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CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT, TREATY DOC. 100-20

TUESDAY, JANUARY 30, 1990

U.S. SENATE,

COMMITTEE ON FOREIGN RELATIONS,

Washington, DC.

The committee met, pursuant to notice, at 10:05 a.m. in room SD419, Hon. Claiborne Pell, (chairman of the committee) presiding. Present: Senators Pell, Helms, Pressler and Murkowski.

The CHAIRMAN. The committee will come to order. This morning's hearing will focus on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

After some 7 years of intense negotiation in which the United States played an active role, the convention was unanimously adopted by the U.N. General Assembly on December 10, 1984, the 36th Anniversary of the Universal Declaration of Human Rights. It has now been ratified by 50 States and signed by 22 others.

The convention represents a major step forward in the international community's campaign to combat torture, because it makes torture a criminally punishable offense. Each party to the convention is obligated to prosecute torturers found in its territory or to extradite them for prosecution elsewhere.

The Reagan administration submitted the convention in May 1988 with 19 proposed U.S. conditions, many of which were of concern to the human rights community, the American Bar Association and others. I appreciate very much the efforts of this administration to address these concerns and reduce the proposed list of conditions.

In 1984 Congress enacted a joint resolution, which I sponsored along with Senator Percy, reaffirming the U.S. Government's opposition to torture. By ratifying this convention we can demonstrate that the United States is determined to take concrete steps to eradicate this evil, horrible and inhumane practice.

I will now turn to the ranking minority member, Senator Helms. Senator HELMS. Mr. Chairman, thank you very much. I guess the record ought to show at the outset that nobody is in favor of torture. Not anybody on this committee, not anybody in Congress, not anybody in Government. Nobody favors torture under any circumstances. I just want to get that on the record before we begin.

The 8th Amendment to our Constitution prohibits cruel and inhuman punishment. That has been extended by the Supreme Court in this century, utilizing the due process clause to protect individ

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uals under arrest and those merely being questioned by law enforcement officers.

So, this country just does not torture anyone, by law or in fact, and if anything our Supreme Court jurisprudence overly protects some criminal suspects and criminal defendants, and even, by way of appeal, convicted criminals.

So, I must be frank. This Torture Convention reminds me of another convention which required 35 years before the Senate got around to approving it and 37 years before that convention entered into force. To paraphrase our former President, Ronald Reagan, here we go again.

I am referring, of course, to the Genocide Treaty-the genocide convention, to use its proper name. Now, the Torture Convention appears to be a direct analog with the genocide convention. The genocide convention was not approved by the Senate until-untila package of reservations, understandings and declarations were approved by the Senate in its resolution of ratification. I had a little something to do with that. Sam Irvin started the job, I will say to my friend Judge Sofaer.

Now, that package, voted upon in its entirety, protected the Constitution, which is my interest, and also preserved constitutional protections. If this convention is to be approved, I think it is our constitutional obligation to do the same with this one as we did with the genocide convention.

Now, I will pursue my specific concerns when I begin to question the witnesses appearing before us this morning. However, let me call your attention, Larry, to a right interesting bit of information.

Look down the list of countries which have ratified the Torture Convention. For example, the Soviet Union, Communist Chinayou know, that nice little crowd over at Beijing that made paste out of that fellow standing up before the tanks they signed it.

Afghanistan, Bulgaria, and East Germany, which still has secret police, Hungary, which still has secret police, Czechoslovakia at the time of its dictatorship, and Mr. Gorbachev, the great PR man, has not closed up his so-called mental hospitals and he has not released the political prisoners being brainwashed there. As for Communist China, I guess running over innocent civilians with tanks is not torture under this convention.

Now, I raise these questions about the administration because people identified and associated with the administration have decreased-decreased-the number of reservations and understandings offered by the previous administration. In fact, I do not understand the entire approach to Communist China, I confess that, and China's massive violations of human rights. I am also concerned that this Torture Convention is a dagger pointed at the heart of Israel by the Arab States and the PLO and, of course, the PLO does not believe in torture.

In conclusion, Mr. Chairman, I think we had better take a very hard look at this convention. More than 100 governments have neither signed nor ratified this document, and those who have include some of the worst violators of human rights, not only in this century but in the history of mankind.

Now, in North Carolina, when you catch a skunk in a bag you had better know what you have done. I feel we had better be very

careful about how we approach this convention and I intend to do so, and it might take a little time.

So I thank you, Mr. Chairman.

The CHAIRMAN. Thank you very much indeed. We now will hear from Judge Sofaer, but first, Senator Pressler.

Senator PRESSLER. Thank you, Mr. Chairman.

Like my distinguished colleague from North Carolina, I am also concerned about the Torture Convention. From a legal perspective, the Torture Convention contains much loose and imprecise language which raises many ambiguities.

I do not support the roundabout compulsory jurisdiction mechanism which can subject the ratifying states party to the International Court of Justice.

I do not know what the terms, "cruel, inhuman and degrading" mean outside the U.S. Constitution. Despite the proposed reservation for article 16, that reservation does not speak to anything outside of punishment-for example, arrest, confinement and interrogation.

I do not like the role of the committee found in articles 17 through 24. I do not like the deletion of common law defenses which were proposed by the Reagan administration. Frankly, the reason for their omission in the Bush provisos is unclear, and perhaps we will hear more about that.

I strongly believe that there must be implementing legislation, as with the genocide convention, before the President can implement ratification of this document.

What happened to the requirement in American law laid down by the U.S. Supreme Court 178 years ago in the U.S. v. Smith decision by Justice Story that no one can be subjected to trial and punishment under American law without a statute first having defined the crime and then provided for a specific punishment? I do not support treaties which change American domestic law and legal procedures.

Some of the questions I have I hope Judge Sofaer, whom I welcome here, and others, will address. I am puzzled by the obvious contradiction in the administration's approach to asylum and deportation.

The standard for asylum, as you present it, is that the person or persons seeking asylum could more likely than not face persecution if they sent back to where they came from, but the standard imposed by the Supreme Court to prevent deportation is a well-founded fear of persecution in the Cardoza-Fonseca case. This is a higher standard.

Now also, I am puzzled by the absence of the human rights assistant secretary and international organizations assistant secretary. Are there differences in various U.N. conventions that make some merely legal and some merely political?

What are the specific reasons for the reductions of the Reagan package of reservations, understandings and declarations by the Bush administration? There seem to be a difference here.

As I am sure you are all well aware, I voted to override the President's veto on the issue of statutory temporary asylum for Chinese students. Is the PRC a violator of human rights, and if so,

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