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Report on the UN Committee on the Elimination of Racial Discrimination Review of the US and Seventh Annual Meeting of the UN Working Group on People of African Descent
Wednesday, December 17, 2008

By Mischa E. Thompson, Policy Advisor

Moving into the 21st century, racism and discrimination continue to be a problem throughout the fifty-six European, North American, and Central Asian countries that make up the Organization for Security and Cooperation in Europe (OSCE), including in the United States. Recent reports by the OSCE, European Union’s Fundamental Rights Agency (2008, 2007), and European Network Against Racism have found that racial minorities and increasingly migrants are the targets of hate crimes and racial/ethnic profiling, in addition to experiencing discrimination in employment, housing, education, and other areas. Political parties espousing anti-migrant and racist positions are also on the rise, with the potential to undermine current efforts to implement tolerance and nondiscrimination initiatives throughout the region.

Efforts to address these problems over the years have resulted in the development of multi-lateral instruments to stem the tide of racial discrimination. The International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) is often considered a premier international instrument in this area. Adopted by the United Nations in 1965 and entering force in 1969, over 173 countries including the United States, have agreed to have their government policies reviewed to determine if they create or perpetuate racial discrimination. ICERD defines racial discrimination as “any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” According to the treaty, countries are required to amend or repeal laws and regulations deemed to be discriminatory and are allowed to introduce positive measures such as affirmative action when necessary. As such, countries are obligated to protect against inequality and discrimination in the enjoyment of human rights, including in the areas of education, housing, criminal justice, health, voting, labor, etc.

While the 1975 Helsinki Final Act requires its members to respect human rights and fundamental freedoms “without distinction as to race, sex, language or religion,” no review mechanism comparable to the ICERD currently exists within the OSCE. In recent years, the OSCE participating States have urged ratification of the ICERD (e.g., Copenhagen 1990, Helsinki 1992, Maastricht 2003), adopted complimentary initiatives such as the Annual Hate Crimes Report, and conducted consultations and other activities within the United Nations on relevant initiatives. The ICERD and its implementing committee, the Committee on the Elimination of Racial Discrimination (CERD), therefore continue to remain a primary resource in outlining and determining the success of OSCE countries’ efforts to eliminate racial discrimination. For this reason, the 2008 CERD review of the United States and the status of U.S. efforts to combat racial discrimination were widely followed.

From February 18 to March 7, 2008 the Committee on the Elimination of Racial Discrimination (CERD) held its seventy-second session in Geneva, Switzerland. The Committee of eighteen independent experts, including a U.S. representative, is charged with periodically reviewing the performance of the 173 countries that have signed and ratified ICERD. During the seventy-second session, the Committee reviewed anti-discrimination efforts undertaken by the Governments of the United States, Fiji, Italy, Belgium, Nicaragua, Moldova, and the Dominican Republic. The United States appeared before the Committee on February 22 and 23 after having submitted a report in April 2007 on its efforts to eliminate racial discrimination after last appearing before the Committee in 2001. Over four hundred U.S. non-government organizations (NGOs) also compiled and submitted a “Shadow Report” to the Committee, which provided supplementary independent information in addition to the government perspective.

Twenty-three persons made up the diverse high-level U.S. delegation, headed by Ambassador Warren Tichenor, Permanent Representative of the United States to the United Nations in Geneva. The delegation also included: Grace Chung Becker, Acting Assistant Attorney General in the Civil Rights Division of the Department of Justice, and Ralph Boyd, a former member of the U.N. Committee. Other members of the delegation were from the Departments of Interior, Justice, State, Homeland Security, and Equal Employment Opportunity Commission. For the first time more than one hundred U.S. NGO representatives also attended the session as a “shadow” delegation.

