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联合国和平集会与结社自由权利问题特别报告员在结束对美利坚合众国访问之际的声明(部分翻译)

华盛顿特区(2016年7月27日)——首先,请允许我感谢美国政府邀请我于2016年7月11日至27日进行此次正式访问。

我还希望感谢政府对组织此次任务所作出的极有成效、极具启发性的及时合作。我与大量联邦、州和地方层级的官员进行了富有成效的交流。我感谢他们的贡献和意见,这极大地帮助我更好地理解美国如今和平集会与结社自由权的状况。

也请允许我感谢美国政府在建立和延长我的任务授权中发挥的关键作用以及其在联合国人权理事会为这一任务授权提供的持续支持。我还称赞美国一贯在理事会发挥的关键作用,包括涉及通过有关和平抗议、公民空间、男女同性恋、双性恋和跨性别者的权利和其他更多问题的决议。

在访问期间,我会见了数百名活动者和代表广泛观点的个人,观察了共和党与民主党全国代表大会期间的大量抗议等。我想感谢每一个抽出时间与我会面并分享了他们的故事的个人。多元化、有活力和奉献性的美国民间社会领域是这个国家最强大的力量之一,这也是美国及其人民应该感谢的一点。我为每一位所付出的工作表示称赞。

我尤其想感谢所有自愿提供帮助,帮我与所访问城市的活动者取得联系,特别要提到美国国际劳工团结中心(Solidarity Center)、国际非营利法中心(ICNL)、美国公民自由联盟(ACLU)和美国劳工联合会-产业工会联合会(AFLCIO)。在此次访问任务期间,我在17天内访问了10座城市:华盛顿、纽约、巴尔的摩、密苏里州的弗格森、克利夫兰、凤凰城、新奥尔良、巴吞鲁日、密西西比州的杰克逊和费城。

此行访问的美国是一个令人印象深刻、复杂而宏伟的国家。它是一个强大的经济体、军事上的超级大国、全球技术发展的引擎,也是全世界历史最悠久的民主国家之一。

它也是一个极具多元化的国家,一个土著人民、奴隶和移民共存的国家。这是一个充满多元意见和看法的国家,其所持意见和看法之强烈曾引发内战。这也是一个充满斗争和恢复力的国家,诞生过二十世纪最鼓舞人心的时刻,即民权运动。

拥有多种形式的多元性和复杂性的经历并非总是一路顺畅。这个国家建立在从美洲土著处偷盗而来的土地上;其早期经济实力建立在对非洲人后裔基于种族的奴隶制上;持续不断的移民潮面临过歧视、骚扰或更糟糕的处境。

不幸的是,今天的美国似乎仍在奋力满足其对若干重要问题的理想,最严重的问题为种族、社会和经济不平等问题,这一问题往往是错综复杂的。

需要明确的是,我的访问任务的重点不在于种族或歧视。我的任务授权关注享有和平集会与结社自由权。但要不提到遍及各种讨论的种族主义问题而仅仅讨论这些权利是不可能的。种族主义与随之而来的排斥、迫害和边缘化问题影响了行使结社和集会权的有利环境。

这一问题在非裔美国人社区中尤为严重,而了解其背景意味着回顾其400年的奴隶制历史。这也意味着审视吉姆•克劳法(黑人法,Jim Crow laws)的出台如何摧毁了奴隶制结束即1865年开始的重建时期的成就、强迫实施种族隔离并将非裔美国人的社区边缘化,使其面临充满痛苦、贫困和迫害的生活。

这意味着审视吉姆•克劳法被废除后所发生的一切,排斥和歧视的旧观念获得了重生,以新的委婉形式作为掩盖。这些形式虽从表面看来并非基于种族,但其在有意或无意中不成比例地将非裔美国人和其他少数群体作为了目标。

