State Party shall expel, return ("refouler”) 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."

By way of contrast article 11 is rather vague and requires legislative and administrative activity which would not easily be enforced by direct judicial action: "Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture."

This declaration attempts both to limit the direct internal effect of the Convention and to take this difficult issue out of the hands of the courts. The letter would substantially diminish the impact of the Convention in the United States by asserting a declaration that the Convention is not self-executing. Amnesty International UŠA opposes in principle any effort to deprive U.S. courts of a vital tool that might contribute significantly to an effective interpretation of the Convention Against Torture. We also oppose any effort to deprive the U.S. courts of the capacity to make the Convention a real bulwark against torture.

THE PROPOSED FEDERAL-STATE RESERVATION

The State Department's letter of December 19, 1989, proposes the following reservation: "The United States shall implement the Convention to the extent that the Federal Government exercises legislative and judicial jurisdiction over the matters covered therein; to the extent that constituent units exercise jurisdiction over such matters, the Federal Government shall take appropriate measures, to the end that the competent authorities of the constituent units may take appropriate measures for the fulfillment of this Convention."

This reservation might be contrasted with the basic

provision of the Convention against Torture in article 2, which guarantees that each "State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." (emphasis added.)

The United States has been involved in the drafting of international human rights conventions which contain "federal clauses" that make provision for the differing capacity of various units within federal states to implement such treaties. See, e.g., American Convention on Human Rights, art. 28. There is no such clause in the Convention against Torture. Indeed, article 2 and the other provisions of the Convention assume that the United States will assure the implementation of the treaty against torture.

The Federal Government has the power under the U.S. Constitution to enter into binding treaties in the areas covered by the Convention.24 Only if the treaty had directly contradicted a specific prohibition of the U.S. Constitution might there have been some question about the need for a reservation.25 No such reservation is needed in this case. The need for a Federal-State reservation is questionable in light of the fact that acts of torture are interpreted as federal crimes under 18 U.S C.A. 242.26 The United States has similarly provided for civil liability or injunction where individuals are deprived under color of law of their rights under the Constitution or the laws of the United States.27

The State Department in its May 10, 1988, letter of submittal gives a far more benign explanation, that is, "This reservation would relate primarily to the obligations contained in Articles 10-14 and 16 of the Convention relating to training of law enforcement personnel, review of law enforcement procedures, investigation of allegations of torture and complaints and civil suits alleging torture. It would not exclude state or local officials from the prohibitions on torture contained in the Convention."

If taken at face value this explanation substantially assuages any doubts one might have concerning the proposed Federal-State reservation. It might, however, be appropriate for the reservation to be attached specifically to articles 10-14 and 16-rather than to the whole Convention. Indeed, the word "primarily" in the ex

24 Missouri v. Holland, 252 U.S. 416, 432-34 (1920).

25 Id., at 434.

26 18 U.S C.A. sec. 242 makes it a criminal offense for anyone under color of law to subject any inhabitants of a state to deprivation of rights, privileges or immunities secured by the Constitution and-laws of the United States. In Williams v. United States, 341 U.S. 97, 100 (1951) a private detective acting under color of law was convicted under sec. 242 because he whipped the victim with a rubber hose and repeatedly hit the victim in the stomach to elicit a confession. 27 42 U.S. C.A.S. 1983.

planation quoted above could support the argument that the reservation applies to everything in the Convention. Hence, Amnesty International USA suggests that the reservation be narrowed along the lines of the State Department's explanation to apply only to articles 10-14 and 16.

c. The Proposed Understanding to the Definition of Torture in Article 1 Article 1 of the Convention against Torture defines torture as follows:

"1. For the purposes of this Convention, the term 'torture' means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions."

"2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application."

The State Department's letter of 19 December 1989 proposes an understanding which would clarify the definition, particularly as to psychological torture:

"The United States understands that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering and that mental pain or suffering refers to the prolonged mental harm caused by or resulting from (I) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personaity; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. The letter goes on to add an additional four understandings to article 1:

"The United States understands that the definition of torture in Article 1 is intended to apply only to acts directed against persons in the offender's custody or physical control."

"The United States understands that 'sanctions' includes not only judicially-imposed sanctions but also other enforcement actions authorized by United States law or by judicial interpretation of such law provided that such sanctions or actions are not clearly prohibited under international law."

"The United States understands that the term 'acquiescence' requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his legal responsibility to intervene to prevent such activity." (An explanatory note in the December 19, 1989 letter notes that "knowledge" has been changed to “awareness" "to make it clearer that both actual knowledge and willful blindness fall within the meaning of 'acquiescence." ")

"The United States understands that noncompliance with applicable legal procedural standards does not per se constitute torture."

Amnesty International USA supports the view that the internationally negotiated definition of torture in article 1 of the Convention should be accepted as such by the United States. Although the effort to achieve greater clarity through elaborate understandings may be understandable, the better course appears to us to be to allow the committee Against Torture to exercise its role in the process of interpretation of the Convention rather than have individual states parties attempt to redefine torture through numerous understandings. We assume the role of the committee, whose competence the United States has commendably recognized, will be to interpret the meaning of the Convention and provide a uniform standard to which all states parties will be held.

d. Proposed Understanding to Article 3

Article 3 provides: "No State Party shall expel, return ("refouler") 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.'

