I. INTRODUCTION

On August 25, 2017, the President of the United States, Donald Trump, pardoned Joseph Arpaio, the former sheriff or Maricopa County.[1] Arpaio was found guilty of criminal contempt[2] by a U.S. District Court in July 2017 for defying a court order from May 2013 that ordered him to stop racially profiling Hispanics.[3]

Arpaio has a long history in law enforcement. He served in the U.S. Army, in the Las Vegas and Washington D.C. Police Departments, and as a Special Agent for the Drug Enforcement Administration (DEA).[4] In 1992, he was elected Sheriff of Maricopa County in Arizona. Not long after, he coined himself as “America’s toughest sheriff.”[5] As sheriff, Arpaio’s practices included stopping cars and detaining drivers simply because they looked Hispanic. Additionally, many Hispanics deprived of liberty were subjected to humiliation and cruel treatment while in prison,[6] including forcing inmates to wear pink underwear, pink handcuffs, and sleeping on pink sheets.[7] He publicly acknowledged that he did this because he knew that pink was especially shameful to Hispanics, in light of their concept of manhood.[8] To this day, taxpayers have spent more than 70 million dollars in reparations for Arpaio’s behavior but no criminal action was brought against him.[9] Although he was compelled by a Federal Court to stop the racial profiling of Hispanics, Arpaio continued the discriminatory practice, which resulted in the decision to hold him in contempt.

Donald Trump’s pardon of Arpaio was highly criticized.[10] Some scholars and politicians argued that even though the power to pardon was broadly defined in the Constitution, the use of this presidential privilege, in the context of the charges against Arpaio, was unconstitutional.[11] Although the pardon power is unquestionably a presidential prerogative, this article will argue that regardless of whether or not it is constitutional under U.S. law, the pardoning of Arpaio violates international law principles and norms. President Trump’s decision constitutes a human rights violation because pardons are not above international law and, therefore, are limited by the obligation to investigate, prosecute, and punish grave human rights violations and to provide an appropriate reparation to victims. In particular, since the matter centers around the principle of non-discrimination, one of the core issues of international human rights law, the pardon in question cannot be accepted if its practical consequence is the lack of an effective remedy for those affected by Arpaio’s practices.

II. THE UNITED STATES’ OBLIGATIONS UNDER INTERNATIONAL LAW

The United States ratified the International Covenant on Civil and Political Rights (ICCPR) on June 8, 1992. The Human Rights Committee (HRC), which is the designated body to interpret the ICCPR and whose decisions constitute authoritative guidance, has established that a failure to take appropriate measures or to exercise due diligence to prevent, punish, investigate, or redress harm would give rise to a violation by State Parties.[12] Article 2.3.a demands that State Parties “ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.” Therefore, the treaty demands that “in addition to effective protection of Covenant rights State Parties must ensure that individuals also have accessible and effective remedies to vindicate those rights.”[13]

The HRC requires “appropriate judicial and administrative mechanisms for addressing claims of rights violations under domestic law”[14] and established that a failure by a State Party to investigate allegations of violations of human rights could give rise to a breach of the ICCPR.[15] To fulfill this obligation, State Parties must ensure that those responsible for violating the rights enshrined in the Covenant are brought to justice; failure to investigate or to bring to justice perpetrators of such violations could give rise to a breach of the Covenant.[16] Finally, the HRC also stated that where public officials or State agents have violated the Covenant, the State Parties concerned may not relieve perpetrators from personal responsibility, as has occurred with some amnesties or prior legal immunities and indemnities.[17]

Furthermore, the United States also ratified the Charter of the Organization of American States (OAS) on June 19, 1951. As a result, the United States is subject to the obligations enumerated in the treaty and in the American Declaration of the Rights and Duties of Man (American Declaration) because, for OAS member States, the American Declaration outlines the commitments and obligations of the Charter.[18] Additionally, most of the core articles of the American Declaration are customary international law, including the right to liberty, due process, and a fair trial.[19] The Inter-American Commission on Human Rights (IACHR) has affirmed that States must refrain from “supporting, tolerating or acquiescing in acts or omissions that contravene their human rights commitments.”[20] Therefore, States must not only refrain from committing human rights violations but must adopt affirmative measures to guarantee that the individuals subject to their jurisdictions can exercise and enjoy the rights contained in the American Declaration.[21]