所谓的“毒品战争”(“War on Drugs”)就是最好的证明。在这一战争中,每十五名黑人就有一人正受到监禁。同时,每十三名非裔美国人中就有一人因被判重罪而被剥夺投票权。过于激进地强调街头的“法律与秩序”(或“破窗理论”的手段)以维持治安,再加上广泛的警察自由裁量权,意味着非裔美国人受到了系统性的警方骚扰——有时情形更甚——而他们通常所做的仅仅是走在街上或聚集在一起。一旦“毒品战争”启动,定罪和监禁行为就急剧增长,而毒品的使用并无相应的增长。

相似地,比尔•克林顿在任期间(1993年至2001年)通过的刑法,包括联邦“三振出局”法(“three strikes”),其落实具有侵犯性地针对有色人种,导致对黑人社区的监禁和排斥急剧增长,进一步激化了不满和愤怒情绪。

其影响通常会呈滚雪球式增长:轻微的刑事犯罪——或甚至是指控未经证实的逮捕——都可能出现在背景调查中,导致找工作、获取学生贷款或寻找住所变得十分困难。这样的边缘化转而更易导致一个人因没有其他选择而转向犯罪之路,恶性循环则不断继续。

需要在更广阔的背景下看待这些歧视性的法律和惯例。华尔街的银行家通过不正当手段掠夺了数以百万计的美元,破坏了无数美国人的财务状况并使纳税人承担了大规模抒困法案的负担。但我在任务期间未听闻任何发动“华尔街偷盗战争”的建议。相反,刑事司法资源仍试图实施一种不同类型的法律与秩序,首先以非裔美国人和其他少数群体为目标。

黑人社区对于这些不公现象的愤怒情绪无可非议,亦表现得极为明显。他们的愤怒需要表达。这一背景催生了非暴力的“黑人生命同样重要运动(Black Lives Matter)”,他们的情绪亦需要在这样的背景下理解。

在与活动者的讨论中,很显然,“黑人生命同样重要运动”并不意味着其他人生——绿色、紫色、蓝色、白色或其他皮肤——就不重要。黑人生命同样重要运动(Black Lives Matter)仅仅是重申黑人生命事实上的确是有价值的,他们面临系统性地贬低并摧毁他们的结构,可回溯到几百年前的历史。这并非关于给予非裔美国人特殊地位或优待。而是关于一个在历史上持续受到针对的社区试图将自身的价值提升到与其他任何人目前平等的层次。

但种族不平等不是抑制结社和集会权利有利环境的唯一不平等问题。虽然美国在2007年至2008年的金融危机之后主导了令人钦佩的经济复苏,这波高涨的浪潮没有让所有人脱困。生产力和经济产出有所发展,但其利益首先被最富裕的人获取,而普通人的工资则停滞不前。这加剧了所有人群之间的不平等问题,产生了更多怨恨和紧张气氛;为人们积极参与政治提供了更多理由——包括通过行使他们的集会和结社权利。

这一不平等问题因工会会员的削减而加剧,这都是在法律和惯例使工人难以进行组织、企业权势越来越强以及强烈阻止工会化的自由市场原教旨主义者的背景下产生的。功能失调、分化严重的国会似乎丧失了其妥协传统,导致一切变得更糟。

简而言之,人们有足够的理由在此时产生愤怒情绪和感到沮丧。正是在这样的时刻,促进集会和结社权利才最为需要。这些权利赋予了人们一个和平的渠道,他们可以畅所欲言、与其他公民和当局对话、抒发不满并有希望解决这些问题。这也是边缘化群体开展公众参与的关键手段,否则其参与民主的能力可能会因罪犯或移徙者而受到限制。

我谨记这些对背景的观察,并想提出一些值得担忧的具体领域。我的分析是从适用于和平集会与结社自由权的国际法的视角作出的——包括习惯国际法(包括《经济、社会及文化权利国际公约》、国际劳工组织的主要条约和1993年的《维也纳宣言》)。虽然管理美国的是一套复杂的管辖制度,具有多层政府,这个国家仍是一个单一的国家,所有层级的当局都有责任遵守国际法。

下列问题等将在我于2017年6月向人权理事会呈交的报告中得到完整叙述。

The Right to Freedom of Peaceful Assembly

Peaceful assembly and its management

The history of the USA demonstrates the pivotal role of peaceful assemblies in bringing about social progress and change, especially in periods of discontent. Peaceful assembly is one of the most critical democratic tools we have to express and channel grievances, especially between elections. This is all the more true for groups in society who are, for one reason or the other, excluded from the right to vote such as felons or migrants.

