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Multilateral Human Rights Treaties Ratified by the U.S.

February 9, 2013

The U.S. is a party to at least 19 significant multilateral human rights treaties.[1]

Three of them have been reviewed in posts regarding their complex and lengthy U.S. ratification process: the Convention Against Torture, the Genocide Convention and the International Covenant on Civil and Political Rights.

Here is a list of the other 16 such treaties (with the dates they generally entered into force and the dates they were ratified by the U.S. or entered into force for the U.S.):

  1. Slavery Convention (3/9/1927 & 3/21/1929);
  2. Protocol Amending the Slavery Convention (12/7/1953 & 3/7/1956);
  3. Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery (4/30/1957 & 12/6/1967);
  4. Abolition of Forced Labour [sic] Convention (1/17/1959 & 9/25/1992);
  5. Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour [sic] (11/17/2000 & 11/17/2000);
  6. United Nations Charter (10/24/1945 & 10/24/1945); [2]
  7. First  Geneva Convention for the Amelioration of Condition of Wounded and Sick in Armed Forces in the Field (10/21/1950 & 2/2/1956);
  8. Second Geneva Convention for the Amelioration of Condition of Wounded and Sick and Shipwrecked in Armed Forces at Sea (10/21/1950 & 2/2/1956);
  9. Third Geneva Convention for Treatment of Prisoners of War (10/21/1950 & 2/2/1956);
  10. Fourth Geneva Convention for the Protection of Civilians in Time of War (10/21/1950 & 2/2/1956);
  11. Protocol Relating to the Status of Refugees (10/4/1967 & 11/1/1968);[3]
  12. Convention on the Political Rights of Women (7/7/1954 & 7/7/1976);[4]
  13. International Convention on the Elimination of All Forms of Racial Discrimination (1/4/1969 & 11/20/1994);
  14. Optional Protocol to the Convention on the Rights of the Child (Involvement of Children in Armed Conflicts) (2/12/2002 & 12/23/2002);
  15. Optional Protocol to the Convention on the Rights of the Child (Sale of Children, Child Prostitution and Child Pornography) (1/18/2002 & 12/23/2002); and
  16. Charter of the Organization of American States (12/13/1951 & 12/13/1951).[5]

Merely reviewing the list of these treaties shows the variety of their subjects and the U.S. commitment to international human rights.[6]

[1] See David Weissbrodt, Fionnuala Ni Aolain, Joan Fitzpatrick, Frank Newman, International Human Rights: Law, Policy, and Process at 136-38 (4th ed. LexisNexis 2009) [Weissbrodt Book].

[2] The U.N. Charter’s Preamble states that the “Peoples of the United Nations [are determined] to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small.” Its Article 55 requires the U.N. to promote, among other things, “universal respect for . . . human rights . . . without discrimination. . . .” Its Article 68 called for the establishment of a Commission on Human Rights. It should also be noted that in 1944 the U.S. prepared the initial plan for what became the U.N., and it included an international bill of rights. (Weissbrodt Book at 11-13.)

[3] The U.S. ratification of the Protocol Relating to the Status of Refugees implicitly ratified the Convention Relating to the Status of Refugees that generally entered into force on April 22, 1954. The substance of the two treaties was discussed in an earlier post.

[4] This Convention’s Article I states,”Women shall be entitled to vote in all elections on equal terms with men,without any discrimination.”

[5] The Charter of the OAS proclaimed “the fundamental rights of the individual without distinction as to race, nationality, creed, or sex” (Art. 3(1) and the responsibility of each state in its development to “respect the rights of the individual and the principles of universal morality” (Art. 17). The Charter also established the Inter-American Commission on Human Rights “to promote the observance and protection of human rights” and to prepare an “Inter-American convention on human rights” (Art. 106).

[6] It would be interesting to review the history of the U.S. ratification of these treaties, especially those with long periods before the U.S. became a party. I would be interested in comments by anyone who has done so or by anyone who finds errors in this summary.

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The Difficulty of Obtaining U.S. Ratification of Multilateral Treaties

December 8, 2012

On December 4th the U.S. Senate once again demonstrated the difficulty of obtaining U.S. ratification of multilateral treaties.

Voting in U.S. Senate

Voting in U.S. Senate

The Senate that day voted 61 to 38 to give its Advice and Consent to U.S. ratification of the United Nations Convention on the Rights of Persons with Disabilities.  This, however, fell six votes short of the two-thirds vote required by Article II, § 2(2) of the U.S. Constitution. This failure happened even though the treaty essentially adopted the terms of the Americans with Disabilities Act and was supported by all 51 Democratic, 2 Independent and 8 Republican Senators.

