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

114 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.

statement elicited as a result of torture in any proceeding, except in a criminal prosecution for torture to prove that the statement was made. In article 16 governments undertake to prevent acts of cruel, inhuman or degrading treatment or punishment (not amounting to torture) which occur with the consent or acquiescence of a public official; article 16 also incorporates the provisions of articles 10 (police training), 11 (interrogation), 12 (investigation) and 13 (right to complain) with respect to ill-treatment not amounting to torture.

Article 17 creates a committee against Torture consisting of ten experts in the field of human rights who are elected by the states parties for terms of four years. Article 18 provides for the organization and servicing of the committee by the United Nations, but indicates that states parties are responsible for expenses related to the meetings of the states parties and the committee. Article 19 obligates states parties to submit a report to the committee about the measures they have taken to give effect to the Convention; the report should be submitted within one year after the Convention takes effect for each state party and every 4 years thereafter; the committee shall consider the reports, make "general comments," and may report the comments to the U.N. General Assembly.

Article 20 authorizes the committee against Torture to undertake a confidential inquiry sua sponte into "reliable information which appears to contain wellfounded indications that torture is being systematically practiced" in a country which has ratified the Convention; the confidential inquiry may-include a visit to the country concerned if the government agrees; the committee may include a summary account of the results of the inquiry in its annual report to the General Assembly. Article 21 establishes a procedure for states parties to agree to make and receive complaints against other states parties about violations of the treaty; the committee must deal with these complaints in closed sessions and make limited reports on the results. Article 22 establishes a procedure for states parties to agree that the committee against Torture can receive individual communications from persons who allege that they have been victim of a violation of the Convention; the committee is authorized by article 22 to examine such communications in closed meetings and to forward the committee's views to the State Party and the individual concerned.

Article 23 provides that members of the committee shall have the same privileges and immunities as experts of the United Nations on mission. Article 24 indicates that the committee shall make an annual report to the General Assembly.

Articles 25 and 26 provide that the Convention can be signed, acceded to or ratified by all states with appropriate notification to the Secretary General of the United Nations. Article 27 indicates that the Convention comes into force shortly after 20 governments have ratified or acceded to it. (The state-against-state complaint procedure in article 21 comes into force when 5 governments have accepted it. Similarly, the individual complaint procedure in article 22 requires the acceptance of five nations.) Article 28 permits governments to declare that they do not recognize the competence of the committee to undertake investigations pursuant to article 20.

Article 29 provides for amendment to the Convention if two-thirds of the states parties accept the amendment. If there is a dispute between two or more parties about the interpretation of the Convention, article 30 states that the parties may submit the matter to arbitration and if arbitration is not successful within 6 months, then any party may submit the dispute to the International Court of Justice. Article 31 permits governments to give notice of withdrawal (denunciation) from the Convention, but the withdrawal will not be effective until one year after the notice is given. Article 32 indicates that the U.N. Secretary General will notify states parties of signatures, ratifications, accessions, entry into force and denunciations. Article 33 makes the Convention equally authentic in all of the seven official languages of the United Nations.

2. Brief History of the Convention against Torture 2

On December 10, 1984, the General Assembly of the United Nations adopted the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or

2 This section of the memorandum is a severely edited version of Rodley, The Evolution of the International Prohibition of Torture, 5 AIUSA Legal Support Network Newsletter 1988; see also N. Rodley, The Treatment of Prisoners in International Law (1987); Boulesbaa, An Analysis of the 1984 Draft Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 4 Dickinson J. Int'l L. 185 (1986); Hoffman & Brackins, The Elimination of Torture: International and Domestic Developments, 19 International Lawyer 1351 (1985).

Punishment (Convention against Torture). The adoption of the Convention culminated, if not quite completed, a process of standard-setting initiated in the early 1970's. The instruments that have emerged from this process, in addition to the Convention, are the Declaration on the Protection of All Persons from being subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Declaration against Torture), the Code of Conduct for Law Enforcement Officials 5 and the Principles of Medical Ethics Relevant to the Role of Health Personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Principles of Medical Ethics). The Body of Principles for the Protection of All Persons Under Any Form of Detention or I mprisonment was the last of these related instruments to be adopted by the General Assembly in December 1988.7 This section will recapitulate the political process whereby the Declaration and the Convention were developed and adopted.

6

In November 1973 the General Assembly adopted resolution 3059 (XXVIII) in which it asserted its rejection of any form of torture and other cruel, inhuman or degrading treatment or punishment.” This resolution arose in part from the work of Amnesty International. In late 1972 Amnesty International had launched a yearlong campaign for the abolition of torture with the support of a broad range of nongovernmenal organizations (NGO's). Sweden, which introduced the draft of what was to become Resolution 3059, specifically cited the then Chairman of Amnesty International's Executive committee, the former Irish Foreign Minister Sean McBride, to the effect that to "work actively for the complete eradication of every form of torture was a common humanitarian duty."9 There was also worldwide dismay at the overthrow of the constitutional government of Chile by the Chilean armed forces in September 1973, accompanied by the death of President Salvador Allende, and by harrowing press reports of repression and brutality by the Chilean armed forces. In some ways, Chile provided a vivid illustration of the need to do something about the problem of torture.