The review began with the United States noting the continuing problem and challenges of combating racial discrimination, but disagreeing with the Committee’s views on causes and solutions. Ambassador Tichenor stated that, “the United States supported the elimination of racial discrimination at home and abroad [...] and had made significant progress in improving race relations in the past [and] continued to work actively to eliminate racial and ethnic discrimination. However, challenges still existed, and a great deal of work remained to be done.” The United States then went on to argue that the causes of continuing racial disparities were poverty and other socio-economic variables, including poor choices made by minorities and discriminatory actions by non-state actors, as opposed to institutionalized practices stemming from past unjust government policies (e.g., slavery, segregation). The United States further argued that it should not bare the primary responsibility for addressing racial disparities because it was not solely responsible for creating the current situation. To bolster this argument, the United States also argued that the Committee’s interpretation of the intent of the ICERD was incorrect in terms of the government needing to play the lead role in combating racial discrimination and disparities. (Find excerpts from the U.S. statements at the end of this report.)

This line of argument caused the Committee to question whether the United States still possessed the political will to comply with its ICERD commitments. Indeed, much of the proceedings involved Committee members reiterating the commitments ICERD countries have undertaken as signatories, including augmenting laws and regulations which “have the effect of creating or perpetuating racial discrimination wherever it exists.” Confusion was expressed as to why the U.S. government had supported efforts to end affirmative action in schools, while simultaneously highlighting the existence of racial disparities in all sectors of U.S. society. Further puzzlement was displayed as to why the United States was arguing against playing a lead role in combating discrimination, while at the same time introducing widely acclaimed new initiatives to combat discrimination such as the US Equal Employment Opportunity Commission’s E-RACE Initiative and National Partnership for Action to End Health Disparities. The Committee also questioned the status of and anticipated plans for other U.S. efforts to address de facto discrimination, manifested by racial profiling, lack of equal access to quality housing, healthcare, and education, the failure to preserve Native American land rights and return Hurricane Katrina victims to their homes.

Committee members also expressed disappointment in the United States. Several Committee members noted that they viewed the U.S. civil rights movement and resulting policies to address past inequities such as affirmative action, as models for policies they were considering and/or using in their own countries to address human rights concerns stemming from inequities and historical injustices. In some cases, these policies were developed following consultations with the U.S. government. Indeed, the Colombian Committee member remarked that he had participated in a visit to the United States as part of an Afro-Colombian delegation invited to view U.S. programs to combat racial discrimination.

Members of the Committee also requested that the United States participate in the 2009 Durban Review Conference, a follow-up to the 2001 World Conference against Racism, as a means for continuing the conversation on eliminating racial discrimination. The United States responded that it had withdrawn negotiators from the first Durban Conference “because of pervasive anti-Semitism in its discussions” and would make a decision regarding participation at a later date.

A summary of the U.S. Review before the Committee and Concluding Observations of the Committee included recommendations to the United States in areas ranging from affirmative action and immigration to voter disenfranchisement and the rights of Native Americans and tribal peoples. This includes a request for an interim report due in February 2009 on how the United States has implemented the Committee’s recommendations regarding: 1) racial profiling and counterterrorism efforts impacting Arab, Muslim, South Asian and others, 2) protecting Western Shoshone lands, 3) efforts to return displaced Hurricane Katrina victims, 4) decreasing minority youth imprisonment rates, and 5) organizing training programs and other initiatives to make government officials and parties at the state and local levels aware of U.S. responsibilities under the ICERD. This last point was repeatedly raised by the civil society shadow delegation. In particular they were concerned by “U.S. exceptionalism” – or the perception that United States tells other nations to abide by international human rights laws, but refuses to comply with those laws itself. The Committee also called for greater consultation and cooperation between the U.S. government and civil society in preparation of its next report due in November 2011 following concerns that civil society was not sufficiently consulted during the drafting of the 2007 report.

