A more perfect union: comprehensive human rights needed to prevent increasing exclusion, discrimination and hate speech and crimes against minorities in USA
DELIVERED BY Dr Fernand de Varennes, United Nations Special Rapporteur on minority issues
Washington, DC, 22 November 2021
Members of the press,
Ladies and gentlemen,
I would like to express my thanks for the invitation of the Government of the United States of America and State Secretary Blinken to conduct an official visit in my capacity as the United Nations Special Rapporteur on minority issues to assess the human rights situation of persons belonging to national or ethnic, religious and linguistic minorities in the country.
I conclude today my official visit to the United States which took place from 8 to 22 November 2021. I am an independent expert who reports to the United Nations Human Rights Council and the General Assembly, and advises on progress, opportunities and challenges encountered in the implementation of the human rights of persons belonging to minorities. I will present my final report to the UN Human Rights Council in Geneva in March 2022.
I met with more than a hundred officials at federal, state and territorial levels, minority caucuses also at the federal, state and territorial levels, civil society organizations, minority representatives and experts from different parts of the country, both online and in person in the District of Colombia, Guam, California, Texas and Puerto Rico. The overall aim of the visit was to take a closer look at existing legislation, policies and practices for the protection and promotion of the human rights of minorities, and especially aspects of particular significance such as the right to effective political participation and voting rights of minorities, education and the linguistic rights of minorities, access to justice and administration of criminal justice, and measures to address hate speech and hate crimes.
The mission also included onsite visits to northern Guam and the island of Vieques. I believe you have all received copies of the press release for this conference and my 15 pages end of mission preliminary statement.
It can in a sense be summarized by the phrase that the noble vision of a more perfect union in the 21st century requires bold goals and reforms to fully protect the basic human rights of the country’s most marginalized and vulnerable in national comprehensive human rights legislation to be able to meet the challenges of growing inequalities, discrimination and exclusion of minorities, and even increasing hate speech and hate crimes where they are the main targets. What you have now is a patchy tapestry of laws first drafted more than 60 years ago, showing signs of fatigue.
The United States is a nation of paradoxes when it comes to human rights and minorities, espousing itself as the land which welcomes the world’s tired, poor, and huddled masses yet where support for slavery led to one of the world’s most brutal civil wars, where racial segregation persisted late into the 20th century, and where indigenous peoples’ experiences have for centuries been one of dispossession, brutality and even genocide.
The legal landscape for the protection of human rights inside the United States is also far from comprehensive or even at times coherent. While the Fourteenth Amendment to the Constitution adopted in 1868, grants full United States citizenship to all persons born or naturalized in the United States, and the Fifteenth Amendment to the Constitution, in 1870, prohibiting denial of the right to vote on the basis of race, there are exceptions for territories which are not states, and this means millions of US citizens – mainly minorities and indigenous peoples – do not fully enjoy the same rights as other Americans. Even more problematic from a human rights point of view is that not all Americans are citizens: inhabitants of what is considered ‘unincorporated and unorganized territory’, American Samoans, are ‘nationals’ but not ‘citizens’ of the US, with even less civil rights protection and rights to vote or political participation than populations who are mainly minorities in overseas territories such as Puerto Rico, Guam and others.
Though there were significant and hard-won human rights gains made mainly during the civil rights movement in the 1960s, the USA stands out among Western democracies for its incomplete patchwork of human rights recognition and their legal protection, with minorities and indigenous peoples, most likely left behind in times of upheaval, uncertainty and crisis.
Recent years have seen these deficiencies in human rights and the phenomenal growth of hate speech in social media, growing inequalities between have and have nots, often minorities and indigenous peoples, creating toxic conditions and an unhealthy pandemic of the mind, a poisoning of individual minds and society in many parts of the country.
