Ngo report on the implementation of the iccpr (prior to the adoption of the list of issues) United States of America



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NGO REPORT

ON THE IMPLEMENTATION OF THE ICCPR   (PRIOR TO THE ADOPTION OF THE LIST OF ISSUES)

United States of America

Prepared and Submitted in December 2013 by the Islamic Human Rights Commission (UK)



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Profile

Islamic Human Rights Commission (IHRC) is a not-for-profit campaign, research and advocacy organisation founded and based in the United Kingdom. It was set up in 1997 and works for redress of human rights violations and a better understanding of rights and norms across confessional, ethnic, national, political and other boundaries.

IHRC has consultative status with the UN – ECOSOC.

Physical address

202 Preston Road

Wembley

HA9 8PA

United Kingdom

Tel: +44 2089044222

Fax: +442030700143

Email: info@ihrc.org

Web: www.ihrc.org.uk
For direct communication about this report, please contact Jawad Husain jawad@ihrc.org

Introduction

Due to a lack of resources and time, IHRC submits a non-exhaustive list of concerns for which further evidence can be submitted if required. The brevity of this submission should not be taken to mean that substantive content is not available regarding the issues raised.


Articles 2 & 26 NON-DISCRIMINATION, CONSTITUTIONAL AND LEGAL FRAMEWORK WITHIN WHICH THE COVENANT IS IMPLEMENTED, AND ACCESS TO REMEDIES and EQUALITY BEFORE THE LAW
Political prisoners

IHRC is deeply concerned that the US government is in breach of Articles 2 &26 with regard to the following:



  1. A number of detentions of political dissidents and activists, including Mumai Abu Jamal, Imam Jamil Al-Amin, Sheikh Omar Abdu lRahman, Aafia Siddiqui

  2. A number of detentions of human rights defenders and charity workers, including, the Holy Land 5, Lynne Stewart

The above cases are replete with accusations of a biased judiciary, an unfair judicial process or abuse of the law. Whether on the basis of ethnicity, religion or political persuasion and activity or an intersectionality of some or all, these prisoners’ cases exemplify discriminatory treatment at individual and systemic levels.

Further details of each case are provided in Appendix A.

In addition IHRC is concerned that unduly punitive measures are used in civil cases, often resulting in prolonged incarceration. IHRC knows of and has dealt with cases where failure to pay alimony through sudden hardship has resulted in imprisonment, and in criminal cases, where sentencing for the same crime is vastly different, where the only difference is between the ethnicity of the defendant.

IHRC recommends immediate action in all of the cases cited in Appendix A, including but not solely:



  1. The release of Lynne Stewart on compassionate grounds

  2. The expedited re-opening of the legal process in the HLF5 case based on recent developments

  3. Transparent and independent investigation into the case of Aafia Siddiqui and in particular as to what has happened to her missing child

  4. The release on compassionate grounds or failing that the repatriation of Sheikh Omar AbdulRahman to serve out the rest of his sentence in Egypt

  5. The reopening of the imam Jamil al-Amin case based on the new evidence and confessions, and the immediate release on bail of Imam Jamil pending further investigations

  6. The immediate release of Mumia Abu Jamal, and full and transparent investigation into the denial of due process that has marred his case.


Discriminatory Law

Further IHRC is concerned that these articles are violated, in the cases of the following (but not exclusively) laws and policies:



  1. The continued operation of the Guantanamo Bay detention facilities per se

  2. The continued detention of men cleared for release at the Guantanamo Bay detention facilities

  3. The operation of, or complicity in operation of detention bases in various parts of the world to, from and via which rendition take places, and within which interrogative methods are undertaken which violate Article 7 (see Article 7 below)

  4. Various laws brought in that effectively criminalise the social activities of certain groups including Muslims e.g. charitable giving

  5. Various laws and policies brought into effect that criminalise dissident thought e.g. NDAA

Recommendations in Appendix C relate to some of these issues under Securitisation
Redress under the Law and Prevention of Hate Crimes

IHRC notes the legal and other provisions of several states to address the issue of hate crimes. It also notes the FBI’s collation of statistics with regard to hate crime. Based on its own survey work in California, IHRC found that 29% of Muslims had experienced a hate-motivated physical assault. This is an unacceptably high level of experience and bodes ill for other states, given California’s progressive reputation.

