not a legitimate means of expression of any kind of punishment at all. Ms. Laber, I think you indicated you wanted to speak? Ms. LABER. Yes. I wanted first to make the point that you just made. I also want to say that Mr. Buz' testimony a perfect illustration of something which is a very widespread phenomenon in the Turkish prison system. As far as I can tell, in see, the prisons in Turkey are tens of thousands of very young people who were arrested in 1980 and accused of terrorism. They are being tried in mass trials-200, 300, 400 people at a time. Many of them will be acquitted, as Mr. Buz was, but they have already been subjected to torture and in prison they continue to be subjected to abuses that I would consider torture. Many of them will be acquitted by judges who will throw out testimony that is acquired through torture. But they've already been punished more than anyone should be punished for any kind of crime, guilty or innocent. Mr. KOSTMAYER. Yes? Mr. ARTUCIO. If you will allow me, I will express some of the things that somebody said here concerning what can we do to fight against torture. Well I think there are two levels: the national level and the international level. On the international level, I think the answer is really to continue to monitor the general situation of human rights in a particular country and to try to look in particular into the question of promoting the independence of the judiciary. Without independence of the judiciary, we can not stop torture. Further, we also urge the subcommittee to promote ratification of international instruments and to press other countries for ratification of these instruments in international fora. We also urge support for the convention against torture which has been recently approved by the Commission on Human Rights of the United Nations in order to bring these questions to debate in the General Assembly. Also, I believe that the key word here is implementation. I think what we need is not only implementation of international conventions, but also some kind of body or organ to see that a country that ratifies the convention also respects it in practice. Speaking from my experience at the International Commission of Jurists, in some countries, including Turkey, for instance, but particularly in Latin America, you find that although almost every country condemns torture in its own legislation and torture is a penal offense in each country, the practice is widespread and systematic. Many countries in Latin America have ratified international agreements concerning not only torture but protection of human rights. The question for me, I insist again, is implementation and authority. The final point is that the United States should perhaps take a stronger position in the Organization of American States and in its Inter-American Commission of Human Rights, pressing harder for respect for human rights. Thank you, Mr. Chairman. Mr. KOSTMAYER. Thank you very much. And I want to thank the members of the panel and introduce our final panel of witnesses. Thank you very much for being with us today. Our final witnesses today are two distinguished lawyers involved in international human rights law. They are the Honorable Jerome Shestack, president of the International League for Human Rights, and a former representative of the United States to the U.N. Commission on Human Rights, and Ms. Amy Young who is the Executive Director of the International Human Rights Law Group. Ms. Young, I believe it's been agreed that you are going to go first, is that right? So I'm told so if you will proceed with your statement? Ms. YOUNG. That's fine. Thank you, Mr. Chairman. STATEMENT OF AMY YOUNG, EXECUTIVE DIRECTOR, Ms. YOUNG. Mr. Chairman, the proliferation of international norms proscribing torture are among the most clearly articulated and perhaps the most violated of all international norms. I would like to discuss some of the laws which prohibit torture and mention some standards that are promulgated by the United Nations, which also seek to deter torture. Because this barbaric practice continues, however, other more effective deterrents should be pursued. For example, at the last session of the U.N. Commission on Human Rights, a draft convention against torture was adopted. This convention requires state parties to make torture a criminal offense. There have also been suggestions that Congress should provide for a civil action for torture victims. This subcommittee has a special responsibility to be aware of these developments and to provide leadership in taking initiatives to promote human rights. I am very pleased to provide this information to subcommittee members and commend you and your staff for the diligence and commitment you bring to these very important hearings. There are a number of human rights instruments on the international and regional levels that prohibit torture, including the Geneva conventions and the International Covenant of Civil and Political Rights. Article 7 of the covenant, for example, provides that no one should be subjected to torture or to cruel, inhuman, or degrading treatment or punishment. The covenant also provides that no one shall be subjected without his free consent to medical or scientific experimentation. International declarations also forbid torture although not legally binding, these declarations are evidence of customary international law, which may be recognized as binding by certain legal systems including the United States. The Universal Declaration of Human Rights states in article 5 that no one shall be subjected to torture or to cruel, inhuman or degrading treatment and punishment. The U.N. Declaration on the Protection of All Persons from Torture, in article 3 also states, that no state may permit or tolerate torture or other cruel, inhuman, or degrading treatment or punishment. Both these declarations have been cited by the U.S. courts as evidence of a customary international law prohibition against torture. In addition to international agreements, each of the three regional treaties, the European and American Conventions on Human Rights, and the African Charter on Human and Peoples' Rights, prohibit