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Letter From Legal Adviser Koh to State Governors


December 20, 2010

   
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United States Department of State
Washington, D. C. 20520

December 20.2010

Dear Governor:

This follows up on my earlier communications to you concerning certain human rights treaties to which the United States is a party, which are implemented through existing laws at all levels of government (federal, state, insular and local). These treaties include the International Covenant on Civil and Political Rights (lCCPR), the Convention Against Torture and other CrueL Inhuman or Degrading Treatment or Punishment (CA T), the International Convention on the Elimination of All Forms of Racial Discrimination (CERD), and two optional protocols to the Convention on the Rights of the Child. Among the obligations under these treaties is the requirement to submit periodic reports on the actions the United States is taking to implement the treaties.

In January of 2010, I wrote to inform you about these treaties in general (that letter is now available at http://www.state.gov/j/drl/reports/treaties/index.htm  and in May of 2010, I wrote to you requesting information on the activities and programs in your jurisdiction that assist the United States in meeting its obligations under certain of these treaties. We greatly appreciate the responses we received from many of your officers both from Attorneys General and from .Human Rights Commissions or Offices. These responses have been included in an Annex which we plan to submit with the report on the International Covenant on Civil and Political Rights.

The Department of State and other federal agencies are now working on two reports (1) the report on U.S. implementation of the CAT. which is due to the United Nations Committee Against Torture on July 15.2011. and (2) the report on U.S. implementation of the CERD. which is due to the United Nations Committee on Elimination of Racial Discrimination on November 18, 2011. Because both of these international conventions are implemented in large part through state laws and programs dealing with human rights (e.g., civil rights, anti-discrimination, and outreach and training in these areas), I am writing again to ask for any additional information you may have on your laws and/or programs -in particular programs for which information has not yet been previously submitted, or any updates on new laws or programs since prior submissions. Attached to this letter are descriptions of the types of information that would be helpful for the CERD and a list of questions for which information is needed for the CAT.

I would appreciate your forwarding this request to the appropriate offices for response. Based on our drafting schedule for the upcoming CAT report. we are requesting information by January 21, 2011. For the CERD report, we would appreciate receiving information by May 1, 2011. Should you have any questions or wish to discuss the matter further, please feel free to contact Nina Schou of my office (SchouNE@state.gov) for either report; Sally Cummins (sallyjcummins@earthlink.net) concerning the CAT report; or Mary Beth West (west.marybeth@gmail.com) concerning the CERD report.

We greatly appreciate your assistance on this important matter.

Sincerely yours,

Harold Hongju Koh
The Legal Adviser

cc: Special Representative for Global Intergovernmental Affairs Reta Jo Lewis

Types of Information Requested for the USG Report on the International Convention on the Elimination of All Forms of Racial Discrimination (CERD)

  1. The various state agencies that implement human rights laws (such as the Attorney General's Office, and a state human rights agency, if any). Where state human rights entities are located in the governmental structure (e.g., part of the office of the governor or mayor, independent, part of a department (such as the labor department), etc.).
  2. What issues are addressed by state laws and human rights agencies employment, housing, hate crimes, access to public services and the political system, etc.
  3. How human rights issues are addressed in the state or other jurisdiction -through litigation in courts, through an adjudicatory body that hears and decides cases itself, through an entity that advocates for people who have complaints, through mediation, through programs that seek to work with communities to address issues before they become problems or to handle issues when they arise, or through a combination of these.
  4. Whether your state or local authorities do any training for police, teachers, prison workers, health workers or others concerning ways to prevent or address racial profiling or other discriminatory behaviors based on race or ethnicity.
  5. Whether human rights issues (e.g. civil rights, anti-discrimination, civic education) are included in school curricula?
  6. What networks does the state participate in -with other states and local agencies, and/or with the federal government, and how these networks assist with human rights work.
  7. Examples of cases and issues dealt with in recent years -cases adjudicated and decided, as well as issues dealt with in communities through programmatic efforts and/or dispute resolution efforts. (Examples of cases and issues are the most difficult information for us to find publicly -and therefore would be very helpful for our reports.)
  8. Issues that have been of particular concern in the jurisdiction in recent years.