Appendix B provides an executive summary of the findings of that research, and Appendix C outlines a series of recommendations with regard to media, law, securitisation and education. Whilst media and education fall outside of the legal framework, IHRC argues that the operation of policies and practices, as well as the institutionalisation of prejudices (often unintentionally) are mutually constitutive with the securitisation discourse and praxis and law per se.

Article 7 Prohibition of Torture

The cases in Appendix A, highlight many of the concerns of IHRC that Article 7 is violated in many ways at an institutional level in the US.

Aside from aggressive and physically and mentally violent interrogation techniques, there are also issues around prolonged solitary confinement, denial of basic facilities, and even in the case of Lynne Stewart denial of release on compassionate grounds.
Provisional Concluding Notes

As stated at the outset, lack of time means this report in brief and does not cover all areas we wish to raise or go into further discussion. The authors are available for further briefings and, resources permitting we will try and submit a fuller report before the session.



APPENDIX A

Details of Prisoners of Concern



Mumia Abu Jamal

Mumia Abu Jamal’s conviction in December 1981 and ensuing sentence of death penalty in July 1982, for the murder of Philadelphia police officer, Daniel Faulkner, has created much controversy in the US as his case became a very strong representation of the ever increasing racial tension that was rife between the predominantly white authorities and the black minority. Abu Jamal has maintained his innocence ever since and continues to fight for his case in prison. Following the October 2011 US Supreme court ruling, his death sentence has been vacated and as of January 2012, he has been placed into the general prison population. However, he continues to fight for his freedom, supported by many distinguished and notable politicians, human rights advocates, religious leaders, lawyers and political groups.

Abu Jamal was reportedly driving a cab near the scene of the crime when he saw Faulkner stop Abu Jamal’s brother on the road. Apparently there was an unruly encounter between the two which made Abu Jamal step out of his vehicle to help his brother. What ensued thereafter left Faulkner dead and Abu Jamal wounded in the chest with Faulkner’s gun; his own legally registered gun was found at the crime scene as well. The media coverage of the crime made many references to Abu Jamal’s affiliation and connection with MOVE and former membership to the Black Panther Party to the extent that caused the president of the Association of Black Journalists to comment on the biased reporting stating that ‘We hope that Mr Jamal will be tried in the court and not in the press.’

Abu Jamal’s trial on the charges of first degree murder and possession of a weapon commenced on 7 June 1982, and for the following reasons amongst others, was considered unfair:




  • It was presided by trial judge Albert F. Sabo, known for his connection to the police, bias against the defence and preference for ‘expediency over fairness’.

  • Lack of satisfactory representation for Abu Jamal;

  • Lack of funds allocated for the defence to produce expert testimony on ballistics and pathology.

  • Bias in selection of jurors

  • The prosecution produced conflicting evidence with many unresolved issues warranting a retrial.

  • The prosecution used Abu Jamal’s political beliefs during the sentencing phase of the trial

Abu Jamal’s first appeal in 1989 to the Pennsylvania Supreme Court was denied on all grounds. He cited a number of irregularities in the trial including:



  • Employing Abu Jamal’s political affiliations and stance in court as evidence of his character thus affecting his sentencing

  • Lessening the jury’s responsibility for imposing the death penalty by referring to the lengthy appeals process

  • Withdrawal of the court’s permission for Abu Jamal to represent himself in violation of his constitutional rights

On March 26, 2012 the Supreme Court of Pennsylvania rejected his most recent appeal for retrial argued on the basis that a 2009 report by the National Academy of Science demonstrated that forensic evidence put by the prosecution and accepted into evidence in the original trial was unreliable.

