torture or other cruel, inhuman or degrading treatment or punishment." This Subcommittee should also note studies by the UN and nongovernmental groups which endeavor to provide norms to prevent torture. These norms make more explicit and therefore less exculpatory the instances in which torture is prohibited. The United Nations studies examine factors protecting the independence of the judiciary, the rights of mental patients, human rights under a state of siege and the conditions of incommunicado detention. The International Commission of Jurists has contributed a comprehensive study on human rights in States of Emergency and recently, the International Law Association has drafted" Minimum Standards of Human Rights in a State of Exception." Unfortunately, there is scant jurisprudence applying and interpreting provisions of the international norms and treaties against torture because complaints about torture generally can be raised only in confidential proceedings before rather politicized international forums. There are a few isolated cases before the European Commission of Human Rights in which certain practices such as hooding prisoners, prolonged wall standing, constant noise and deprivation of food, water and sleep were held to constitute "torture." Even then, however, the European Court of Human Rights, in a heavily criticized opinion, contradicted the Commission in its holding and found that the British practices in Northern Ireland were only "inhuman treatment." The Inter-American Commission on Human Rights, in its country reports, has reported instances of torture, but only in very generalized terms and with no apparent deterrent effect. While international mechanisms should be used to point out instances of torture, at this stage they can hardly be relied upon to enforce the law. In reponse, the international community continues its efforts to make more explicit the definition of torture and to provide more specific, obligatory remedies. This March, the United Nations Commission on Human Rights adopted a draft "Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment." The draft convention, 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 the 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 permit extradition proceedings. States parties also would be required to initiate educational programs for persons involved in the arrest and detention of prisoners, to review existing practices of such personnel and to ensure hearings and some form of compensation for the victims of torture. In addition to domestic legal remedies, the Convention also provides for an 37-536 0-84--10 International Committee Against Torture whose function shall be discussed by other witnesses here today. Another significant new development is the OAS Draft Convention Defining Torture as an International Crime. Like the United Nations draft convention, the OAS convention would require states parties to make torture a criminal offense and would also establish universal jurisdiction to prosecute or to permit extradition. Unlike the United Nations draft, the regional treaty proposes holding both private citizens and government officials guilty for the crime of torture. The OAS draft, however, it is in early stage and has not yet been finalized but it is certainly an initative which Congress should welcome. Both draft conventions against torture recognize 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, apply rules of evidence and procedures, make findings in a less political context, and 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 now famous case involved a Paraguayan police officer who, while living in New York City, was identified as the person responsible for the death by torture of a seventeen year old, Joelito Filartiga. His death was an act of vengence for the human rights activities of Filartiga's father. The case was brought by the victim's father and sister under the Alien Tort Claims Act. To be seized with jurisdiction, the federal court had to find that the act of torture was a tort in violation of international law. On appeal, the Second Circuit so held and on remand a default judgment was entered and damages were assessed at $10 million dollars. Since the defendant has returned to Paraguay, collection of the award will prove difficult; nonetheless, a powerful message has been delivered. In determining that torture was a violation of international law, the Second Circuit reviewed the numerous treaties and declarations listed above which prohibit torture, and the affadavits of international law experts who testified that in treaty as well as customary interantional law torture was proscribed by the international community. Particularly persuasive was the brief amicus curiae filed by the U.S. Government. In its brief, the U.S. argued that "uniform treaty condemnation of torture provides a strong indication that the proscription of torture has entered into customary international law," and that "the conclusion that international law prohibits torture is inescapable." Were Filartiga to mark the beginning of a series of decisions permitting civil actions to be brought against alleged torturers, we could expect some deterrent effect on the practice of torture. However, I raise this well known case, in part, to apprise the Subcommittee of recent developments which sharply curtail the Filartiga holding. In February, 1984, in Hanoch Tel-Oren v. Libyan Arab Republic, a case concerning the terrorist bombing of a bus in Israel, the U.S. Court of Appeals for the D.C. Circuit affirmed a lower court opinion which denied jurisdiction under the same Alien Tort Claims Act. Each of the judges issued a concurring opinion, expressing sharply divergent views. Judge Edwards thought Filartiga rightly decided, but found the non-government defendants in Hanoch Tel-Oren not to be bound by what international norms might exist. Bork criticized the holding in Filartiga. Judge Robb found the whole business to be so enmeshed with foreign affairs as to be inappropriate for judicial review of any kind. A petition for certiorari is now under consideration. Judge 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 a U.S. court. Such foreclosure would 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 United States soil. Significant to note as well is the posture of the United States Government with regard to the private right of action in the two cases. In its 1979 amicus brief in Filartiga the United States Government argued that "in |