We have to keep in mind the paradox of this Convention on Torture being advanced by nations like China, the Soviet Union, Bulgaria, et cetera. We tend to regard the only potential malefactors here as the Communist nations or the Third World nations. We have a horrendous record of human rights violations in Northern Ireland, as you raised the question. Article 3 would be implicated in the Joseph Daugherty case, where the Attorney General is trying to deport him and where there certainly is a well-founded fear of persecution. So there are a lot of things to be concerned about here. Because it is something that is advanced by nations that do not themselves have a very promising track record on torture, we ought to be very careful about it. We ought to affirm clearly that we have an instrument, the Constitution of the United States, which is not going to be improved by anything these folks can suggest. Senator HELMS. I have a couple of final questions, and if any of the rest of you have any comments, please do not hesitate to interject. Without reservations or understandings, would the torture convention be self-executing? Mr. FORTE. Parts of it would, yes. Parts of it would not. Some of the parts call on states to pass legislation in implementation. Those parts are not self-executing. Article 16, which would be the most dangerous article, would be self-executing, for there it says that each state party shall undertake to prevent in any territory acts of cruel, inhuman, or degrading treatment or punishment. Now, if we have no self-executing clause and we do not limit article 16 to the 8th Amendment of the due process clause, the week after this convention is ratified, some lawyer who, with great magnanimity of heart, believes very much against capital punishment, will go to a court and ask the court to say that capital punishment is cruel, inhuman, and degrading treatment-and there is an argument for that-and he will say to the court you have jurisdiction because this is a self-executing clause and it is not limited by the 8th Amendment. The 8th Amendment may allow capital punishment, but now we have a treaty and under the supremacy clause, that may require that you wipe out capital punishment. But on the other side, let me tell you this, Senator. It says that each State Party shall prevent acts of cruel, inhuman, and degrading treatment when such acts are' committed at the instigation, or with the consent or acquiescence of a public official. Now I am very strongly in the pro-live movement, and if the Senate, in its wisdom, decides to allow this treaty to pass without a limitation on article 16 and making it self-executing, the week after its passage, I'm going to court and I'm going to say that public hospitals that permit fetuses, unborn children, to be terminated in pain is cruel, inhuman, and degrading treatment. Now I have a moral obligation to do that. But, speaking as a professor of constitutional law, I have to admit that the right way to solve that problem, as the capital punishment problem, like through the legislative process, through Congress and the states. Mr. RICE. May I just make one comment on that, Senator? I find it curious that I have not heard any Senator or anybody else take here the position I am personally opposed to torture but I do not want to impose my morality on others. I think we ought to take a strong position against homicide, torture, et cetera. Incidentally, on the non-self-executing thing, I have proposed that the declaration advanced by the transmittal and by the State Department be made a reservation. I think that ought to be made a reservation. Senator HELMS. Gentlemen, thank you all. I am going to circulate copies of the statements by all of you because you are very thoughtful, you are very eloquent, and obviously you are very wise. Thank you very much for helping the committee. [Whereupon, at 11:50 am., the hearing was adjourned, to reconvene subject to the call of the Chair.] APPENDIX LETTER FROM AMERICAN JEWISH CONGRESS TO SENATOR PELL The Hon. CLAIBORNE PELL, February 21, 1990. Chairman, Committee on Foreign Relations, U.S. Senate Washington, D.C. 20510 DEAR MR. CHAIRMAN: On behalf of the American Jewish Congress, and its 50,000 members nationwide, I am writing to urge you to recommend that the United States ratify the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention Against Torture). Jewish values and traditions teach that every human being is imbued with worth and dignity. There can never be any justification for torture, for stripping individuals of their fundamental human dignity. This is why we need basic international protections against the use of torture by governments. The Convention Against Torture provides these basic protections. It was adopted unanimously by the United Nations in December 1984, and was implemented in 1987. While the United States played a leadership role in the drafting of the Convention, it is the only member nation of the United Nations Security Council which has not ratified this important international agreement. The Convention provides a definition of torture so that torturers are not able to claim ignorance of the fact that their actions constitute torture. Additionally, the Convention mandates a procedure for punishing those governments which are guilty of torture. We hope that you will support the Convention Against Torture, and that you oppose reservations, declarations, or understandings which would unnecessarily weaken these and other important provisions in the Convention. I respectfully request that this letter be made part of the hearing record. Sincerely, ROBERT K. LIFTON, PREPARED STATEMENT OF MONSIGNOR ROBERT N. LYNCH, GENERAL SECRETARY, U.S. CATHOLIC CONFERENCE The U.S. Catholic Conference supports ratification of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or punishment. In our judgment, this convention is a sound instrument that can contribute to actualizing the ideals