On December 6, 2005, the Third Circuit Court admitted four issues for appeal of the ruling of the District Court:


  • in relation to sentencing, whether the jury verdict form had been flawed and the judge's instructions to the jury had been confusing;

  • in relation to conviction and sentencing, whether racial bias in jury selection existed to an extent tending to produce an inherently biased jury and thus an unfair trial (the Batson claim);

  • in relation to conviction, whether the prosecutor improperly attempted to reduce jurors' sense of responsibility by telling them that a guilty verdict would be subsequently vetted and subject to appeal; and

  • in relation to post-conviction review hearings in 1995–6, whether the presiding judge, who had also presided at the trial, demonstrated unacceptable bias in his conduct.

On April 26, 2011, the Third Circuit Court of Appeals reaffirmed its prior decision to vacate the death sentence on the grounds that the jury instructions and verdict form were ambiguous and confusing. In December 2011, the death penalty was dropped. On February 25, 2013, Mumia’s legal team filed an appeal in the Pennsylvania Superior Court challenging his sentence of life imprisonment without parole. An opinion/ruling awaits.


Holy Land 5

The case of the Holy Land 5 is a case of extreme injustice, reflecting, on a larger scale, the misdemeanour of the US government in targeting Islamic charities on the pretext of the ‘war on terror’.

The Holy Land Foundation for Relief and Development (HLF) was an Islamic charity established by Palestinian-American Ghassan Elashi primarily to support Palestinians in Lebanon, Jordan and Occupied Palestine through various projects including ‘orphan and family sponsorship programs, back-to-school funding, hospital building and home reconstruction’. HLF also provided aid to countries including Bosnia, Albania, Kosovo, Chechnya, and Turkey after natural disasters and wars and in the US during the aftermath of Iowa floods, Texas tornadoes and the Oklahoma City Bombing. HLF also ran volunteer-based services throughout the Dallas-Fort Worth area in Texas. HLF became the largest Islamic charity in the US and had an annual budget of around $14 million. It had offices in California, New Jersey, Illinois, the West Bank and Gaza and had representatives scattered throughout the US.

However, in December 2001, HLF was implicated in supporting terrorism and had its assets frozen when President Bush designated it as a terrorist organisation for allegedly raising money for Hamas which was claimed to be used by Hamas to ‘support schools and indoctrinate children to grow up to be suicide bombers’ and to ‘recruit suicide bombers and to support their families’. According to reports, the designation was based on flawed evidence including ‘incorrect and misleading translations of documents and tape-recorded conversations’.

All charges of direct support to Hamas were dropped before the beginning of the criminal trial in 2007 and the prosecution admitted that all of the HLF funds went to charitable causes such as zakat committees. However, the government held that these committees were somehow controlled by Hamas and distributed aid to parties involved with Hamas. Elashi and his four co-defendants, Shukri Abu-Baker (HLF C.E.O.), Abdulrahman Odeh (New Jersey office director), Mohammad El-Mezain (California office director) and Mufid Abdulqader (HLF volunteer), categorically deny all charges and contend that they funded legitimate humanitarian aid in Palestinian territories.

During the trial, witness accounts and documentary evidence lead to mounting proofs in favour of the defendants such as the fact that the Zakaat committees that HLF is accused of supporting have received aid from other renowned charities as well such as International Committee of Red Cross and United Nations Relief and Work Agency.  Also there was testimony by formal consul general at the US Consulate General in Jerusalem, Edward Abington, that he personally visited the named Zakaat committees and received no information of their involvement with Hamas.

The US Treasury relied on certain pieces of information in designating HLF as a terrorist group which were inconclusive such as their claim that HLF aided a hospital in Jenin, West Bank; however, they failed to mention that the US Agency for International Development had also funded the same hospital at another occasion. Further, they claimed that HLF provided financial support to 400 Palestinian deportees in Lebanon in 1992-93; however, the Red Cross as well as other countries supported them too.

