Materials on Torture

MATERIALS ON TORTURE AND OTHER ILL-TREATMENT

A.QUESTIONSi

B.TREATIES AND OTHER INTERNATIONAL INSTRUMENTS RELATING TO TORTURE AND OTHER ILL-TREATMENT – U.S. COMMITMENTS 1

C. U.S. RESERVATIONS TO HUMAN RIGHTS TREATIES RELATING TO TORTURE 17

D.INTERNATIONAL INTERPRETATIONS OF THE PROHIBITION AGAINST TORTURE AND ILL-TREATMENT 24

E.U.S. CONSTITUTIONAL PROTECTIONS 71

F.U.S. STATUTORY PROVISIONS 74

G.U.S. GOVERNMENT POSITIONS AND PRACTICES 75

H.DOES THE PRESIDENT HAVE LEGAL AUTHORITY AS COMMANDER-IN- CHIEF TO VIOLATE INTERNATIONAL AND NATIONAL LAWS PROHIBITING TORTURE IN THE INTEREST OF PROTECTING NATIONAL SECURITY? 85

I.THE APPLICATION OF INTERNATIONAL HUMAN RIGHTS LAW IN U.S. COURTS 90

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A.QUESTIONS

1.What was the first international human rights prohibition against torture? What is the legal force of that prohibition?

2.Did that first prohibition relate only to torture or also to ill-treatment?

3.How different are the prohibitions in humanitarian law as to torture and ill-treatment from the prohibitions in human rights law?

4.Under what circumstances, if any, might torture be permissible under international law?

5.Under what circumstances, if any, might cruel, inhuman or degrading treatment be permissible under international law?

6.What is the most authoritative definition of torture? What are the principal aspects of that definition?

7. What sorts of conduct qualify as torture? ill-treatment? What sources of interpretation are most pertinent?

8.What characteristics distinguish torture from ill-treatment?

9.What distinction, if any, does the Convention Against Torture draw between torture and other ill-treatment?

10.What is the legal import of the U.S. reservations with regard to cruel, inhuman or degrading treatment?

11. What is the legal import of the U.S. understanding in regard to the meaning of torture?

12.Does President Bush’s pronouncement on February 7, 2002, with regard to the “Humane Treatment of al Qaeda and Taliban detainees” constitute a commitment to treating detainees humanely consistent with the traditional respect of the U.S. for human rights? Could President Bush’s pronouncement also be seen as a bold and treacherous attack on the international legal prohibition of torture and ill-treatment? What language in the February 7th pronouncement would you cite for either of these views?

a.What was the legal authority for President Bush’s pronouncement on February 7, 2002, with regard to the “Humane Treatment of al Qaeda and Taliban detainees”? What do you think of the legal authority?

b.Do the Geneva Conventions apply to the treatment of al Qaeda and Taliban detainees?

c.Is the “war on terror” an international armed conflict?

d.Does the “war on terror” fit within the protections of Common Article 3 to the Geneva Conventions?

e.Does the Convention Against Torture apply to the treatment of al Qaeda and Taliban detainees? Did Present Bush consider the Convention Against Torture?

f.Does the Civil and Political Covenant apply to the treatment of al Qaeda and Taliban detainees? Did Present Bush consider the Covenant?

13.What was the impact of President Bush’s pronouncement on February 7, 2002?

14.What do you think of Secretary of State Colin Powell’s concerns about the advice President Bush was getting prior to his pronouncement on February 7, 2002?

15.What was the objective of the August 1, 2002, memo from the Office of Legal Counsel (OLC) in the U.S. Department of Justice?

16. If you were given the task of advising U.S. interrogators what objective would you have pursued?

17.How did the OLC memo of August 1, 2002, interpret torture? How did that interpretation differ from the Torture Convention definition? the U.S. understanding?

18. To what extent did the OLC memo of August 1, 2002, focus on cruel, inhuman, or degrading treatment?

19.What was the operational impact of the U.S. understanding as to cruel, inhuman, or degrading treatment?

