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physical or mental health or condition of such prisoners or detainees and which is not in accordance with the relevant international instruments; 4/

(b) To certify, or to participate in the certification of, the fitness of prisoners or detainees for any form of treatment or punishment that may adversely affect their physical or mental health and which is not in accordance with the relevant international instruments, or to participate in any way in the infliction of any such treatment or punishment which is not in accordance with the relevant international instruments.

Principle 5

It is a contravention of medical ethics for health personnel, particularly physicians, to participate in any procedure for restraining a prisoner or detainee unless such a procedure is determined in accordance with purely medical criteria as being necessary for the protection of the physical or mental health or the safety of the prisoner or detainee himself, of his fellow prisoners or detainees, or of his guardians, and it presents no hazard to his physical or mental health.

Principle 6

There may be no derogation from the foregoing principles on any ground whatsoever, including public emergency.

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Particularly the Universal Declaration of Human Rights, the International Covenants on Human Rights, the Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the Standard Minimum Rules for the Treatment of Prisoners.

Mr. YATRON. Thank you, Professor Mueller.

You have dealt extensively with police training. Do you have any evidence that extensive training helps to alleviate the practice of torture?

Mr. MUELLER. Yes, Mr. Chairman. I think the experience which the United States has made with regard to the exclusionary rule is a fantastic example of how police officers are subject to training. At one time, it was possible to practice criminal law, if you will, at the street level as a police officer without regard to the Constitution. Yet, as soon as the law changed, the Supreme Court mandated the exclusion of evidence illegally obtained, and all of a sudden, police officers began to understand and to respond, the result of a massive training program. LEAA is perhaps the most notable example of that training effort. We have today highly trained professional officers in the United States. They could also be trained in antitorture, although that isn't all that necessary since we are, I would say, almost beyond that point.

I'm simply mentioning this as an example, that it is possible to reach the police, particularly at this time in history when the police are becoming professionals.

Mr. YATRON. Thank you, Professor.

Mr. Posner, do you see within the current judicial framework, a tendency toward more rigorous enforcement of human rights legislation, or a deemphasis of existing legislation?

Mr. POSNER. You're talking about section 502B, the whole range

Mr. YATRON. Yes.

Mr. POSNER. I think the attitude of the courts has been and probably should be that this is awfully difficult area in which to get involved.

These are questions involving foreign affairs. It's difficult to find the proper plaintive who has standing. There are a handful of lawsuits that have been brought in the last few years challenging one thing or another, but they have largely been unsuccessful, and I'm quite in sympathy with the courts in many of these instances.

It seems to me that these subjects are really your business. If the Congress feels that this administration or any other is not obeying the law, you hold the power to the purse strings. Traditionally that's the way these issues have been resolved.

Mr. YATRON. Thank you.

Mr. Leach?

Mr. LEACH. Professor Mueller, do you have any views on the training of police forces as to whether it is, if they are better off done under multilateral auspices or under direct country-to-country aid?

Mr. MUELLER. My experience has been, Mr. Leach, that it is preferable to provide that kind of technical assistance under the umbrella of the United Nations. If it is done on a bilateral basis, it looks like the donor government is trying to obtain some kind of an advantage.

It need not be so. But, suspicions may be raised. The training exercises in four continents on the part of the United Nations have been totally nonpartisan. The United States has supported such programs, sometimes by donating of funds, sometimes by seconding

personnel to participate at such training exercises. Being under the umbrella of a neutral United Nations I think that such exercises carry more credibility.

Mr. LEACH. Mr. Posner, I'm intrigued by your idea suggesting that torturers not be allowed in this country.

Does it have, however, the disadvantage that if they are not allowed in, they can't be sued?

Mr. POSNER. Yes. In fact, that's right. I think if you look at the history of the last 3 or 4 years since the Filartiga decision, there are only a handful of suits that are, in fact, brought. Even if my recommendations were adopted by the Congress and we extended and expanded section 1350, the fact is that most torturers don't make their way to the United States at the same time, that relatives of the victims have made their way here and been able to identify them.

It's an odd occurrence. I think we have strong national interests also in keeping out undesirables, and it seems to me that torturers are by definition undesirable.

Mr. LEACH. Well, let me just say your recommendation for statutory remedies in this area is new to me, but I'd be happy, and I'm sure the chairman would be, to work with you. Perhaps, under the chairman's leadership, if we could develop an approach that would tighten the statute, we could do it as a committee initiative.

I might stress, though, that the jurisdiction would belong to the Judiciary Committee. However, that doesn't mean that coming from outside that committee and coming from a subcommittee recommendation, it might not be warranted. Speaking for myself, if you would like to develop something, perhaps with the comments of Professor Mueller, or whoever else you felt was appropriate, I'm sure we'd look at it with a great deal of seriousness.

Mr. POSNER. I will do that.

Mr. YATRON. I concur with my colleague and look forward to working with him in strengthening our laws.

Mr. POSNER. Thank you very much.

Mr. YATRON. Gentlemen, we thank you very much for your patience and for giving us the benefit of your views.

The subcommittee stands adjourned, subject to the call of the Chair.

[Whereupon, at 1:18 p.m., the subcommittee was adjourned.]

THE PHENOMENON OF TORTURE

THURSDAY, SEPTEMBER 6, 1984

HOUSE OF REPRESENTATIVES, COMMITTEE ON FOREIGN AFFAIRS, Washington, DC.

The committee met in open markup session at 11 a.m., in room 2172, Rayburn House Office Building, Hon. Dante B. Fascell (chairman of the committee) presiding.

Chairman FASCELL. The committee will come to order.

Our first order of business today is House Joint Resolution 605, regarding the implementation of the policy of the U.S. Government in opposition to the practice of torture by any foreign government. To date, there are 173 cosponsors, including all of the members of this committee.

I would like to commend the Honorable Gus Yatron, chairman of the Subcommittee on Human Rights and International Organizations, for the hearings of his subcommittee on the phenomenon of torture. They heard 19 witnesses representing a wide variety of sectors-government, academia, religion, medicine, human rights organizations, torture victims, and others.

Also, I wish to mention Amnesty International's efforts on this issue. They recently published an important document entitled "Torture in the Eighties," which focuses on various aspects of the torture issue and defines the problem and its extent, reviews the situation in various countries, highlighting specific cases and citing legal instruments and mechanisms to deal with the problem.

The report recommends to governments a 12-point program for torture prevention, and Amnesty contends that any government with the political will to do so can prevent torture.

The resolution pending is an initial step toward addressing the problem. It reaffirms the U.S. position opposing torture, sets forth guidelines to help shape our policy to combat the practice of torture around the world, which is the most abhorrent of human rights violations and regularly exercised in over 60 countries. The prescriptives offered should help sensitize governments and officials both here and abroad-and that is about all we can do at this point-to the reprehensible use of torture.

The resolution underscores our commitment to the elimination of torture. In view of Amnesty International's efforts to highlight awareness of this widespread and systematic abuse, and the hearings on torture conducted by the Subcommittee on Human Rights and International Organizations, it is appropriate that we now enunciate U.S. policy on this serious issue.

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