CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT, TREATY DOC. 100-20

TUESDAY, JANUARY 30, 1990

U.S. SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, DC.

The committee met, pursuant to notice, at 10:05 a.m. in room SD419, Hon. Claiborne Pell, (chairman of the committee) presiding. Present: Senators Pell, Helms, Pressler and Murkowski.

The CHAIRMAN. The committee will come to order. This morning's hearing will focus on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

After some 7 years of intense negotiation in which the United States played an active role, the convention was unanimously adopted by the U.N. General Assembly on December 10, 1984, the 36th Anniversary of the Universal Declaration of Human Rights. It has now been ratified by 50 States and signed by 22 others.

The convention represents a major step forward in the international community's campaign to combat torture, because it makes. torture a criminally punishable offense. Each party to the convention is obligated to prosecute torturers found in its territory or to extradite them for prosecution elsewhere.

The Reagan administration submitted the convention in May 1988 with 19 proposed U.S. conditions, many of which were of concern to the human rights community, the American Bar Association and others. I appreciate very much the efforts of this administration to address these concerns and reduce the proposed list of conditions.

In 1984 Congress enacted a joint resolution, which I sponsored along with Senator Percy, reaffirming the U.S. Government's opposition to torture. By ratifying this convention we can demonstrate that the United States is determined to take concrete steps to eradicate this evil, horrible and inhumane practice.

I will now turn to the ranking minority member, Senator Helms. Senator HELMS. Mr. Chairman, thank you very much. I guess the record ought to show at the outset that nobody is in favor of torture. Not anybody on this committee, not anybody in Congress, not anybody in Government. Nobody favors torture under any circumstances. I just want to get that on the record before we begin.

The 8th Amendment to our Constitution prohibits cruel and inhuman punishment. That has been extended by the Supreme Court in this century, utilizing the due process clause to protect individ

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uals under arrest and those merely being questioned by law enforcement officers.

So, this country just does not torture anyone, by law or in fact, and if anything our Supreme Court jurisprudence overly protects some criminal suspects and criminal defendants, and even, by way of appeal, convicted criminals.

So, I must be frank. This Torture Convention reminds me of another convention which required 35 years before the Senate got around to approving it and 37 years before that convention entered into force. To paraphrase our former President, Ronald Reagan, here we go again.

I am referring, of course, to the Genocide Treaty-the genocide convention, to use its proper name. Now, the Torture Convention appears to be a direct analog with the genocide convention. The genocide convention was not approved by the Senate until-untila package of reservations, understandings and declarations were approved by the Senate in its resolution of ratification. I had a little something to do with that. Sam Irvin started the job, I will say to my friend Judge Sofaer.

Now, that package, voted upon in its entirety, protected the Constitution, which is my interest, and also preserved constitutional protections. If this convention is to be approved, I think it is our constitutional obligation to do the same with this one as we did with the genocide convention.

Now, I will pursue my specific concerns when I begin to question the witnesses appearing before us this morning. However, let me call your attention, Larry, to a right interesting bit of information.

Look down the list of countries which have ratified the Torture Convention. For example, the Soviet Union, Communist Chinayou know, that nice little crowd over at Beijing that made paste out of that fellow standing up before the tanks they signed it.

Afghanistan, Bulgaria, and East Germany, which still has secret police, Hungary, which still has secret police, Czechoslovakia at the time of its dictatorship, and Mr. Gorbachev, the great PR man, has not closed up his so-called mental hospitals and he has not released the political prisoners being brainwashed there. As for Communist China, I guess running over innocent civilians with tanks is not torture under this convention.

Now, I raise these questions about the administration because people identified and associated with the administration have decreased-decreased-the number of reservations and understandings offered by the previous administration. In fact, I do not understand the entire approach to Communist China, I confess that, and China's massive violations of human rights. I am also concerned that this Torture Convention is a dagger pointed at the heart of Israel by the Arab States and the PLO and, of course, the PLO does not believe in torture.

In conclusion, Mr. Chairman, I think we had better take a very hard look at this convention. More than 100 governments have neither signed nor ratified this document, and those who have include some of the worst violators of human rights, not only in this century but in the history of mankind.

Now, in North Carolina, when you catch a skunk in a bag you had better know what you have done. I feel we had better be very

careful about how we approach this convention and I intend to do so, and it might take a little time.

So I thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much indeed. We now will hear from Judge Sofaer, but first, Senator Pressler.

Senator PRESSLER. Thank you, Mr. Chairman.

Like my distinguished colleague from North Carolina, I am also concerned about the Torture Convention. From a legal perspective, the Torture Convention contains much loose and imprecise language which raises many ambiguities.

I do not support the roundabout compulsory jurisdiction_mechanism which can subject the ratifying states party to the International Court of Justice.

I do not know what the terms, "cruel, inhuman and degrading" mean outside the U.S. Constitution. Despite the proposed reservation for article 16, that reservation does not speak to anything outside of punishment-for example, arrest, confinement and interrogation.

I do not like the role of the committee found in articles 17 through 24. I do not like the deletion of common law defenses which were proposed by the Reagan administration. Frankly, the reason for their omission in the Bush provisos is unclear, and perhaps we will hear more about that.

I strongly believe that there must be implementing legislation, as with the genocide convention, before the President can implement ratification of this document.

What happened to the requirement in American law laid down by the U.S. Supreme Court 178 years ago in the U.S. v. Smith decision by Justice Story that no one can be subjected to trial and punishment under American law without a statute first having defined the crime and then provided for a specific punishment? I do not support treaties which change American domestic law and legal procedures.