Despite significant changes taking shape in 2021 following the 2020 federal elections, and for which the US Government is commended in my mission statement, the USA’s lack of a comprehensive national human rights legislation which conforms more closely to its international human rights obligations, and of a national human rights institution in line with the Paris Principles on the status of national institutions for the promotion and protection of human rights are grave gaps that should be remedied.
These deficiencies in national human rights protection contribute to millions of Americans, particularly minorities, facing growing inequality, discrimination and even exclusion, facing dramatic increases in hate speech and hate crimes, as well as the challenges and threats caused by environmental degradation and growing economic, health and educational disparities that leaves a disproportionate proportion of them behind. Building a better America requires a new deal for the 21st century for all Americans, but is most needed for the most marginalized and vulnerable minorities, such as indigenous peoples, Afro-Americans, Hispanics, and others.
There is a particular historical and social context that warrants a specific focus on African-Americans, particularly in the wake of George Floyd, Breonna Taylor, Ahmaud Arbery, and so many others. They are amongst the most marginalized minorities in the country, are by far the most likely to be denied the vote in federal in state elections, to be incarcerated, to be the targets of hate speech in social media, to be dis-proportionally discriminated or even excluded in a number of areas.
The fundamental democratic right of every citizen to vote and to be elected at genuine periodic elections by universal and equal suffrage is increasingly and actively being undermined – and impacting mainly minorities such as African-Americans, Hispanics, and indigenous peoples. There is overt disenfranchisement of millions of minorities through barriers to voting for felonies and misdemeanors which predominantly affect Black and Hispanics, and covert disenfranchisement of minorities through gerrymandering of electoral districts and other obstacles to voting especially by those without resources. People living in poverty, and especially minorities, are being systematically deprived of their voting rights and this is increasingly blatant with more than 425 state bills with provisions that restrict voting access introduced in 49 states in the 2021 legislative sessions.
Citizens in United States territories (including Guam and Puerto Rico, which I visited) cannot vote in presidential elections. American Samoans cannot vote in any event because they are not considered US citizens – even if they are American ‘nationals’. They are not represented in the U.S. Senate, and their representatives in the House of Representatives cannot vote on the floor. Some minorities are currently not considered citizens, but ‘nationals’ with even less rights in terms of political representation and participation. Many of these restrictions are questionable from the point of view of the prohibition of discrimination in international law.
In the field of education I am very concerned at the under funding of many public schools dis proportionally impacts minority children in many parts of the country, as they often represent very high proportions of their student populations. Any form of financial assistance to private schools, and funding of schools tied-in to local property taxes, create serious disadvantages for public schools in poorer districts. These are typically find themselves with large minority concentrations. The chronic under funding of the public school system in parts of the country is not ‘race neutral’, and can reasonably be soon as perpetuating inequalities linked to historical dis empowerment of and barriers to the accumulation of wealth of minorities communities such as African Americans and others.
There is an obligation to accommodate deaf and hard of hearing persons through the use of American Sign Language (ASL) in the field of education and in accessing public services and information. A first step towards ensuring nation-wide approaches to the protection of their human rights in this regard is for the Government of the USA ratify the Convention on the Rights of Persons with Disabilities, as well as to adopt legislation setting out clearly that ASL has a fully recognized status as a language in the country and is to be considered as such for public purposes.
I am very concerned at sentencing disparities and incarceration rates for minorities in the criminal justice system. The use of mandatory minimum sentences and zero tolerance policies in some state laws, as well as the ‘war on drugs’, have had the effect of ‘criminalizing large swaths of minority populations out of all proportions. As others have reported, one third of the prison population is African American and one third is Hispanic/Latino, while they only make up some 13 % and 18 % of the population in the US. This has created a vicious circle of exclusion and barriers to later employment and inclusion in society for those with criminal records, such as accessing adequate housing, social programs and credit. Ultimately of millions – overwhelmingly minorities – being effectively excluded from political representation and the right to vote in some areas because of felony or even misdemeanor convictions and associated penalties.
