCR, and NYU IHRC filed suit in June 2007 in federal court in the Southern District of New York. In spring 2008, the CIA admitted that it had more than 7,000 relevant documents, but sought a ruling that it did not need to disclose the vast majority of those documents, arguing, inter alia, that it cannot be compelled to disclose information it argues is properly classified. In response, on June 26, 2008, AIUSA, CCR, and NYU IHRC filed an opposition to the CIA’s motion for summary judgment and a memorandum of law in support of a cross-motion for partial summary judgment.

August 14, 2008 Youssef Farhat Product

On the Margins of Profit Rights at Risk in the Global Economy

INEQUALITIES

On the Margins of Profit Rights at Risk in the Global Economy

This report traces the cross-cutting impact of business activities on internationally recognized human rights through the lens of corporate responsibility and international human rights law, situating it in the broader debate over the obligations of non-state actors and evaluating the structural gap between fragmented, industry-specific initiatives and the need for a comprehensive overarching framework. This report argues that the pervasive yet systematically underestimated role of business in generating human rights harms carries foundational significance through the compounding dynamics of complicity, discriminatory impact, and entrenched institutional neglect, generating a case for a shared and coherent set of standards that moves beyond sectoral and regional limitations toward a universal framework of corporate accountability.

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Internationally recognized human rights outlined in core human rights instruments guarantee all people equal and inalienable rights by virtue of their inherent human dignity. These instruments appropriately pay particular attention to the role of states, as the primary duty holder under international law, in upholding these rights. The state’s role includes protecting individuals and communities from human rights abuses committed by businesses and other non-state actors. Businesses and other actors, however, also have responsibilities themselves. As the preamble of the Universal Declaration of Human Rights phrases it, “every organ of society” does.

The moral and legal debate over how to define the human rights responsibilities of businesses tends to be argued on an abstract level. Considerable effort, for example, has been made to raise awareness about the fundamental concept of complicity, under which business may share in responsibility for abuses by third parties, as well as to elaborate on the applicability to business of basic human rights principles. Yet confusion over basic factual matters persists. At the most fundamental level, there is no shared assessment of the extent of the impact that business practices have on human rights. Instead, available information can be interpreted in very different ways.

For example, the frequent observation that certain industries, such as the extractive industries, have faced repeated human rights controversies, when presented without reference to examples from a range of other industries, can form an impression that human rights problems are highly segmented and limited to a few sectors. By the same token, the special attention given to the particular problems that can arise in certain business contexts, such as areas of violent conflict or so-called weak governance zones, when considered in isolation, can suggest that business-related abuses do not occur on a global scale. Likewise, the connection between business activity and certain sets of rights, especially labor rights, can lead to assumptions that other rights are intrinsically less affected by business practices.

The striking nature of some types of abuses in which companies have been implicated, including war crimes, can draw attention away from systematic and entrenched abuses that may be considered unremarkable. The frequent and natural tendency to focus on particularly egregious abuses can obscure the fact that many other business impacts on human rights can cause serious harm to affected individuals and communities, particularly when they disproportionately affect certain groups or exacerbate existing discriminatory patterns in communities.

The lack of common understanding of the nature and scope of the problem has important implications. One result is that, to date, many debates about business responsibility and policies aimed at improving corporate conduct have neglected to fully consider human rights issues. For example, a number of business initiatives that address human rights have emerged in response to specific problems and define their scope accordingly. They therefore typically have a limited reach and apply only to individual companies or industries or particular country contexts.

Even within their particular zone of application, moreover, such industry- or region- specific initiatives have not always been fully consistent with international human rights standards. Indeed, at present there is no widely recognized set of standards on business and human rights that provides an overarching framework and reference point for these diverse initiatives.

In order to foster a more complete understanding of the role, effects, and responsibilities of business in relation to human rights, and thereby to help shape appropriate solutions, it is helpful to take stock of the cross-cutting ways in which enjoyment of rights can be harmed as a result of business activities.

