Remarks at a Meeting of the Third Committee on the Administration of Justice

Sofija Korac
ECOSOC Advisor
U.S. Mission to the United Nations
New York City
November 8, 2018


Reaffirming the importance of ensuring respect for the rule of law and human rights in the administration of justice, the United States joins consensus on this year’s resolution.

We appreciate the incorporation of some of our suggestions into the text. However, as in the past, we are unable to co-sponsor the resolution. We are concerned that the resolution calls upon States to comply with or implement various obligations – for example, not to impose life imprisonment without the possibility of release on individuals under the age of 18 – under treaties to which the United States is not subject and that are not imposed by customary international law.

The obligations in the resolution are not consistent with U.S. law, federal sentencing guidelines, and practice that help ensure just outcomes in individual criminal cases. For example, in emphasizing the best interests of the child in the administration of justice, including when deciding on sentencing of a parent or primary caregiver, the resolution weights a single factor against other, possibly compelling juridical interests. That families often incur financial or other hardship or suffering from the absence of a parent incident to incarceration is not in itself sufficient as a basis for departing from the routine administration of penalties that are otherwise appropriate to the severity of a given crime.

The resolution encourages a principle that pretrial detention of children be avoided wherever possible and should be used as a measure of last resort and for the shortest appropriate period of time, but ignores the particular circumstances that might compel such detention, even against a State’s own wishes. What does it mean, “wherever possible, last resort, and appropriate period of time?” The resolution does not say, but it would nonetheless impose open obligations that may acquire unanticipated definitions over time, and that are not required by customary international law or treaties undertaken by the United States.

The resolution emphasizes the term “overincarceration” but does not define it. As is, the word begs the question, presuming an actuality that has not otherwise been demonstrated in the text of the resolution. The United States cannot endorse this language. Nor in good faith should the resolution ascribe particular penal policies responsibility for a condition that it does not define, in a social science context marked by complexity. Likewise, “overcrowding” is undesirable as a semantic matter, but is more fully defined as such by the multiple circumstances presented to law enforcement at the time of incarceration. Crowded incarceration, certainly, can be consistent with effective, fair, humane and accountable administration of justice. Therefore we must dissociate from OP21.

Similarly, the resolution notes “principles of necessity and proportionality” that certain regional jurisprudence ‎considers relevant and applies when depriving any person of his or her liberty. The United States certainly agrees that discretionary decisions to deprive individuals of liberty should be reasonable, necessary, and appropriate to the individual circumstances. But such considerations are not universally recognized or reflected in international law, nor would they be relevant to a determination of lawfulness or arbitrariness within the domestic legal framework of every State. International law has left such matters to the discretion of competent courts or administrative authorities within individual States. We interpret “necessity and proportionality” provisions as recommendations rather than as a reflection of international principles or obligations under international law.

We understand PP26 to assert that the international community should recognize the specific situation and needs of former child soldiers when they are accused of having committed crimes under international law during the period that they were children associated with armed groups, or unlawfully recruited or used by the armed forces of a State. We understand PP26 to apply only to children accused of a crime committed while they formerly served as a child soldier associated with armed groups or were unlawfully recruited or used by the armed forces of a State.

While we appreciate that certain situations can increase the vulnerability experienced by the individuals in it, we believe vulnerability is associated with membership in a marginalized group, not with the particular fact-specific situation in which the individual immediately finds her or himself.

Finally, the assertion that States should consider establishing an independent mechanism to monitor places of detention, including by making unannounced visits, is inconsistent with U.S. policy and practices that already ensure acceptable standards. The United Nations Standard Minimum Rules for the Treatment of Prisoners, or “the Mandela Rules,” call for external and independent monitoring of prisons to include monitoring bodies that may or may not be governmental, the preferred approach in the United States. These bodies achieve accountability so long as they are independent of the prison administration, and other external bureaucracies are unnecessary.