Resolution 3059 was not exactly far-reaching, and it was clearly adopted with a certain reluctance: for example, the original Swedish draft envisaged that the Assembly would examine the question of torture as a separate item at its next session; the Assembly finally agreed only to examine the issue as an item of a future session.

Nevertheless, the issue reappeared at the next session of the General Assembly in 1974. Again, participants in the debate cited to NGO activities against torture as well as to NGO statements and activities in relation to the situation in Chile.

Resolution 3218 (XXIX) of November 6, 1974, emerged from the debate, launching the first stage of the standard-setting program. The General Assembly requested that the forthcoming Fifth United Nations Congress on the Prevention of Crime and the Treatment of Offenders consider "rules for the protection of all persons subjected to any form of detention or imprisonment against torture and other cruel, inhuman or degrading treatment or punishment." 10 The Fifth Congress was also urged "to give urgent attention to the question of the development of an international code of ethics for police and related law enforcement agencies." 1 The Assembly went on to invite the World Health Organization (WHO) to draft "an outline of the principles of medical ethics which may be relevant to the protection of persons subjected to any form of detention or imprisonment against torture and other cruel, inhuman or degrading treatment or punishment." 12 This latter draft was to be brought to the attention of the Fifth Crime Congress.

3 Convention Against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, entered into force June 26, 1987, G.A. res. 46 (XXXIX), 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984) [hereinafter Convention Against Torture].

* Declaration against Torture, G.A.res. 3452 (XXX), 30 UN GAOR Supp. (No. 34) at 91, UN Doc. A/10034 (1975).

5 Code of Conduct for Law Enforcement Officials, G.A. res. 169 (XXXIV), 34 UN GAOR Supp. (No. 46) at 185, UN Doc. A/34/46 (1979) [hereinafter Code of Conduct].

6 Principles of Medical Ethics Relevant to the Role of Health personnel, Particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. res. 194 (XXXVII), 37 UN GAOR Supp. (No. 51) at 210, UN Doc. A/37/51 (1982) (hereinafter Principles of Medical Ethics].

7 G.A. res. 43/173, 43 UN GAOR Supp. (No. -) (1989).

8 See UN Doc. A/C.5/L.2010 (1973).

928 UN GAOR, Summary Records, Third committee at 95, UN Doc. A/C.3/SR.1988 at para. 1 (1973).

10 GA res. 3218 (XXXIX), 29 UN GAOR Supp. (No.31) at 82, UN Doc. A/9631 (1974).

11 Id., para. 3.

12 Id., para. 5.

The Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders took place in Geneva in August 1975. The Congress appeared to be a suitable body for dealing with the issue of torture for a number of reasons. First, the Congress had drafted the Standard Minimum Rules for the Treatment of Prisoners 13 at its first session. Second, the problem of torture is, indeed, one of criminality, albeit criminality sometimes committed by those charged with crime prevention, and the committee on Crime Prevention and Control had just categorized torture as a "major crime of transnational concern." 14 Third, the participants in the Congress come largely from the ranks of national administrations of justice. It might be expected that representatives with this background would want to affirm that torture is the antithesis of their calling.

On the first day of the Congress, the Swedish and Dutch delegations submitted a draft recommendation which set out the text of a draft declaration on the protection of all persons from being subjected to torture and other cruel, inhuman or degrading treatment or punishment, to be adopted by the General Assembly.15 A working group of the Congress was set up to discuss the issue of torture. It concentrated on the Swedish/Dutch draft. The draft that emerged from the Congress was, with one minor amendment, adopted by the subsequent 30th General Assembly of the United Nations in Resolution 3452 (XXX) of 9 December 1975.

Article 2 of the Declaration states that: "any act of torture or other cruel, inhuman or degrading treatment or punishment is an offense to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights."

Furthermore, Article 3 states that "no State may permit or tolerate torture or other cruel, inhuman or degrading treatment or punishment." The Declaration against Torture also contains various measures that States are expected to take to prevent torture. It was probably in view of the stringent and detailed obligations on governments contained in some of these measures that, during the Assembly discussions leading to the adoption of the Declaration, both the Netherlands and Sweden indicated that they did not consider the Declaration per se legally binding. Sweden, however, regarded the Declaration as a “suitable basis" for "an international convention" that it was "clearly necessary to envisage." 16 Two years later Sweden was to sponsor the initiative that led to the elaboration of the Convention against Torture. 17

Meanwhile, in 1977, recalling that the Declaration against Torture was not of itself a legally binding instrument, Sweden introduced a draft resolution, according to which the General Assembly would have the UN Commission on Human Rights draft a convention against torture, based on the Declaration against Torture. Interestingly, this draft constituted the first resolution on the topic of torture to have the sponsorship of countries from all geographical regions (and thus all political regions) within the UN membership. The draft became Resolution 32/62 of December 8, 1977. Within the next 2 months the Commission on Human Rights met, at which time Sweden introduced the draft of the convention against torture and other cruel, inhuman or degrading treatment or punishment. The Commission worked on this draft from 1978 until 1984. In 1984 the Commission adopted a text leaving one or two controversial items unresolved. This text was forwarded to the General Assembly through the Economic and Social Council. In the same year the General Assembly adopted the final text of the Convention against Torture.