Impacts on human rights may result from such core business activities as employing staff, building or utilizing facilities, consuming and manufacturing materials or providing services, and interacting with community members and governments. As the nature of business operations continues to change and evolve so too will the ways and contexts in which such operations can affect human rights.

February 1, 2008 Youssef Farhat Product

Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases

INEQUALITIES

Extending the Shadow of the Law: Using Hybrid Mechanisms to Develop Constitutional Norms in Socioeconomic Rights Cases

This Working Paper traces the debate over judicial enforcement of socioeconomic rights through the lens of competing theories of adjudication and alternative dispute resolution, situating it in the broader constitutional jurisprudence of the South African Constitutional Court and evaluating the capacity of its “engagement” remedy in housing-rights cases to generate legitimate public-law norms outside formal adjudication. The paper argues that the Court’s engagement remedy carries significant doctrinal significance through the hybrid integration of mediation and adjudicative processes central to socioeconomic rights enforcement, generating a model that preserves the flexibility and responsiveness associated with alternative dispute resolution while retaining the legitimacy and norm-creating function traditionally reserved for formal judicial review.

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One distinctive feature of constitutions developed in the twentieth-century is the almost uniform inclusion of socioeconomic rights provisions—rights to basic human needs such as food, water, shelter, health care and education. Despite their relative ubiquity, however, judicial enforcement of these rights remains relatively controversial in theory and problematic in practice.

While concerns over judicial review arguably are heightened in the socioeconomic rights context, the arguments over enforcement of these rights largely mirror the debate over judicial enforcement of constitutional rights more generally. In particular, both debates focus on the undemocratic nature of judicial review and consequently are concerned with defining (and confining) the judicial role in ways that maximize its legitimacy.

Defenses of judicial review are connected to those of adjudication more generally and often locate their legitimacy in a set of procedural characteristics, including judicial independence, structured participation and reasoned decisions that promote objective results and serve the public interest. Lon Fuller in his famous essay The Forms and Limits of Adjudication defines “the distinguishing characteristic of adjudication” as “the fact that it confers on affected parties a peculiar form of participation in the decision, that of presenting proofs and reasoned arguments for a decision in his favor.” In a related vein, Owen Fiss argues that judicial review is rooted in a “conception of the judicial function [that] sees the judge as trying to give meaning to our constitutional values” and a “process through which that meaning is revealed or elaborated.”

The more flexible, person-centered processes associated with alternative dispute resolution or “ADR” are often contrasted with adjudication. Both critics and proponents of alternative dispute resolution often assume that, unlike adjudication, these processes are inherently limited to solving particular disputes and thus are unable to establish precedents applicable beyond a single dispute. This severely limits the capacity of ADR to generate public values and perform the norm-creation function usually associated with adjudication generally and constitutional adjudication in particular.

This Working Paper challenges the general perception that alternative dispute resolution processes cannot develop public-law norms. A recent trend in ADR literature has sought to define a public norm-creation role for ADR in part by connecting these processes to other alternative legal and political problem-solving methods. Thus, Carrie Menkel-Meadow has argued that there are strong connections between deliberative democracy theory and the ADR movement including a shared appreciation for “constitutional experimentalism . . . in which there are feedback mechanisms for sharing and coordinating local outcomes with the broader polity.” Similarly, Susan Sturm and Howard Gadlin have argued that ADR processes are capable of generating public-law norms “when relevant institutional actors develop values or remedies through an accountable process of principled or participatory decision making, and then adapt those values and remedies to broader groups or situations.” Focusing on a recent South African Constitutional Court case in which the Court interpreted the right to housing in the South African Constitution to require that municipalities develop processes for negotiating—or, in the Court’s language “engaging”—with citizens affected by redevelopment plans that may involve eviction, this paper considers how these claims about the norm-creation potential of ADR processes could be developed in the context of constitutional adjudication of socioeconomic rights.