I have been informed that minorities such as African Americans and Latinx in particular find themselves dis proportionally at the receiving end of marginalization and criminalization that crushes them into a generational cycle of poverty, with a legal system that is structurally set up to advantage and forgive those who are wealthier, and penalizing those who are poorer, particularly minorities of colour. As pointed out by my colleague on extreme poverty after his mission to the USA in 2017, “the criminal justice system is effectively a system for keeping the poor in poverty while generating revenue to fund not only the justice system but diverse other programs. The use of the legal system, not to promote justice, but to raise revenue, as documented so powerfully in the Department of Justice’s report on Ferguson, is pervasive around the country. So-called ‘fines and fees’ are piled up so that low level infractions become immensely burdensome, a process that affects only the poorest members of society who pay the vast majority of such penalties”. What he could have also added is that these poorest members of society caught up in this vicious cycle of the poverty become income-generators for the criminal justice system – and further exacerbating their own poverty – are mainly from minority communities such as African Americans and Latinx.
Submissions provided for this mission suggest that police killings of and violence and brutality towards African Americans are now of extremely grave concern because of more recent high profile incidents. But what is overlooked is the systemic nature of what the more mediated incidents reveal. Available statistics indicate that African American men are almost three times as likely, and Hispanic/Latino men are almost twice as likely, to be killed by police than white men. Independent and effective oversight of law enforcement is crucial to end such practices, in addition to other practices that need to be more systematically put into place towards de-escalating confrontational approaches towards African American, Hispanic and other minorities, ending racial profiling practices which it is reported is still prevalent, and other good practices which will be outlined in the final report.
There are hate crime laws at the federal level and in most States, prohibiting violence motivated by race, color, religion and national origin. However, there is no uniform definition of hate crimes. As for hate speech, while it is not criminalized due to the First Amendment protection of speech, authorities reportedly act when hateful expressions turn into discrimination or violence. Enforcement should be in line with the International Covenant on Civil and Political Rights article 20.2, which provides that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.
Despite the constructive exchanges I had with federal officials, it is clear there are significant structural changes that need to be made, including in the gathering of dis aggregated data on such offenses and their prosecution. The FBI gathers data on hate crimes, but reporting is voluntary. It has been suggested that it is also hugely under reported. Some groups do not trust law enforcement, have language challenges, or may be undocumented and afraid to contact law enforcement. This means that there is likely a significant under count of reporting. African Americans are reported to be the ethnic group most affected by hate crimes and hate speech, while religious hate crimes and hate speech most frequently target Jewish and Muslim minorities. Recently there has been a significant rise in hate crimes and hate speech against Asian Americans caused by the Covid-19 pandemic, referred to by the previous administration as the “Chinese flu” or the “Wuhan virus”. Since January 2020, there has been a significant number of reports of threats, harassment, use of racial slurs and physical assaults against Asian Americans. Anti-Semitic and xenophobic conspiracies about COVID-19 have also been spreading, blaming Jews and China for creating, spreading and profiting off the virus. Overall, FBI data showed that last year hate crimes have risen to their highest level in over a decade in the United States, and that the majority of the reported hate crimes were motivated by race, ethnicity or religion bias, most targeting minorities to the extent of representing perhaps more than 70% of the hate crimes in the country.
I was pleased to learn that the under reporting of hate crimes is acknowledged by the administration, and that the Department of Justice has made its portal civilrights.justice.gov more accessible to make it easier to report hate crimes, and is focusing on improving language access through translations and ensuring culturally competent information. Furthermore, while extreme right-wing domestic terrorism is now considered by the Department of Homeland Security to be the biggest threat in the United States, Islamic terrorism has generally been given far more attention, often with a detrimental impact on Muslim Americans who have been targets of increasing hate crimes.