Some of the questions I have I hope Judge Sofaer, whom I welcome here, and others, will address. I am puzzled by the obvious contradiction in the administration's approach to asylum and deportation.

The standard for asylum, as you present it, is that the person or persons seeking asylum could more likely than not face persecution if they sent back to where they came from, but the standard imposed by the Supreme Court to prevent deportation is a well-founded fear of persecution in the Cardoza-Fonseca case. This is a higher standard.

Now also, I am puzzled by the absence of the human rights assistant secretary and international organizations assistant secretary. Are there differences in various U.N. conventions that make some merely legal and some merely political?

What are the specific reasons for the reductions of the Reagan package of reservations, understandings and declarations by the Bush administration? There seem to be a difference here.

As I am sure you are all well aware, I voted to override the President's veto on the issue of statutory temporary asylum for Chinese students. Is the PRC a violator of human rights, and if so,

why has the PRC not been condemned for these violations by the United Nations?

So those are some of the things I hope are addressed in the comments of the witnesses that will perhaps help clarify this whole matter.

The CHAIRMAN. Thank you. Judge Sofaer and Mr. Richard, would you please come forward? Your statements will be printed in full in the record. If they can be abbreviated, it would be appreciated.

STATEMENT OF HON. ABRAHAM D. SOFAER, LEGAL ADVISER, DEPARTMENT OF STATE

Mr. SOFAER. Certainly, Mr. Chairman, and thank you very much. It is an honor to be here this morning. I will summarize my statement and appreciate that the full statement will appear in the record.

The CHAIRMAN. Without objection.

Mr. SOFAER. I am honored to appear before the committee this morning to urge the prompt and favorable action of the committee on the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

We are prepared to address the questions that were raised earlier, as well as any other questions that Senators may have. We believe that the reservations, understandings and declarations that are now proposed which now include the capital punishment understanding that we have just recently sent to the committee, Mr. Chairman, are satisfactory and protect U.S. interests, but if there are other reservations or understandings that the committee wishes to propose in order for us to adopt this convention in a collegial spirit, certainly the administration would be willing to entertain those suggestions.

The Bush administration places a high priority on early ratification. The need for this convention, Mr. Chairman, stems from the tragic fact that torture continues to be practiced on a daily basis in many nations throughout the world, systematically and with the support or acquiescence of government officials.

As President Reagan said in his letter of transmittal, this convention marks a significant step in the continued development of appropriate international measures to eliminate such barbaric practices. The fact that some of the biggest offenders have already signed and ratified the convention is not one that we should be unhappy about, Mr. Chairman. It is one that we should be pleased about, because while their motivation might be to pretend that they are abiding by this convention, they will open themselves up to the remedies of this convention and have opened themselves up to the remedies of this convention by signing and ratifying it.

International law already condemns torture, and I refer in my prepared statement to the many conventions and declarations in which torture is condemned under international law. This convention builds on those declarations and other agreements.

The essential purpose of this convention is to codify international law regarding the crime of torture, and to require states party to deter and punish acts of torture pursuant to their domestic laws.

The basic obligations are to take administrative, judicial or other measures to prevent torture within the territory of each party, to make clear that torture cannot be justified, to make all acts of torture criminal offenses and establish jurisdiction over them, and to decline to expel, return or extradite a person to another state where there are "substantial grounds for believing that he would be in danger of being subjected to torture."

This convention mirrors the approach adopted by the international community in the area of terrorism. Really, if I may suggest, Senator Helms, it is more similar to the terrorism conventions than it is to the genocide convention in more ways than this-in many, many ways.

What it does is, it tells each state either prosecute torturers or extradite them other than to a state, obviously, which would torture the extradited party. We believe in this approach of prosecute or extradite. We think that the international terrorism conventions are beginning to work, and we think that this approach is the right approach for international law enforcement types of agreements.

We do agree that there is no need for the legal protections of the convention against torture in the United States. Existing U.S. law makes any act falling within the convention's definition of torture a criminal offense as well as a violation of various civil statutes. We do not have a torture problem within the United States. Nonetheless, we believe, as a member of the international community, that we must stand with other nations in pledging to bring to justice those who engage in torture, whether within the U.S. territory, or in the territory of other countries, and that is why we support this convention.

We have, as you have mentioned, Mr. Chairman, modified the package of reservations, understandings and declarations. We wish to thank, Mr. Chairman, your staff, the staff of this committee, and the many people in private organizations who worked with us in developing this modified package. We think they showed an appropriate regard for our legitimate interests, and at the same time they pressed their own case well, and effectively. It was the kind of interaction between staff and the executive branch staff that is truly beneficial to the legislative process.

We do think, however, that some reservations and understandings are essential, and those are the ones that are in the package, plus the one on capital punishment. This is going to be a criminal penalty.

The torture convention requires us to impose criminal penalties, and it is very important that we be clear about what is going to be punished. We also have a variety of provisions that relate to the nature of our federalism and other peculiarly American issues.

I say that with respect to article 16, there have been concerns about our reservation there. We think it is a good reservation, Mr. Chairman. We must distinguish between torture and cruel, unusual and inhumane treatment prohibitions. The latter is not at the center of this treaty. It is important. Obviously, we agree with it. But the heart of this treaty is the prohibition against torture. We do not want to see a bunch of different rules and standards developed with respect to cruel, unusual and inhumane treatment, and therefore, we have proposed that within the United States the