Legal framework for peaceful assemblies

The right to assemble peaceably is protected by the first amendment to the US constitution. The law, the US Supreme Court and US authorities rightly recognize the interconnection between the right to peaceful assembly and the right to freedom of expression; a right highly valued and protected in this country. Many protests are held throughout the nation and protests seldom seem to be forbidden.

However, the position taken by several Courts and authorities that many time, place and manner restrictions do not defeat the right to peaceful assembly as long as they are not content based, does not conform with international law. The right to peaceful assembly is a right on its own, distinct from the right to freedom of expression which protects the content of the message. It guarantees that people may conduct assemblies, and restrictions to this right - be it on their time, place or manner - need to meet the standards under international law.

I was happy to learn that last week police in New Orleans facilitated and accommodated a spontaneous protest march in the streets. This indeed is a commendable practice conform to international norms and standards. Unfortunately almost all cities require permits for protests, contrary to international law and standards. In Philadelphia, as in some other locations, the requirement to obtain a permit is not always rigidly enforced, but this opens the process to arbitrariness and uncertainty.

When a right is subjected to a permit or authorization requirement, it becomes a privilege rather than a right. Notifications, meant to enable local authorities to facilitate and protect protests are in compliance with international law and standards. But such notifications may not turn into de facto authorizations, and I recommend that the US moves to a notification system. I also recommend ending the practice of charging fees for protest permits.

Policing of assemblies

I was pleased to observe that police in the states I visited have a good understanding of the best practices of managing assemblies, and that they have the capacity to implement them, which they often do. But they also sometimes ignore these best practices, preferring intimidatory and discriminative tactics.

It was disturbing to learn that assemblies organized by African-Americans are managed differently, with these protests often met with disproportionate force. Indeed, white and Muslim activists that I met acknowledged that black fellow protesters face harsher police encounters in the context of assemblies: police are more likely to be militarized and aggressive; black people are detained longer after arrests; they face more and heavier charges, more intimidation and more disrespect.

This blunt discrimination provides fodder for deeper resentment and frustration and widens the gap between law enforcement officers and the community that these officers have sworn to protect and serve. It was disconcerting to hear the many testimonies revealing that two years after the mismanagement of protests in Ferguson, and a year after the crisis in Baltimore following the shooting by police of Freddie Gray, similar practices were repeated in Baton Rouge in July this year to deal with protests after the police shooting of Alton Sterling.

It is manifestly unwise to respond to a largely peaceful, grieving crowd with riot gear, random arrests, flimsy charges, rough physical handling, verbal insults and so forth. This is not only a violation of the right to peaceful assembly, it also dangerous for participants, the general public and police officers.

Police officers I met in the different states were very knowledgeable about and provided practical examples of how they have used de-escalation techniques, and a light footprint, to defuse tensions during protests. Many underscored that a show of massive force, coupled with aggressive police approaches lead to escalation as seen in Ferguson, Baton Rouge, Baltimore and in Cleveland during the recent RNC.

The federal Government’s “1033 Program” - has caused serious harm to the practice of and thinking around management of crowds. The program gives local and state police authorities’ easy access to surplus military equipment, much of it designed for very different settings. Protesters are not war enemies and should never be treated as such. It is ill-advised to use military material to manage activities so fundamental to democratic societies. Protests naturally come with some disruptions, but police should target only the individuals responsible for violence.

Acts of violence by a few do not make an entire protest violent; nor do they strip other individuals of their right to continue the assembly. The Washington DC Metropolitan Police expressed an ability to take such individuals out of the crowd without disturbing the protest. The Jackson and New Orleans Police Departments also display a good understanding of the role and management of protests. These skills deserve to be shared with police nationwide. I am also pleased to note that the Obama administration has recently rolled back the scale of the 1033 Program.

