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reservation, provided that we should add at the end, the words "as determined solely by the United States."

I believe this would include implicitly an understanding that was adopted to the genocide convention, and the understanding provided that extradition under the genocide convention was subject to the dual criminality standard; that there would be extradition only if the act were criminal under the law of both parties.

That is adequate for my oral presentation because the whole thing is in the written statement, Senator.

[The prepared statement of Mr. Rice follows:]

PREPARED STATEMENT OF CHARLES E. RICE

The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is a laudable statement of the determination of the signatory nations to eliminate the invidious conduct against which the Convention is directed. However, there are some ambiguities and other weaknesses in the Convention which ought to be corrected by reservations to which the Senate's advice and consent would be subject. President Reagan's May 23, 1988, transmittal of the Convention Against Torture was accompanied by a report of the Secretary of State proposing reservations, understandings and declarations. Senate Treaty Doc. 100-20, 100th Cong., 2d Sess. (1988). The Department of State has since modified those proposals. This testimony will offer comments on the transmittal and later State Department proposals and will suggest other reservations for the consideration of this committee. Reservations ought to be employed rather than understandings or declarations because of the more certain binding effect of reservations. I suggest the following: General Reservations: Non-self-executing character of the Convention. This was included in the President's 1988 transmittal and in the December 1989, State Department memo as a declaration. It ought to be a reservation.

Federal-State Reservation.-Included in both the transmittal and the State Department memo. I agree.

Supremacy of the Constitution.-I suggest the following reservation: "That nothing in the Convention requires or authorizes legislation or other action by the United States of America prohibited by the Constitution of the United States as interpreted by the United States."

This is adapted from a reservation adopted by the Senate to the Genocide Convention.

RESERVATIONS TO SPECIFIC ARTICLES

Article I: Application to acts only in custody or physical control. This was proposed by the transmittal and the State Department as an understanding. It should be a reservation.

Sanctions. I agree with the transmittal proposal rather than with that of the State Department which would subject the sanctions defense to the limitations of international law. The transmittal proposal should be a reservation rather than an understanding.

Acquiescence.-The State Department version would describe “acquiescence" as including mere "awareness." The transmittal proposed "knowledge" as the criterion. I would make it "actual knowledge." This should be a reservation.

Definition of Torture.-Neither the transmittal nor the State Department proposal is adequate. This problem of the definition of torture illustrates the major flaw in the Convention as applied to the United States, that it would use the treaty process to formulate and enact domestic law for the United States. Whatever definition of torture is adopted by reservation could be likely to find its way into Federal and State law. Even with the detailed State Department formulation, serious problems of vagueness remain. For example, "or other procedures calculated to disrupt profoundly the senses or the personality." Can anyone say with any significant precision what that means? I suggest the following reservation: "That no act shall be regarded as torture under the Convention unless that act is committed under color of law with specific criminal intent and is in itself, apart from this Convention, a violation of the Fifth, Eighth or Fourteenth Amendment to the Constitution of the United States."

This reservation would ensure that acts of private individuals, not acting under color of law, would not be considered "torture" or "complicity or participation in

torture" (see Article 4) under the Convention. It would also incorporate the Fifth, Eighth and Fourteenth Amendment protections against vagueness and other defects. This would avoid a fruitless effort to devise in the Convention a foolproof definition of mental harm or pain.

NONCOMPLIANCE WITH LEGAL PROCEDURES

This should be a reservation but the version proposed in identical terms by the transmittal and the State Department should be broadened to prevent mere noncompliance with legal procedures from being used as evidence of torture. As proposed by the transmittal and the State Department, the language is unsatisfactory. What does it accomplish to recite merely that noncompliance is not per se torture? How could noncompliance with legal procedures be itself, i.e., per se torture, in light of the detailed definition of torture in Article 1? I suggest the following reservation: "That noncompliance with applicable legal procedural standards shall not of itself be admissible in any criminal or other proceeding as evidence of torture."