Questions for Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment 1 (CAT)

The UN Committee Against Torture has asked the United States to respond to 55 specific questions rather than preparing a report like the one being prepared for CERD. While many of the questions relate only to federal activities, the following questions address issues that are also implemented by state, tribal and local governments.

1. Does your state register all persons in detention? Is registration required by law and is it required to provide the following:

identity of the detainee, the date, time and place of the detention, the identity of the authority that detained the person, the ground for the detention, the date and time of admission to the detention facility and the state of health of the detainee upon admission and any changes thereto, the time and place of interrogations, with the names ofall interrogators present, as well as the date and time ofrelease or transfer to another detention facility.

2. Does your state have a law specifically prohibiting torture by government officials? If not, do you have other laws that would apply to a situation where a government official tortured a detainee or subjected a detainee to ill-treatment?

3. Please provide information on education and training of all law enforcement personnel involved in the interrogation of suspects.

a. Is this training conducted on a regular basis, and does it include training on interrogation rules, instructions and methods, as well as specific training on how to identify signs of torture and cruel, inhuman or degrading treatment? Are personnel instructed to report such incidents?

b. Are medical personnel dealing with detainees trained to detect signs oftorture and ill-treatment? Is the Istanbul Protocol of 19992 and/or the Principles of Medical Ethics relevant to the Role of Health Personnel in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment included in this training?

c. Do you have a system to evaluate the implementation of training/education programs and their effectiveness?

4. Does your state exclude from evidence in a criminal trial statements that are established to have been made as a result of torture? Does your state have an independent mechanism to guarantee the rights of all detainees in custody?

5. Please provide information on steps taken by your state to design and implement appropriate measures to prevent all sexual violence in all detention centers. Include information on investigation and prosecution of allegations of violence and ability of victims to seek redress. Do you have any data on the prevalence of the problem and on the number of requests for redress made and granted?

6. Please provide information on measures adopted to ensure that women in detention do not suffer ill-treatment. The Committee has expressed particular concerned with gender-based humiliation and shackling ofwomen detainees during childbirth.

7. Are detained children kept in facilities separate from adults in both pretrial detention and after sentencing?

8. Does your state use electroshock devices such as tasers~ if so, are they used only as a substitute for lethal weapons and not to restrain persons in custody?

9. Do you have a state "super-maximum security prison"? If so, have you taken steps to improve the reportedly harsh regime imposed on detainees in such prisons, in particular the practice of prolonged isolation?

10. Please provide information on steps taken to address brutality and use of excessive force by law enforcement officials and ill-treatment of vulnerable groups, in particular racial minorities, migrants and persons of different sexual orientation. Can you provide data on complaints of torture or ill-treatment by law enforcement officials? What measures has your state taken to end racial profiling? If your state has taken measures to respond to threats of terrorism, please indicate how such measures comply with human rights obligations.

11. For Louisiana, Mississippi, and other states affected by Hurricane Katrina, please provide information on investigations into allegations of ill-treatment perpetrated by law enforcement personnel in the aftermath of the hurricane.

12. Is corporal punishment allowed in your state's schools? If so, have you taken steps to end such punishment, in particular of mentally and/or physically disabled students?

13. Has your state undertaken any other new measures in the last five years relevant to prevention of torture and cruel, inhuman or degrading treatment or punishment not covered by these questions?


1. For simplicity we have used the term "ill-treatment" in place of "cruel, inhuman or degrading treatment or punishment," in the questions that follow.
2. The Protocol is available at www.ohchr.org/Documents/Publications/training@Rev/en.pdf, the Principles are Annex 1 in that document.



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