Protesters also expressed concern about growing intimidation by law enforcement. Officers, allegedly from the FBI, have gone to the homes of Black Lives Matter activists and Amnesty International staff, amongst others seeking to warn them off impending protests. Alana Belle of Cleveland told how FBI officers visited her home days before the RNC to warn her against organizing protests. Active protesters, organizers and leaders in communities feel targeted and surveilled.

Marginalized groups such as migrant workers and homeless often suffer disproportionately from intimidation practices in Phoenix, Arizona, New Orleans, Philadelphia and DC. I heard testimony, for example, of presence of Immigration and Customs Enforcement (ICE) agents at assemblies in New Orleans; ICE has no role to play in managing assemblies and their presence only instills fear. And a number of cities have ordinances which prevent homeless people from gathering in certain public places, despite the fact that most have literally nowhere else to go.

Police surveillance of protests is also an issue. Just yesterday, I witnessed an incident at a Black Lives Matter protest in Philadelphia where protesters identified an undercover officer who was marching with demonstrators and filming them. Some of the protesters understandably became agitated, though thankfully, serious disturbance was avoided. But the decision to place an undercover officer with a camera in the middle of a protest against police violence is unfathomable. While police have a right to record protests, that right must not be used to intimidate, or provoke protesters. In fact the only time filming should be done at a protest by the police is to record an actual crime in progress.

Petty charges and high numbers of arrests further chill and undermine the right to peaceful assembly. Many protesters testified of being arrested and charged with offenses such as ‘obstructing traffic’, ‘failure to obey a police officer’ and ‘resisting arrest.’ These charges then appear on protesters’ criminal records, with devastating effects such as job losses, inability to get public housing, and more. Exercising a human right should not cause such domino effects into misery.

In addition, law enforcement officers have extremely wide and often unaccountable discretion to detain, arrest and formulate certain charges. I heard dozens of stories of protesters who said they were detained or cited for obstruction of traffic for simply stepping or stumbling off a sidewalk. In the recent events in Baton Rouge, protesters were allegedly ordered to clear the road at a point where the road had no sidewalks.

Observers and journalists are typically treated in the same manner as protesters: when the protest is managed well, so are they. But if the management of assemblies goes wrong, journalists and monitors are unable to play their legitimate oversight roles.

Testimonies in Ferguson and Baton Rouge about deleted video recordings from devices taken away by the police are worrisome. The recent news that Christopher LeDay, the man who videotaped Alton Sterling’s death, allegedly was handcuffed, jailed, taken in on false charges and is now not allowed back at work is an illustration of such intimidation, harassment and its far-reaching effects on people recording police officers.

Similarly, I am tremendously disturbed by the testimonies of many, mainly young black men in Baltimore, Baton Rouge, New Orleans and Philadelphia about similar practices. They reported being questioned and even charged with petty offences when gathering socially at street corners; even just with four people. In Philadelphia, I was informed, the practice of stopping and frisking primarily African-American people – often with no reasonable suspicion – has reached crisis levels. Such gatherings are not only protected as peaceful assemblies, but also contribute to weaving a stronger social fabric.

Oversight and accountability

I was struck by the vast and largely unchecked discretion that government authorities enjoy to arrest, to formulate (often petty) charges, to prosecute, to invite or deflect external scrutiny and support from the Department of Justice, and to organize internal complaints handling. This leads to an inconsistent picture of policing throughout the nation. Different authorities within a jurisdiction or in neighboring jurisdictions do not share a common view or policy about policing; a lot ends up depending upon personalities.

The police chief in Jackson was widely lauded by the African-American community there for his community-centered approach, but city authorities allegedly require protest organizers to pay considerable fees for permits and insurance, a practice that discourages marginalized communities assembling. And in the neighboring county, arrests and harassment of African-Americans are a daily occurrence.