Also, of relevance in addressing global efforts to eradicate racial discrimination was the seventh annual meeting of the United Nations Working Group on People of African Descent (WGPAD). Formed in April 2002, the Working Group studies and proposes solutions to the problems of racial discrimination faced by people of African descent living in the Diaspora, with a focus on improving their human rights situation. The Working Group met for its seventh Annual Session on January 14 to 18th, where it reviewed its proceedings of the past seven years on thematic issues that impact the experiences of persons of African descent in the following areas: administration of justice, media, equal access to quality education, employment, health, housing, participation in political, economic, and social sectors, racial profiling, and the empowerment of women of African descent. The WGPAD seventh Annual Session focused on the development of recommendations based upon these past sessions as a UN requirement in preparation for the 2009 Durban Review Conference. The United States participated as an Observer at the meeting. The Final Recommendations included calls for countries to: develop and/or adopt national action plans and monitoring bodies to combat racism and assist victims, address racial profiling and other disparities in the criminal justice system, introduce socio-economic data collection methods that include African descendants, counter negative media stereotypes, develop a best practices report and index on racial equality, and create a fund to support NGO participation in future WGPAD activities and meetings. The next WGPAD meeting is scheduled for January 12-14th and will focus on youth.

Within the OSCE context, the WGPAD holds special importance as the only multilateral entity focused on the human rights situation of the more than five million persons that make up the African descendant or Black European population. In recent years, partially as a result of their high visibility in European countries, Blacks have increasingly become the targets of hate crimes and experienced discrimination in education, employment, housing, and other sectors. Additionally, Blacks are often the targets of anti-immigrant campaigns, including racial profiling, regardless of their citizenship (see also U.S. Helsinki Commission Hearing The State of (In)visible Black Europe: Race, Rights, and Politics).

Initiatives such as the CERD and WGPAD have been critical to maintaining a global focus on countries’ efforts to monitor and combat racial discrimination in line with their human rights commitments. Additionally, they complement OSCE efforts in this area such as this year’s OSCE Supplementary Meetings in Vienna on Roma and national institutions to fight discrimination against minorities and migrants. Because of the role promoting equality and non-discrimination plays in the protection of human rights and ensuring peace and security in the OSCE region, the U.S. Helsinki Commission has also increased its focus in this area.

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    This briefing assessed the role of ombudsmen institutions in the countries of the Organization for Security and Cooperation in Europe from an American perspective. The ombudsman institution was described as a flexible institution; adaptable to national and local government structures in a wide variety of countries, and a brief evaluation of the evolution of this institution was presented. Dean M. Gottehrer, a consultant on ombudsmen in human rights institutions for the United Nations Development Program, Office for Democratic Institutions and Human Rights of the OSCE, and the United States Information Agency, presented a personal analysis of the role of ombudsmen institutions in protecting human rights in OSCE participating states.

  • Report on Azerbaijan's Presidential Election

    On October 11, 1998, Azerbaijan held presidential elections. The contest pitted incumbent President Heydar Aliev, the former Communist Party leader who returned to power in 1993, against moderate opposition leader Etibar Mamedov, political maverick Nizami Suleimanov, and three other candidates with little recognition or following. While no one seriously expected Aliev to lose, the opposition candidates were hoping for a second round. Five leading opposition politicians—Abulfaz Elchibey, Isa Gambar, Rasul Guliev, Ilyas Ismailov and Lala Shovket—boycotted the vote, unwilling to legitimize by their participation an election they believed would be unfair. Negotiations that took place in August between the government and the boycotting opposition over the most controversial aspect of the election—the composition of the Central Election Commission—proved unsuccessful, with the authorities rejecting the opposition’s demand for equal representation on the CEC. The five leaders, joined by numerous other parties and groups in the Movement for Electoral Reform and Democratic Elections, urged voters not to go to the polls. The authorities minimized the boycott’s significance, arguing that the opposition leaders knew they had no chance in a fair election and therefore preferred to claim fraud and not participate. Beginning August 15, the boycotting parties organized a series of rallies and demonstrations to pressure the government and call for fair elections. These were the first mass street actions in Azerbaijan in years. The authorities refused to let the opposition hold a demonstration in Freedom Square, in the center of Baku, offering alternative venues instead. On September 12, protesters clashed with police, resulting in arrests and injuries. Afterwards, authorities and opposition tried to reach agreement on the demonstrators’ route, and most pre-election rallies, some of which drew big crowds, were largely peaceful. The increasingly tense relations between the government and boycotting opposition parties were one factor in the OSCE/ODIHR’s appraisal of the election.  In ODIHR’s view, these failings outweighed the positive aspects of the election, such as the election law, which all sides acknowledged as acceptable, the freedom for candidates to speak openly on television, the abolition of censorship and provisions for domestic observers. The OSCE/ODIHR assessment was that the election fell short of meeting international norms. With the OSCE assessment placing in question the official results, the CEC’s failure to publish election protocols until long after the stipulated time period heightens doubts about President Aliev’s standing. The election was largely a referendum on his five-year presidency. Since his return to power in 1993, he has not solved the major problems besetting the country. The NagornoKarabakh conflict remains unsettled; Azerbaijani territory is still under Armenian occupation and no refugees have returned to their homes. Living standards for the great majority of the population have declined precipitously, though it is widely known that a tiny stratum of corrupt officials and businessmen have become rich. Moreover, the predominance of people from Nakhichevan - Aliev’s home region - in positions of power exacerbates general discontent.