An area which has frequently been raised as a major concern by many human rights defenders and members of minority communities is that hate speech, incitement to violence, racist ideology and xenophobia are increasing, disturbingly so, on social media. What is largely unacknowledged and yet became evident in many of the submissions received is that the overwhelming targets of hate speech in the United States are minorities. Of particular concern is also the increasing virulence of intersecting misogynous and racist hate speech which means minority women are particularly vulnerable to some of the most violent and dangerous forms of hate speech in social media. It has been suggested that hate speech in social media is also contributing to harm in the real world, noting that the 16 March 2021 shooting spree at spas and massage parlors in the metropolitan area of Atlanta where eight people were killed, six of whom were Asian women, occurred during the backdrop of rising anti-Asian sentiment in the United States during the COVID-19 pandemic.
Antisemitism, Anti-Asian speech, Islamophobia, derogatory slurs against the Latinx community and anti-immigration xenophobia are on the upswing, sometimes at record levels, in the whole country. These appear to be creating real societal harm and cleavages in the country with xenophobia, scapegoating and scare-mongering mainly aimed at minorities. The algorithms of some social media platforms, it was on more than one occasion brought to my attention during the mission, create rabbit-holes and amplify of prejudice, racism and disinformation. While no one suggested that social media platforms did not offer people the opportunity to connect, share and engage, many declaimed the harmful and misinformation content. As one minority spokesperson mentioned, quoting from recent testimony on hate speech in social media in the United States, the business model of some of these platforms promote hate speech, damage democracy and is tearing societies apart. Something fundamental needs to be done so that hate does not remain so profitable.
Many minority and human rights organizations expressed the view that social media platform owners were not sufficiently and proactively responding to this dangerous and growing tendency, and that more direct intervention was needed in order to impose, if necessary, further responsibilities and liabilities for the real harm and even violence and abuse caused by hate speech. I will be exploring in the final report this extremely complex and challenging area, including the need to amend Section 230 of the Communications Decency Act which grants general immunity to providers of social media platforms by exempting tech platforms from liability for actionable speech by their users.
It was pointed out tone that while religious freedom is guaranteed by state and federal law, and protecting religious freedom is reported to be a high priority by United States authorities, domestic legislation does not always clearly protect against discrimination on the basis of religion in conformity with the prohibition in international human rights.
I heard that following the events of 11 September 2001, the administration introduced domestic legislation to address homeland security, including the Patriot Act which negatively impacted minorities, particularly Muslims and people of Arab or South Asian descent. This had a chilling effect on the activities of many Muslims, who reportedly attended mosque less frequently or stopped going completely. The previous administration’s 2017 Muslim Ban also disproportionately targeted and impacted Muslim Americans as well as Arab and South Asian Americans – and arguably discriminatory in international human rights. I welcome the Department of Homeland Security’s recognition that extreme right-wing terrorism/white supremacists represent the number one domestic terrorism threat in the United States, targeting minority communities of colour, and those based on religion or ethnicity.
In another positive development, the current administration has replaced the former Countering Violent Extremism (CVE) programme with CP3 (Center for Prevention, Programmes and Partnerships). The focus is broadened from Muslims to a wider spectrum, including white supremacists. The Department of Homeland Security has stated that CP3 is moving away from a law enforcement approach and rather aiming at a whole of society approach, working with local communities. However, civil society organisations have argued that this approach simply expands the reach of the ineffective and discriminatory CVE programme.
While the national strategy to address domestic terrorism includes a focus on white supremacist violence and the importance of respecting civil rights, continuing concerns have been expressed. The Department of Justice has issued guidelines on profiling which do not apply to national security investigations or at the border. This means that religious and ethnic profiling is still allowed to take place in these areas, often targeting Muslims and Hispanic/Latinos. Additionally, the watch listing system for “known or suspected terrorists” has serious implications for those affected, and is reported to disproportionately affect Muslims.
I am concerned that it is not always recognized that religious discrimination is also affecting humanists and atheists in the United States. This includes discrimination in schools, through school-led prayers, and restrictions on the right to political participation, due to high elect-ability barriers. Pro-religious bias is reported to be deeply ingrained in the United States, and seven state constitutions still have unconstitutional bans preventing non-religious people from holding office.
