UNITED STATES OF AMERICA 2021
The Biden administration stated its intention to restore the US human rights record, but the results in policy and practice were mixed. While it re-engaged with UN international human rights institutions and multilateral efforts to combat climate change, the administration failed to adopt human rights-respecting immigration and asylum policies on the USA-Mexico border or realize its human rights-related agenda on the domestic level.
Domestic politics continued to hinder effective government action to address climate change, discriminatory attacks on voting rights, or unlawful state-level restrictions on rights, including the right to freedom of peaceful assembly and reproductive rights. Some opposition politicians continued to challenge the 2020 election results with unsubstantiated claims of electoral irregularities, which destabilized the peaceful transfer of power in January through the encouragement of violent political protests aimed at overturning the election results.
LGBTI people’s rights
The Biden administration took steps to repeal the previous administration’s discriminatory policies towards LGBTI people, including overturning a ban on transgender people serving in the military and restoring protections for students against discrimination based on sexual orientation and gender identity. Nonetheless, hundreds of state-level bills were introduced that would curtail the rights of LGBTI people. Multiple states enacted anti-LGBTI rights laws, including a ban on gender-affirming healthcare for transgender minors in Arkansas.
Sexual and reproductive rights
The Biden administration repealed the Global Gag Rule, a policy limiting US foreign aid to foreign organizations that provide information, referrals or services for legal abortion.
State governments continued intensified efforts to curtail sexual and reproductive rights by seeking to criminalize abortion and limit access to reproductive health services, enacting more abortion restrictions in 2021 than in any other year.
In Texas, a law was enacted criminalizing abortion as early as six weeks into pregnancy – before most people know they are pregnant – and privatizing enforcement against abortion providers or anyone “suspected” of assisting the person in obtaining an abortion.1 In September, the US Supreme Court declined to enjoin the Texas law, and allowed it to enter into force. In December, the Court heard oral arguments regarding a Mississippi law which bans most abortions after 15 weeks, directly challenging existing federal protections of abortion rights under Roe v. Wade.2
Violence against women
Indigenous women continued to experience disproportionately high levels of rape and sexual violence and lacked access to basic post-rape care. Additionally, Indigenous women continued to experience high rates of disappearance and murder. The exact number of Indigenous women victims of violence or who went missing remained unknown as the US government did not collect data or adequately coordinate with Tribal governments.
Rates of intimate partner violence showed no signs of slowing from their increases due to the Covid-19 pandemic and ensuing lockdowns, yet the main legislative mechanism for funding violence response and prevention remained lapsed as Congress again failed to reauthorize the Violence Against Women Act (VAWA).
Refugees’ and migrants’ rights
Authorities continued to drastically limit access to asylum at the USA-Mexico border, resulting in irreparable harm to many thousands of people, including children, who were seeking safety from persecution or other serious human rights violations in their countries of origin.3
Border control officials carried out unnecessary and unlawful pushbacks of nearly 1.5 million refugees and migrants at the USA-Mexico border, both at and between official ports of entry, using as a pretext public health provisions under Title 42 of the US Code during the Covid-19 pandemic. Returnees were summarily expelled without access to asylum procedures, legal remedies, or individual risk assessments. Upon his resignation, a senior legal adviser to the US Department of State denounced the mass expulsions of Haitian asylum seekers as constituting unlawful forced returns.
Although the Biden administration exempted unaccompanied migrant children from expulsions under Title 42, US Border Patrol misused an anti-trafficking law to continue to summarily repatriate thousands of unaccompanied Mexican children (over 95% of those apprehended), without providing them with adequate access to asylum procedures or effective screenings for the harm they could face upon return.4
Thirty-nine Muslim men remained arbitrarily and indefinitely detained by the US military in the detention facility at the US Naval Base in Guantánamo Bay, Cuba, in violation of international law. The authorities made little progress in closing the facility, despite the Biden administration´s stated intention to do so.
In October, two detainees held in Guantánamo Bay were approved for transfer by the Periodic Review Board, bringing to 12 the number of detainees who remained at the facility after being cleared for transfer, some for over a decade. Only two detainees had been transferred out of the facility since January 2017, including just one since Joseph Biden took office. None of the remaining detainees had access to adequate medical treatment and those who survived torture and other ill-treatment by US agents were not given adequate rehabilitative services.