The State’s duty to implement human rights obligations in practice encompasses preventing, responding, punishing, and providing remedies to the acts that constitute a violation.[22] This duty is known as the principle of due diligence. Indeed, establishing measures that eliminate responsibility for human rights violations is inadmissible when the objective is to prevent the investigation and punishment of those responsible for serious human rights violations.[23]

As the IACHR conveyed in the Gustavo Carranza vs. Argentina case, a pardon can constitute an infringement of the American Declaration if it results in judicial inaction in the face of a manifest violation of human rights,[24] or if the effects of the pardon violate the human rights recognized in the Declaration.[25] In Carranza, a former Argentinean Judge who was removed by the military government tried to seek the nullification of the decision. However, the National Supreme Court of Justice adjudicated the merits of the petitioner’s claim based on the political question doctrine, which impeded a substantial analysis of the situation. The IACHR decided that, by not providing the Judge with an appropriate remedy, Argentina committed a violation of the right to a fair trial and the right to judicial protection. The Commission also stated that the political question doctrine could not be used to deprive someone from an effective remedy. Moreover, the Commission has referenced the harmful effects of impunity, stating that “when the perpetrators are not held to account . . . the impunity confirms that such violence and discrimination is acceptable, thereby fueling its perpetuation.”[26]

III. ARPAIO’S ACTIONS CONSTITUTE A SERIOUS VIOLATION OF THE PRINCIPLE OF NON-DISCRIMINATION

The principle of non-discrimination is at the core of international law. In fact, the international legal order stands, among others, on this principle, which today belongs to the category of jus cogens norms.[27] According to the Vienna Convention on the Law of the Treaties, this means that it is a peremptory norm of general international law that is “accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character.”[28] States must refrain from taking actions or adopting measures that discriminate, directly or indirectly, against any person or group of persons under their jurisdiction. Additionally, States must not tolerate any norm or act that contradicts this principle; on the contrary, they must take actions to abolish the legal effects of any norm, de facto or de jure, that tolerate or promote discrimination of any type.

Racial profiling constitutes a serious violation of the principle of non-discrimination, both at the domestic and international levels. The practice known as “driving while Latino”[29] was frequently employed by former sheriff Arpaio during his tenure. Under this practice, individuals were stopped and detained solely because they looked like they had Hispanic origins. Using racial criteria to identify and detain people who might not have a regular migratory status under the guise of enforcing driving infractions is highly discriminatory and unacceptable on any legal grounds.

Indeed, in May 2013, the United States District Court for the District of Arizona ordered Arpaio to stop, 1) detaining, holding, or arresting Hispanic occupants of vehicles in Maricopa County based only on the belief, however reasonable, that such persons are in the country without authorization; 2) using race or Hispanic ancestry as a factor in determining whether to stop any vehicle in Maricopa County with a Hispanic occupant; and 3) using race or Hispanic ancestry as a factor in making law enforcement decisions with respect to whether any Hispanic occupant of a vehicle in Maricopa County may be in the country without authorization.[30]

Arpaio violated the order resulting in a U.S. Federal Court holding him in criminal contempt. Senior Judge Susan Bolton, from the District Court for the District of Arizona, underscored that Arpaio was still detaining and arresting immigrants and that he had even challenged the judiciary by stating: “If they don’t like what I’m doing, get the laws changed in Washington”[31]; and “until the laws are changed my deputies will continue to enforce state and federal immigration laws.”[32]

On August 25, 2017, President Donald Trump pardoned Arpaio.[33] However, pardoning contempt for committing discriminatory actions should be considered unlawful, as the State would go from committing and tolerating discrimination to actively promoting it.

IV. CONCLUSION

Racial profiling is a serious violation of international human rights law. Arpaio, a U.S. law enforcement officer, committed these practices against the law of nations, which is binding on the State. He was ordered by a court to cease profiling on the basis of race, yet he continued to engage in these practices and was held in criminal contempt for ignoring the order. Failing to punish him for his actions through a pardon means that the United States is in violation of international law.

The use of the presidential prerogative to issue pardons, which is recognized in article 2, section 2, clause 1 of the U.S. Constitution, is not a violation of international human rights law per se. However, if the pardon or its effects result in a violation of any of the rights protected by the ICCPR and/or the American Declaration, then undoubtedly international human rights law has been violated.

In the present case, the final effect of the pardon will be to: 1) preclude sentencing and punishment for willfully defying a court order for conduct entailing a violation of the jus cogens principle of non-discrimination; 2) leave the victims without an appropriate remedy; and 3) encourage other sheriffs to engage in these kinds of illicit practices. Since Arpaio’s actions will end in impunity for the lack of punishment, the situation constitutes an internationally wrongful act, which generates State responsibility. The pardon of the contempt implies that grave human rights violations will not be properly addressed. However, the true significance of the pardon is that it suggests that the former sheriff’s actions as a whole were non-reproachable and that the violations can be repeated.

