We have continued concern, however, with respect to certain limitations proposed by the Bush administration in the December 19, letter to you, Senator Pell. We have expressed our commendation to the Bush administration, as well as detailed our continuing concerns in a letter and memorandum dated January 26 to Secretary of State Baker. We ask that these documents be included in the record of these hearings.

We are particularly concerned that the United States has taken a reservation to article 16 of the convention, which would obligate the United States to prevent cruel, inhuman, and degrading treatment or punishment and educate and train law enforcement officials to that end.

We urge that this reservation to article 16 be withdrawn. It undermines the common understanding of the meaning of this article and is indefinite in its content.

The committee against torture should be entrusted with the task of providing reasonable interpretations that will bind all states parties uniformly.

The reservation also undermines the ability of the U.S. Government to rely upon the treaty to criticize the offensive practices of other states parties who may seek to shield themselves by, justifications based on their own national laws.

Further, with reference to article 3, that is, the return or extradition of persons to a country where they may face torture, we regard the "more likely than not" standard that the Bush administration proposes as an unreasonably high burden of proof. We recommend the "well-founded fear" standard similar to that applied in the political asylum cases.

We note that the Bush administration does not recommend accepting the optional individual complaint procedures. Since the United States has, by comparative standards, an excellent record on torture, we believe that it has nothing to fear in granting its citizens this right.

We urge this committee and the Senate of the United States to consider the reality of torture and the need for practical tools to eradicate, this practice.

Ratification of the convention, as it is, will place the power and the prestige of our country squarely behind the international effort to prohibit and eradicate torture. Americans believe that their Government does, and ought to, lead the fight to end torture worldwide. They expect and want an expeditious response from the Senate in giving its advice and consent to ratification against torture.

Thank you, sir.

[The prepared statement of Mr. Nagan and addenda follow:]

PREPARED STATEMENT OF WINSTON NAGAN

Mr. Chairman, I am Winston Nagan, Chairman of the Board of Amnesty International USA. Amnesty International commends you for holding these hearings. We appreciate the opportunity to testify in support of U.S. ratification of the Convention Against Torture. We support U.S. participation in the established legal framework to eliminate torture.

INTRODUCTION

Torture shocks the conscience of all humankind. It is repugnant to the American people. It is condemned as an affront to human, dignity by our government, by the Congress in the Congressional Resolution Against Torture passed in 1984 (P.L. 98447), by the courts of the United States and by Presidents of the United States. Former President Reagan described torture as "an abhorrent practice" when he called for ratification of the Convention Against Torture. President Bush earmarked the Convention Against Torture as a matter of "urgent priority" for his administration. When we condemn torture and seek to establish a framework of international cooperation to end torture throughout the world, we place ourselves squarely and unequivocally on the side of the rule of law and repudiate the rule of violence and anarchy. We express the same profound concern that people of decency have expressed throughout the world.

The international rule of law in its most effective form not only protects the individual from the horrors of torture but is the cornerstone of freedom and democracy as we understand it in the United States. The Convention Against Torture not only codifies international law with respect to torture, it also coincides with the conviction of the American people that torture has no place in a world that honors even the most limited conception of human decency and human freedom.

The right to be free from torture is universally regarded as a fundamental human right. No state of emergency can give rise to an exception to this fundamental right. The world community has clearly indicated that torture is contrary to international law.

Although there is near universal condemnation of torture, the practice of torture is widespread. Amnesty International has documented the systematic use of torture in more than one third of the countries of the world in the past decade, with additional instances of torture reported from many more countries. I have with me a list of just the major reports Amnesty International has published in the last year, with torture noted in the title, and I ask to submit this list for the record of these hearings.

The United States joined the international community in its decision to develop a convention as a framework of international cooperation to end these practices, and spent seven years during the Reagan Administration negotiating with other governments the text of the Convention Against Torture as it was adopted by the General Assembly in December 1984. We come before you to urge U.S. ratification of that Convention as it was negotiated during that period.