Ten of them faced charges in the military commission system, in breach of international law and standards relating to fair trials, and could face the death penalty if convicted. The use of capital punishment in these cases, after proceedings that did not meet international standards, would constitute arbitrary deprivation of life.
The trials of those accused of crimes related to the 11 September 2001 attacks were scheduled to begin on 11 January 2021, but after the suspension of hearings in 2020 and most of 2021, the cases were nowhere near ready for trial, following nine years of pretrial hearings.5
Freedom of assembly
Authorities failed to adopt and implement significant police oversight and accountability measures promised by the Biden administration in response to nationwide protests against police violence in 2020, which were marked by widespread excessive use of force by law enforcement agencies.
Instead, lawmakers in at least 36 states and at the federal level introduced more than 80 pieces of draft legislation limiting freedom of assembly, with nine states enacting 10 such bills into law in 2021. At the end of the year, a further 44 such bills were pending in 18 states. Proposed legal restrictions on freedom of assembly included increased penalties for acts of civil disobedience relating to infrastructure projects such as pipelines, obstructing roads and defacing monuments. Other laws sought to prevent reductions to policing budgets by local governments and remove civil liability for car drivers who hit protesters blocking streets, among other things.
By contrast, the California state legislature enacted new laws providing broad protections to journalists reporting on public assemblies, who were often targeted for arrest and violence by law enforcement officials in 2020, and creating statewide standards and regulations for law enforcement’s use of kinetic impact projectile weapons and chemical agents during public assemblies.
Excessive use of force
At least 1,055 people were reported killed by police using firearms in 2021, a slight increase from previous years. The limited public data available from 2015 to 2021 suggested that Black people were disproportionately impacted by police use of lethal force. The federal government’s programme to track how many such deaths occur annually remained unimplemented.
In April, the Maryland state legislature passed and overrode the governor’s veto of a use-of-force statute, leaving just six states without such statutes to regulate police use of force. However, no state laws governing the use of lethal force by police – where such laws exist – complied with international law and standards.
The US Senate failed to introduce the George Floyd Justice in Policing Act, a bill providing a bipartisan set of proposals to reform certain aspects of policing.
Human rights defenders
The annual Country Reports on Human Rights Practices issued by the US State Department were accompanied by public recognition by the Secretary of State of the importance of, and risks faced by, human rights defenders. The Biden administration also re-published its policy on US Support for Human Rights Defenders, which had been sidelined for several years.
In May, news media revealed that US authorities tracked and harassed human rights defenders active in the USA-Mexico border area during 2018 and 2019, including through an illegal US watchlist of activists, detailed in Amnesty International’s 2019 report, ‘Saving Lives is not a Crime’: Politically Motivated Legal Harassment against Migrant Human Rights Defenders by the USA.
Human rights defenders and journalists continued to report intimidation and harassment by authorities when crossing the border or when conducting their work in Mexico, which impacted both their ability to do their work and their overall well-being. In September, the Office of Inspector General of the Department of Homeland Security issued a report confirming that agency officials unlawfully harassed journalists and border activists without an appropriate legal basis and, in some cases, apparently covered up their violations by destroying evidence of their communications and coordination with Mexican authorities in those abuses.
In March, Virginia became the 23rd US state to abolish the death penalty.
During the final days of the Trump administration in January, the federal government carried out three executions, continuing the reversal since 2020 of a 17-year moratorium on federal executions. In July 2021, the US Department of Justice placed a moratorium on federal executions amid a review of department policies related to capital punishment. However, the federal government continued to pursue death sentences in certain cases. State executions resumed in 2021 following a lull in 2020 due to the ongoing Covid-19 pandemic as well as the conclusion of litigation over the execution protocols in certain states.
Torture and other ill-treatment
A decade after dozens of detainees were held in a CIA-operated secret detention system – authorized from 2001 to 2009 – no one had been brought to justice for the systematic human rights violations committed under that programme, including enforced disappearance, torture and other ill-treatment. The Senate Intelligence Committee’s report on CIA torture remained classified, years after the limited investigations conducted into those crimes were closed without charges being brought against anyone.
Right to life and security of the person
The US Congress did not pass any regulations on access to firearms in 2021. The government’s ongoing failure to protect people from persistent gun violence continued to violate their human rights, including the rights to life, security of the person and freedom from discrimination, among others.
