why has the PRC not been condemned for these violations by the United Nations?

So those are some of the things I hope are addressed in the comments of the witnesses that will perhaps help clarify this whole matter.

The CHAIRMAN. Thank you. Judge Sofaer and Mr. Richard, would you please come forward? Your statements will be printed in full in the record. If they can be abbreviated, it would be appreciated.

STATEMENT OF HON. ABRAHAM D. SOFAER, LEGAL ADVISER, DEPARTMENT OF STATE

Mr. SOFAER. Certainly, Mr. Chairman, and thank you very much. It is an honor to be here this morning. I will summarize my statement and appreciate that the full statement will appear in the record.

The CHAIRMAN. Without objection.

Mr. SOFAER. I am honored to appear before the committee this morning to urge the prompt and favorable action of the committee on the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

We are prepared to address the questions that were raised earlier, as well as any other questions that Senators may have. We believe that the reservations, understandings and declarations that are now proposed which now include the capital punishment understanding that we have just recently sent to the committee, Mr. Chairman, are satisfactory and protect U.S. interests, but if there are other reservations or understandings that the committee wishes to propose in order for us to adopt this convention in a collegial spirit, certainly the administration would be willing to entertain those suggestions.

The Bush administration places a high priority on early ratification. 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, this convention marks a significant step in the continued development of appropriate international measures to eliminate such barbaric practices. The fact that some of the biggest offenders have already signed and ratified the convention is not one that we should be unhappy about, Mr. Chairman. It is one that we should be pleased about, because while their motivation might be to pretend that they are abiding by this convention, they will open themselves up to the remedies of this convention and have opened themselves up to the remedies of this convention by signing and ratifying it.

International law already condemns torture, and I refer in my prepared statement to the many conventions and declarations in which torture is condemned under international law. This convention builds on those declarations and other agreements.

The essential purpose of this 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 are to take administrative, judicial or other measures to prevent torture within the territory of each party, to make clear that torture cannot be justified, to make all acts of torture criminal offenses and establish jurisdiction over them, and to decline to expel, return 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."

This convention mirrors the approach adopted by the international community in the area of terrorism. Really, if I may suggest, Senator Helms, it is more similar to the terrorism conventions than it is to the genocide convention in more ways than this—in many, many ways.

What it does is, it tells each state either prosecute torturers or extradite them other than to a state, obviously, which would torture the extradited party. We believe in this approach of prosecute or extradite. We think that the international terrorism conventions are beginning to work, and we think that this approach is the right approach for international law enforcement types of agreements.

We do agree that there is no need for the legal protections of the convention against torture in the United States. Existing U.S. law makes any act falling within the convention's definition of torture a criminal offense as well as a violation of various civil statutes. We do not have a torture problem within the United States. Nonetheless, we believe, as a member of the international community, that we must stand with other nations in pledging to bring to justice those who engage in torture, whether within the U.S. territory, or in the territory of other countries, and that is why we support this convention.

We have, as you have mentioned, Mr. Chairman, modified the package of reservations, understandings and declarations. We wish to thank, Mr. Chairman, your staff, the staff of this committee, and the many people in private organizations who worked with us in developing this modified package. We think they showed an appropriate regard for our legitimate interests, and at the same time they pressed their own case well, and effectively. It was the kind of interaction between staff and the executive branch staff that is truly beneficial to the legislative process.

We do think, however, that some reservations and understandings are essential, and those are the ones that are in the package, plus the one on capital punishment. This is going to be a criminal penalty.

The torture convention requires us to impose criminal penalties, and it is very important that we be clear about what is going to be punished. We also have a variety of provisions that relate to the nature of our federalism and other peculiarly American issues.

I say that with respect to article 16, there have been concerns about our reservation there. We think it is a good reservation, Mr. Chairman. We must distinguish between torture and cruel, unusual and inhumane treatment prohibitions. The latter is not at the center of this treaty. It is important. Obviously, we agree with it. But the heart of this treaty is the prohibition against torture. We do not want to see a bunch of different rules and standards developed with respect to cruel, unusual and inhumane treatment, and therefore, we have proposed that within the United States the

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