The introduction of vaguely-defined crimes allows for even more discretion. Defining ‘battery of a law enforcement officer’ as a hate crime as was recently passed in Louisiana, raises particular concerns. Philadelphia has similar draft legislation with potential for disastrous effects. For example unintentional or accidental touching which may easily occur in a context of an assembly could be elevated to a hate crime. Again, such crime conceptions have chilling effects on the exercise of assemblies.

The Civil Rights Division of the Department of Justice has provided oversight and recommendations for improvement of police services in a number of cities with consent decrees. This is one of the most effective ways to reduce discrimination in law enforcement and it needs to be beefed up and increased to cover as many of the 18,000-plus local law enforcement jurisdictions.

The outcry for accountability for police shootings is deafening. Given the attention to this issue and its importance, it is incomprehensible that a modern society such as the United States lacks official records that accurately document the number of victims of such shootings, the precise circumstances and the follow-up actions taken. Such information would enable a deeper understanding of the situations in which lethal force is used and support adequate adjustments if proven necessary.

Freedom of assembly in a country where citizens carry guns

As a final point I wish to underscore the challenges of exercising the right to peaceful assembly when there is open or concealed carriage of guns. The presence of guns clearly has a dissuading effect on participating in an assembly, especially on controversial or emotional topics. In Ferguson, Black Lives Matter protesters testified about the intense fear they experienced when white people (Oath Keepers) with guns, at times directly pointed at them, stood on the roof of the police station while they protested down in the street.

Moreover, police told me how difficult, and scary, it is to police a protesting crowd armed with guns, and especially concealed weapons. Fear should not define the parameters of organizing or managing protests. Under international law, the peaceful character of a protest is largely determined by the intent of the organizers and participants. There is no need for peaceful protesters to carry intimidating guns.

The Right to Freedom of Association

The right to freedom of association includes the right of workers to form associations, including unions, and the right to strike1. During this mission, I met with a number of workers and organizations that represent workers who described the challenges they face in asserting their right to freedom of association. I also met with representatives from the Department of Labor and the National Labor Relations Board.

The overarching concern expressed by workers was the lack of robust protections of their labor rights. This was corroborated in discussions with State interlocutors who spoke to the neutrality that the State maintains in labor disputes between employers and employees; the limited resources provided for the monitoring and enforcement of labor standards; and a general lack of political will to strengthen these standards and penalties. International human rights law explicitly sets out the rights of workers, including the right to organize and the right to strike, and is equally clear about the State’s duties not only to respect these rights but also to protect and actively facilitate their enjoyment.

I would like to touch on three issues that raised particular concerns in this context – the rights of migrant workers to organize, the ability to establish unions and the right to strike.

Migrant workers and freedom of association in the workplace

From my discussions with various groups, I learned that the situation of migrant workers throughout the United States is characterized by the precariousness and exploitation of their employment situation, retaliation for drawing attention to adverse working conditions and a fear of taking action to seek improvement of the violations.

A broad range of workers are affected - documented and undocumented, skilled and ‘unskilled’, seasonal and or long-term. Migrant workers, of whom I met many in Arizona and Louisiana, are routinely subjected to harassment, intimidation, physical, sexual and psychological abuse, with those attempting to form or belonging to unions and organizations such as the Congress of Day Laborers being targeted for reprisals. Compounding these challenges, many of these workers cannot return home voluntarily because of the debts they incur in order to cater for migration and settlement expenses, plus fees charged by recruitment agencies to find them work.

Migrant workers’ rights are violated by multiple actors who are motivated by perverse incentives that often converge to the detriment of migrant workers, including private sector employers, recruitment agencies, union-busting firms, Immigration and Customs Enforcement Agency, local police forces and sheriffs’ offices, and private detention facilities.