Furthermore, the criminal trial revealed serious flaws in the FBI summary of a 1996 wiretapped conversation which attributed Abu Baker to have made anti-Semitic and inflammatory statements since it did not match actual transcripts. The Defence team only received 10 percent of the declassified recordings and their requests for the full 10 years of surveillance tapes for review was subsequently denied by Judge A. Joe Fish

The 2007 criminal trial was declared a mistrial by the judge as the eight-man, four-woman jury deadlocked on most of the 197 counts against the five defendants, returning zero guilty verdicts.

The retrial on 24 November 2008, found the five men guilty on all 108 counts of ‘material support to terrorism, money laundering, conspiracy and tax fraud’. The prosecution still admitted that all HLF funds were humanitarian relief to local charities not related to Hamas; however the conviction still went through. The defendants were not allowed to review their own wiretapped statements that they had made over years because they were classified. Further alleged statements by co-conspirators were used as evidence, however ‘nobody knew who wrote them; nobody knew when they were written.’ Formal Dallas federal prosecutor Tom Melsheimer commented after the convictions, ‘I think this case proves that, with enough effort, the federal government can convict really anyone.’

On 27 May 2009, HLF defendants were sentenced with prison terms ranging from 15 to 65 years. Elashi was handed down a 65 year sentence. In May 2010, four of the Holy Land 5 were transferred to the harsh life of the CMUs so that their communications could be closely monitored. El-Mezain and Baker are being held at the Terre Haute, Indiana facility whereas Elashi and Abdulqader are detained at the US Penitentiary, Marion, Illinois, according to reports. All their calls and mails are carefully monitored and they are required to speak in English when dealing with outsiders.

On 29 October 2012, the Supreme Court declined to hear the Holy Land 5 case without any explanation. Their decision marks the end of the judicial process for the detainees, yet the struggle for their freedom continues by the defence team and supporters. A press release by the Muslim Legal Fund of America commented, “Attorneys for the five defendants and representatives from MLFA are evaluating all remaining options and will announce a decision on how they will proceed soon.”


Dr Aafia Siddiqui

The case of Pakistani neuroscientist, Dr Aafia Siddiqui, is one of the most shocking cases of miscarriage of justice today. She has reportedly endured several years of extremely horrendous abuse at the hands of her captors and her nightmare continues to the shock of her angry supporters.



She disappeared along with her three children in Karachi on 28 March 2003. Aafia was hooded and drugged and separated from her children. Her youngest son, Suleman, was said to have been killed on the spot and is declared as missing. She was then alleged to be transported to a secret location for questioning and handed over to the US authorities a year later. Throughout this time, Aafia was held without charge and abused whilst in secret detention.

Aafia was amongst hundreds of ‘suspects’ arrested by Pakistani secret services and handed over to the FBI as part of the ‘War on Terror’ in the wake of the September 11 attacks.

Aafia’s exact location after her abduction cannot be determined due to the secrecy behind her capture. However, we have numerous reports about her horrific torture and rape during her detention. There are also reports that she was forced to make false confessions and sign statements. Further, it is also reported that ‘manuals of explosives and dangerous substances in sealed jars’ were ‘planted on her’ and that she was forced to copy notes from a magazine under the threat that her children would be harmed if she did not comply. She is said to have described her life in detention as ‘living hell’.

By August 2008, Aafia had been reportedly extradited to the US from Afghanistan where she reemerged from disappearance after the US government was probed about her whereabouts by the press and her supporters alike. She was alleged to have shot at US personnel in custody in Afghanistan and was consequently charged and tried in the US for this allegation. Aafia categorically denied shooting at anyone. Statements she made during detention in a state of medication and sleep deprivation, tied down to a hospital bed for several weeks were used by the court as evidence in breach of Miranda laws. There was no mention of her alleged abduction, torture and missing children at the trial. Despite the conflicting testimony of the soldiers and lack of evidence - no gun residue from the rifle, no trace of fingerprints on the rifle, no bullet shells in the room or bullet holes on the walls, she was found guilty on all counts.