THE PROBLEM OF TORTURE

Amnesty International is uniquely positioned to stress the critical need for ratification of the Convention Against Torture. We have kept up the pressure to secure the abolition of torture since launching a major campaign for its eradication of torture in 1972. In the early 1980's the Declaration Against Torture was promoted in the United Nations by a grassroots petition containing over one million signatures of ordinary men and women from all parts of the world.

Amnesty International published its report on "Torture in the Eighties" in 1984, the same year as the adoption of the Convention now before us. Between 1972 and 1989, we interceded on behalf of thousands of individuals who were in danger of being tortured in more than half of the countries of the world.

We document the reality of torture; we look torture in the face. We document the gouging out of children's eyes, the torture to death by molten rubber, the use of electric shocks. Always, the reality is worse than anyone can imagine. We know the problem in terms of individual suffering and call upon individuals and governments to find solutions to this problem.

One of the most pressing issues relating to torture from our experience is, as we stated in our reports, that "torture is usually part of the state-controlled machinery to suppress dissent. Concentrated in the torturer's electrode or syringe is the power and responsibility of the state." In our view, it is also the responsibility of states to address this reality among themselves. The Convention Against Torture is one way to do that and it merits the full support of the U.S. Government.

THE CHALLENGE TO THE SENATE

It is clearly in the U.S. national interest to be a party to this Convention. It is a major purpose of government to seek and maintain the security and well-being of its citizens both at home and abroad. Whatever the framework of legal protection of

citizens inside the United States, it is readily apparent that the universal prohibition of torture enhances the protection that law can provide to American citizens everywhere. The jurisdiction over torture envisioned in the Convention expands the rule of law at the expense of the rule of violence. In the long run, the protection of our citizens at home and abroad is better secured by respect for law.

It is widely known that the United States is the only permanent member of the U.N. Security Council not to have ratified the Convention Against Torture. It is simply inappropriate that the U.S.leadership role in the Security Council and the larger international system be encumbered by what could be perceived to be a lukewarm commitment to the universal eradication of torture. Indeed, it is in the national interest that the United States not only lead, but be seen to lead, in the promotion of human rights and freedom.

TOWARD A CREDIBLE RATIFICATION

The United States does have a credibility problem in the area of human rights covenants and conventions. The United States has played a leading role in the development of the major human rights treaties, but has declined to ratify many of them. The U.S. role was particularly conspicuous in the development of the Convention Against Torture. A failure to follow through with ratification would be unfortunate indeed.

Further serious credibility problems will arise if in the process of ratification, the United States undercuts the substance of the Convention Against Torture through the attachment of limiting reservations, understandings and declarations. Moreover, it sets an unfortunate precedent for other nations whose record on torture is far less exemplary than that of the United States.

For these reasons, we were pleased that officials of the Bush administration were willing to discuss the concerns of Amnesty International with regard to proposed reservations, declarations and understandings. We appreciate the priority the administration has given this Convention and the flexibility it has shown on points of concern to us.

We have continuing concern however with respect to certain of the reservations, understandings and declarations proposed by the Bush administration in the 19 December letter to you, Senator Pell. We have expressed our commendation to the Bush administration as well as detailed our continuing concerns in a letter and memorandum dated 26 January to Secretary of State Baker. We ask that these documents be included in the record of these hearings.

Amnesty International would prefer that the Convention be ratified as it was negotiated, giving the broadest possible reach to its effect in eradicating torture and other cruel, inhuman and degrading treatment or punishment.

We are particularly concerned that the United States has taken a reservation to article 16 of the Convention which would obligate the United States to prevent cruel, inhuman and degrading treatment or punishment and educate and train law enforcement officials to that end.

