Colin Sanchez, Derecho Mexican de Procedimientos Penales (1st ed. 1964); Constitucion Politica de los Estados Unidos Mexicanos, Art. 33; and Cogido de Procedimientos Penales (1940).

(39) A variation on this is the Philippines system, wherein the courts are specifically excluded from deciding « the validity, legality or constitutionality of any decree, order or acts issues, promulgated or performed by the President ». Amnesty International, Report on Torture 158 (1975). (40) Constant states of seige have been noted in many such states. For a comment on Peru, see, e. g., Amnesty International, Report on Torture (1975).

(41) E. g. the recent closing by South Africa of a black newspaper that had focused attention on the suspecious death of a black activist in police custody.

(42) S3Res. 217 (1965), 20 Nov. 1965. G. A. Res. 2382 (XXIII), 7 Nov. 1968. (43) Van Dyke, supra note 14 of Ch. VI, at 209-12 and 160-62.

(44) Article 64 of the Charter is the basis for authority to require such reports.

(45) Of particular importance in connection with torture in Res. 7 (XXVII) of 20 Aug. 1974 of the Sub-commission on Prevention of Discrimination and Protection of Minorities.

(46) The reports are handled in accordance with ECOSOC Res. 1503 (XVIII), which created the Human Rights Committee to study such reports. (47) Art. 2 of the Optional Protocol, which is limited, however by Art. 3, 4 and 5. See, Tardu, « The Protocol of the United Nations Civil and Political Rights and the Inter-American System: A Study of Co-existing Petion Procedures »>, 70 Amer. J. Int'l 778 (1976) (hereafter Tardu).

(48) U. S. Charter, art. 14.

(49) U. N. Charter, Chapters VI-VII.

(50) See generally, U. N. Charter.

(51) See, supra note 47 and accompanying text.

(52) Art. 19-56.

(53) Art. 25.

(54) Art. 26.

(55) Arts. 24 and 47.

(56) Art. 31.

(57) Art. 48.

(58) Art. 54 provides, « The judgment of the Court shall be transmitted to the Committee of Ministers [of the Council of Europe], which shall supervise its execution >>.

(59) European Convention, art. 24 et. seq.

(60) See, Section VI, supra notes 68-72 and accompanying text.

(61) Art. 41 of the American Convention of Human Rights.

(62) Under the American Convention Art. 41 would provide broad

competence.

(63) Van Dyke, supra 14 of Ch. VI, at 175-77.

(64) Arts. 50 and 51.

(65) Art. 73.

(66) Arts. 52-69.

(67) Tardu, supra note 47.

(68) Convention I, art. 8; Convention II, art. 8; Convention III, art. 8; Convention IV, art. 9.

(69) E. g., Amnesty International, The International Commission of Jurists, and the International Committee of the Red Cross. See comment, Human Rights, Chile and International Organizations, 24 De Paul L. Rev. 999 (1975), and supra note 40.

(70) See note 60 of Ch. VI, supra.

(71) E. g., the so-called « Jackson Amendment », 22 U.S.C.A. 2304 (1976). (72) For supporting view, Lillich, «Forcible Self-Help by States to Protect Human Rights », 53 Iowa L. Rev. 325 (1967), and M. Bassiouni and

V. Nanda, A Treatise on International Criminal Law, 212 (1973); and H. Lauterpacht, International Law and Human Rights 32 (1950). For contrary views and lively discussion see, Law and Civil War in the Modern World, 44-46, 217-251, 539-41 (J. N. Moore ed. 1974). See also, Falk, The International Law of Civil War (1971), and International Commission of Jurists, Study on East Pakistan (1972).

(73) Comment, «Human Rights. Chile and International Organizations », 24 De Paul L. Rev. 908, 1017 (1975); Friedmann, Comment 4, in Law and Civil War in the Modern World 574, 577 (1974).

(74) Lillich, supra note 72; see also, Lillich, « Humanitarian Intervention: A. Reply », in Law and Civil War, supra note 72, at 229-51, especially 248.

SECTION VII

Prognosis: The need for an International Convention

The discussion contained in the preceeding sections reveals that abolition of the practice of torture is essential to the preservation of the values of: individual integrity, public order which includes the legitimacy, integrity and reliability of political systems, and minimum world order. It is useful at this juncture to reiterate the basic premises upon which is founded the conclusion that torture should be singled out as the object of a specialized convention aimed at its prevention and suppression.