The State Department's letter proposes an understanding that the phrase "substantial grounds" means "more likely than not." The "more likely than not" standard of proof derives from the U.S. Supreme Court decision in INS v. Stevic, 467 U.S. 407 (1984), interpreting U.S. immigration laws relating to the deportation of individuals "whose lives or freedom would be threatened" on grounds of race, religion, etc., if they are deported.

Amnesty International objects to this understanding which would place unwarranted limits upon our obligation not to return persons to countries where there are substantial grounds to believe the person would be in danger of being subjected to torture. The proposed, "more likely than not" standard is not a reasonable interpretation of the treaty language. The Convention speaks of "substantial grounds" to believe one would be "in danger" of being "subjected to torture," not of proof that the person actually will be tortured. The treaty is concerned with possibilities, not probabilities. Substantial grounds would certainly exist in a case where a person faced a 45 percent (or even a 30 percent) chance of being tortured on his return, yet the proposed understanding would exclude that person from the treaty's protection unjustifiably.

The proposed understanding draws an unconvincing parallel with a very different provision on withholding of deportation (243(h) of the Immigration and Nationality Act). That provision and the treaty provision upon which it is based (article 33 of the Refugee Convention) extend protection to a person whose "life or freedom would be threatened" (emphasis added), language very different from that of the Convention against Torture, article 3. The "substantial grounds" language of the Convention against Torture is much closer to the "well-founded fear" standard governing political asylum (208 of the Immigration and Nationality Act). Moreover, given the nature of the risk involved under article 3 (torture rather than simply detention) the higher burden of proof required under 243(h) is not suitable.

e. Proposed Understanding to Article 14

Article 14 provides: "Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation.

The understanding proposed is: "that Article 14 requires a State Party to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State Party."

The May 10 letter of submittal states that article 14 does not provide universal jurisdiction for a private right of action for victims of torture. The State Department recognizes that "some U.S. courts have held that current U.S. law provides a private right of action for acts of torture occurring outside the United States." The letter continues: "this result is not compelled by the Convention." 28 The State Department's comment is an unnecessary and probably incorrect jab at the Filartiga decision, but it is merely a comment and not a reservation or understanding. The comment should, nevertheless, be withdrawn because of its mischievous effect on 28 U.S.C. 1350 and the Filartiga decision.

876, 889 (2d Cir. 1980), which held that a U.S. federal court had jurisdiction to consider a claim that a Paraguayan national had been tortured to death by a Paraguayan police official. The second circuit opinion in Filartlga did not rely on the Convention Against Torture.

Article 14 does not restrict a State's unilateral decision to adopt universal jurisdiction. Additionally, article 14(2) explicitly provides that nothing in this article will mitigate any right a victim may have under a State's national law.

f. Proposed Reservation to Article 16

Article 16 imposes an obligation upon a State Party to: "undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture. . .'

The proposed reservation states: "The United States considers itself bound by the obligation under Article 16 to prevent cruel, inhuman or degrading treatment or punishment only insofar as the term cruel, inhuman or degrading treatment or punishment means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States."

Amnesty International USA strongly urges the administration to withdraw this reservation. The Convention like all treaties, is intended to express a common understanding among the states parties. While reservations that limit a state's obligation in some nonfundamental and precise manner may arguably be permissible, this reservation is objectionable for two major reasons: (1) it undermines the common understanding by limiting the U.S. obligation to that already compelled by domestic law, implicitly inviting a like response from other States and thus undermining the

28 The May 10, 1988 letter cites Filartiga v. Pena-Irala, 630 F.2d

treaty; and (2) it is indefinite in content, in that the U.S. obligation under article 16 will vary as domestic interpretations of the cited Constitutional provisions change. The committee against torture, a body elected by the states parties, should be entrusted with the task of providing reasonable interpretations of article 16 which will bind all the states parties equally.

Reservations such as that proposed also undermine 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.

It should be noted that the most powerful sanctions of the Convention do not apply to acts of cruel, inhuman or degrading treatment or punishment. For example the Convention does not attach criminal sanctions or mandate the extradition or trial of those persons engaged in cruel, inhuman or degrading treatment or punishment. The Convention obligates states parties only to undertake measures to prevent these other acts of ill-treatment. Preventive measures include the training of law enforcement agents to omit cruel, inhuman and degrading treatment. These obligations are not onerous. The United States should adopt article 16 as written, show its willingness to conform its conduct to international standards and indicate by doing so that it has nothing to' fear from the application of international human rights standards.

g. Articles 21 and 22

Article 21 allows a State Party to recognize the competence of the committee to receive and consider claims that another State Party is not fulfilling its obligations under the treaty. Article 22 allows a State Party to recognize the competence of the committee to receive communications from individuals subject to the State Party's jurisdiction.