The heightened legitimacy and separation-of-powers concerns associated with socioeconomic rights means that they have been a rich source of examples for examining how alternative enforcement approaches. The South African Constitutional Court is one of the most active courts in this area, and its decisions are cited as models both by other jurisdictions and in the academic literature.

The Court’s most recent housing-rights decision, Occupiers of 51 Olivia Road v City of Johannesburg, portends a potentially important development in its approach to enforcement. The Court adopted the term “engagement” to describe a unique remedy it developed—in essence, a permanent negotiation/mediation requirement in housing-rights cases that may involve eviction. Properly implemented, the engagement remedy can be developed into a hybrid dispute resolution model that integrates ADR processes with formal adjudication in a manner that enhances the legitimacy of the resolution and creates the possibility for the extra-judicial interpretation and enforcement of socioeconomic rights. This hybrid process is particularly well-suited to enforcing socioeconomic rights because it is at once both more democratic than formal adjudication and also more flexible and responsive to the practical concerns that socioeconomic rights raise.

Part 2

Part II of this Article outlines two classic but competing accounts of the procedural justifications for adjudication and related assessments of the limitations of ADR processes by Fuller and Fiss.

Part 3

Part III analyzes two related articles by Sturm and Gadlin that develop this argument. Sturm first identifies four key characteristics that Fuller’s and Fiss’ accounts share and argues that these characteristics can be advanced through the use of mediation in the remedial phase of public-law litigation. Sturm and Gadlin in a more recent article propose an ADR model that promotes those same values and therefore can be used to develop public norms outside of adjudication.

Part 4

Part IV summarizes the debate over socioeconomic rights generally and the specific debate over the South African Constitutional Court’s enforcement approach and identifies important ways in which the arguments there track the debate over the relative roles and legitimacy of adjudication and ADR. It then describes the Constitutional Court’s most recent decision and argues that the engagement remedy the Court adopted can be developed into a hybrid process that incorporates aspects of both adjudication and mediation/negotiation in a way that retains the flexibility and responsiveness Fuller prizes in ADR while still protecting the legitimacy norms both Fuller and Fiss associate with adjudication.

January 1, 2008 Youssef Farhat Product

Normative Instruments in International Human Rights Law

HUMAN RIGHTS MOVEMENT

Normative Instruments in International Human Rights Law: Locating the General Comment

This paper traces the development of ‘General Comments’ from treaties into normative tools, situating them in the broader scheme of international law and evaluating the range of claims made about their legal weight. This paper argues that they carry authoritative significance through discursive and interpretative processes central to International Human Rights Law, generating normative consensus around the meaning and scope of specific human rights protections.

Working Paper

A prominent feature of contemporary international legal process has been the proliferation of human rights norms. Out of this has grown a complex structure of various interrelated normative instruments, which together form the corpus of international human rights law. One instrument that has emerged in recent times, is the interpretative statements issued by UN treaty bodies formally referred to as ‘General Comments.’ However, despite their wide currency and appeal in international human rights discourse and practice, their jurisprudential value remains remarkably unclear. Indeed, very little in the way of sustained analysis has been said about their role and status in international law.

This paper examines the origins and evolution of the General Comment, and assesses its contemporary role in the practice and understanding of human rights law. It traces how this instrument has emerged from the obscurity of treaty texts to become an important tool in the development, understanding and practice of international human rights law. It further analyses the spectrum of claims about the normative status of General Comments in international law. More precisely, it attempts to locate the General Comment in the over-all scheme of international normativity, and seeks to suggest a way in which we can understand the potential and complexity that these instruments present.