Article 2: Common Law Defenses.-The understanding proposed by the transmittal should be retained but should be made a reservation.

Obligations of the United States limited to constitutional violations.-With respect to the obligations of the United States in general under the Convention, I suggest the following reservation: That the obligations of the United States under the Convention apply only with respect to conduct under color of law which is, apart from this Convention, a violation of the Fifth, Eighth or Fourteenth Amendment to the Constitution of the United States.

This reservation is a counterpart to the reservation I proposed above, with respect to the definition of torture under Article 1. It would prevent the ambiguities in the definitional and other provisions of this Convention from imposing obligations on the United States which would be disruptive of Federal-State relations or otherwise inconsistent with the Constitution. The Constitution and the laws of the United States and of the 50 States already contain adequate prohibitions of the conduct against which this Convention is directed.

Article 3: Expulsion. Deportation and Extradition. The transmittal and Department of State both proposed an understanding that the provision of Article 3 that "no State Party shall expel, return ("refouler") 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" should be interpreted, in accord with INS v. Stevic, 467 U.S. 407 (1984), to mean, "if it is more likely than not that he would be tortured." Stevic involved the issue of whether withholding of deportation was justified under section of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h). The Stevic court interpreted this statute to require proof that it is "more likely than not that the alien would be subject to persecution on one of the specified grounds." 467 U.S. at 429-30. In INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), the Supreme Court dealt with the issue of asylum applications under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a), which statute authorized the Attorney General to grant asylum to a refugee who is unable to unwilling to return to his home country because of persecution or a "well founded fear of persecution" on account of specified grounds. The Court held in Cardoza-Fonseca that, "to show a 'well-founded fear of persecution,' an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country." 480 U.S. at 449.

Article 3 would apply to any case in which the United States would seek to expel, return or extradite a person. It would evidently apply to deportation and asylum cases as well as extradition cases. The understanding proposed by the transmittal and the Department of State sought to harmonize the obligation of the United States under Article 3 with the Supreme Court's interpretation of Section 243(h) of the Immigration and Nationality Act in Stevic, a deportation case. In view of the different criterion enunciated by the Court in Cardoza-Fonseca, an asylum case, it would seem preferable to leave unspecified the United States interpretation of "substantial grounds" in Article 3. I suggest the following reservation: That the determination under Article 3 as to whether "there are substantial grounds for believing that he would be in danger of being subject to torture," shall be made solely by the United States.

Extradition to non-signatory states.-The reservation proposed in the transmittal could be subject to misunderstanding as an indication of a possible willingness on the part of the United States to expel or extradite a person to some nonsignatory state despite the existence of substantial grounds for believing that that person would be in danger of being tortured. I agree with the State Department's later rec

ommendation that this reservation be deleted as unnecessary and potentially misleading. Any obligation assumed by the United States under Article 3 of this Convention would not prevent the performance of any inconsistent terms of a bilateral extradition treaty between the United States and a State not signatory to this Con

vention.

Definition of "competent authorities" under Article 3.-I agree with the later State Department view that this declaration proposed by the transmittal should be deleted. It is not necessary to include this delineation of intra-governmental authority in the formal instrument of ratification. Moreover, in light of the judicial inquiry authorized by Article 3(a) of the Supplementary Extradition Treaty with the United Kingdom, the Department of State would not be the only competent authority to decide issues raised by Article 3 of this Convention in extradition cases.

Article 5: Deposit of instrument of ratification. -This declaration, proposed in the transmittal, is essentially the same as a declaration adopted by the Senate with respect to the Genocide Convention. It is appropriate to include it as well in this Convention as a declaration.

