person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. The administration has offered a reservation that limits the definition of severe mental pain or suffering to four types of conduct: (1) the intentional infliction or threatened infliction of severe physical pain or suffering; (2) the administration or application, or threatened administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality; (3) the threat of imminent death; or (4) the threat that another person will imminently be subjected to death, or severe physical pain or suffering, or the administration or application of mind altering substances or other procedures calculated to disrupt profoundly the senses or personality. This definition does not cover many types of psychological torture used around the world. For example, under the military dictatorship in Uruguay in the 1970's and early 1980's, political prisoners in Libertad Prison were subjected to constantly fluctuating prison rules, but were not informed of rule changes in advance. Punishment for even minor rule infractions, such as speaking during silent periods or failing to be suppliant before prison guards, was swift and severe. Many prisoners were subjected to years of such psychological torture and have suffered permanent psychological after effects as a result. Elsewhere prolonged periods of solitary confinement or sensory deprivation are used as a form of torture. In other countries persons detained incommunicado are mentally tortured with threats that their families will not be informed of their whereabouts until they "confess." The fear that a loved one has "disappeared" causes intense mental pain and suffering for family members, yet threats of severe mental pain and suffering to others are not included in the proposed reservation. In his testimony, Deputy Assistant Attorney General Mark Richard erroneously asserts, when explaining why the administration seeks to limit the range of conduct that constitutes mental torture, that "mental suffering is often transitory, causing no lasting harm." Whether torture is physical or psychological, its purpose is to cause severe mental suffering. All forms of torture dehumanize victims and render them helpless and dependent on those who seek to harm them. victims who comply with the demands of their torturers do so because they are terrified of what will happen if they refuse. Contrary to Mr. Richard's statement, it is the physical injuries produced by torture that are most likely to heal. As the literature on concentration camp survivors underscores, mental suffering is much more pervasive and likely to persist. Recent studies of survivors of torture indicate that nearly all suffer from some or all of the criteria for the psychiatric diagnosis of Post-Traumatic Stress Disorder, as well as other psychological problems such as depression or psychosomatic complaints, years after their torture has ceased. In addition to failing to recognize the serious psychological impact of torture, the administration's mental suffering reservation is short-sighted. The range of acts that constitute torture is limited only by the imaginations of those who seek to perpetrate them. In recent years governments that practice torture increasingly have sought to devise methods that cause intense pain but leave no marks. The era of psychological torture appears to be ahead of us. It would be a mistake for the U.S. to interfere with the Committee Against Torture's ability to respond effectively to these new and ever more cruel torture techniques. A second understanding proposed by the administration would restrict the definition of torture to acts directed against persons in the offender's custody or physical control. Again, this understanding would unnecessarily limit the ability of the Committee Against Torture to interpret and implement the treaty. In 1986 soldiers in Chile threw gasoline and then a lighted match onto two teenagers who were participating in a demonstration. One died; the other was severely burned. There is little doubt that if faced with a comparable case the Committee Against Torture would find that such conduct constitutes torture. Yet the administration's "custody or physical control" understanding would seem to deprive it of that authority with respect to future acts by U.S. police or military officials. It would also weaken the moral authority of the U.S. to condemn such behavior by other governments. The vague wording of this proposed understanding also raises concern that high level government officials whose junior officers engaged in acts of torture could not be held responsible for those acts because they never had custody or physical control over the victim. A proposed understanding defining the term "acquiescence" in the Convention's definition of torture heightens those concerns. Under that proposed understanding, "the term "acquiescence" requires that the public official, prior to the activity constituting torture, have awareness of such activity and there after breach his legal responsibility to intervene to prevent such activity." While the administration has clarified that both actual knowledge and willful blindness fall within the meaning of 'acquiescence,' negligent failure to be informed about and prevent acts of torture by junior officers is not covered. These two proposed understandings, especially when read together, suggest that the administration seeks to create a shield to protect high-ranking officials from accusations of torture. The administration's proposed reservation to article 16 which prohibits cruel, inhuman or degrading treatment or punishment,' also unreasonably ties the hands of the Committee Against Torture. Under this proposed reservation the U.S. would be bound by the obligation to prevent cruel, inhuman or degrading treatment or punishment only to the extent that such acts are prohibited by the 5th, 8th, and/or 14th amendments of the U.S. Constitution. By linking U.S. compliance with the treaty to shifting interpretations of U.S. constitutional law, this reservation unnecessarily burdens the Committee Against Torture, whose members would be forced to become U.S. Constitutional law experts to monitor U.S. compliance under the treaty. Should other nations follow suit and similarly link their international obligations to their own domestic law, as the proposed U.S. reservation implicitly invites them to do, the committee's task would become unmanageable. The proposed reservation to opt out of article 30 is another example of the administration's mistrust about how the treaty will be administered at the international level. article 30 provides that if two or more States are in dispute as to the interpretation or application of the treaty and those states cannot agree on an organization of arbitration, any state involved may refer the dispute to the International Court