From this enquiry it emerges that the General Comment is one of the most dynamic and significant normative tools in contemporary human rights law. However, it also makes plain that this instrument does not fit easily within the traditional schema of international law. Simply put, General Comments are non-binding. This notwithstanding, the analysis reveals that these instruments do possess normative significance. The paper therefore, tries to grapple with the idea of the authoritativeness of these instruments. It concludes that their ‘authority’ cannot be viewed in traditional legal terms, as General Comments do not bind states, and are not determinative of state’s obligations. However, when viewed in the context of the various discursive and ideational processes which are central to human rights law, General Comments can be viewed as authoritative interpretative instruments, which gives rise to a normative consensus on the meaning and scope of particular human rights.

This working paper is part of a series published in 2008.

January 1, 2008 Youssef Farhat Post

Surviving the Darkness: Testimony from the U.S. “Black Sites”

PREVENTION AND CONFLICT

Surviving the Darkness: Testimony from the U.S. “Black Sites”

This report is a condensed version of the Declaration. It omits references to, and copies of, most exhibits to the Declaration but is otherwise unchanged. After more than eighteen months of being held “off the record” by the U.S. government, the Declaration and this report is Mohamed Bashmilah’s opportunity to tell his own story. Here, he puts back on the record the truth about the extensive human rights violations he and his family have suffered as a result of his enforced disappearance.

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On September 6, 2006, President George W. Bush acknowledged that the United States operates a program of secret detention in the “War on Terror.” In the same statement, President Bush indicated that fourteen of the individuals held in the program had been transferred to Guantánamo Bay and that “…there are now no terrorists in the CIA program.” President Bush did not disclose the fate and whereabouts of the other individuals known or believed to have been secretly detained at some point by the U.S. government, and he left open the possibility that the CIA program would be used again.

A number of the individuals known or suspected to have been held secretly by the United States are still missing. The fate and whereabouts of a smaller number is known as a result of the efforts of human rights organizations.

Since 2006, the International Human Rights Clinic at New York University School of Law has represented two such individuals—Yemeni nationals Mohammed Abdullah Saleh al-Asad and Mohamed Farag Ahmad Bashmilah. Their stories exemplify the nature and breadth of the U.S. system of detention in the “War on Terror,” as well as the treatment that individuals targeted in the “War on Terror” suffer.

December 2007.

December 24, 2007 Youssef Farhat Product

Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror’

PREVENTION AND CONFLICT

Off the Record: US Responsibility for Enforced Disappearances in the ‘War on Terror’

Based on research by six major human rights groups—Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Reprieve— this briefing paper identifies individuals believed to have been held at some point by the United States in secret sites, all of whom remain missing.

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On September 6, 2006, President George W. Bush revealed that the United States runs a system of secret detention in the “War on Terror,” but he did not disclose how many individuals were secretly detained. While only the U.S. government knows exactly who remains missing, Off the Record provides the most comprehensive list of these individuals, who are believed to have been subject to an enforced disappearance for which the United States bears responsibility.

This briefing paper provides information about detainees already identified as “disappeared” (for example, Ali Abdul-Hamid al-Fakhiri, commonly known as Ibn al-Shaykh alLibi) and names four missing detainees for the first time. It reveals the extent to which the United States illegally uses “proxy detention” to empty its secret sites and demonstrates that far from targeting the “worst of the worst,” the system sweeps up low-level detainees and even involves the detention of the wives and children of the “disappeared,” in violation of their human rights.

Off the Record also documents allegations concerning the treatment of detainees while in secret detention, including torture and other cruel, inhuman or degrading treatment or punishment.

The briefing paper is available in Arabic, Spanish and English.

June 7, 2007 Youssef Farhat Product

Torture by Proxy: International and Domestic Law Applicable to Extraordinary Rendition

PREVENTION AND CONFLICT

Torture by Proxy: International and Domestic Law Applicable to Extraordinary Rendition

This joint report with the International Human Rights Committee of the Association of the Bar of the City of New York analyzes the legal standards applicable to the practice of Extraordinary Rendition. Its main findings are that Extraordinary Rendition is an illegal practice under both domestic and international law, and that, consistent with U.S. policy against torture, the U.S. government is duty bound to cease all acts of Extraordinary Rendition, to investigate Extraordinary Renditions that have already taken place, and to prosecute and punish those found to have engaged in acts that amount to crimes in connection with Extraordinary Rendition.

