meaning of "cruel and inhumane treatment" will be the same as the meaning of our Constitution's cruel and unusual penalties clause.

We would be prepared, of course, to answer any of your questions about the package, Mr. Chairman.

We have agreed to a limited role for the committee against torture. We think it is proper for us to respond to the claims of other states that are members, that are signatories and parties, and where the committee believes we should respond.

We do not believe we should respond to every individual claim of torture before the committee. Of course, we would publicly respond, but we do not believe that we should put the United States through the expense of responding to every single complaint that anyone could conceivably raise.

Having served 6 years in the district court, Mr. Chairman, I can tell you that any claim you could possibly imagine that a human being could raise would understate the types of claims that people find in the capacity and the imagination to raise in our own Federal courts, let alone in an international committee against torture. With respect to the ICJ, Mr. Chairman, you know that we have underway a major initiative with the other members of the permanent five to the security council to develop a method for utilizing the ICJ that would be protective of the legitimate interests of all parties before the court. We feel that we should not subject the United States to litigation before the ICJ under this convention until those protections are put into place.

When we have that convention negotiated and approved by the Senate, we would then come back to the Senate at that time and ask for the application of that set of procedures and protections to every convention in which we subject ourselves to the court's review.

The lawful sanctions issue, Mr. Chairman, deserves just a word. We do reserve the right to impose what are referred to as lawful sanctions. We think it is appropriate to recognize that some countries might treat as lawful or claim as lawful sanctions that are in fact violative of the convention, and in that situation we propose that those sanctions would not be considered lawful sanctions.

We feel the death penalty provision is necessary in light of the Soering decision, which I could discuss with the committee if it sees fit to talk about that.

We do believe, Mr. Chairman, that implementing legislation should be adopted before the convention is deemed to be effective. In conclusion, Mr. Chairman, the administration strongly supports the early ratification of this important human rights treaty. Prompt ratification will make clear our collective abhorrence and condemnation of torture.

In reviewing and modifying the package of proposed reservations, declarations and understandings, we have worked hard both within the executive branch and with the human rights community to take into account the various express concerns and interests. We believe this is a good treaty with the reservations, understandings and declarations, and one which will serve our international interest as well as those of the international community.

I will be pleased to answer any questions you may have.

[The prepared statement of Mr. Sofaer follows:]

PREPARED STATEMENT OF ABRAHAM D. SOFAER

Mr. Chairman: I am honored to appear before the Committee this morning to urge prompt and favorable action on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The Bush administration places a high priority on the early ratification of this important human rights treaty, for substantive as bell as symbolic reasons. 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 to the Senate, this Convention marks a significant step in the continued development of appropriate international measures to eliminate such barbaric practices. Early ratification of the Convention by the United States bill clearly affirm our known abhorrence and condemnation of torture.

International law already condemns torture. In that sense, the Convention breaks little new ground.

For example, prohibitions against torture and other forms of ill treatment are contained in one form or another in the 1948 Universal Declaration of Human Rights (Article 5), the American Declaration of the Rights and Duties of Man (Articles 15 and 16), and the 1975 United Nations Declaration on the Protection of All Persons from Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment. Moreover, the Geneva Conventions of 1949 make torture in wartime a grave breach of the Conventions and require its Parties to prosecute or extradite individuals responsible for torture. These declarations and conventions have been widely supported in the international community; for example, the Geneva Convention for the Amelioration of the condition of the wounded and sick on armed forces in the field of 1949 has been ratified by 167 states.

The Convention Against Torture builds upon these international human rights instruments by adding an agreed international peacetime regime for cooperation among States in the prevention of torture and the punishment of those who engage in acts of torture.

The United States contributed significantly to the development of the Convention. We did so with broad bipartisan support.

In 1984, Congress passed and the President signed a Joint Resolution (Pub. L. 98447, Oct. 4, 1984) reaffirming the continuing policy of the United States to oppose acts of torture whenever they occur and requesting the President to continue U.S. involvement in the formulation of this Convention.

The text of the Convention was elaborated within the context of the United Nations Commission on Human Rights and was adopted by unanimous consent in the U.N. General Assembly on December 10, 1984. It entered into force on June 16, 1987 and now has 48 Parties. The United States signed the Convention on April 18, 1988, and it was submitted to the Senate for advice and consent to ratification later that year.

I. THE CONVENTION'S REQUIREMENTS

The essential purpose of the 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 of a State Party are:

-To take administrative, judicial or other measures to prevent torture within their territory pursuant to Article 2, and to undertake to prevent cruel, inhuman or degrading treatment or punishment not amounting to torture pursuant to Article 16;

-To make clear that torture cannot be justified and that no order from a superior officer or public authority may be invoked as a justification of torture;

-To make all acts of torture criminal offenses, to establish jurisdiction over those offenses when they are committed within the territory of any State Party (or on board its ships or aircraft), by its nationals or (if considered appropriate) against its nationals; and

-To decline to expel, return or extradite a person to another State when there are "substantial grounds for believing that he would be in danger of being subjected to torture." By requiring all States Party to ensure that those responsible for torture will be brought to justice, the Convention will operate to deny safe haven to any who engage in such heinous offenses.