of the United Nations Declaration of Human Rights. * * * Fortunately, there is widespread agreement that torture and similar gross violations of human rights are morally repugnant. In the words of the Second Vatican Council, they are "infamies" that "poison human society (and) are a supreme dishonor to the Creator." While most nations of the world have joined the United States in condemning torture or extra judicial killings in principle, in practice, according to Amnesty International, more than one-third of the world's governments engage in, tolerate, or condone such acts. In Catholic moral teaching, infringements of fundamental human rights, particularly those as serious as torture, must be combated not just by moral persuasion but also by practical action, including effective national and international legal mechanisms. The torture convention not only helps solidify a world-wide consensus that torture must be eradicated but, more importantly, it takes a critical step in the process of developing and strengthening an international standard of conduct for governments, and in providing mechanisms for monitoring and responding to instances of torture. Ratification of the convention by the United States, which played a major role in drafting it, would help institutionalize and concretize its leadership role in combating the abhorrent practices covered by the convention. It would be (87) one more indication that in this increasingly interdependent world the United States is committed to expanding the role of multilateral structures in protecting and promoting human rights. Given the importance of expanding the role of such multilateral structures, we hope that in considering reservations, declarations and understandings every effort is made to ensure that the final instrument of ratification reflects a substantive, not merely symbolic, commitment of the United States to work within the international community to eliminate torture. In sum, the USCC supports ratification of the torture convention because it offers the United States an opportunity to play a leadership role in establishing, expanding and strengthening the kinds of international structures that are necessary to ensure world-wide protection of fundamental human rights. PREPARED STATEMENT OF HOUSTON PUTNAM LOWRY, ESQ., CONNECTICUT BAR ASSOCIATION I am the Chairman of the Connecticut Bar Association's section of international law and world peace. I expressed our section's support for the ratification by the United States of the so called "Torture" Convention. We understand that the public hearing on this Convention was rescheduled for January 30, 1990 before the Senate Foreign Relations Committee. We wish to reaffirm our support for ratification by the United States and to respectfully urge you to support ratification of this Convention without reservation. Of greatest concern to the section is the administration' proposed reservation to article 16 of the Convention, which reads as follows: The United States considers itself bound by the obligation under article 16 to prevent "cruel, inhuman or degrading treatment or punishment," only insofar as the term "cruel, inhuman or degrading treatment or punishment" means the cruel, unusual and inhumane treatment or punishment prohibited by the Fifth, Eighth and/or Fourteenth Amendments to the Constitution of United States. Article 16 simply places on the Federal Government the obligation to train law enforcement and medical personnel in the prevention of cruel, inhuman or degrading treatment or punishment as that prohibition is and has been construed by authoritative international tribunals. We do not believe that such an obligation is an onerous one, especially for a nation espousing respect for the rule of law in international law and human rights. While we recognize this is a slightly higher standard than the Constitution requires, we believe the Constitution is a minimum, not a maximum, standard of treatment. Other organizations actively support ratification of this important human rights Convention without this reservation, including the American Bar Association and Amnesty International. Ratification without this and the other two proposed reservations (concerning the need for implementing legislation and the refusal of the United States to be bound by article 30's international arbitration procedure) as well as the "non-selfexecuting" declaration, would only serve to provide additional protection for people in the United States against unlawful violence under color of lawful authority. After all, the United States played an active role in drafting the Convention and lobbied other United Nation members to adopt it. The United States credibility in promoting international human rights will be called into question if it does not follow up on its initiatives and ratify the Convention without reservation. The United States has very little to fear from ratification without reservation because its record is excellent on torture and ill-treatment. To the extent that violations do occur, the United States should be willing to address those few violations as a reasonable price for demonstrating to the world community our Nation's commitment to the equal application of international human rights norms. The rule of law is our only protection against torture and other ill-treatment. The Connecticut Bar Association's section of international law and world peace respectfully requests this letter be included as part of the record of the Senate Foreign Relations Committee's hearing scheduled for January 30, 1990. PREPARED STATEMENT OF PETER-FREDERICO A. BURNS-O'BRIEN MR. CHAIRMAN: Let me urge you and your committee to endorse the concepts contained within the confines of the Convention on Torture. Never is there an excuse for individuals on behalf of governments to use torture regardless of other intentions. I am only familiar with the use of torture by one nation, the United Kingdom, |