1.) Torture is a recognized cruel, inhuman and degrading treatment;

2.) It is embodied in the meaning of these very words which are found in internationally protected human rights under conventional, customary and general principles of international law; 3.) It is prohibited explicitly or implicity by almost all legal systems of the world;

4.) The commonly shared values and expectations of the world community have focused on this practice demonstrating its ripeness for special consideration;

5.) Existing modes of implementation of general internationally protected human rights are limited in scope, application and acceptance;

6.) The practice is characteristically carried out by individuals in an environment of stealth and secrecy, making it difficult to discover, investigate, prevent, and suppress;

7.) It is generally rejected or denied even by states wherein it occurs;

8.) It produces at best, short term and limited advantages for its practioners, while engendering greater disadvantages for the legitimacy, integrity and credibility of the system which permits it or tolerates it;

9.) It weakens the moral authority and effectiveness of any system which permits it or tolerates it, and thus its long range implications to the preservation of that social order and political system are far more detrimental than the limited tactical benefits perceived to derive there from;

10.) Its dehumanizing effect is not only limited to the victim

but it also reaches its perpetrators and its effects pervasively erode the very fabric of the society which permits it or tolerates it;

11.) Its prevention and suppression by international law does not infringe upon states' national interests, soveregnity or effective government on the contrary, it strengthens it;

12.) Its repeated and continued occurrence jeopardizes and ultimately destroys international confidence in the practicing state;

13.) Its effects on the international relations of the practicing state with other states is negative and detrimental;

14.) Its significant occurrences as a matter of state policy whether overtly acknowledged or covertly condoned threatens minimum world order.

A. - Prospects for Elimination of Torture Under the Existing Legal Environment

In the first section of this report it was demonstrated that the practice of torture has roots that reach far back into human history and that it has manifested itself in diverse times and places. Its contemporary manifestations appear in several forms and within different regions of the world having varying political, cultural and developmental backgrounds. Succeeding sections explored the fundamental sameness of torture irrespective of changes in means and methods; the difficulty in classifying certain borderline coercive practices and the conflict between the practice of torture and certain basic human and social values. It was demonstrated that a social policy framework of analysis must be utilized to reconcile the contrasting values of individual integrity and the values appealed to by those who would hesitate to condemn torture or rationalize its practical importance. This analysis focused on the identification of classes of perpetrators, victims, methods, goals, strategies and outcomes that torture features. The conclusion is that the pattern of torture's history, its ability to establish itself under varying conditions assuming different outward manifestations while purporting to serve certain practical purposes, demonstrates that such a phenomenon cannot be ignored nor treated lightly. Consequently, its eradication from human practice cannot be presumed to occur without the development and implementation of effective measures of control designed to prevent and suppress its occurrence.

2. - Assessing the Legal Environment

In Section VI, the existing primary sources of international

legal prescriptions regarding torture were examined. All but one of these sources were found to be too vague to be an effective legal basis for the unequivocal condemnation of torture. That source was general principles » as evidenced by United Nations. General Assembly Resolutions such as Res. 3059 (XXVIII) 2 Nov. 1973; Res. 3218 (XXIX) 6 Nov. 1974; Res. 3452 (XXX), 9 Dec. 1975; 3453 (XXX), 16 Jan. 1976 and other Resolutions of ECOSOC, the Commission on Human Rights and the Sub-Commission on the Prevention of Discrimination and Protection of Minorities. Nevertheless these resolutions are only declaratory and not binding qua as a norm of international law. All international legal prescriptions in the form of treaties which include torture, do so without providing any definition of the meaning of that term. None specifically defines torture, or describes the duty of states to prevent it or suppress it.

Existing international prescriptions leave some opportunity for states that practice torture to argue that the conduct in question does not actually violate international law or that it may be deemed justifiable. In any event, international modes of implementation afford no means for settling such issues, much less enforcing compliance.

At the national level, a bewildering variety of prescriptions either clearly or probably proscribing torture exist together with an array of qualifying formulae. However, no national law appears to specifically authorize or condone torture, even though by implication one can say that in many legal systems, it could legally exist. Thus, no state openly authorizes torture and most appear to forbid it; and, International prescriptions prohibit it, but either in vague or inferential terms which are applicable to states without enforcement or sanctions and whose proscriptive binding effect is open to question.

In Section VII, it was shown that implementation of international prescriptions takes many forms, only one of which appears effective: the court and commission created by the European Convention on Human Rights. Even then, it is limited in application to cases involving signatory states to that convention.

National measures of implementation appear ineffective except where either the high officials of government are zealously committed to preventing, suppressing and punishing torture or where an independent authority usually the judiciary is motivated to prevent, punish and suppress torture. But the abridgment of judicial autonomy and the resort to exceptional powers in states practicing torture reveals how aleatory this safeguard can become.

Accordingly, the existing legal environment is inadequate to the task of eradicating the practice of torture and offers only mild promise for significantly curtailing it.