The Convention against Torture came into force on June 26, 1987, which marked the 30th day after the date of deposit of the 20th instrument of ratification or accession. There were 26 governments which had ratified or acceded to the treaty when the states parties met for the first time on 26 November 1987. The states parties elected the ten members of the committee against Torture. The ten members come from Argentina, Bulgaria, Cameroon, Canada, Denmark, France, Mexico, Philip

13 Standard Minimum Rules for the Treatment of Prisoners, adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, August 30, 1955, approved by the United Nations Economic and Social Council resolution 663 (C) (XXIV), 13 July 1957, amended by ESC res. 2076 (LXII), 13 May 1977.

14 Report of the committee on Crime Prevention and Control, UN Doc. E/CN.5/516 and E/ AC.57/21 rev. I, paras. 27, 39 (1974)

15 See UN Doc. A/CONF.56 (1975).

16 30 UN GAOR, Summary Records, Third committee at 306, UN Doc. A/C.3/SR.2165, para. 56 (1975).

17 G.A. res. 46 (XXXIX), supra note 2.

pines, Switzerland and USSR. During the week April 18-22, 1988 the committee met for the first time and adopted its rules of procedure. 18

As of January 5, 1990, there were 50 states parties to the Convention; in addition 22 States have signed the Convention, including the United States. 19 As of the latest information, there were 23 governments which had accepted both the State against State procedure in article 21 of the Convention and the individual communication procedure of article 22 of the Convention.20 Of the 50 states parties to the Convention, nine nations have opted out of the procedure for sua sponte investigation of torture as provided in article 20.

3. Why should the United States ratify the Convention against Torture?

In 1984 the U.S. Congress adopted a Joint Resolution regarding the implementation of the policy of the U.S. Government in opposition to the practice of torture by any foreign government and that resolution was signed by President Reagan. The Joint Resolution recognizes that torture is "absolutely prohibited by international legal standards." The Joint Resolution also directs the U.S. Government representative to the United Nations to involve the United States in the formulation of international standards and enforcement mechanisms, including the Convention against Torture, that are designed to abolish torture.21

It is important for the United States and other governments to adhere to international instruments which protect international human rights. It is especially important that the United States adhere to the international human rights instrument addressing the fundamental right to be free from torture. By ratifying the Convention against Torture, the U.S. Government will be affirming to the international community both its determination to respect the dignity and worth of human beings and its commitment to the reaffirmation of this principle by all countries. Ratifying this Convention and similar human rights treaties also assures the people of this country that, in the future, each national administration will be subject to a continuing international obligation to guarantee specific and fundamental rights. Ratification of the Convention and similar treaties constitutes an important indication of the commitment of the United States to the concept of human rights as a concern that transcends national boundaries.

There are a number of other reasons for U.S. ratification of the Convention against Torture:

(1) Since the United States has prominently urged the observance of human rights everywhere, the United States should join the growing number of countries which have ratified this very important' and quite fundamental treaty.

(2) The United States played an active role in the process of drafting the convention against Torture and should complete its, work by ratifying the treaty.

(3) United States credibility in promoting human rights will be tainted if it does not ratify the Convention (and other human rights treaties). If the United States is serious about its commitment to human rights it must ratify the Convention against Torture (and other human rights treaties) to demonstrate U.S. support for the international protection of persons subject to torture and to itself become subject to international scrutiny for its human rights record.

(4) The United States has very little to fear from ratification because the U.S. record, albeit not unblemished, is relatively good on torture and ill-treatment. Where the United States has a problem, it should welcome international encouragement to improve this situation, as a way of demonstrating this nation's impartial concern for human rights everywhere.

(5) If the United States fails to ratify the Convention, it will be ineligible to have a U.S. citizen sit on the committee against Torture and will be unable to participate further in the international effort to assure that torture is not practiced. Since the procedures for implementing the Convention are just being developed, now is a critical time for the United States to begin participating actively in the committee against Torture.

4. Amnesty International USA's Position on the Proposed Reservations, Understandings and Declarations

18 UN Doc. CAT/C/1, at 1 (1988).

19 UN Doc. CAT/C/2/Add.1, at 1-3 (1989), updated by later information.

20 Argentina, Austria, Denmark, Ecuador, Finland, France, Greece, Luxemburg, Netherlands, Norway, Portugal, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay and eight others. The United Kingdom is one of those who has made a declaration that it would receive only State against State complaints.

21 Hoffman & Brackins, supra note 2, at 1351, 1358.