The Religious Freedom Restoration Act (RFRA) has reportedly been distorted by the courts, with religious rights being placed above other rights, and has been used by corporations to restrict health care to their employees.
I am extremely concerned at the position of minorities in overseas territories who can be treated not only as second-class citizens, but even considered as non-citizen Americans in political terms. Inhabitants of the United States territories including Puerto Rico, the District of Columbia, United States Virgin Islands, and Guam are considered United States citizens, but do not have the right to vote in presidential elections, and have no voting representation in Congress. American Samoa Islanders are currently not even considered US citizens, but ‘only’ US nationals with fewer rights still than all other Americans.
I am concerned that most of the populations of these territories are members of ethnic, religious and linguistic minorities who can be considered indigenous peoples as well as peoples of non-self-governing territories with associated rights in relation to self-determination, meaning “territories whose people have not yet attained a full measure of self-government” in international law whose full range of human rights appear not fully respected in the US. For example, while Puerto Rico is currently not on the UN list of non-self-governing territories, he United Nations Special Committee on Decolonization determined in 1972 that a “colonial relationship” existed between the U.S. and Puerto Rico.
The militarization of Guam was a main issue of concern for both local authorities and civil society I met with. The military controls approximately one third of the island, and military activities have caused serious contamination to the land and drinking water. A firing range complex is currently under construction above an aquafer which provides 90% of the water in Guam, a cause of great concern. Military construction is also taking place in ancestral lands containing ancient burial sites. Such sites are not legally protected in Guam, unlike native American sites.
As federal laws are superior to the local laws of Guam and other territories, the local people feel powerless. I met with people who expressed great concern that they have no control over their society, their way of life, their land, culture and heritage. They cannot vote in presidential elections, and have no voting representation in Congress and therefore are largely unable to effectively present and protect their interests. A plebiscite which intended to decide on the status of the island was blocked by the Ninth circuit court, as it was alleged to be racially discriminatory. As explained by local authorities in Guam, the intention was to let the people who were colonized by the United States and their descendants decide on their status and the future of the island as a non-self-governing territory.
The Commonwealth of Puerto Rico is similarly devoid of a degree of political participation and representation which for many Puerto Ricans appear difficult to understand in a democracy, since more than 3 million people who live on the territory who have no power in their own national capital. Puerto Rico, and Puerto Ricans as members of a minority and a people in international law, have a fiscal deficit that compounds their political rights deficit. Because of the territory’s precarious budgetary position real legal and political authority ultimately resides in the Financial Oversight and Management Board that was imposed by Congress on Puerto Rico as part of PROMESA. The draconian and drastic austerity measures which as a consequence are imposed on Puerto Rican territorial authorities and the whole population, without regard to any obvious human rights considerations in the Board’s decisions, have led to dramatic cuts and reductions in areas such as public education, public health and other areas of social and economic rights. It is difficult to disagree with some of the affirmations, expressed by Puerto Ricans met during meetings in San Juan and Vieques, that Puerto Ricans are being controlled by a colonial-type entity by an overseas power to the detriment of the people of Puerto Rico, without any meaningful representation at the national level and with no ability to really move to govern themselves on their own territory, and that they are therefore a non-self-governing territory in the international sense.
