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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." In 1983, in a different case, and again not involving torture, the United States Government citing the holding in Hanoch Tel-Oren argued that "to sustain jurisdiction under [the Alien Tort Claims Act] for an alleged violation of customary international law, plaintiff must show...that customary international law recognizes or creates a right of action on behalf of private individuals in United States' courts."

This 180 degree reversal reflects poorly on the decision making process of the United States Government; worse, the United States Government's new posture erodes the impact of Filartiga and may mean the end of such civil suits in the United States.

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 very 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


I would certainly urge this Subcommittee to encourage early ratification of the final draft U.N.Convention; however, I would also like to propose that Congress consider

legislation to institute a private right of action in cases of alleged torture. This action would certainly deter those who engage in torture from seeking refuge in the United States and might also discourage the practice in general. Thank you, Mr. Chairman.

Mr. KOSTMAYER. Thank you very much. Mr. Shestack, its a pleasure to have a Pennsylvanian before the subcommittee at any time. Please proceed.

Mr. SHESTACK. Thank you, Congressman Kostmayer. You've certainly been an avid supporter of human rights throughout your congressional career and before. And I hope the congressional career continues, especially in this election year.

I'm sorry that there won't be the opportunity to add to the wisdom of Mr. Solomon who's left but perhaps he or his staff will submit some questions.

Mr. KOSTMAYER. We'll have to forgo the wisdom of Solomon at least for the time being.


Mr. SHESTACK. I appreciate the opportunity to appear on behalf of the International League for Human Rights and with me, in the audience, is Nina Shea, our Deputy Director. It was just 10 years ago that was the first time that I testified before this subcommittee. Congressman Frazier was then chairman of this subcommittee, and Congress at that time was first formulating its human rights policy.

Many people think that the human rights policy of the United States started during President Carter's administration, and while it was active during that administration, it was really Congress in 1974 and 1975 that enacted the legislation that became the basis for our foreign policy. Human rights groups have always looked to Congress as a stalwart defender of human rights and whether its one administration or another, it really has been Congress that has proved an effective voice for human rights.

So we're grateful to be here. The chairman of the subcommittee this afternoon invited the League to emphasize the international remedies for the eradication of torture. Unfortunately, it is the absence of remedies that characterizes the international law in this area. When one hears such testimony as Mr. Artucio, Mr. Buz, and Mr. Ghulam, one experiences a deep sense of dismay and frustration at the lack of remedies.

I recall the poem by Mikolas Redenko who sits in a Soviet prison that he suffered torture to rend minds that would not bend and you heard today testimony from people whose minds would not

bend although the efforts were made to rend their bodies through torture.

Condemnation of torture, of course, is not the problem as a number of witnesses have already said. Virtually, every nation is willing to condemn torture. What is lacking is implementation of effective procedures and remedies that will put a halt to torture and it is a sad realistic fact of international law that enforcement procedures largely are impotent.

Nevertheless, we have to use what we have and step by step formulate some kind of machinery for implementation. Let me say at the outset that really the most effective means for implementation, the best remedy, is world opinion, public pressure, public exposure, the glare of publicity and people speaking up. There's a mystique to world opinion.

As I think has been mentioned, no one likes to be considered a torturer. When torture is exposed and people are courageous to speak up, when world leaders of important nations have not hesitated to speak publicly, it has had an affect. I'm willing there are too few willing to speak up.

Nongovernmental organizations also can provide important remedies. There's no doubt, for example, that Amnesty International with its intensive campaign against torture, has achieved a great deal in easing of torture for numerous victims around the globe. And I think the human rights activists the world over are grateful to Amnesty for what it has initiated and pioneered and accomplished.

I want to point to one small example from my own organization, the International League for Human Rights, with respect to Guinea. Under Sacoturo, torture was a regular practice in Guinea. In 1977, the League issued a 200-page communication detailing widespread torture of Guinean political prisoners by means of the so-called black diet or starvation. The Government of Guinea's concern about the League's allegation and the publicity that was received was so great that their foreign minister was dispatched to New York to try and persuade League representatives to withdraw the charges.

It did not withdraw the charges, and we are told that at least for some period, the torture was eased. During the period that Indira Gandhi first took over the regime and tried some repressive tactics, many people were sent to prison in India and tortured. And the League issued a comprehensive report about that.

Later, a Member of the parliament of India who was in prison and who had witnessed torture, said that after that League report came out that torture was eased in the Indian prisons for some 4 months. That may not be a long time, but for victims of torture, it was quite a long time.

So the area of public opinion is important and one in which this subcommittee can play a major role in expressing its opposition to torture whenever it is found and urging the executive voice of this Nation which is powerful to do likewise.

That's not an insignificant role and function for this subcommittee in today's world, and I hope it is one that this subcommittee will continue.