20.The OLC memo of August 1, 2002, did not focus on Article 10 of the Covenant on Civil and Political Rights. Was there any U.S. reservation or understanding in regard to that provision?

21.Were the instructions given to U.S. interrogators by Secretary of Defense Rumsfeld on December 2, 2002, consistent with U.S. humanitarian law or human rights obligations? Was he calling for torture? cruel, inhuman, or degrading treatment?

22.How do Rumsfeld’s instructions of December 2nd compare with the Army’s Field Manual 34-52? What is the significance, if any, of that comparison?

23.What is the difference between the OLC advice given to U.S. interrogators on August 1, 2002, and the OLC advice given on December 30, 2004?

24.Were the instructions given to U.S. interrogators by Secretary of Defense Rumsfeld on April 16, 2003, consistent with U.S. humanitarian law or human rights obligations? Was he calling for torture? cruel, inhuman, or degrading treatment?

25.To the extent that there is information about the actual conduct of U.S. interrogators and forces with regard to detainees in Afghanistan, Guantánamo, and Iraq, does that conduct constitute torture? cruel, inhuman, or degrading treatment?

26.To what extent was that conduct the responsibility of low-level, ill-trained, and unauthorized military personnel?

27.Was that conduct authorized by the highest levels of the U.S. Government?

28.What has the U.S. done to investigate and/or remedy violations of human rights and humanitarian law as to torture? cruel, inhuman, or degrading treatment?

29.What more should the U.S. Government do?

30.What more should other governments do?

31.What further questions do you have about these developments?

B.TREATIES AND OTHER INTERNATIONAL INSTRUMENTS RELATING TO TORTURE AND OTHER ILL-TREATMENT – U.S. COMMITMENTS

CHARTER OF THE UNITED NATIONS, June 26, 1945, 59 Stat. 1031, T.S. NO. 993, 3 Bevans 1153, entered into force Oct. 24, 1945: . . .

Article 55

With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: . . .

c. universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language or religion.

Article 56

All Members pledge themselves to take joint and separate action in cooperation with the Organization for the achievement of the purposes set forth in Article 55. . . .

Article 103

In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.

NOTE: The U.S. has formally obligated itself to comply with prescriptions of the U.N. Charter, which entered into force on October 24, 1945. There are 191 States parties to the U.N. Charter.

UNIVERSAL DECLARATION OF HUMAN RIGHTS, G.A. res. 217A (III), U.N. Doc A/810 at 71 (1948).

Article 5

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

NOTE: Mrs. Eleanor Roosevelt, as the U.S. Ambassador to the Commission on Human Rights, was very much involved in drafting the Universal Declaration. The Universal Declaration is considered an authoritative interpretation of the treaty obligations under the U.N. Charter. Article 5 and other Universal Declaration provisions are also considered customary international law.

INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

Article 2

1. Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

2. Where not already provided for by existing legislative or other measures, each State Party to the present Covenant undertakes to take the necessary steps, in accordance with its constitutional processes and with the provisions of the present Covenant, to adopt such legislative or other measures as may be necessary to give effect to the rights recognized in the present Covenant.

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;

(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

Article 4

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation. . . .

Article 7

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation. . . .

Article 10

1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.

NOTE: There are 154 States parties to the Covenant. During the first Bush Administration,the U.S. ratified the Covenant on Civil and Political Rights on June 8, 1992; the treaty entered into force for the U.S. on September 8, 1992. It was encumbered by five reservations, five understandings, four declarations, and one proviso. 102 Cong. Rec. S4781-4784 (daily ed., April 2, 1992).

The first U.S. report to the Human Rights Committee was to be submitted on September 7, 1993, however, it was submitted on July 29, 1994, and the Committee considered the initial report at its fifty-third session in March 1995. The second U.S. report was due in September 1998 and had not been submitted by May 2005. In 1996, Thomas Buergenthal became the first U.S. member of the Human Rights Committee. He was replaced by Louis Henkin in September 1999. In September 2002 Ruth Wedgewood became a member of the Committee.