Article 7: Prosecution of alien in the United States only if extradition to state where offense was committed is not available.-This declaration, proposed in the transmittal, should be retained as a reservation, with the addition of the following words at the end, "as determined solely by the United States," so that it would provide: The United States declares that it will submit a case involving alleged torture committed by an alien outside the United States to its competent authorities for the purpose of prosecution, pursuant to Article 7(1) of the Convention, only if extradition of the offender to the State where the offense was committed is not an adequate alternative as determined solely by the United States.

Right to compensation in torture cases.—I suggest the following reservation: That the obligation of the United States to provide a right to compensation under Article 14 is limited to cases involving conduct under color of law in which, apart from the Convention, a right to compensation is provided by the Constitution or laws of the United States.

This reservation is necessary to prevent Article 14 from being interpreted to require a general right of compensation from federal officers comparable to the right existing against state officers under 42 U.S.C. Sec. 1983.

Article 16: Obligation of the United States limited to constitutional violations.See above under Article 2. The reservation proposed above under Article 2 would render unnecessary the comparable understanding with respect to Article 16 proposed in the transmittal, which was proposed as a reservation by the Department of State.

Articles 20 and 21: Competence of the Committee on Torture.-For the reasons stated at p. 17 of the transmittal, I suggest that the language proposed by the transmittal be retained as a reservation. The State Department's proposed declaration on this subject is imprudent in its recognition of the competence of the Committee on Torture.

Article 30.-I agree with the reservation proposed by the transmittal and the Department of State but would suggest the following additional separate reservation: "That with reference to Article 30 of this Convention, before any dispute to which the United States is a party may be submitted to the jurisdiction of the International Court of Justice under this article, the specific consent of the United States is required in each case."

This reservation is essentially the same as a reservation adopted by the Senate to the Genocide Convention.

The CHAIRMAN. Thank you very much, indeed, Professor a Rice. I would ask unanimous consent to insert a statement from a group of citizens groups into the record.

[The information referred to follows:]

We strongly endorse the U.N. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture) and urge the Senate Committee on Foreign Relations to promptly recommend Senate advice and consent to ratification. Torture is a direct violation of the human rights our organizations strive to protect and promote. There are no circumstances in which torture can be justified, nor can there be any legitimate defense offered for it. The civilized world developed this Convention not only to express its revulsion at the practice, but also as a tool with which to uncover, prosecute, and punish torture. The Convention against Torture was adopted unanimously by the United National General Assembly in 1984, and entered into force in 1987. The United States par

ticipated actively in drafting the Convention and signed it on April 18, 1988. The Convention was then transmitted by President Reagan for advice and consent to ratification. The United States is the only member of the U.N. Security Council which has not ratified the Convention.

The Treaty contains a number of provisions which would make it more difficult for states to practice torture and for individuals to escape punishment for the crime of torture. The impact of these provisions would also prevent torturers from claiming that their acts did not constitute torture. The Convention further requires measures to prevent torture and punish violators when torture takes place. The force of these and other provisions should not be compromised or weakened by reservations, declarations, or understandings.

U.S. ratification of the Convention Against Torture would send an important signal to the world about U.S. concern for human rights and its determination to combat torture with every available tool. It also allows the United States to join with other countries in pursuing and prosecuting torturers. Moreover, we believe that United States ability to pursue a persuasive, constructive, and credible human rights policy will suffer until the United States takes formal steps to accept those standards of international conduct by which it evaluates other States. We therefore urge you, in the strongest possible terms, to support the United Nations Convention Against Torture, and work towards its immediate ratification.

Supporters for the U.N. Convention Against Torture: American Jewish Committee; Anti-Defamation League of B'nai B'rith; The Armenian Assembly of America; National Spiritual Assembly of the Baha'is of the USA; Baptist Joint Committee on Public Affairs; B'nai B'rith Women; B'nai B'rith International Council; Central Conference of American Rabbis; Franklin and Eleanor Roosevelt Institute; Freedom House; Friends Committee on National Legislation; Indochina Resource Action Council; International Human Rights Law Group; Jewish Labor Committee; Jewish War Veterans of the USA; Evangelical Lutheran Church in America; National Council of Churches; National Council of Jewish Women; Procedural Aspects of International Law Institute; Union of American Hebrew Congregations; and the United States Catholic Conference.