Now there is, of course, a linkage between the international procedures and mechanisms and public exposure and pressure, because those mechanisms are designed to achieve that public exposure. In my written report, I'll go into in some length, but I'll mention in briefest terms nine procedures. One is the issuance of reports. In many of the international human rights documents, there's a procedure for issuing reports about human rights conditions.

If those reports are criticized and examined critically, that is one way of exposure.

Another method is recommendations and resolutions, such as those adopted by the U.N. Commission on Human Rights. Very often those resolutions are politicized and they are not very effective. But sometimes they are. In the ILO [International Labor Organization] for example, about 40 percent of the recommendations are complied with. Now, there are 60 percent that are not complied with but in this field, one has to be grateful for 40 percent.

Conciliation is another method. The U.N. Secretary General can use his good offices. The League has just asked the United Nations Secretary General to use his good offices in the case of Dr. Shakarov and Mrs. Shakarov who is being denied medical treatment. Sometimes, on a quiet basis, the U.N. Secretary General can be effective in their many instances when he has been effective, but he has to have the will to do so, and in our view, should do so more than he presently does.

There are individual petitions, such as those filed at the U.N. Commission of Human Rights and the subcommission. Those petitions often presented through nongovernmental organizations such as Amnesty International, the ICJ [International Commission of Jurists], the international human rights groups, the Lawyers Committee, the International League and so on, presents information in a meaningful way where it can receive the glare of publicity.

There is also the procedure of investigations and working groups. That's very important. When a Commission on Human Rights establishs a working group on disappearances, there's no doubt that that working group under Lord Colville, of the U.K. Chairmanship, helped ease disappearances throughout the world.

After all, each case of disappearance saved is important to that particular person, and while you cannot quantify the results of that Commission, it does have its affect.

The international, the Inter-American Commission on Human Rights has had missions in Latin America which have highlighted abuses including torture. There's no doubt, for example, that the Commission's report on Argentina had an important effect on that country and was one of the factors in easing disappearances in that country.

Then there is a machinery for binding judgments, such as the European Court for Human Rights, and the potential of the InterAmerican Court or the National Court such as in the Filardiga case mentioned by Ms. Young. Those cases are not often used, but where you can get an international machinery such as on a European Court, that, of course, is quite effective.

Then there's all the areas which the American Law Institute which is meeting this week in Washington, calls self-help. Self-help

is in the area of bilateral relations. It is where a country that is disgusted at the human rights violations of another nation cuts off foreign aid or has a cooling or uses pressure to cease monetary loans. Those are all areas where a nation such as the United States, a powerful nation can be quite effective.

And we had mentioned quiet diplomacy earlier. Quiet diplomacy is an important area but only where it's coupled by a willingness to go public and that of course should be done in an even-handed


Finally, I want to mention a standard. You have here what Ms. Young has mentioned, a new convention dealing with torture. It is now before ECOSOC and its likely to be passed before the General Assembly. The United States has not ratified one important human rights treaty. Certainly this could be the first and the very important one. Ratifying exceeding to a treaty dealing with torture. Now I know that's a Senate function, but I know that a House resolution calling upon the Senate showing the will of the House will certainly be important. It should certainly be important to the Executive. It takes 20 nations for that treaty to come into force. What a marvelous role model for the rest of the world the United States could supply by being the first.

So I think there are opportunities.

I mention finally in these standards, Vladamir Bukofsky, a Soviet dissident who had spent time in a psychiatric hospital, once asked himself what sense was there in expounding law; it was like expounding humanitarianism to a cannibal. And finally he decided after his experience as a political prisoner, he said, I crushed them with laws, pinned them down with articles, and stunned them with paragraphs. And its important to have these human rights standards in documents of freedom. It is true that implementation goes at a petty pace but the standards are there, they give hope and encouragement; they provide the procedure that can be utilized.

The United States with respect to torture, I think, for the first time since Eleanor Roosevelt first served as chairperson of the Commission to Human Rights, has a chance to take the lead again and to be the first to ratify that important Convention.

Thank you Mr. Chairman.

Mr. KOSTMAYER. Well, Mr. Shestack, I want to thank you for your testimony and apologize both to you and Ms. Young because the subcommittee's going to have to adjourn in the next 2 or 3 minutes. I want to ask just one brief question, if I may.

Ms. Young, the national courts, I'm not an attorney, you're speaking of the kinds of courts we have in this country, Federal courts, national courts in other countries?

Ms. YOUNG. That's right, yes, Federal courts, right.

Mr. KOSTMAYER. How would this operate in countries which are, whose governments are unwilling to comply with these kind of international standards. What gives you reason to think that their courts would for any reason comply?

Ms. YOUNG. Well, the provisions of-you're speaking of the U.N. Draft Treaty-the provisions of that treaty would obligate a state party to make torture a criminal offense, and to take all means to prosecute it under the usual criminal procedures. So it would just

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