Former Senator Robert Dole in Senate

Former Senator Robert Dole in Senate

The 38 “No” votes were all cast by Republican Senators despite the support of the treaty by Robert Dole, the former Republican Majority and Minority Leader of the Senate and the Party’s presidential candidate in 1996,who was on the Senate floor in his wheelchair to garner support for the treaty.

Such Senate approval is only one critical step in the complicated U.S. procedures for such ratification. The following are the steps in that procedure:

  • The U.S. Government’s participating in the preparation of the treaty, including multiparty negotiation of its terms.
  • The President’s signing the treaty on behalf of the U.S. (This could also be done by another high-level official of the Administration.)
  • The President’s submitting the treaty to the U.S. Senate for its advice and consent under Article II, Section 2 (2) of the U.S. Constitution.
  • The U.S. Senate Foreign Relations Committee’s conducting a hearing on whether the Senate should give its advice and consent to ratification of the treaty, taking a committee vote on that issue and reporting the results of the hearing and the vote to the full Senate.
  • The U.S. Senate’s debating a resolution to grant its advice and consent to ratification of the treaty and voting by at least two-thirds of those Senators present, under Article II, Section 2 (2) of the U.S. Constitution, to do so.
  • The President’s submitting the U.S. ratification instrument to the person designated in the treaty as the recipient of such instruments; for multilateral treaties that is usually the U.N. Secretary-General.
  • For at least multilateral treaties, the passing of a stipulated amount of time after submission of the ratification instrument before the treaty goes into force for the U.S.[1]

The difficulty of completing all of these procedures, including the Senate’s granting its Advice and Consent, is also seen by the 17 to 19 years and five presidencies it took before the U.S. had ratified the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, and before the treaty went into force for the U.S.

Yet another example of the mountain that must be climbed for ratification is the inability to date to obtain a two-thirds Senate vote for Advice and Consent to ratification of the United Nations Convention on the Law of the Sea despite endorsement by the Pentagon, labor and business and three presidents (Bill Clinton, George W. Bush and Barack Obama).

Reacting to the Senate’s rejection of the disabilities treaty, the New York Times’ “Room for Debate” feature posed the question–   “”Have Treaties Gone Out of Style?” Four people participated in this debate: David Kopel, Julian Ku, Catherine Powell and Jenny Martinez.

David Kopel [2] argues that the Senate was right to reject this treaty.  In his opinion, it “was rife with flaws — requiring government at every level in the U.S. to spend ‘the maximum of its available resources’ on disabled services, granting Congress new powers to regulate private homes and personal behavior, and creating a new legal right to abortion, independent of Roe v. Wade.” Moreover, he said, “Efforts by senators to add reservations to address some of these issues were rejected by treaty proponents.” Finally he asserted that “even if the textual language in the treaty were perfect, the fact that the future meaning of the disabilities treaty will be decided by U.N. bureaucrats” supported U.S. rejection.

Julian Ku, [3] although generally skeptical of multilateral treaties like the one at issue this week, concluded that the stated fears of this treaty were unfounded. He said, the Obama Administration had “conditioned Senate approval on a ‘non-self-executing’ declaration that prevents any litigation under the convention in U.S courts [and] . . .  added a federalism reservation that would prevent the convention from overriding inconsistent state law.” In addition, the Administration “added a ‘private conduct’ reservation that would prevent it from regulating nonstate [sic] actors, like parents or small businesses. Taken together, these limitations would indeed render the convention a legal nullity within the United States.”[4]

Supporting ratification of the treaty, Catherine Powell [5] said that the treaty “extends abroad the same basic rights Americans already enjoy at home,” [would strengthen] . . . disabilities rights for others,. . . [and] would have helped Americans who travel, live, work and study abroad, including our wounded warriors. It would also benefit American businesses that sell power wheelchairs and other adaptive technologies that assist people with disabilities.” According to Powell, the two asserted objections to the treaty were invalid.

  • “First, the claim that the treaty would lead to interference with home schooling is nonsensical. If anything it would expand educational opportunities. It defends autonomy, independence and choice for people with disabilities (including parents of children with disabilities), by prohibiting discrimination and interference in decisions.
  • Second, the claim that this treaty would threaten U.S. sovereignty is specious. . . . Ratifying the convention requires no change in our law and no new rights, and it cannot be used directly to bring lawsuits. No international organization, including the nonbinding advisory committee established by the treaty, can force us to do anything.”

Jenny Martinez [6] also rejected the sovereignty objection. This conception of sovereignty, she said,  is isolationistic “that focuses on minimizing ties to the community of nations, rather than seeking to lead that community. But autonomy is just one meaning of sovereignty, and an elusive one at that in a globalized world economy. Sovereignty is also the power to make law, and sovereignty wisely exercised is the power to make good law.” Indeed, in “wiser moments, leaders of both parties have recognized that participation in international treaties that serve our national interests and reflect our national ideals represents an exercise of sovereign power, not a diminution of it.”