The Bush administration recommends accepting the jurisdiction of the committee against Torture to deal with State v. State complaints under article 21. We welcome that action by the administration. The U.S. support for the committee enhances the ability of the committee to develop a uniform standard with universal applicability. It is also to be welcomed that the United States may now be an active participant in the articulation and development of these standards.

Amnesty International USA does regret that a similar declaration was not made with respect to individual communications under article 22. Such a narrow view of the Convention will not afford U.S. citizens the sort of protection from torture which they deserve. As an organization committed to highlighting the cases of individuals, be they Prisoners of Conscience and/or victims of torture, we regard this provision in the Convention as a significant one and encourage all governments to allow this right to their citizens.

h. Proposed Reservation to Article 30

Article 30 provides in 30(1) that in State v. State disputes, where the parties cannot agree on an arbitrator, either Party may refer the dispute to the International Court of Justice. Article 30(2) allows any state to declare that it does not consider itself bound by article 30(1).

The State Department has proposed that the United States make the reservation that it does not consider itself bound by article 30(1). The State Department supports this reservation because it complies with prior U.S. policy decisions. In October 1985, the United States withdrew its acceptance of the compulsory jurisdiction of the court pursuant to Article 36 of the Statute of the International Court of Justice. Therefore, the decision not to recognize the International Court in this matter is represented as being in the same vein. Rather than making a decision consistent with the 1985 withdrawal, however, the United States is diminishing its recognition of the International Court. The acceptance of the court's compulsory jurisdiction comes under Article 36(2) of the statute of the court, whereas the court's jurisdiction over matters referred to it or provided for in treaties is quite separate and comes under Article 36(1).

The United States has, in the past, shown an interest in bringing cases to the International Court of Justice when the specific treaties call for the Court to have jurisdiction. Such cases have occurred in the context of bilateral treaties where the treaty provides for jurisdiction before the International Court of Justice.29 With the

29 The United States has sought jurisdiction before the International Court of Justice based upon specific treaty provisions several times in the past decade, including Case Concerning

Continued

present proposed reservation by the State Department the United States is withdrawing further from its acceptance of the International Court of Justice. The reservation is a retreat by the United States from the International Court of Justice and the peaceful resolution of disputes in the international community.

We note that the U.S.S.R. has announced it will withdraw its reservation to Article 30. With the significant political changes occurring in Eastern Europe at this time, it is hoped that other states parties making this reservation will also withdraw it. We recommend this course of action to the United States as well.

In conclusion, Amnesty International USA requests the administration to reconsider the reservations and understandings found in the State Department's letter of December 19, 1989, in light of the concerns we have raised in this memorandum and respond positively to any Senate action to address these concerns. We look forward to continued discussions with the Bush administration and to working together toward speedy ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment of Punishment.

The CHAIRMAN., Thank you very much, indeed, Mr. Nagan.

We now come to Mr. David Forte, Professor of Law at the Cleveland Marshal College of Law at Cleveland State University.

STATEMENT OF DAVID FORTE, PROFESSOR OF LAW, CLEVELAND MARSHAL COLLEGE OF LAW, CLEVELAND STATE UNIVERSITY, CLEVELAND, OH

Mr. FORTE. Thank you, Mr. Chairman. It is nice to see you again. The CHAIRMAN. Thank you.

Mr. FORTE. I shall submit my full statement for the record and get to the nub of the issue right now.

From the testimony we have received, we are now seeming to come to a consensus that a number of reservations are necessary to make this convention effective, both in terms of U.S. laws and concerning with human rights internationally. The only questions are which ones and how they should be refined.

I have been doing significant research in the "travaux preparatoires"-that's French for "committee hearings"-of the negotiations leading to the treaty. The treaty itself fully expected that there would be reservations.

It is a multilateral treaty. Multilateral treaties, by their nature, cannot cover every type of nuance in every legal system. So, very often, multilateral treaties expect reservations.

Let me give you some examples.

On the definition of "torture," according to the commentary of two of the prime negotiators of the treaty, the representatives of Holland and Sweden, the definition of torture in article 1 was not designed to be a penal definition. I repeat: it was not designed to be a definition that was to be transported, as a whole, into criminal law.

United States Diplomatic and Consular Staff in Teheran, 1980 I.C.J. 3, 4, where the United States asserted jurisdiction based upon provisions in the Treaty of Amity, Economic Relations and Consular Rights of 1955. The International Court of Justice also based jurisdiction upon the Optional Protocols to Vienna Convention of 1961 and 1963 on Diplomatic and Consular Relations. In Case Concerning Delimitation of the Maritime Boundary in the Gulf of Maine Area, 1984 I.C.J. 246, 249, jurisdiction was provided by the Special Agreement dated March 29, 1979, between the United States and Canada. On February 6, 1987, the United States filed in the Registry of the International Court of Justice an application instituting proceedings against Italy. The jurisdiction in the case, Elettronica Sicula S.p.A. (United States of America v. Italy), is based upon Article XXVI of the Treaty of Friendship, Commerce and Navigation signed February 2, 1948, between Italy and the United States. International Court of Justice Communique, No. 87/ 2, February 9, 1987.