Undocumented migrants face tremendous challenges in exercising their right to freedom of association. I would like to emphasize that under international law all workers are entitled to their human rights, including the right to freedom of association. Crossing national borders – whether legally or otherwise – does not take away these rights. As such, the testimonies of undocumented workers subjected to raids, random stops and searches – especially based on racial profiling – and arrests were particularly troubling. In the context of my mandate, the harsh treatment in immigration detention centers, many of them run by private companies who slash services to boost profits, is also unacceptable. This is particularly concerning given that many employers threaten to (and do) report migrant workers to ICE if they attempt to organize. I heard incredibly disturbing reports about these detention centers, where migrants can face solitary confinement, physical abuse, and denial of medical attention.

Documented workers fare no better. I met teachers from the Philippines who were brought into the United States on H-1B visas by a recruitment agency in circumstances that a court determined amounted to human trafficking. The recruitment agency provided the teachers false information about the terms and conditions of work, financially exploited them, restricted their freedom of association and movement, and threatened them with deportation and loss of their jobs if they did not. It was however gratifying to hear that the teachers were able to organize themselves, join a union and together struggle for better working conditions with much success. Their achievements were necessarily because they were able – despite the odds facing them – to work in association rather than individually.

Seasonal or guest workers on H-2B visas experience similar vulnerabilities such as exploitation by recruitment agencies, isolation, unsafe working conditions, and appalling living arrangements provided by employers. Attempts to organize are met with threats and in some cases, job loss and deportation. Visas are typically tied to a specific employer who exercises immense control over the employee, can terminate the employment contract arbitrarily, call in immigration enforcement to initiate deportation proceedings and illegally withhold wages without severe penalty. This ensures that the balance of power favors the employer rather than the employee. This arrangement is unfortunately, not dissimilar to the Kafala system of bonded labor practiced in a number of countries in the Gulf region.

The role that ICE plays in enforcing immigration laws, often in collaboration with local police and in disregard of the labor disputes that may be the cause of retaliation by the employer, has the effect of aggravating violations of migrants rights, including of assembly and association. Federal government interlocutors have taken measures to ensure that workers are not subjected to deportation proceedings while pursuing redress for workplace violations, but these only apply on a case-by-case basis rather than systematically across the board. They are also weak protections in the face of an enormous problem affecting thousands of workers. More needs to be done.

At the local level, I was informed that the New Orleans Police Department, following advocacy by civil society, recently issued a policy which makes a clear distinction between its criminal law enforcement role and ICE’s civil immigration law enforcement. This policy measure enhances the confidence and cooperation of the community in police actions.

Labor unions

The right to establish unions is an important one through which workers collectively can level the playing field with employers. It was therefore disturbing to hear all the impediments facing workers who want to exercise this right.

In law, workers are not prevented from forming unions. However, in practice the ability to form and join unions is impeded by a number of factors: the inordinate deference given to employers to undermine union formation; a so-called “neutral” stance on unions by authorities, when in fact international law requires that they facilitate unions; weak remedies and penalties for intimidation, coercion and undue influence by employers; and political interference and overt support for industry at the expense of workers. While employers can hold captive audience meetings and one-on-one meetings with supervisors to dissuade employees from unionizing, workers have no right to distribute union literature in the workplace, conduct meetings without management being present or engage in protest activity on the employer’s property. The pervasiveness of employer interference practices are vividly illustrated by the strength of the $4 billion dollar ‘union-busting’ industry.

I was shocked to see that in states such as Mississippi, the lack of unionization and ability to exploit workers is touted as a great benefit for employers. The dangers of this are exemplified by the situation at the Nissan plant in Canton, MS, where the company has aggressively worked to prevent unions from organizing. Workers, meanwhile, have suffered greatly. The company no longer even hires new employees directly; they are all outsourced to a temp agency, which pays significantly lower wages and benefits. The figure that stands out for me is this: Nissan reportedly operates 44 major plants throughout the world; all of them are unionized, except for two of them in the US south. Why not Mississippi?

Even where unions are able to form, there are no requirements for an employer to engage in collective bargaining with the union with a view to concluding a contract; negotiations are often left intentionally open-ended and unproductive. The effect of this long, drawn out process is to demoralize and frustrate union members, thus weakening their bargaining power. The case of AZARCO workers in Arizona exemplifies this problem.