The United States has frequently been criticized by United Nations bodies for its discriminatory practices.[34] In this sense, Arpaio’s discriminatory actions, and the failure to investigate and punish them, are not isolated occurrences. For example, the HRC has recommended that the U.S. government implement measures to effectively combat and eliminate racial profiling by federal, state, and local law enforcement officials, and to expand protection against profiling on the basis of religion, religious appearance, or national origin.[35] The Committee on the Elimination of Racial Discrimination also expressed its concerns because of “the practice of racial profiling of racial or ethnic minorities by law enforcement officials, including the Federal Bureau of Investigation (FBI), the Transportation Security Administration, border enforcement officials, and local police.”[36] One if its recommendations was for the United States to undertake “prompt, thorough, and impartial investigations into all allegations of racial profiling, surveillance, monitoring, and illegal intelligence-gathering; holding those responsible accountable; and providing effective remedies, including guarantees of non-repetition.”[37] Finally, the United Nations Working Group on Arbitrary Detention (UNWGAD) recently found that “the current level of detention of immigrants demonstrates an excessive use of immigration-related detention that cannot be justified based on legitimate necessity”[38] and that it has cost United States taxpayers “approximately $2 billion annually.”[39]

In pardoning Arpaio the United States is sending the message that Arpaio’s actions were not wrong or reprehensible. The government is not only saying that it is acceptable to disregard a judicial order, but that profiling, discriminating against, and humiliating people because of their origin is permissible. In conclusion, this pardon jeopardizes the rule of law and the fundamental pillars of international human rights law.


[1] White House, Office of the Press Secretary (2017, August 25), President Trump Pardons Sheriff Joe Arpaio, available on https://www.whitehouse.gov/the-press-office/2017/08/25/president-trump-pardons-sheriff-joe-arpaio, last visited on 7/13/2018.

[2] United States District Court for the District of Arizona, U.S.A. v. Arpaio, Senior Judge Susan Bolton, 31 July 2017.

[3] United States District Court for the District of Arizona, Ortega Melendres v. Arpaio, District Judge Murray Snow, 24 May 2013.

[4] White House, Office of the Press Secretary (2017, August 25), President Trump Pardons Sheriff Joe Arpaio, available on https://www.whitehouse.gov/the-press-office/2017/08/25/president-trump-pardons-sheriff-joe-arpaio, last visited on 7/13/2018.

[5] BBC (2017, August 26), Joe Arpaio: Life as ‘America’s toughest sheriff’, available on http://www.bbc.com/news/world-us-canada-41015549, last visited on 7/13/2018.

[6] Mettler, Katie (2017, April 5), New Sheriff in town to close Joe Arpaio’s outdoor Tent City jail, of pink underwear fame, available on https://www.washingtonpost.com/news/morning-mix/wp/2017/04/05/new-sheriff-in-town-to-close-joe-arpaios-outdoor-tent-city-jail-of-pink-underwear-fame/?utm_term=.4fbe970c6bd1, last visited on 7/13/2018.

[7] Id.

[8] Mak, Tim (2014, April 8), Arizona’s Tent City Jail: Where prisoners wear pink underwear, eat meatless meals and swelter in the 120-degree heat, available on http://www.washingtonexaminer.com/arizonas-tent-city-jail-where-prisoners-wear-pink-underwear-eat-meatless-meals-and-swelter-in-the-120-degree-heat/article/2546924, last visited on 7/13/2018; and video Salvados: ‘Le daría un abrazo pero tengo la espalda mojada’, available on https://www.youtube.com/watch?v=x07HU0sxxeo&t=3s, last visited on 7/13/2018.

[9] Cassidi, Megan (2017, August 17), Taxpayer tab up to $70M in Joe Arpaio racial-profiling case, available on http://www.azcentral.com/story/news/local/phoenix/2017/08/17/taxpayer-tab-up-70-m-joe-arpaio-racial-profiling-case/576878001/, last visited on 7/13/2018.

[10] Tribe, Laurence; Fein, Robert (2017, September 18), Trump’s pardon of Arpaio can — and should — be overturned, available on https://www.washingtonpost.com/opinions/the-presidential-pardon-power-is-not-absolute/2017/09/18/09d3497c-9ca5-11e7-9083-fbfddf6804c2_story.html?utm_term=.19582877245a, last visited on 7/13/2018.