torture, cruel, inhuman and degrading treatment or punishment with only slight variations in text. These international norms form a basis on which the United States can and should condemn any government which practices torture. These norms are also part of the internationally recognized human rights referred to in many pieces of U.S. legislation which require respect for human rights in countries which receive U.S. aid. In addition to international norms, I'd just like to mention for the record that there are codes of conduct for certain professions which are found to be engaging in the practice of torture such as law enforcement officials and medical personnel. These codes have been adopted by the United Nations in an effort to imposed moral and ethical standards on an individual basis. Unfortunately, Mr. Chairman, there is scant jurisprudence applying the international norms against torture, mostly because complaints about torture generally can be raised only in confidential proceedings or before rather politicized international forums. International mechanisms certainly should be used to disclose and deter instances of torture but at this stage, they can hardly be relied upon to enforce international law. This March, the U.N. Commission on Human Rights adopted another measure with a somewhat different approach. The Draft Convention Against Torture, which is scheduled for consideration by the General Assembly this fall, provides a clear and comprehensive definition of the act of torture and establishes universal jurisdiction over any alleged torturer. States which ratify the convention would be obligated to make torture an offense under their criminal law and either to indict and prosecute the alleged offender or to permit extradition proceedings. Another significant new development is the OAS draft convention defining torture as an international crime. Like the U.N. Draft Convention, the O.A.S. Convention would require states parties to make torture a criminal offense and would also establish universal jurisdiction to prosecute or to permit extradition. And like the U.Ñ. draft, the regional treaty may also propose holding both private citizens and the government officials guilty for the crime of torture. The OAS draft, however, is in the early stages and has not yet been finalized. Both draft conventions against torture recognize a very important fact, Mr. Chairman. And that is that the most effective way to conquer the practice of torture is for national courts to be seized with jurisdiction to hear cases of alleged torture. National courts are obviously better equipped to maintain custody over the defendant, to apply rules of evidence and procedure, to make findings in a less political context, and to enforce a judgment. One notable example in which a court recognized the prohibition against torture under customary international law is the case of Filartiga v. Pena-Irala, heard in U.S. district court in 1979. This case, which held that torture is a violation of international law, is well known and I will not recite the facts here again. In fact, were Filartiga to mark the beginning of a series of decisions permitting civil actions to be brought against alleged torturers in this country, it might have had the expected deterrent affect on the practice of torture. However, I raise this case today in part to apprise the subcommittee of recent developments which sharply curtail the Filartiga holding. This year, in a case entitled Hanoch Tel-Oren v. Libyan Arab Republic, which concerned the terrorist bombing of a bus in Israel, the U.S. Court of Appeals for the D.C. Circuit denied jurisdiction under that same alien tort claims act, finding no private right of action for plaintiffs to sue under international law. Each of the judges in the circuit court issued a concurring opinion expressing, however, sharply diverging views. One judge thought Filartiga rightly decided, but found the nongovernment defendants in Hanoch Tel-Oren not to be bound by what international norms might exist. Another judge criticized the holding of Filartiga; the third judge found the whole business to be so enmeshed with foreign affairs as to be totally inappropriate for judicial review of any kind. A petition for certiorari is now under consideration. The significance of Hanoch Tel-Oren is that it may curtail the right of any individual-not only aliens-to invoke international prohibitions against torture in U.S. courts. Such foreclosure would certainly be a setback for the promotion of human rights, considering the international recognition given to the Filartiga decision and its ramifications for those torturers who would seek a haven on U.S. soil. Most significant is the posture of the U.S. Government with regard to the private right of action in these two different cases. In its 1979 amicus brief in Filartiga, the U.S. Government argued that, and I'm quoting, In nations such as the United States where international law is part of the law of the land, an individual's fundamental human rights are in certain situations directly enforceable in domestic courts. However, in 1983 in a different case, and again one not involving torture, the U.S. Government citing the holding in Hanoch TelOren argued that plaintiffs must show that customary international law recognizes or creates a right of action on behalf of private individuals in order to be able to invoke that law in U.S. courts. This 180 degree reversal will surely erode the impact of Filartiga and may mean the end of such civil suits in the United States. Of course, it is possible that the draft U.N. Convention on Torture which requires criminal prosecution of alleged torturers would accomplish the same purpose. However, the ratification process is slow and cumbersome and, to be frank, this country's record on ratification of human rights treaties is too dismal to invest much hope in that initiative. I would certainly urge this subcommittee to encourage early ratification of the final U.N. Draft Convention. However, I would also like to propose that Congress consider legislation to institute a private right of action in cases of alleged torture. |