We urge that this reservation to article 16 be withdrawn for reasons cited on page 18 of our memorandum to Secretary Baker. It undermines the common understanding and is indefinite in its content. The Committee Against Torture should be entrusted with the task of providing reasonable interpretations which will bind all states parties uniformly. The reservation also undermines the ability of the U.S. Government to rely upon the treaty to criticize the offensive practices of other states parties who may seek to shield themselves by justifications based on their own national laws.

Further, with reference to article 3, that is, the return or extradition of persons to a country where they may face torture, we regard the "more likely than not" standard the Bush administration proposes as an unreasonably high burden of proof. That burden, of proving a greater than 50 percent probability of torture in an individual case, is a practical obstacle to article 3 being applied in most cases and is an unreasonable interpretation of the treaty language. We recommend the "well-founded fear" standard similar to that applied in political asylum cases.

We note that the Bush administration does not recommend accepting the optional individual complaint procedures (article 22). Since the United States has by comparative standards an excellent record on torture, it has nothing to fear in granting its citizens this right. As an organization committed to highlighting the cases of individuals, we regard this provision of the Convention as a significant one and encourage all governments to allow this right to their citizens.

CONCLUSION

We urge this Committee and the Senate of the United States to consider the reality of torture and the need for practical tools to eradicate this practice. As an organization focused to combat the practice of torture and to assist individual human beings who have suffered and who are threatened by the continued practice of torture, we want to state clearly and unequivocally that this Convention gives us one more tool to carry on that work.

More importantly, U.S. ratification of the Convention as it is will place the power and prestige of our country squarely behind the international effort to prohibit and eradicate this practice. Americans believe that their government does and ought to lead the fight to end torture worldwide. They expect and want an expeditious response from the Senate in giving its advice and consent to ratification of the Convention Against Torture.

LETTER FROM AMNESTY INTERNATIONAL USA

The Hon. JAMES A. BAKER III,

Secretary of State, U.S. Department of State, Washington, DC.

January 26, 1990.

Dear Secretary Baker: I have the honor to submit to you a document prepared by Amnesty International USA in support of the efforts of the Bush administration to secure the advice and consent of the U.S. Senate to the ratification of the Convention Against Torture and Cruel, Inhuman or Degrading Treatment of Punishment. This document will be presented with our testimony on the Convention in hearings before the Senate Foreign Relations Committee, and it is anticipated that it will become part of the record or these important proceedings.

As a non-governmental organization of ordinary people from all parts of the world, Amnesty International has been deeply involved in documenting the magnitude of the problem of torture on a worldwide basis, and working for practical solutions that might secure the eradication of the practice of torture as well as provide relief to individual victims of torture.

It is in this spirit that Amnesty International USA welcomed the signing of the convention on April 18, 1988. We saw this step as a positive signal by the United States to the American people and the world at large, that the United States takes seriously its role in the promotion and protection of human rights. Indeed, we have welcomed the role in the development of the Convention as an important aspect of the worldwide effort to eradicate torture and other human rights abuses enumerated in the Convention.

The adoption of the Convention by the United Nations on December 10, 1984, with the support of the United States, was a major step forward in the struggle to eliminate torture. Securing the Senate's advice and consent to ratification, and the achievement of ratification itself, will constitute further major advances in the work against torture. Appropriate ratification of the Convention by the United States will significantly augment the process of establishing effective, universal honored standards of conduct for all governments, and will contribute significantly to the enforcement of the international prohibition against torture in practice.I11U.S. adherence to the Convention Against Torture is of unquestioned importance. We commend the Bush administration for its review of the Convention and the transmittal of it to the Senate for its advice and consent. We are appreciative of the priority the administration has given this Convention and the flexibility it has shown on points of concern to Amnesty International.

Amnesty International would prefer the Convention to be ratified in the manner it was negotiated giving the broadest possible reach to its effect in eradicating torture. As a result we deem it appropriate to express our concerns about possible limitations on the interpretation or understanding of parts of the instrument. It is our hope and expectation that the ratification process ultimately will contribute to the broadest practicable framework for the legal eradication of torture and all other cruel, inhuman or degrading treatment or punishment.