  • The Status of Human Rights in Russia

    This briefing addressed the recent changes in the Russian government and what they might portend for human Rights in Russia. Specifically, economic troubles that led to the emergence of extremist politics and subsequent human rights abuses were the main topic of discussion. Witnesses testifying at the briefing – including Rachel Denber, Deputy Director of the Europe and Central Asia Division of Human Rights Watch; Mark Levin, Executive Director of the National Conference on Soviet Jewry; and Lauren Homer, President of Law and Liberty Trust – evaluated the status of human rights abuse in Russia resulting from a mix of repression, corruption, inertia, and neglect. Freedom of speech, freedom of information, and freedom of religion were especially emphasized as aspects of human rights that Russia needs to improve in the future

  • Romani Human Rights in Europe

    Commission Co-Chairman Christopher H. Smith presided over this hearing that discussed the rights of the Romani population in Europe. While ostensibly of Central and Eastern European descent, Romani, or Roma, individuals have existed in almost every European state. The Roma consist of a dispersed minority that, at the time of this hearing, was the fastest growing European population, numbering between 8 million and 10 million people. Unfortunately, their numbers did not protect the Roma from being the only population whose situation had actually worsened since the fall of Communism. From the first signs of anti-Romani discrimination in Romania to the dissolution of the Czechoslovak Federation in January of 1994, the reasons to justify holding this hearing to discuss the plight of the Romani were many. At this hearing, besides Commissioner Chris Smith, were Commission Chairman Steny Hoyer, and witnesses James Goldston of the European Roma Rights Center, Livia Plaks of the Project on Ethnic Relations, and Drs. David Crowe and Ian Hancock, professors at Elon and the University of Texas-Austin, respectively.

  • Repression and Violence in Kosovo and Hearing on Kosovo: The Humanitarian Perspective

    This hearing, chaired by Commissioner Alfonse D’Amato, discussed the dire circumstances in Kosovo, specifically Serbian repression of the Kosovar Albanian majority population. In this hearing, D’Amato called for the U.S. to step up and prevent another outbreak of ethnic cleansing and achieve a peaceful resolution to the crisis. More specifically, to facilitate a lasting peace, the Commissioner called on U.S. leadership to make Slobodan Milosevic believe that the world would not stand by while the atrocities in Kosovo and Serbia continued. In addition, any settlement reached between Milosevic and the Kosovo Albanian leadership, D’Amato, continued, must be respected and protect the human rights of all individuals in Kosovo, without preconditions. Witnesses in this hearing discussed these human rights violations and the predicament of the Kosovar Albanians.

  • Bosnia

    During this briefing, Robert Hand, policy advisor at the Commission, led a discussion regarding Bosnia and its different regions. He spoke of the situation in Bosnia in 1998 and the power of ethnically-based political parties, retained through nationalism, corruption, and control of the media. Reconstruction in Bosnia has slow and challenging due to poor economic conditions and the continued displacement of certain populations. The witnesses - Luke Zahner, Candace Lekic, Jessica White, Roland de Rosier, Kathryn Bomberger, Brian Marshall - have served in regions all over Bosnia and gave valuable input on the differences between regions and their rehabilitations processes after the Dayton Accords. They also spoke of the influence of Republica Srpska and the Bosnian Federation on said regions.  Paying attention to these differences, they state, is important in that the United States wants to support only those that successfully implement the Dayton Accords.