You will recognize, Mr. Chairman, that the Convention has adopted a scheme that mirrors the approach adopted by the international community in the area of terrorism. The basic structure of this Convention parallels that of the 1970 Hague "Hijacking" Convention, the 1971 Montreal "Sabotage" Convention, the 1973 Internationally Protected Persons Convention, and the 1979 Hostage Taking Convention. The United States has long been a party to each of these multilateral treaties, and the Senate recently gave its advice and consent to ratification of yet another treaty which follows the same general structure and legal approach-the IMO Maritime Terrorism Convention. In all these treaties, by common agreement, States Party undertake to criminalize specified conduct under their domestic laws and to establish so-called "universal jurisdiction" to prosecute offenders found within their territories, or to extradite them to other countries for prosecution. (A similar but more limited approach is followed in the genocide convention, to which the Senate gave its advice and consent to ratification, on February 19, 1986.)

Mr. Chairman, some may feel the United States has no need for the legal protections of the Convention Against Torture. Existing U.S. law makes any acts falling within the Convention's definition of torture a criminal offense, as well as a violation of various civil statutes. Potential remedies include incarceration, compensation, and the full range of equitable relief. Any Public official in the United States, at any level of government, who inflicts torture (or instigates, consents to, acquiesces in, or tolerates torture) would be subject to an effective system of control and punishment in the U.S. legal system.

This administration nonetheless believes, Mr. Chairman, that, as a member of the international community, we must stand with other nations in pledging to bring to justice those who engaged in torture, whether in U.S. territory or in the territory of other countries. If we fail to become a party, we will lose credibility as well as the ability to influence the direction of developments in this important area. The United States opposes the use of torture, just as we oppose terrorism, genocide, or illicit drug trafficking, each of which is covered by multilateral conventions to which this nation has recently become a party.

We therefore strongly believe it is appropriate and in our interests to ratify this convention. The "Package" of Reservations, Declarations and Understandings:

Mr. Chairman, while we support ratification of the Convention, we believe the U.S. should approve it only after certain protective measures. The Convention's wording, for example, is not in all respects as precise as we believe necessary. The Convention was negotiated on a multilateral basis, within the United Nations, and differing points of view and differing legal systems are necessarily reflected in the final text.

If the Convention were simply a political statement, imprecision would cause no difficulties. However, because the Convention is a legal instrument and creates legal obligations, and especially because it requires establishment of criminal penalties under our domestic law, we must pay particular attention to the meaning and interpretation of its provisions, especially concerning the standards by which the Convention will be applied as a matter of U.S. law.

The administration in fact believes that a number of reservations, declarations and understandings to the Convention are necessary to ensure that we know precisely the scope of the domestic and international legal obligations the United States will assume when the Convention is ratified.

As you know, Mr. Chairman, a fairly extensive "package" of proposed reservations, declarations and understandings was prepared by the previous administration and included in the report of the Secretary of State that accompanied the President's original transmittal of the Convention to the Senate in May 1988. The details of those proposals, and the reasons behind them where described in the memorandum attached to the President's transmittal message (Treaty Doc. 100-20). The package was criticized by some human rights groups, some members of the bar, and other interested parties as unnecessarily broad. These groups were concerned that, even if the proposed reservations would have no affect on the United States implementation of the Convention, the reservations could be seized upon by other states which would seek to invoke them to justify acts of torture.

At your suggestion, Mr. Chairman, we undertook last fall to review the original "package" in light of these criticisms to see whether all of the proposals were in fact necessary and whether some simplification and improvement could be made. In conducting this review, we (and by "we" I mean both the State Department and the Department of Justice) met and consulted not only with Senate staff but also with representatives of concerned organizations such as Amnesty International and the American Bar Association, among others. This was a mutually beneficial process. It enabled us to explain the concerns of the Executive Branch which lay behind the

initial package, and at the same time to understand why some elements of that package posed some concerns to the international human rights community.

As a result of this review, we revised and simplified the "package" of reservations, declarations and understandings, and transmitted the revised package to you by letter earlier this month. We have briefed committee staff, as well as representatives of concerned human rights groups, on the changes, which we are advised addressed most of the principal concerns they had about the original package.

I will not take the committee's time to review in detail each element of the revised "package," or the changes from the original "package," or the reasons for those changes. Our position on these issues is explained in the memorandum enclosed with the recent

transmittal letter to you. I will touch, however, upon the most important points in the revised package.

COMMITTEE AGAINST TORTURE

One of the most significant changes from the original package, Mr. Chairman, is that the administration now proposes to accept the competence of the Committee Against Torture to receive and consider complaints of torture in the United States from other States Party on a reciprocal basis.

As is common in international instruments concerning human rights, the Convention establishes its own independent oversight body to review the operation and implementation of the Convention by member States. This body-the Committee Against Torture-consists of what the Convention describes as "ten experts of high moral standing and recognized competence in the field of human rights." The committee's membership is elected for 4 year terms by secret ballot from a list of persons nominated by States Party to the Convention. Its members are required to serve in their personal, not official, capacities.