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The Report defines Extraordinary Rendition as the transfer of an individual, with the involvement of the United States or its agents, to a foreign state in circumstances that make it more likely than not that the individual will be subjected to torture or cruel, inhuman, or degrading treatment.

The Report begins with an overview of the practice of Extraordinary Renditions as reported in the press; since Extraordinary Rendition appears to be a covert activity, the factual scenarios included in the Report have not been verified. Examples are given of cases in which the United States has allegedly been involved in transfers of individuals from inside the United States, from foreign states, and from U.S. military outposts to states well known to practice systematic or uncontrolled torture. The level of involvement of U.S. officials varies from case to case, but the facts in each example suggest that the United States is using this form of transfer as an interrogation technique in the “War on Terror.” Indeed, while the use of Extraordinary Rendition has been denied in all official settings, officials speaking off the record have acknowledged the practice.

The Report next examines U.S. law to determine whether Extraordinary Renditions are, or could be, authorized by existing law or covert directives. After systematically considering the bases of authority for transfers of individuals by U.S. officials and the limits to that authority, the Report concludes that no publicly available statute, regulation, executive finding, directive or other action exists to authorize Extraordinary Rendition. Given the clear intent of Congress, expressed through legislation aimed at upholding U.S. obligations against torture and complicity in such abuse, and White House policy condemning torture, any purported authority to carry out Extraordinary Renditions would be an unauthorized derogation from U.S. law.

The Report then discusses the international law applicable to Extraordinary Rendition, including the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the International Covenant on Civil and Political Rights; the Geneva Conventions of 1949; and the Refugee Convention of 1951. The Report demonstrates that all of these treaties contain provisions preventing some aspects, or the entire practice, of Extraordinary Rendition. This Section concludes with a consideration of some guiding principles from international law on criminal liability that may be relevant in efforts to prosecute individuals who have been involved in Extraordinary Renditions. Standards explored include those governing complicity and conspiracy, the doctrine of command responsibility, and certain justifications and defenses available under international law. The Report then turns to the use of “diplomatic assurances”– promises made by governments not to torture or mistreat individuals who are being transferred into their custody. Because these promises are made only when the circumstances indicate that an individual is at risk of torture, and because there are no procedural safeguards allowing for their transparent implementation, the Report concludes that diplomatic assurances as currently used are ineffective.

The Report next demonstrates ways in which Extraordinary Rendition could leave the United States vulnerable to international liability under the doctrine of state responsibility. This Section explains that the U.S. government is required by international treaty law to prevent, investigate, prosecute, and punish acts amounting to Extraordinary Rendition.

The Report concludes with a comprehensive examination of the U.S. criminal and civil statutes that are applicable to individuals involved in Extraordinary Rendition, demonstrating that such individuals may be open to criminal charges and/or civil liability for conspiracy and complicity in torture.

June 10, 2006 Youssef Farhat Product

Irreversible Consequences: Racial Profiling and Lethal Force in the “War On Terror”

PREVENTION AND CONFLICT

Irreversible Consequences: Racial Profiling and Lethal Force in the “War On Terror”

This Briefing Paper traces the emergence of shoot-to-kill policies and behavioral profiling techniques in post-September 11 counter-terrorism law enforcement through the lens of international human rights law, situating it in the broader tension between states’ duty to protect national security and their obligations to uphold fundamental rights and evaluating the discriminatory impact of guidelines that disproportionately target Muslims, Arabs, and South Asians. This paper argues that the codification of lethal force protocols and racially proximate behavioral indicators carries profound human rights significance through the compounding dynamics of institutional impunity, racial profiling, and the erosion of established legal standards, generating a systematic pattern of arbitrary and discriminatory enforcement that cannot be justified by the imperatives of the war on terror without fundamentally undermining the universality of human rights protections.