  • Report on Human Rights and the Process of NATO Enlargement

    The Commission held a series of three public hearings on “Human Rights and the Process of NATO Enlargement” in anticipation of the summit of Heads of State and Governments of Member States of the North Atlantic Treaty Organization to be held in Madrid, Spain, on July 8 and 9, 1997. The emergence of new democracies in Central and Eastern Europe and the demise of the Warsaw Pact created a security vacuum in the territory between the current eastern frontier of NATO and the Russian border. The first attempt to address the new security realities in the region occurred at the end of 1991 with the establishment of NATO’s North Atlantic Cooperation Council (NACC) as a forum for the evolution of a new relationship based on constructive dialogue and cooperation. In early 1994, the Partnership for Peace (PfP) was launched with the aim of providing a practical program to transform the relationship between NATO and states participating in PfP, moving beyond dialogue and cooperation to forge a genuine security partnership. (All 27 states of the Partnership for Peace (PfP) are OSCE participating States.) Simultaneously, NATO began to consider the possibility of enlarging the Alliance. The result was the 1995 Study on NATO Enlargement which addressed practical steps and requirements candidates for membership would have to satisfy. In December 1996, NATO foreign ministers called for a NATO summit at which one or more countries that wanted to join NATO would be invited to begin accession negotiations. The U.S. Congress was instrumental in stimulating the debate through several legislative initiatives. The NATO Participation Act of 1994 (PL 103-447) provided a reasonable framework for addressing concerns about NATO enlargement, consistent with U.S. interests in ensuring stability in Europe. The law lists a variety of criteria, such as respect for democratic principles and human rights enshrined in the Helsinki Final Act, against which to evaluate the suitability of prospective candidates for NATO membership. The Act stipulates that participants in the PfP should be invited to become full NATO members if they... “remain committed to protecting the rights of all their citizens....” Under section 203, a program of assistance was established to provide designated emerging democracies with the tools necessary to facilitate their transition to full NATO membership. The NATO Enlargement Facilitation Act of 1996 (PL 104-208) included an unqualified statement that the protection and promotion of fundamental freedoms and human rights are integral aspects of genuine security. The law also makes clear that the human rights records of emerging democracies in Central and Eastern Europe interested in joining NATO should be evaluated in light of the obligations and commitments of these countries under the U.N. Charter, the Universal Declaration of Human Rights, and the Helsinki Final Act.  

  • The Present Situation in Albania

    This briefing, moderated by the Honorable Eliot Engel, Co-Chairman of the Albanian Issues Caucus, examined the international response to the crisis in Albania since the collapse of the pyramid schemes in the beginning of the year, which led to protests, rebellion, and political stalemate.  The need for free and fair elections was emphasized in light of a political impasse over the holding of elections in June. Witnesses testifying at the briefing – including Julius Varallyay, Principle Country Officer for East Central Europe for the World Bank, Stefano Stefanini from the Italian Embassy, and Avni Mustafaj, former Director of Open Society Foundation for Albania – discussed the previous efforts that had been made to encourage political reforms and steps that needed to be taken in the future. The need for a comprehensive donor assistance program to complement international assistance was specifically address, as was the political reform on which this program would depend.