Sincerely,

WINSTON P. NAGAN, Chair, Amnesty International USA.

MEMORANDUM

On April 18, 1988, the United States signed the Convention Against Torture, Cruel, Inhuman or Degrading Treatment or punishment. On May 20, 1988, President Reagan submitted the Convention for the advice and consent of the Senate as to ratification with a May 10, 1988, Letter of Submittal of the Department of State. On December 19, 1989, Janet G. Mullins, Assistant Secretary of State for Legislative Affairs, sent a letter to Claiborne Pell, Chairman of the Senate Foreign Relations Committee suggesting the reservations, understandings and declarations that the Bush administration wishes to attach to the treaty at the time of ratification.1

This memorandum summarizes the essential substance of the Convention, provides a short history of the Convention, explains why Amnesty International advocates the ratification of the treaty, and analyzes the reservations, understandings and declarations which the letter of 19 December suggested.

1. The Substance of the Convention Against Torture

The Convention against Torture, Cruel, Inhuman or Degrading Treatment or Punishment makes more specific and provides some mechanisms for assuring the implementation of the fundamental norm against torture in the Universal Declaration of Human Rights and in the International Covenant on Civil and political Rights: "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

The Convention contains 33 articles. The following description gives the essence of each of these provisions, but specific questions must, of course, be resolved by reference to the language of each article. The treaty in article 1 defines torture as an "act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person. Article 2 obligates ratifying states to "take effective legislative, administrative, judicial or other measures to prevent such actions of torture in any territory under its jurisdiction."

Article 3 obligates governments not to send, extradite or expel a person to a country where the person would be in danger of being tortured. Article 4 requires that torture be made a criminal offense with a severe penalty. Article 5 requires governments to establish criminal jurisdiction over criminal offenses involving torture when the offense was committed in the territory of the country or when the torturer or victim is a national of the country. Article 6 requires a government which finds a torturer in its territory to arrest the individual, determine whether it intends to prosecute the torturer and notify potentially interested states of its decision. Article 7 states that governments shall either extradite or submit the case to the competent authorities for the purpose of prosecution. Article 8 provides that torture shall be deemed to be included in any extradition treaty between states parties to the Convention and otherwise facilitates extradition. Article 9 indicates that governments shall assist each other in criminal proceedings against torturers.

Article 10 requires that governments ensure that law enforcement, medical and prison personnel shall be trained about the prohibition against torture and the prohibition should be included in their instructions. Article 11 provides that governments should keep instructions, methods and practices relating to arrest, interrogation and detention under review so as to prevent torture. Article 12 indicates that governments should undertake a prompt and impartial investigation wherever there is reasonable ground to believe that torture has been committed in its jurisdiction. Similarly, article 13 ensures that any individual has the right to complain that she has been subjected to torture and that the complainant as well as witnesses should be protected against intimidation as a consequence of the evidence they give.

Article 14 ensures that a victim of torture can obtain fair and adequate compensation, including rehabilitation. Article 15 requires that governments not use any

1 14 M. Whiteman, Digest of International Law S7, at 137-38 (1970), provides basic definitions of the terms "reservation," "understanding," "declaration" and "statement":

The term "reservation" in treaty making, according to general international usage, means a formal declaration by a State, when signing, ratifying or adhering to a treaty, which modifies or limits the substantive effect of one or more of the treaty provisions as between the reserving State and other States party to the treaty.

The term "understanding" is often used to designate a statement when it is not intended to modify or limit any of the provisions of the treaty in its international operation but is intended merely to clarify or explain or to deal with some matter incidental to the operation of the treaty in a manner other than as a substantive reservation.

The term "declaration" and "statement" are used most often when it is considered essential or desirable to give notice of certain matters of policy or principle, without an intention of derogating from the substantive rights or obligations stipulated in the treaty.