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Since the September 11, 2001 attacks in the United States (U.S.) a number of countries have either adopted or reinforced counter-terrorism measures that stand in direct contradiction to established human rights norms. Under the pretext of protecting national security in the global “war on terror” States have, for example, violated the right to due process of law, the right to be free from torture and other cruel, inhuman and degrading treatment, the right to be free from discrimination, and even the right to life.

Under international law, States have both a right and a duty to protect individuals within their borders; this includes protecting individuals from acts of terrorism. Measures taken in fulfillment of this duty, however, must also respect the rule of law, human rights, and fundamental freedoms. To date, few States have been able to effectively reconcile this dual obligation to protect national security while respecting human rights. A recent example of this failure is the adoption of “shoot-to-kill” policies to deal with suspected terrorists.

In 2005 a number of “shoot-to-kill” policies authorizing the use of lethal force against suspected suicide bombers came to light. Following the July 22, 2005 killing of Jean Charles de Menezes, a Brazilian electrician who London police mistook for a suicide bomber, the United Kingdom (U.K.) revealed the existence of a national “shoot-to-kill” policy named Operation Kratos. Also in 2005, reports surfaced that the U.S. Capitol Police had become the first police department in the U.S. to adopt a “shoot-to-kill” policy for dealing with suspected suicide bombers. Other U.S. law enforcement agencies are considering following suit. In late 2005 the U.S. National Bomb Squad Commanders Advisory Board issued and distributed the first national protocol on suicide bomber response.

The use of “behavior pattern recognition” has similarly emerged as a trend in counter-terrorism training. Senior U.S. intelligence specialists, for example, have argued that it would be more useful to attempt to identify and isolate the type of behavior that might precede an attack rather than focusing on “the type of person who fits a profile of a terrorist.” Behavior pattern recognition is already being introduced in airport and transportation security in the U.S., and in law enforcement in the U.K. Both “shoot-to-kill” policies and behavior pattern recognition techniques have long been used in Israel, whose counter-terrorism experts are actively recruited to train law enforcement and security personnel worldwide on the implementation of these policies and techniques.

On July 8, 2005, a day after the London bombings, the International Association of Chiefs of Police (IACP), an organization of global membership that facilitates the training and cooperation of police officers in the U.S. and worldwide, released its guidelines on the detection and prevention of suicide bombings. These guidelines are articulated in IACP’s Training Keys 581 and 582 (entitled Suicide (Homicide) Bombers I & II, respectively) (hereinafter “Training Keys”). To detect potential suicide bombers, Training Key 581 instructs police officers to look for certain behavioral and physical characteristics, similar to those identified in behavior pattern recognition guidelines. To prevent potential suicide bombers, Training Key 582 promotes the use of lethal force, encouraging officers to aim for the suspect’s head and shoot-to-kill.

Both “shoot-to-kill” policies as well as the indicators associated with behavior pattern recognition are often marked by a lack of transparency in terms of their content, adoption, and implementation. This secrecy is frequently attributed to the imperative of maintaining national security. While protecting national security is of paramount importance, policies that empower law enforcement officials to disregard established standards on the use of lethal force and to substitute reliable intelligence with confusing and often stereotyped profiles of threatening individuals, must be made subject to public scrutiny.

Unlike official “shoot-to-kill” policies, the Training Keys are publicly available documents. Though not official government policy, they are the subject of this Briefing Paper because: a) they are emblematic of both existing official policies and policies under consideration; and b) they have the potential to influence police departments—particularly in the U.S. where the IACP is headquartered—to train police officers to use behavioral profiling techniques, and to adopt and implement “shoot-to-kill” policies in response to terrorism-related threats.