In so called ‘right to work’ (a euphemism I find misleading) states such as Louisiana, Arizona among others, workers who do not wish to join unions are protected from forced membership in the union or from paying dues to the union. However, unions are required to represent all workers in the workplace whether – even if they do not pay dues. I find this to be a particularly insidious way of weakening unions, because it removes any incentive for workers to join. Coupled with the intense pressure by employers against unionization, it also gives enterprises a free pass to unilaterally set terms and conditions of employment to the detriment of workers.

The National Labor Relations Board, charged with the responsibility of protecting workers rights is unfortunately unable to issue penalties for employers’ violations of rights. The remedies issued by the Board do not serve any deterrent purpose and underfunding severely limits the number of cases that the Board can investigate. The enforcement arms of the NLRB and the Department of Labor need to be strengthened dramatically in order to effectively address the challenges workers face in exercising their rights to freedom of association.

The right to strike

I was informed that in some situations, employers are permitted to replace striking workers permanently – which renders the action ineffective. The right to strike is one of the very few tools that workers can use to leverage their bargaining position with the employer. Where this right is infringed or altogether denied, workers are unable to effectively express their support or opposition to employers’ policies.

Counter-terrorism issues in the context of assembly and association rights

Recent terrorist attacks in several parts of the world are painful reminders of how critical a resolute and coordinated response to the scourge of terrorism is needed. However, the fundamental rights of individuals, including the rights to freedom of peaceful assembly and of association, should not be forfeited in the name of this struggle.

I am concerned that US counter-terrorism legislation unduly curtails the right of associations to engage in humanitarian and peace building work abroad. The Antiterrorism and Effective Death Penalty Act (1996), amended by the USA Patriot Act of 2001, prohibits a wide range of support to terrorism but does so in a way that jeopardizes the right to freedom of association in the process. For example, the act imperils the work of associations providing critical peace trainings to actors suspected to be related to terrorism. Similarly it complicates the work of humanitarian organizations in areas where terrorist actors are active. In the same manner grantmakers supporting this type of activities are put at risk of criminal liability.

I believe that these restrictions have disproportionate effects on legitimate civil society organizations, some which may even have been unintended by Congress. I therefore encourage the Government to urgently review the relevant legal stipulations, mindful that "restrictive measures must be the least intrusive means to achieve the desired objective and be limited to the associations falling within the clearly identified aspects characterizing terrorism only. They must not target all civil society associations” (A/HRC/23/39, para. 23).

Furthermore, the Department of Treasury has the authority to list organizations as Specially Designated Global Terrorists and freeze all of their US assets if it has a “reasonable suspicion” that they provide “financial, material or technological support for, or other services to a terrorist group or are “otherwise associate with one”. An administrative procedure exists to challenge the Treasury’s decision, but two federal courts have ruled that this procedure contravenes due process rights.

I note with satisfaction that since 2009, no association has reportedly been prosecuted or closed down under the counter-terrorism framework. However, this does not mean that a future Government will not resume prosecution. In practice, this legislation has had a severe chilling effect on associations willing to provide relief work to vulnerable populations. I therefore urge the authorities to amend this framework so it complies with international human rights norms and standards.

My attention was also drawn to the Partner Vetting System (PVS) and Risk Analysis and Management (RAM), developed by the US Agency for International Development (USAID) and the State Department, whose goal is to prevent terrorists, their supporters or their affiliates from benefitting from funds managed by domestic non-governmental organizations (NGOs). The PVS is currently being tested in five countries (Guatemala, Kenya, Lebanon, the Philippines and Ukraine). While the purpose of this initiative is sound, it is feared by many NGOs that such system will lead local partners to believe that they are used by the US authorities to gather intelligence, and as a consequence will compromise existing and future working relationships with such partners.

Domestic NGOs informed me that this vetting system is in fact not necessary as they already vet local partners by using lists provided by other Government agencies. I therefore call on the authorities to rethink this system, in consultation with domestic NGOs.