  • Dogs Have More Freedom

    Mr. Speaker, `Dogs have more freedom than us; at least they are not afraid to go outside.' Mr. Speaker, this is the conclusion of a young Romani father in Slovakia who recounted his experience with growing skinhead violence in his country. His story is, regrettably, just one of the many documented in a January 1997 report prepared by the European Roma Rights Center [ERRC] entitled `Time of the Skinheads: Denial and Exclusion of Roma in Slovakia.' This study describes a grim pattern of violent assaults against Roma perpetrated by skinhead extremists; it also suggests that local police forces have been, at best, unwilling to fulfill their obligation to protect their citizens and, at worst, have themselves actually engaged in violence against Roma.   Descriptions of a 1995 organized attack on the entire Romani community in the town of Jarovnice--something that reads like a pogrom from a bygone era--were especially chilling. Since Slovakia became an independent state in 1993, a great deal of international attention has, rightly, focused on the status of the Hungarian minority in that country, a community that makes up approximately 10 percent of the population. Slovakia also has another large minority population which is less well known abroad. While the exact number of Roma in Slovakia is contested, it is estimated to be in the hundreds of thousands. These people, the survivors of Nazi efforts to eradicate the Roma altogether, now face increasing violent attacks against their homes, their villages, and their lives.   The problems of Roma in post-Communist European countries are many, and often defy easy answers. But at least three of the problems described in `Time of the Skinheads' do have obvious solutions. First, the Slovak Government has failed to demonstrate any serious effort to acknowledge and address the widespread problem of violent skinhead attacks on Roma. On the contrary, some public officials, members of the ruling coalition, have repeatedly made crude racist remarks about the Roma. As long as such remarks stand uncontested or unchallenged by Prime Minister Meciar, skinheads will believe that they can attack Roma with impunity. Clearly, local police officials take their cues from the top. Accordingly, any improvement in the situation of Roma in Slovakia must begin with the leadership of that country stating that racism and bigotry will not be tolerated.   Second, the ERRC report described a pattern of excessive use of force by the police against Roma. When the victims seek to bring a complaint against the police, the charges are, in effect, reversed and the Rom is charged with assaulting the police. Significantly, the Council of Europe's Committee for the Prevention of Torture released a report on April 3, which also documented a problem of police brutality in Slovakia. That report, like the report of the ERRC, noted that the failure to ensure that those charged with a criminal offense have adequate legal representation has significantly contributed to this miscarriage of justice. One of the purposes of providing such representation is to guarantee a fair trial, consistent with the due process of law, and to ensure that those accused of crimes do not have confessions extracted from them by force. The failure to provide the accused with defense counsel violates one of the most important provisions of the international human rights system: the right to an attorney, a right articulated in Article 14 of the International Covenant on Civil and Political Rights as well as paragraph 5.16 of the OSCE Copenhagen Document. I hope the Slovak Government will take immediate measures to redress this problem.   Finally, the ERRC report on Slovakia indicates that Slovak localities continue to use a system of tightly controlled residency permits to restrict the freedom of movement of Roma. Not only does this practice offend the nondiscrimination provisions of the Helsinki process, this system also harkens back to the rigid controls of the Communist days. If people are not permitted to move where jobs are, how can a free market system flourish?   Unfortunately, Mr. Speaker, this pattern of violence against Roma is not unique to Slovakia. The ERRC, which was founded to defend the human rights of Roma, has also issued major reports on Austria and Romania. In addition, its most recent newsletter reported on problems Roma face in several other European countries. Clearly, there is much more that many governments in Central Europe can and should do to address these problems. I realize that Slovakia is in the midst of grappling with a very broad range of fundamental questions regarding its development and future. The basic human rights of Roma should be a part of that agenda. I see no better time. Will Slovakia enter the 21st century as a country which seeks to unite its citizens in achieving common goals, or will it lag behind with those countries which have permitted nationalism and racism to divide their people and weaken the very state they worked so hard to create?

  • The Current Situation in Croatia

    This briefing addressed the political situation in Croatia in the context of impending elections for offices at the municipal and county levels, as well as for seats in the Chamber of Counties of the Croatian Sabor, that would be an important step in the process of reintegrating Easter Slavonia. Some issues that had been noted during past election monitoring operations, such as problems with the development of the independent media, a lack of transparency in the electoral system, and a tendency for decisions to favor the ruling party, were discussed. Witnesses testifying at the briefing – including Jonas Rolett of the National Democratic Institute; Vesna Pusic, a professor for the University of Zagreb; Milbert Shin of Human Rights Watch; and Nenad Porges, Deputy Chief of Mission for the Croatian Embassy – evaluated the opportunity for improvement in the elections, and the role that nongovernmental organizations like NDI and Human Rights Watch would play in this process. Several tactics for improving the electoral process in Croatia, including strengthening political parties and providing neutral, accessible information, were topics of discussion.

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