CONVENTION AGAINST TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.

Article 1

1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.

Article 2

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

Article 3

1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.

2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights.

Article 4

1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.

2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.

Article 5

1. Each State Party shall take such measures as may be necessary to establish its jurisdiction over the offences referred to in article 4 in the following cases:

(a) When the offences are committed in any territory under its jurisdiction or on board a ship or aircraft registered in that State;

(b) When the alleged offender is a national of that State;

2. Each State Party shall likewise take such measures as may be necessary to establish its jurisdiction over such offences in cases where the alleged offender is present in any territory under its jurisdiction and it does not extradite him pursuant to article 8 to any of the States mentioned in paragraph 1 of this article.

3. This Convention does not exclude any criminal jurisdiction exercised in accordance with internal law.

Article 6

1. Upon being satisfied, after an examination of information available to it, that the circumstances so warrant, any State Party in whose territory a person alleged to have committed any offence referred to in article 4 is present shall take him into custody or take other legal measures to ensure his presence. The custody and other legal measures shall be as provided in the law of that State but may be continued only for such time as is necessary to enable any criminal or extradition proceedings to be instituted.

2. Such State shall immediately make a preliminary inquiry into the facts.

3. Any person in custody pursuant to paragraph 1 of this article shall be assisted in communicating immediately with the nearest appropriate representative of the State of which he is a national, or, if he is a stateless person, with the representative of the State where he usually resides.

4. When a State, pursuant to this article, has taken a person into custody, it shall immediately notify the States referred to in article 5, paragraph 1, of the fact that such person is in custody and of the circumstances which warrant his detention. The State which makes the preliminary inquiry contemplated in paragraph 2 of this article shall promptly report its findings to the said States and shall indicate whether it intends to exercise jurisdiction.

Article 7

1. The State Party in the territory under whose jurisdiction a person alleged to have committed any offence referred to in article 4 is found shall in the cases contemplated in article 5, if it does not extradite him, submit the case to its competent authorities for the purpose of prosecution.

2. These authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State. In the cases referred to in article 5, paragraph 2, the standards of evidence required for prosecution and conviction shall in no way be less stringent than those which apply in the cases referred to in article 5, paragraph 1.

3. Any person regarding whom proceedings are brought in connection with any of the offences referred to in article 4 shall be guaranteed fair treatment at all stages of the proceedings.

Article 8

1. The offences referred to in article 4 shall be deemed to be included as extraditable offences in any extradition treaty existing between States Parties. States Parties undertake to include such offences as extraditable offences in every extradition treaty to be concluded between them.

2. If a State Party which makes extradition conditional on the existence of a treaty receives a request for extradition from another. State Party with which it has no extradition treaty, it may consider this Convention as the legal basis for extradition in respect of such offences. Extradition shall be subject to the other conditions provided by the law of the requested State.

3. States Parties which do not make extradition conditional on the existence of a treaty shall recognize such offences as extraditable offences between themselves subject to the conditions provided by the law of the requested State.

4. Such offences shall be treated, for the purpose of extradition between States Parties, as if they had been committed not only in the place in which they occurred but also in the territories of the States required to establish their jurisdiction in accordance with article 5, paragraph 1.

Article 9

1. States Parties shall afford one another the greatest measure of assistance in connection with criminal proceedings brought in respect of any of the offences referred to in article 4, including the supply of all evidence at their disposal necessary for the proceedings.

2. States Parties shall carry out their obligations under paragraph I of this article in conformity with any treaties on mutual judicial assistance that may exist between them.

Article 10

1. Each State Party shall ensure that education and information regarding the prohibition against torture are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to any form of arrest, detention or imprisonment.

2. Each State Party shall include this prohibition in the rules or instructions issued in regard to the duties and functions of any such person.

Article 11

Each State Party shall keep under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the custody and treatment of persons subjected to any form of arrest, detention or imprisonment in any territory under its jurisdiction, with a view to preventing any cases of torture.