of Justice. The proposed reservation represents a further retreat from participation in an international system for the peaceful resolution of inter-state disputes. It comes at a time when other states, in particular the U.S.S.R., are withdrawing similar reservations in favor of strengthening international dispute resolution mechanisms when those disputes involve allegations of torture. One unique feature of human rights treaties, and of the Convention Against Torture in particular, is that the beneficiaries of the rights guaranteed are the individuals who populate the nations of the world, not the nations themselves. The Convention Against Torture will have little meaning if states refuse to give it domestic import by allowing their citizens to rely upon it to seek either domestic or international implementation or recourse. Yet the package of reservations, declarations, and understandings recommended by the administration would have precisely this effect. For example, the administration has proposed a declaration that would make the provisions of articles 1 through 16 of the Convention non-self-executing. This declaration seeks to deny domestic legal remedies to individuals who seek relief for violations of the treaty in U.S. courts, unless legislation is adopted specifically granting to such individuals the right to seek legal redress. While some of the first 16 articles of the treaty are drafted using general language that could not be easily enforced with direct judicial action, other provisions, like the article 3 prohibition against returning or extraditing any person to a country where there are substantial grounds for believing that he or she would be tortured, are specific and could be enforced by a court. The non-self-executing provision thus not only denies to individuals an effective means of seeking relief should violations occur, but also deprives U.S. courts of an important separation of powers role in ensuring U.S. compliance with the treaty. A proposed understanding to article 14, which provides that States must ensure in their legal systems that victims of torture have a means of obtaining redress and an enforceable right to fair and adequate compensation, further seeks to undermine the role of the courts in enforcing the treaty. The proposed understanding would limit article 14 by requiring States "to provide a private right of action for damages only for acts of torture committed in territory under the jurisdiction of that State party." In the case of the U.S., this understanding could immunize the U.S. from civil liability for acts of torture undertaken by its agents in territory that was not under U.S. jurisdiction. Clearly this is not the intent of article 14. In addition, in a statement in its May 12, 1989 Letter of Submittal, the State Department suggests that article 14 does not compel U.S. courts to open their doors to civil actions for redress of acts of torture that occurred outside the United States. While the State Department's comment is neither a reservation nor understanding and therefore not a proposed binding qualification to the treaty, it flies in the face of a series of federal district and appellate court decisions that have upheld the rights of individuals to bring civil actions in U.S. courts for torture that occurred abroad. This comment is unnecessary and should be withdrawn. Another way the administration seeks to limit avenues of redress for treaty violations is by declaring that the U.S. will not be bound by the provisions of article 22 which recognizes the competence of the committee Against Torture to receive complaints submitted by individuals. The Committee Against Torture's authority to investigate individual complaints of torture closely parallels that of the Human Rights Committee established under the International Covenant on Civil and Political Rights. Under an Optional Protocol to that Convention, States may permit individuals to file individual complaints regarding human rights abuses that the Committee then investigates and follows up with the government involved. This individual complaint mechanism is arguably the most important and most effective role of the Human Rights Committee which has now received some 371 individual complaints. It is reasonable to assume that, like its counterpart, the Committee Against Torture will be an effective mechanism for investigating individual complaints of torture and ensuring appropriate redress. The combined effect of the non-self-executing declaration, and the articles 14 and 22 understandings is to deny U.S. citizens and others who allege that they have been tortured any means of having their grievances heard or resolved. This position substantially weakens the effectiveness of the treaty in establishing comprehensive enforcement mechanisms for combating torture, at least where the U.S. is concerned. While this may seem of little consequence at the moment, recent rapid changes in world events serve as reminders that current conditions can change overnight. We leave our children vulnerable to abuses by future governments when we deny to them the full range of protections envisioned by the treaty. The Bush administration has proposed other reservations and understandings, including a proposed Federal-State reservation, a proposed understanding to the article 3 non-refoulement provision, some additional understandings to the article 1 definition of torture, and an understanding that the death penalty, including any constitutional period of confinement prior to its imposition, does not violate the treaty. The arguments against these reservations and understandings, with which we agree, are eloquently made by other non-governmental organizations that have submitted testimony before this committee. We strongly urge that all of the proposed reservations, understandings, and declarations submitted by the administration that lessen the full force of the treaty as it applies to the U.S. be dropped, and that the Senate give its immediate advice and consent in favor of ratification of the treaty. blank page The conflict now in progress in Northern Ireland has brought in its The cost of the conflict has also been great in terms of life and limb. In this chapter we present a brief survey of the impact that the con- From its birth Northern Ireland has been in a state of more or less Alongside its effect on civil liberties within Northern Ireland, the We begin by considering the situation within Northern Ireland Though stated to be temporary measures (they have to be regularly The Prevention of Terrorism Act Casualties of War 53 The PTA gives the police the power to stop, search and detain, Once arrested, a detained person can be held by the police for up to Another power which is especially important in Britain is that of Over the period 1974-84 some 245 people were removed from main- |