A surge in gun sales during the Covid-19 pandemic, unfettered access to firearms, a lack of comprehensive gun safety laws (including effective regulation of firearm acquisition, possession and use), and a failure to invest in adequate gun violence prevention and intervention programmes, perpetuated this violence.
At least 44,000 people were estimated to have been killed by gun violence in 2020. During the Covid-19 pandemic in 2020 and 2021 some state government authorities exacerbated gun violence by designating gun stores as “essential businesses”.
In May, the US Department of Justice proposed a regulation that would update the definitions of “firearm” and related firearm components for the first time since 1968, noting that 23,000 un-serialized firearms (known as “ghost guns”) were reported to have been recovered by law enforcement from potential crime scenes between 2016 and 2020.
In November 2021, the US Supreme Court heard its first case regarding gun rights in over a decade. The eventual decision in this case could determine whether individuals may carry a firearm in public without demonstrating “proper cause” or meeting licensing thresholds.
Unlawful killings of civilians
The US government repeatedly used lethal force in countries around the world, including with armed drones, in violation of its obligations under international human rights law and, where applicable, international humanitarian law. NGOs, UN experts and the news media documented how such strikes inside and outside zones of active armed conflict resulted in injuries or arbitrarily deprived protected individuals, including many civilians, of their right to life, in some cases constituting war crimes.
The US government weakened protections for civilians during lethal operations, which increased the likelihood of unlawful killings; impeded the assessment of the legality of strikes; and prevented accountability and access to justice and effective remedies for victims of unlawful killings and civilian harm.
The government continued to withhold information regarding the legal and policy standards and criteria applied by US forces when using lethal force, despite calls by UN human rights experts to clarify such points. Authorities also failed to provide reparations for civilian killings. The Biden administration commenced a review of lethal force policies, yet failed to provide any information about how or whether those policies would change. Meanwhile, US forces continued to engage in drone strikes, resulting in the unlawful killing and wounding of civilians.
Right to housing
In March, the Biden administration accepted UPR recommendations by the UN Human Rights Council to guarantee the right to housing and combat homelessness. However, as federal and state-level moratoriums on evictions during the Covid-19 pandemic began to expire in the second half of 2021, the US Supreme Court struck down efforts by the Biden administration to extend the federal moratorium on public health grounds during the ongoing pandemic. Simultaneously, some state and municipal governments ended temporary special measures to house those experiencing homelessness and some cities resumed or expanded the demolition of homeless encampments.
Members of the US Congress reintroduced the Housing is a Human Right Act to address the root causes of homelessness and transition the growing number of people experiencing homelessness into housing and other shelter.
Failure to prevent climate change and environmental degradation
The Biden administration rejoined the Paris Agreement and sought to reverse hundreds of laws and policies passed during the preceding administration to deregulate the environmental and energy sectors. Those laws included the rolling back of rules on coal ash and coal-fired power plants. However, the administration did not successfully roll back all regressive measures and continued to approve oil drilling projects on federal land.
During 2021, frequent climate change-related natural disasters across the USA resulted in destruction and death, including record-breaking wildfires, hurricanes and flooding in coastal areas.
International human rights mechanisms and treaties
The Biden administration took a number of positive measures during its first year in office to endorse and support the international human rights framework and oversight mechanisms.
In March, the administration accepted the majority of recommendations by the Human Rights Council following the USA’s third UPR, though noted that it only supported some recommendations in principle that it might not implement, including closing the Guantánamo Bay detention facility.
In April, the government rescinded sanctions against ICC personnel imposed by the previous administration, though it continued to reject ICC jurisdiction over alleged US war crimes in Afghanistan, Iraq or elsewhere.
In October, the USA rejoined the UN Human Rights Council, three years after the preceding administration abandoned its seat on the body, and issued a standing invitation to UN Special Procedures. In November, the UN Special Rapporteur on Minority Issues conducted a country visit to the USA, which was the first such mission by a UN Special Procedure since 2017.
- “USA: Texas violently strips away right to abortion”, 1 September
- “USA: Senate must take action to protect human rights”, 1 December
- Americas: Amnesty International Submission to the United Nations (UN) Special Rapporteur on the Human Rights of Migrants (Index: AMR 01/3658/2021), 8 February
- Pushed into Harm’s Way: Forced Returns of Unaccompanied Migrant Children to Danger by the USA and Mexico (Index: AMR 51/4200/2021), 11 June
- “Right the wrong: decision time on Guantánamo”, 11 January