I was deeply concerned by the evidence submitted that minorities such as African Americans, Hispanics, indigenous peoples, Chamorro, and others are disproportionally exposed to serious environmental hazards and contamination, including to drinking water aquifers, The disproportionate health, standard of living and educational performance and social impacts were particularly made evident during powerful testimonies in Guam and Vieques, Puerto Rico. Other special procedures have also been presented with compelling evidence of minorities “in disadvantaged areas with hazardous environments (e.g. in proximity to industrial toxicity, power stations, flood zones and so on) and without access to social and commercial facilities. The most polluting industrial facilities, across a range of sectors from farming and mining to manufacturing, are more likely to be situated in poor and minority neighborhoods, including those of people of African descent… and the lead-contaminated water in Flint, Michigan.” Minority communities, and this is also true in territories such as Guam and Puerto Rico, and especially poor minority rural or neighborhoods contaminated by chemicals or other pollutants, or underserved by municipal sewage systems, or the dumping grounds for years of military toxic ammunition and poisons. Despite the extremely grave health consequences, highly contaminated sites known as Superfund sites such as in Vieques Puerto Rico and in Guam, or the municipal water supply in Flint Michigan where minorities are concentrated are simply not prioritized for cleanup in an efficient or expedited manner.
In concrete terms, this means disproportionally higher cancer and disease rates, more children with learning deficiencies or developmental challenges, and lower life expectancies – all mainly among minority communities. It’s difficult to dispute the argument, made in many places during my mission, that White communities tend to be better served by government officials, and that decontamination measures, well-maintained sanitary systems or more effective measures for the protection of aquifer and mater supplies are more likely to be in place. When combined with the absence of full equality in voting political representation rights for minorities and indigenous peoples in US overseas territories, it becomes clear that these problems do not appear high on the political or governmental radar screens at the national level.
I was particularly struck with the example of the island of Vieques in Puerto Rico in this regard. The US military used the island as a live munitions target practice for about 60 years. According to internal Navy documents, bombardments occurred on 180 days out of a year on average. The US military used the high-level depleted uranium munitions and bombs from 1972 on the populated island of some 8,000-9,000 population. Other forms of contamination exist (heavy metals, etc.) because of the use Vieques as a munitions testing and warfare exercise ground. The result, summarised eloquently in a town meeting of a lack of any visible cleanup yet, is simply ‘They bombed us, they made us sick, then they left us. They don’t give a damn.”
Even though the Navy stopped these exercises and withdrew from Vieques in 2003, the health consequences are continuing across generations, with cancer rates clearly higher for Vieques than for the rest of Puerto Rico. Furthermore, not only has the land occupied not been returned to the residents of Vieques (much of the island was designated a National Wildlife Refuge under the control of the United States Fish and Wildlife Service), but promised decontamination activities, including of a highly contaminated site, promised under a National Priorities List (NPL) for long-term cleanup financed by the federal Superfund program has still not progressed as of 20 November 2021. As of the same date, the hospital in Vieques damaged by Hurricane Maria had still not been repaired. The population must still travel to the main island, not always a simple task, despite approval on 21 January 2020 by the Federal Emergency Management Agency (FEMA) of $39.5 million to help rebuild the hospital. I personally saw no visible renovations have been made on location almost two years later in November 2021. The results are people being sick and dying because of unavailable medical treatments in Vieques, such as Jaideliz Moreno Ventura, a young and lively 13 years old student. Puerto Ricans present at the town hall in Vieques seemed convinced they are second-class citizens because of their ethnic background, and what they experience would not occur if they were members of the White Anglo-Saxon majority.
My final report will cover a number of additional areas that
· A statelessness determination system is indispensable so that many among the more than 200,000 stateless individuals living in the United States, particularly children, have a pathway towards citizenship as an indispensable tool for the effective protection of their human rights, access to vital services, and their presence in the country.
· The recognition of the Roma minority in the country, and an acknowledgment of their historical presence, which will help address the still-existing negative stereotyping and even anti-gypsyism which is still present in the country. Romas should, amongst other needed measures, be included as a distinct category in future censuses.
Let me conclude by reiterating that I am very grateful to the Government of the United States for inviting me to visit the country. Acknowledging the values of equality, liberty and democracy – for which the US is well known internationally – it is my hope that those values will also guide all the State’s responses vis-à-vis the human rights of persons belonging to minorities and help bring about much needed institutional and legal changes needed to confront the daunting challenges of the first half of the 21st Century.
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