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By Professor Philip Alston, United Nations Human Rights Council
PRESS STATEMENT
Professor Philip Alston, United Nations Human Rights Council Special Rapporteur on extrajudicial, summary or arbitrary executions New York, 30 June 2008
I spent two weeks (June 16-30) visiting the United States at the invitation of the Government and met with federal and state officials, judges, civil society groups, and victims and witnesses in Washington DC, New York City, Montgomery (Alabama), and Austin (Texas).
I am grateful to the U.S. Government for its cooperation and for having facilitated meetings with officials from the Departments of State, Justice, Defense and Homeland Security, as well as with officials in Alabama and Texas. The US Government's willingness to invite me and to engage in a constructive dialogue sends an important message.
Although the title of my mandate may seem complex, it should be simply understood as including any killing which violates international human rights or humanitarian law. This may include unlawful killings by the police, deaths in custody, killings of civilians in armed conflict in violation of humanitarian law, and patterns of killings by private individuals which are not adequately investigated and prosecuted by the authorities. My mandate is not abolitionist, but the death penalty falls within it as regards due process guarantees, its limitation to the most serious crimes and its prohibition for juvenile offenders and the mentally ill.If there is a single theme that emerges from my visit it is the need for greater transparency in relation to a number of issues of major importance. In most instances, neither laws nor procedures for addressing any potentially unlawful killings are lacking. And, for the most part, data is gathered systematically and responsibly. But in too many cases it is extremely difficult, if not impossible, to gain access to that information. Instead, procedural and other impediments are firmly ensconced in order to thwart those who seek to monitor the accountability of public authorities. This reality is entirely inconsistent with the stated commitments of the Government and my hope is that the necessary steps can be taken to remove the obstacles and ensure full respect for human rights.
In different contexts, I was frequently told by Government officials that although they were unable to answer my specific questions, I should rest assured that there was accountability. Whether or not it does in fact exist, this "private" or "internal" accountability cannot take the place of genuine, public accountability. A Government open and accountable to its people is a foundational premise of a democratic state.
The present statement identifies some, but not all, of the issues and recommendations to be addressed in my final report.
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* Deaths in immigration detention facilities
There have been at least 74 deaths in immigration detention facilities since 2003. I received credible reports from a variety of sources of denials of necessary care, long delays in the provision of treatment, and the provision of inadequate care and incorrect medication. The immigration detention facilities, managed by Immigration and Customs Enforcement (ICE), an arm of the Department of Homeland Security (DHS), hold immigrants with ongoing immigration legal proceedings, or awaiting removal from the US in some 365 facilities around the country.
The standards and procedures for medical care in all of these facilities are set by ICE.
They are designed primarily to provide emergency care and generally exclude other care unless it is judged necessary for the detainee to remain healthy enough for deportation.
Specialty care and testing believed necessary by the detainee's on-site doctor must be pre-approved by the Division of Immigration Health Services (DIHS) in Washington, DC.
Reliable reports indicate that, in practice, an often very restrictive interpretation is applied. In their defense, DIHS and ICE explained to me that truly emergency care is formally provided at the discretion of medical personnel at each detention center without prior authorization from DIHS. But it is still necessary to obtain DIHS authorization in order for the care provider to get reimbursed for such emergency care. Denials of such requests have a chilling effect on decisions taken subsequently about whether to go ahead without authorization.
In addition, the ICE standards are merely internal guidelines rather than legal regulations. This has insulated ICE policy-making from the external oversight provided by the normal regulatory process and limits the legal remedies available to detainees when the medical care provided is deficient. ICE reassured me that there are internal grievance procedures, but detainees and their lawyers regularly report no or delayed responses to complaints, and complaint hotline telephones that simply don't work. The DHS should promulgate legally enforceable administrative regulations, and these should be consistent with international standards on the provision of medical care in detention facilities.
With respect to the investigation of detention center conditions, I met with the DHS Inspector General (IG). The IG role is an important one and a number of valuable reports have been prepared. But the system is incomplete by virtue of the fact that internal and external accountability functions are more or less combined. The law enforcement officers who investigate abuses by DHS personnel themselves report to the IG. Existing IG peer review arrangements seem most unlikely to act as an appropriate external check on the performance of the IG in relation to sensitive and problematic cases.
ICE has no legal reporting requirements when a death occurs in ICE custody. This has resulted in a clear failure of transparency by ICE in relation to deaths in custody. Both civil society groups and Congressional staff members told me that for years they were unable to obtain any information at all on the numbers of deaths in ICE custody. ICE's recent public reporting of the number of deaths, and their voluntary undertaking to report future deaths is encouraging, but insufficient. ICE should be required to promptly and publicly report all deaths in custody, and these deaths should be fully investigated.
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* Preliminary recommendations:
Domestic US issues
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Medical care provided in immigration detention should be improved
- All deaths in immigration detention should be promptly and publicly reported and investigated.
- The Department of Homeland Security should promulgate appropriate regulations through the normal administrative rulemaking process, and these should be consistent with international standards on the provision of medical care in detention facilities.