Articles 37 through 24 of the Convention define the committee's organization, competence and responsibilities. In brief, the committee is empowered (1) under Article 19, to review and comment upon reports by States Parties concerning measures they have taken to implement the Convention, and (2) under Article 20 to conduct investigations when it receives "reliable information" appearing to contain "wellfounded information that torture is being systematically practiced." States Party may, under Article 28, reject the basic competence of the committee to conduct such investigations. Under Article 21, they may also affirmatively accept the committee's competence to receive and consider claims from another State Party that they are not fulfilling their obligations under the Convention, and under Article 22, they may affirmatively accept the committee's competence to receive and consider communications from or on behalf of individuals subject to their jurisdiction claiming to be victims of violations of the Convention.

The original package proposed that the United States decline to accept the committee's competence in order to provide the Government an opportunity to evaluate the committee's performance on the basis of a sufficient body of work.

We have decided, however, to drop the proposed reservation under Article 28 and thus to accept the committee's basic competence to investigate allegations of noncompliance by the United States. In addition, we propose to accept affirmatively the committee's competence to receive and consider, on a reciprocal basis, communications from other States alleging that the U.S. is violating the Convention. We believe that by participating in the work of the committee the United States will have a positive influence on its work and enhance our ability to focus the attention of the committee on the practices of other States which we may conclude engage in torture.

We continue to believe that the U.S. should not accept the committee's competence to adjudicate complaints from individuals against the U.S. We believe that such complaints are likely to be frivolous, and aimed at embarrassing the United States rather than at rectifying the form of injustice with which the Convention was intended to deal. Any legitimate complaints of torture by officials in the U.S. would be remediable in our Federal and State courts. Defending such claims in an international tribunal would waste limited resources and entail unwarranted risks.

DEFINITION OF TORTURE

A second important revision we propose concerns the definition of "torture" under Article I. The original package proposed an understanding to the effect that, in order to constitute "torture," "an act must be a deliberate and calculated act of an extremely cruel and inhuman nature, specifically intended to inflict excruciating and agonizing physical or mental pain or suffering." This proposal was criticized by

some as possibly setting a higher, more difficult evidentiary standard than the Convention required. Substantial concern was expressed that the effect of this understanding might be to undercut the central feature of the Convention, at least as codified in U.S. law, and to encourage other States also to adopt higher domestic standards, thereby limiting the effectiveness of the Convention.

Although no higher standard was intended, we recognized the concern raised by this criticism. At the same time, our colleagues at the Justice Department felt that, since the definition of "torture" will constitute the basis for a criminal punishment under U.S. law, some clarification of the Convention's definition was constitutionally required.

Accordingly, and on the basis of extensive discussions with concerned representatives in the human rights community, we prepared a codified proposal which does not raise the high threshold of pain already required under international law, but clarifies the definition of mental pain and suffering, and maintains the position that specific intent is required for torture.

The revised understanding reads as follows: "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 prolonged mental harm caused by or resulting from (1) 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 the personality; (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."

While somewhat more lengthy than the earlier proposals we believe this revised understanding accommodates the concerns of those responsible for seeing that prospective defendants are treated fairly under our domestic law, on the one hand, and those on the other hand who are concerned not to undermine the effective implementation of the Convention by other States around the globe.

LAWFUL SANCTIONS

Another point of criticism of the original package has been its proposed understanding concerning the scope of "lawful sanctions," as used in Article 1.

You will recall, Mr. Chairman, that Article 1 excludes from the definition of torture "pain or suffering arising only from, inherent in or incidental to lawful sanctions." The initial understanding indicated that the term "sanctions" would include "not only judicially-imposed sanctions but also other enforcement actions authorized by United States law or by judicial interpretation of such law." This clarification was thought necessary because the Convention does not itself indicate whether the "lawfulness" of sanctions (judicially imposed penalties as well as enforcement actions) should be determined by domestic or international law. Our earlier proposal, Mr. Chairman, was intended to protect against illegitimate claims based on unclear standards that law enforcement actions authorized by U.S. law constitute torture within the meaning of the Convention.

Critics of this proposal pointed out, however, that such a formula would open the possibility for any State Party to the Convention to attempt to legitimize officiallysanctioned torture simply by authorizing it specifically as a matter of domestic law. A State could then use the same rationale to exempt its torturers from prosecution under the Convention. This possibility obviously, was not what we had intended. Upon further reflection, therefore, we have clarified our position to make clear that domestic legality does not remove an action from the Convention's definition of torture if the action violates a clear prohibition in international law. In other words, we propose that States Party not be permitted to invoke the "lawful sanctions" exception to legitimize activities which clearly amount to "torture" in contravention of the basic object and purpose of the Convention, even if they are technically lawful under their own domestic law.

Questions have been raised about whether this Convention affects our application of the death penalty.

Mr. Chairman, I want to emphasize my firm and considered opinion that the death penalty does not violate international law, nor does international law require the abolition of the death penalty. Many, perhaps even most, countries in the world today provide for capital punishment for some offenses under their domestic laws, and none of the major international human rights instruments prohibit the death