The U.S. Government's Flawed Response to Hurricane Katrina: Why It Should Be Viewed as a Human Rights Failure, and What the Consequences of That Could Be

By NOAH LEAVITT

Tuesday, Mar. 07, 2006

Last week, almost six months to the day after Hurricane Katrina devastated America's southern coastline, the Associated Press released a shocking video. The footage shows President Bush being briefed, point-by-point, about the almost certain likelihood that the levees around New Orleans would not withstand the storm and the city would be flooded. At no time did the President ask any questions about the information provided to him.

The interaction captured in the video directly contradicted the President's frequent assertions that had he known the extent of the risk, his government would have taken steps to prevent the massive disasters that followed.

Originally, the Administration's failure to act effectively to address the consequences of the storm was seen, in part as a lapse in judgment or an administrative blunder. But after the video was released, views on the Administration's - and in particular, the President's - state of mind changed dramatically. After seeing the footage, some Congresspersons called for further inquiries into the federal government's failure to assist the tens of thousands of people in dangerous and often desperate circumstances. Others suggested opening criminal investigations.

Yet, the video suggests another possible way of analyzing the government's failures - that its abysmal performance after the flooding violates international obligations - as established in treaties and other binding law that the U.S. has agreed to uphold, and has urged other nations to uphold.

As I will explain, understanding this issue as a breach of human rights is critical, for a number of reasons. It has led to new strategies for relief and redress, and it has brought the United Nations and the Inter-American Commission on Human Rights into the picture.

The UN Special Expert on Extreme Poverty Visits New Orleans and Reports Back

Immediately following Katrina, it was sadly evident that low-income Southerners faced the biggest hurdle to receiving assistance. The federal government's lackadaisical response left tens of thousands of poor people, mostly African-American, stranded, homeless, and without any idea of how to seek aid.

How could this happen in the world's wealthiest country? To help answer that question, the United Nations dispatched an independent expert to study the connections between poverty and disaster relief.

After spending several weeks in the South last October, speaking with displaced New Orleans residents, the UN's investigator articulated a relationship between peoples' incomes and the federal government's degree of help it provided them. He concluded that "if the U.S. government designed and implemented the [relief and assistance] policies according to human rights standards much of the problems of poverty could be resolved."

The media largely ignored these findings, but they were nonetheless significant: Since then, at least two groups of Katrina evacuees and their lawyers have pursued this approach, and more may be in the works.

An Appeal to the Inter-American Commission on Human Rights

The first group targeted its efforts on the Inter-American Commission on Human Rights, the investigative branch of the Organization of American States. The U.S. is a member of the OAS, and as a result is responsible for complying with regional human rights obligations.

The group noticed that after Katrina, as a result of U.S. law, immigrants faced a unique and difficult set of circumstances: Even if they had lost their homes and possessions, they often did not seek assistance because they feared the U.S. government would prosecute them for possible non-compliance with immigration laws.

In addition, many immigrants did not learn of the impending danger because storm warning were only printed in English, despite the large number of non-English speakers in the region. Then, after the storm, federally-approved contractors hired to rebuild the area have failed to pay thousands of workers, most of whom are immigrants.

Last Friday, a group of concerned lawyers took these issues, and others, to the IACHR. They told the Commission that the U.S. was in breach of international norms relating to the treatment of immigrants and other disenfranchised groups.

In addition to presenting these concerns, and suggesting possible remedies, the group asked the Commission to take "interim measures" to provide immediate assistance to people who are currently living in tents and fearing the return of the hurricane season in the next few months.

Raising Katrina Human Rights Breaches Before the UN Human Rights Committee

Meanwhile, there is another, much larger, campaign that will be taking place in the coming weeks, to bring these concerns to the United Nations treaty monitoring system.

In 1992, President Bush's father led the U.S. to ratify the International Covenant on Civil and Political Rights. The ICCPR elaborates and codifies many of the provisions in the 1948 Universal Declaration of Human Rights. Under Article VI of the U.S. Constitution, this ratified treaty is the "supreme Law of the Land; and the Judges in every State shall be bound thereby."

Under the ICCPR, nations are obligated to submit periodic reports to the UN Human Rights Committee, which oversees compliance. The Committee investigates the issues contained therein, and holds a public hearing. It then identifies steps the national government in question should carry out in order to more fully comply with the treaty obligations, and publishes its recommendations.

Appallingly, for the past five years, the U.S. simply chose not to submit its mandatory reports under the ICCPR.

Finally, after pressure from citizen groups and U.S human rights organizations, in October 2005, the U.S submitted a combined second and third periodic report. While that document detailed some aspects of U.S. practice under the treaty, it omitted many others - and glaringly, made no mention at all of problems arising from its response to Katrina.