The Joint Strategy on Countering Violent Extremism, introduced by the Department of State and USAID in May 2016, aims at preventing the radicalization and recruitment of individuals by violent extremists. Although officially this strategy is not directed towards a particular group of individuals, nor calibrated on the basis of race or religion, I heard repeated reports that this strategy is bound to target mainly members of the Muslim community. As a result, it has the potential to impact adversely on the enjoyment of their rights to freedom of peaceful assembly and of association.

I was also informed that the very effectiveness of the strategy is questionable, as no research has demonstrated that individuals who are more prone of becoming radicalized can be identified. Indeed, the strategy seems highly similar to the UK’s Prevent Program, which has targeted Muslim youth in England and contributed to a sense of discontent by requiring that teachers and others report students who they may deem “at risk” using very broad indicators. It is imperative that any strategy to counter extremism is as narrow as possible, based on scientific research and involves a broad range of civil society organizations in its formulation, implementation and oversight.

Let me add that I salute the US Government for its efforts in working with civil society organizations towards the recent revision of Financial Action Task Force’s Recommendation 8.

Of further concern is the reported surveillance and infiltration by the authorities of civil rights groups and movements such as the Occupy Movement and Black Lives Matter, as well as the Muslim community. I heard in a number of places I visited that federal agents undertake so called “fishing expeditions” whereby agents visit members of the Muslim and African-American communities at their homes or work places, enquiring about their activities, including planned protests. In fact, some cases of “entrapment” by the FBI were reported to me with regard to cases of alleged terrorism.

Such activities are counterproductive in the fight against terrorism, and use resources that could be better spent in fighting real terrorists. Targeting communities based upon racial or religious profiling with a view to allegedly gathering intelligence, creating disruption, seeking informants, and more worryingly, to inciting and enabling members to commit crimes, vilify the groups and movements as a whole, often under the banner of national security. Such pervasive practices inevitably erode the trust and cohesion within communities.

The Department of Justice has issued guidance for officials which prohibits racial profiling, but allows for two broad exceptions in the context of border control and national security. I find this practice troubling as it is discriminatory by nature and casts suspicion on groups of individuals within society.

There is also the issue of the Terrorist Screening Center Database, in which 1 million people are reportedly listed. I was informed by the authorities that religion is not a criteria used for deciding whether an individual should be in the database or not. However, most of the people on the list are reportedly Muslims, and it is allegedly a particularly arduous process to have one’s name removed from the list, sometimes taking years. It also generates mistrust within the Muslim community as individuals speculate about who is on the list.

There is considerable anti-Muslim sentiment in this country at the moment, and in many other places, which is all the more troubling in times of elections. I was heartened to learn that interfaith meetings have taken place in several parts of the country, such as in New Orleans, to build or consolidate understanding between religious communities. I applaud such initiatives which I hope will continue to flourish.

I call on the US Government to bring its counter-terrorism legislation and practices in compliance with international human rights law. In the absence of a national human rights institution tasked with monitoring the fulfillment of the State’s obligations under international human rights law and standards, the Government should consider allowing embedded ombudspersons in all federal agencies to ensure that no human rights violations are committed.

In the alternative, the US could borrow from the UK which has created an independent Counter Terrorism Ombudsman whose role is to monitor compliance with domestic and international law and norms. This is all the more important given the role and influence of the US on other countries when it comes to designing measures to prevent terrorism.

In conclusion, I would like to reiterate my appreciation for the renewed excellent co-operation I received during this visit. I offer these observations and recommendations once again in a spirit of constructive dialogue. I look forward to a continued dialogue with the US Government, and I stand ready to offer technical assistance with a view to consolidating the exercise of the rights to freedom of peaceful assembly and of association in the country.


Note:

1. I am conscious of the language in paragraph (g) of Human Rights Council Resolution 15/21 – which established my mandate – advising against the duplication of work already conducted by the International Labour Organization and its specialized supervisory mechanisms. The broader right to freedom of association, however, unequivocally applies in the workplace and there can be no serious, worthwhile discussion of association rights in the United States without at least touching upon the challenges surrounding this.