While a shift away from focusing on “the type of person” who fits a terrorist profile toward the type of behavior that might precede an attack is laudable, this Briefing Paper argues that the indicators contained in Training Key 581 will not be implemented in a neutral manner. Specifically, it concludes that these indicators are proxies for racial, ethnic and religious profiling, and that implementation of the Training Key will disproportionately target Muslims, Arabs and South Asians, or those perceived to be Muslim, Arab, or South Asian.

Additionally, while the use of lethal force may, under certain circumstances, be both necessary and justified, especially when responding to the imminent detonation of a bomb, Training Key 582 promotes the use of lethal force even when the threat of harm is not imminent and where the very existence of a bomb has not been confirmed. Instead, officers are encouraged to infer the existence of the “capability to detonate” a bomb or the threat of such use on the basis of overly-broad physical and behavioral characteristics, that will in the overwhelming number of cases end up targeting Muslims, Arabs and South Asians, or those perceived to be Muslim, Arab, or South Asian.

This Briefing Paper analyzes the Training Keys in light of relevant international and regional human rights law, and U.S. domestic law, and concludes that the implementation of the Keys by police departments would result in violations of standards prohibiting unjustified discrimination and the arbitrary use of force.

In so doing, it challenges a major precept of the “war on terror” campaign generally, and “shoot-to-kill” and profiling policies specifically: that the attacks of September 11, 2001 have heralded a new era that warrants new approaches to law enforcement, and justifies a departure from established human rights norms. Such an approach ignores the intricacies and breadth of the human rights regime, which recognizes the duty of States to protect persons against terrorist attacks, while also setting out appropriate and necessary prohibitions on discriminatory treatment and the arbitrary deprivation of human life. These prohibitions seek to ensure that all persons are truly secure and protected. By contrast, profiling on the basis of race, religion, ethnicity and nationality sends the problematic message that the security of some is worth more than the security of others; or worse, that human rights abuses against those who fit into this ill-defined category of “terrorist” are a necessary pre-condition to ensuring the security of the nation.

May 1, 2006 Youssef Farhat Product

By the Numbers: Findings of the Detainee Abuse and Accountability Project

PREVENTION AND CONFLICT

By the Numbers: Findings of the Detainee Abuse and Accountability Project

This briefing paper presents the preliminary conclusions of the Detainee Abuse and Accountability Project (DAA Project) based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings.

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In 2004, revelations about the abuse of detainees in U.S. custody at Abu Ghraib prison in Iraq shocked people across the world. In response, U.S. government officials condemned the conduct as illegal and assured the world that perpetrators would be held accountable.

Two years later, it has become clear that the problem of torture and other abuse by U.S. personnel abroad was far more pervasive than the Abu Ghraib photos revealed—extending to numerous U.S. detention facilities in Afghanistan, Iraq, and at Guantánamo Bay, and including hundreds of incidents of abuse. Yet an analysis of alleged abuse cases shows that promises of transparency, investigation, and appropriate punishment for those responsible remain unfulfilled. U.S. authorities have failed to investigate many allegations, or have investigated them inadequately. And numerous personnel implicated in abuses have not been prosecuted or punished.

In order to collect and analyze allegations of abuse of detainees in U.S. custody in Afghanistan, Iraq, and at the Guantánamo Bay detention facility, and to assess what actions, if any, the U.S. government has taken in response to credible allegations, the Center for Human Rights and Global Justice at NYU School of Law, Human Rights Watch and Human Rights First have jointly undertaken a Detainee Abuse and Accountability Project (DAA Project).

The Project tracks abuse allegations and records investigations, disciplinary measures, or criminal prosecutions that are linked to them. This briefing paper does not discuss allegations of torture or abuse at secret U.S. detention facilities in other countries, or allegations of torture following illegal rendition or other informal transfer to other countries. It presents the Project’s preliminary conclusions based on data collected as of April 10, 2006. It also highlights a number of individual cases that illustrate various key findings.

April 10, 2006 Youssef Farhat Product