She remained detained at the Metropolitan Detention Centre in New York post conviction, where she was reportedly subjected to humiliating strip searches, ‘prompting her to refuse legal visits on many occasions’. On 23 September 2010 Aafia was sentenced to 86 years in prison on 5 counts. She is currently held at Federal Medical Centre in Carswell, Texas, which caters to female inmates with special medical and mental health needs. She has been refused contact with her family and is not permitted any letters, phone calls or reading materials for the sake of ‘national security’.

Her elder two children have been returned to her family in Pakistan; however, the whereabouts of her youngest one is still unknown and he is feared to have been killed during the kidnapping.


Imam Jamil Al-Amin

Imam Jamil (formerly known as H. Rap Brown) was one of the most articulate and outspoken critics of the tyranny and oppression perpetuated by the Jim Crow laws of the 1960’s which served to legally segregate whites from blacks. During this period, Imam Jamil received his ‘violent’ label by these individuals who sought to demean his advocacy of self-defence against US government-induced terrorism against the black communities and racist Ku Klux Klan activities.


On 16 March 2000, after shootings outside his grocery store involving two police officers, Deputy Ricky Kinchen and Deputy Aldranon English resulted in the death of the former deputy a day later, Imam Jamil was charged with 13 counts of murder and felony murder and was ultimately found guilty on all counts and sentenced to life imprisonment without parole.
The trial followed the extremely muddled and chaotic investigation of the shootings in which flaws have been well documented. Further, a possible suspect and / or witness was overlooked by the prosecution, possibly deliberately. Otis Jackson, signed a confession and admitted to shooting a police officer and mentioned details of the scene of the crime. However within days of his confession, it was announced that Otis Jackson has recanted it. His recantation was immediately accepted and further investigations were not made despite Otis Jackson’s detailed knowledge of the events on the night of 16 March 2000. He was not even allowed to meet the defence team. Subsequent evidence, including a letter from Jackson stating that ‘he never recanted his confession, rather it was recanted for him’ demands further investigation which has not yet been committed to date.

On 14 November 2005, Imam Jamil’s legal team filed a habeas corpus on his behalf, citing 14 grounds for the reversal of his sentencing. Some of the obvious flaws in the trial included failure to:





  • investigate the confession of Otis Jackson;

  • permit Imam Jamil to testify in his own defence;

  • allow the right to counsel of Imam Jamil’s choice

  • challenge the issue of the prosecution striking out all persons from the jury who indicated an affiliation to Muslims;

  • allow the presentation of favorable testimony and evidence

  • provide discovery to the defence team

This discovery clearly brings into question the grounds for Imam Jamil’s sentencing, as well as serious problems in the US judicial system which is apparently adamant upon detaining an innocent man and willing to let the offender go free.

The Freedom of Information Act revealed that there are over 44,000 documents compiled on Imam Jamil’s life since the 1960s when he was known as H Rap Brown, which Imam Jamil himself has made reference to on several occasions. Imam Jamil himself said in his statement of innocence that for over 30 years he has been “...tormented and persecuted for reasons of race and belief” and now “...They have done their level best to reduce me to a one-dimensional monster that is a composite of a Black Panther..., a cop killer, and the fictional character of the Godfather...”

He is currently held in Colorado’s ADMAX Federal facility and was under 23 hour lockdown. In Feb 2009, as reported by his son Kairi Al-Amin, Imam Jamil was strip searched, his Quran and personal belongings were seized and he was placed even further underground, in a cell with no bed, no shower and no control on the lights.

Imam Jamil’s case is still remains open. Currently, petitions are being signed and efforts are underway by his supporters to get the Imam transferred back to Georgia state prison so that he may continue to fight his case for his freedom.




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