The Senate indeed has an important responsibility under the Constitution to ensure that U.S. entry into any proposed treaty is in accordance with the national and international interest of the country. Because adopted treaties, under the Constitution, are part of the supreme law of the land, The Constitution requires the Senate’s vote on such matters to be at least two-thirds. I regret that we are in a period where one of our major political parties has lost sight of the previous bipartisan consensus that our participation in multilateral treaties usually advances our national interest. Although the U.S. in many respects is the most powerful country in the world, it still needs allies and means to project its values and interests to others. Such treaties are one important way of doing just that.

[1] The same procedures are necessary for approval of bilateral treaties, but such treaties are less controversial.

[2] Kopel is the research director of the Independence Institute and an adjunct professor of law at the University of Denver and the co-author of ”Firearms Law and the Second Amendment.”

[3] Ku is a professor of law and the faculty director of international programs at the Maurice A. Deane School of Law at Hofstra University and the co-author (with John Yoo) of “Taming Globalization, International Law, the U.S. Constitution, and the New World Order.”

[4] Ku argues that the Republican Senators should have saved their efforts for opposing Advice and Consent to ratification of  the Law of the Sea treaty that will come before the Senate in the future.

[5] Powell is a visiting associate professor of law at Georgetown University Law Center (on leave from Fordham University School of Law) and former staffer on the Secretary of State’s policy planning staff and the national security staff in the White House.

[6] Martinez is the Warren Christopher professor in the practice of international law and diplomacy at Stanford Law School and the author of “The Slave Trade and the Origins of International Human Rights Law.”

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Are International Criminal Tribunals Successful?

April 2, 2012

Michael Ignatieff, a former Harvard professor and expert on international human rights and a former leader of Canada’s Liberal Party, in a recent issue of The New York Review of Books expressed a gloomy view of the post-World War II development of international criminal tribunals.

The actions of the U.S. and other great powers have contributed to his negativity. He says, “America is exceptional in combining standard great-power realism with extravagant idealism about the country’s redemptive role in creating international order. . . . [The] US has promoted universal legal norms and the institutions to enforce them, while seeking by hook or by crook to exempt American citizens, especially soldiers, from their actual application. From Nuremberg onward, no country has invested more in the development of international jurisdiction for atrocity crimes and no country has worked harder to make sure that the law it seeks for others does not apply to itself.”

This negative assessment is buttressed by the new memoir by David Scheffer (All the Missing Souls: A Personal History of the War Crimes Tribunals). Scheffer, who was one of the leading U.S. diplomats involved in the negotiations that created these tribunals, recounts the U.S. resistance to (i) providing U.S. intelligence information to the ICTY; (ii) seeking to arrest the most egregious defendants for the ICTY; and (III) having U.S. citizens, especially soldiers, being subject to the jurisdiction of the International Criminal Court (ICC).  A review of this book is the nominal subject of this essay by Ignatieff.

Scheffer’s post-mortem on his frustrations as the lead U.S. diplomat at the Rome Conference that produced the Rome Statute for the ICC is especially instructive on why the U.S. voted against that treaty at the conclusion of the conference and more generally on the U.S. process for negotiating and ratifying multilateral treaties.

According to Scheffer, there were four main reasons for the inability of the U.S. to advance its positions at the Rome Conference and its eventual vote against the treaty at the conference’s conclusion. U.S. military officials failed to know and understand other nations’ perspectives on the ICC and to explain to other nations the role of the U.S. military after the end of the Cold War. Nevertheless the U.S. military’s opposition to the ICC dictated the terms of the unsuccessful U.S. negotiating positions at the conference. In addition, the U.S. government was unable to make timely policy decisions on key issues being negotiated for the treaty. Thirdly, there are always distractions and other matters clamoring for the attention of the President and his top advisors; for President Clinton and the Rome Conference it was the Monica Lewinsky scandal. Finally, Republican Senators Jesse Helms of North Carolina and Rod Grams of Minnesota, who were vehemently opposed to the idea of an ICC, attended the Rome Conference to make their views known to other governments.

Scheffer also provides important background information on two developments after the Rome Conference that remind us that there are important issues for a treaty like the Rome Statute after its terms have been adopted. First, he successfully pressed for significant U.S. participation in the drafting of the ICC’s Rules of Procedure and Evidence and the Elements of Crimes that helped to alleviate some of the U.S. concerns regarding due process at the new court. Second, Scheffer also was successful in lobbying for the U.S.’ signing the Rome Statute before the end of 2000 (the last possible date for a state’s signing the treaty), which he did on behalf of the U.S. at the U.N. headquarters in New York City on December 31st (a very wintery Sunday New Year’s Eve Day). He, however, was not pleased with some of the details of President Clinton’s signing statement that said the treaty had “significant flaws” and that he would not be submitting the treaty to the Senate for advice and consent. The latter point, says Scheffer, was unnecessary since the Clinton presidency was almost over and since it usually takes years to prepare a treaty for submission to the Senate.