In response, this past January, a group of nearly 40 U.S organizations, and about a dozen individual experts, sent a combined Memorandum to the Human Rights Committee identifying additional areas of concern under the ICCPR.

The Memorandum pointed out that Article 26 of ICCPR states that "All persons are equal before the law and are entitled without any discrimination to the equal protection of the law." But the signers argued that the

U.S. violated this provision because it failed to guarantee equal and effective protection against racial discrimination "in the context of disaster rescue, relief and reconstruction efforts."

The groups drew attention to the federal government's lack of effective rescue plans for poor people, mostly African-American, who could not afford cars. (Of course, FEMA's orders were not racially discriminatory on their face, but they had a dramatically disparate impact because of the high poverty rate of African-Americans compared to other groups in and around New Orleans.)

Apparently concerned about these allegations, the Human Rights Committee invited representatives of the group to present these concerns at the body's annual meeting March 13-17 in New York.

Remedies: What May Come Out of the UN and IACHR Hearings

These two hearings before these international institutions could lead to several outcomes.

For instance, after hearing testimony from the evacuees, the bodies could conduct intensive on-site visits in Louisiana and Mississippi, and formally investigate the Bush administration's flawed responses.

They could issue reports criticizing the Bush administration's failure to comply with international obligations. They could also recommend ways to improve emergency response practices - specifying changes to state and federal law that would be more consistent with relevant international norms. Their investigation could also fuel both

domestic litigation, and even criminal proceedings if appropriate - and recapture the press' attention in an era when the news cycle has gotten far too short.

Internally Displaced People: The Katrina Victims Should Benefit from International Norms

Oxfam International recently reported that almost 750,000 people remain displaced by Hurricanes Katrina and Rita. And a situation that in theory, ought to be improving daily as the government addresses it, is only getting worse for many: More than 7,000 people are facing imminent evictions despite the fact that they do not have adequate housing replacement.

Thus, there is a third area in which international norms can be meaningful - that of "Internally Displaced Persons" (IDPs).

International law defines IDPs as people forced to leave their homes because of natural disaster, domestic strife or other such problems, and who have not crossed international borders. (This last requirement distinguishes them from refugees, who cross international borders fleeing persecution.)

Because of the large number of IDPs around the world, the UN has approved Guiding Principles on Internal Displacement that delineate states' obligations to IDPs within their borders.

Since as early as July 2001, the U.S. has said that all countries should apply the norms set forth under these Principles, and has authorized its U.S. Agency for International Development policies to do so.

Yet, the White House is now ignoring that commitment. For example, Principle 18 states that IDPs have a right to basic shelter, housing, and medical care, and that they must fully participate in decisions regarding their future in partnership with "competent authorities." Yet, the federal government callously ended payments for evacuees' temporary hotel stays without providing any alternative arrangements, and before the evacuees were able to get on their feet.

By pointing to the U.S.'s stated commitment to these Principles, advocates could call for the U.S. to comply by declaring a halt to any further evictions of Katrina evacuees from their temporary shelters; providing them with correct, timely information about available forms of assistance; and seeking advice from affected communities about possible resettlement options.

Advocates might also draw on these Principles to challenge court decisions that deprive evacuees of crucial temporary shelter. One example is a federal judge's ruling last Friday preventing the use of a cruise ship as short-term housing.

There are more than 25 million people around the world who have been displaced by either natural or human induced disasters, who fall under the coverage of the IDP Guidelines. Why should the survivors of Hurricane Katrina be offered any less international attention and protection than other IDPs merely because they reside in the United States?

International Human Rights Norms Apply to the United States, Too

As the video of President Bush shows, we are only just beginning to learn about the federal government's response to the storm; to understand the complex legal issues at stake; and to consider the full range of possible legal responsibilities, and remedies.

International human rights norms, including obligations the U.S. has stated it approves and will abide by, provide another avenue for understanding the failure to adequately respond last year. Calling upon the U.S. to comply is only calling upon it to do what it calls upon other countries to do: The U.S., rather than being a human rights beacon in the world, increasingly claims exceptions to the rules it says everyone else must follow. Unlike with imprisoned detainees, with Katrina victims, the rights violations are often out in the open, for everyone to see - in the form of suffering people, and, too often, corpses.

Moreover, compliance, crucially, may well improve the U.S.'s response to future disasters. If the U.S. does not recognize it must meet human rights standards, or does not recognize how doing so may save lives - as the UN Independent Expert on Extreme Poverty pointed out - it may once again act, when the next disaster comes around, as if there are no standards at all.


The author, a lawyer, was part of the group that submitted the January 2006 Memorandum to the UN Human Rights Committee. However, the ideas expressed here are his alone. He can be contacted as nsleavitt@hotmail.com.

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