[11] Cfr. Proposed Memorandum of Amici Curiae from certain members of the Congress in opposition to defendant’s motion for vacatur and dismissal with prejudice (2017, September 27); Proposed Memorandum of Amici Curiae Erwin Chemerinsky, Michael E. Tigar, and Jane B. Tigar (2017, September 11); and Tsai, Robert (2017, September 1), The Troubling Sherriffs’ Movement That Joe Arpaio Supports, available on https://www.politico.com/magazine/story/2017/09/01/joe-arpaio-pardon-sheriffs-movement-215566, last visited on 7/13/2018.

[12] Cfr. HRC, General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 26 May 2004, par. 8.

[13] Ibid, par. 15.

[14] Id.

[15] Id.

[16] Ibid, par. 18.

[17] Cfr. HRC, General Comment No. 20: Article 7 (Prohibition of Torture, or Other Cruel, Inhuman or Degrading Treatment or Punishment), 10 March 1992, p. 15; and General Comment 31: The Nature of the General Legal Obligation Imposed on States Parties to the Covenant, CCPR/C/21/Rev.1/Add. 13, 26 May 2004, par. 18.

[18] Cfr. IACHR, James Terry Roach and Jay Pinkerton v. United States, Resolution 3/87, Case 9.647, 22 September 1987, par. 49; Universalization of the Inter-American System of Human Rights, 14 August 2014, par. 50; Victor Saldaño v. United States, Report No. 24/17, Case 12.254, 18 March 2017, par. 76.

[19] Cfr. IACHR, Lares-Reyes v. United States, Report 19/02, Case 12.379, 27 February 2002, par. 46.

[20] IACHR, Jessica Lenahan (Gonzales) v. United States, Report No. 80/11, Case 12.626, 21 July 2011, par. 116.

[21] Ibid, par. 118.

[22] Ibid, par. 119.

[23] IACtHR, Barrios Altos v. Peru, 14 March 2001, par. 41.

[24] See IACHR, Carranza v. Argentina, Report No. 30/97, Case 10.087, 30 September 1997, par. 50.

[25] Ibid, par. 63.

[26] IACHR, The situation of the rights of women in Ciudad Juárez, Mexico: the right to be free from violence and discrimination, 3 March 2013, par. 128.

[27] IACtHR, Advisory Opinion on the juridical condition and rights of the undocumented migrants, 17 September 2003, par. 101.

[28] Vienna Convention on the Law of the Treaties, article 53.

[29] Stuesse, Angela (2016, September 30), Driving While Latino, available on https://www.huffingtonpost.com/entry/driving-while-latino_us_57ed6ce4e4b07f20daa1052f, last visited on 7/13/2018.

[30] United States District Court for the District of Arizona, Ortega Melendres v. Arpaio, District Judge Murray Snow, 24 May 2013, p. 141-142.

[31] United States District Court for the District of Arizona, U.S.A. v. Arpaio, Senior Judge Susan Bolton, 31 July 2017, p. 3.

[32] Ibid, p. 6.

[33] White House, Office of the Press Secretary (2017, August 25), President Trump Pardons Sheriff Joe Arpaio, available on https://www.whitehouse.gov/the-press-office/2017/08/25/president-trump-pardons-sheriff-joe-arpaio, last visited on 7/13/2018.

[34] Cfr. HRC, Concluding observations on the fourth periodic report of the United States of America, CCPR/C/USA/CO/4, 23 April 2014, p. 4; CERD, Concluding observations on the combined seventh to ninth periodic reports of the United States of America, CERD/C/USA/CO/7-9, 25 September 2014, p. 3; and GA, Report of the Working Group on Arbitrary Detention on its visit to the United States of America, A/HRC/36/37/Add.2, 17 July 2017, par. 24.

[35] Cfr. HRC, Concluding observations on the fourth periodic report of the United States of America, CCPR/C/USA/CO/4, 23 April 2014, p. 4.

[36] CERD, Concluding observations on the combined seventh to ninth periodic reports of the United States of America, CERD/C/USA/CO/7-9, 25 September 2014, p. 3.

[37] Ibid, p. 3-4.

[38] GA, Report of the Working Group on Arbitrary Detention on its visit to the United States of America, A/HRC/36/37/Add.2, 17 July 2017, par. 31.

[39] Ibid, p. 24.