The CHAIRMAN. I would now turn to Mr. Weissbrodt.

STATEMENT OF DAVID WEISSBRODT, BRIGGS & MORGAN PROFESSOR OF LAW, UNIVERSITY OF MINNESOTA, ON BEHALF OF THE CENTER FOR VICTIMS OF TORTURE, THE MINNESOTA LAWYERS INTERNATIONAL HUMAN RIGHTS COMMITTEE, MINNEAPOLIS, MI

Mr. WEISSBRODT. Thank you, Chairman Pell, for the invitation to speak before your committee.

I am testifying today as a representative of the Center for Victims of Torture and the Minnesota Lawyers International Human Rights Committee. Both are headquartered in Minneapolis.

Since we have such a short time, I hope that I can submit for the record an analysis of the Treaty Against Torture and the reservations, understandings, and declarations.

The CHAIRMAN. Without objection, that will be printed in full.

Mr. WEISSBRODT. The Center for Victims of Torture, the Minnesota Lawyers Committee, and our clients urge you to give the advice and consent of the Senate to the Treaty Against Torture as soon as possible.

Minnesota may seem an unlikely place to which torture victims would flee. But there are about 6,000 victims of torture from all over the world in Minnesota alone, and there are estimated to be 100,000 such victims who have found refuge in the United States. They come from the two-thirds of the world's countries where torture is practiced.

Torture has no ideology. It is practiced by governments of both the right and the left, as confirmed by the clients who seek the help of the center.

Unfortunately, torturers learn from each other. Repressive governments share torture techniques and integrate advances in science to accentuate pain and psychological damage.

I have submitted to the committee staff a manual on torture distributed to mercenaries. This manual confirms what we have concluded from our clients, that the goal of torture is to cause intense physical pain, humiliation, and long-term psychological damage on individuals.

But the ultimate objective of torture is to terrorize the entire community and to render them politically inactive.

The center has helped people who have been subjected to electroshocks, being hanged by hands and feet, cigarette burns and other atrocities. Unless treated, these individuals will suffer long-term psychological damage, and that impact will include their families, friends, and communities.

It is frustrating for us, who have to try to heal the wounds of those who have suffered from torture, not to have some way to stem the flow of those who come 'to seek our help. That is why it is so urgent to ratify this treaty soon, rather than after 35 or 40 years.

Stopping torture should be a primary objective of the United States foreign policy and the policies of all countries.

The Treaty Against Torture will confirm the obligation of the United States and other countries to prevent torture and other cruel, inhuman, or degrading treatment or punishment.

The treaty rejects the idea that in some circumstances, torture might be acceptable.

The treaty will expose, and thus will help, prevent torture. It will provide the basis for investigating, adjudicating, criticizing, and ultimately preventing torture.

The treaty cannot immediately erase torture from the world. But it will provide a useful tool to stop this horrendous practice.

Ratification will demonstrate the commitment of the United States to ending this ongoing tragedy.

Now, the United States has nothing to fear from the ratification of this treaty against torture. The United States does have a good record in human rights.

The limitations on the treaty proposed by the administration, however, and by some of the witnesses here, particularly as to articles 3 and 16, as well as to the self-executing nature of the treaty, give the unfortunate impression that some attorneys, and particularly government attorneys, are trying to minimize the protection this treaty will provide.

None of the 50 governments which have ratified have interposed anywhere close to this number of limitations.

In regard to article 16, for example, we need to prevent not only torture, but cruel, inhuman, or degrading treatment or punishment. Sophisticated interrogators, for example, in Northern Ireland, have used a group of techniques, such as forcing individuals to stand for long periods, "hooding," incessant noise, sleep deprivation, and refusing food and drink. This combination of techniques

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