Ignatieff’s negative assessment of the U.S. split personality on this subject is also supported by the fact that the U.S. has been actively involved in the post-1945 negotiation of treaties that establish or codify international human rights norms, but has not ratified 16 such treaties, including the International Covenant on Economic, Social and Cultural Rights, the Convention on the Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child and the Rome Statute of the International Criminal Court. Moreover, the U.S. has subjected its ratification of 10 of 16 such treaties to reservations, declarations and understandings that attempt to limit the application of such treaties to the U.S. (David Weissbrodt, Joan Fitzpatrick & Frank Newman, International Human Rights: Law, Policy and Process at 136-66 (3d ed. 2001).)

We have seen this phenomenon in a prior post‘s examination of the U.S. ratification of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and by another post’s noting that Protocol II to the Geneva Conventions has been languishing in the U.S. Senate for 25 years with no action on presidential requests for advice and consent to U.S. ratification of that treaty. Other posts examined the policies toward the ICC in the Clinton, George W. Bush and Obama Administrations.

According to Ignatieff, the development of mechanisms of international criminal justice “was supposed to rescue the possibility of universal justice from the revenge frenzies, political compromises, and local partialities of national justice.”  This has not been the case, however, in his opinion, because “international justice turns out to be as much the prisoner of international politics as national justice is of national politics. Indeed, given the stakes, international justice may be more partial, that is, more politicized, than national justice.”

Therefore, he wonders if the creation of the international criminal tribunals—Yugoslavia, Rwanda, Cambodia, Sierra Leone, and the ICC —has been worth the effort and costs. From 1993 through 2009, he says, these tribunals collectively cost their donors $3.43 billion, but only 131 convictions were obtained.

In the next breath, however, Ignatieff seems to say that the tribunals have been worth all the trouble. He says that no one now is dying from atrocity crimes in Bosnia, or in Cambodia, Sierra Leone, or Rwanda, which have had special international criminal tribunals.  ”Justice—imperfect, partial, expensive—has been done and even been seen to be done. In these places, murderous rages have subsided. Some have reconciled. States have achieved stability. People are moving on. One of the reasons for this may be that in some cases justice was done.”

Although I share Ignatieff’s view of the imperfections of the mechanisms of international criminal justice and of U.S. (and other great powers’) resistance to application of such institutions or norms to themselves, I do not agree with his more pessimistic assessment of the development of international criminal tribunals.

First, he pulls the number of convictions at 131 from a table of results (as of December 31, 2010) in the Scheffer book without mentioning or considering these tribunals’ other results according to that table . Nor does Ignatieff attempt to update the table.

Let me first update that table and then discuss the overall results of these tribunals. My examination on April 1, 2012, of the websites for these tribunals revealed the following results with respect to individuals who have been charged with crimes by said tribunals:

Tribunal Pre-Trail Trial Convicted (includes pending appeals) Withdrawn/Dismissed/Acquitted/

Deceased

 Referred to Nat’l Court At Large TOTAL
ICTY 2 16   81 49 13   0 161
ICTR 1   3   62 14   3   9   92
Special Ct.-Sierra Leone 0   1     8   2   0   1   12
Extra Chambers Cambodia 5   4     1   0   0   0   10
ICC 7   3     1   6   0 11   28
TOTAL 15 27 153 71 16 21 303

According to this table, Ignatieff understates the convictions by 22, but more importantly he ignores the 16 who have been referred to national courts, the 42 who are still in pre-trial or trial proceedings and the 21 who are still fugitives. Thus, there eventually may be additional convictions for the crimes that have been charged. Moreover, these courts are not machines to produce convictions; they are intended to provide due process guarantees to those charged with crimes, and the 71 individuals who have had charges withdrawn or dismissed or who have been acquitted or who have died before their trials could be completed suggest that these courts have been operating fairly.

Second, Ignatieff ignores the fact that the existence and operation of these tribunals have given incentives and programs to various countries to improve their judicial systems so that eventually they can try individuals for the crimes within the jurisdiction of these international courts. Indeed, 16 of the individuals who have been charged with crimes by these tribunals have had their cases transferred to national court systems. As previously noted, the ICC’s Rome Statute has provisions incorporating the principle of complementarity whereby the ICC defers to national prosecutions by competent national judicial systems.

Third, Ignatieff also ignores the fact that these tribunals have been important in developing a more elaborate international law regarding genocide, crimes against humanity and war crimes, and their precedents can be and are being used by other courts and agencies involved in cases or other proceedings regarding international human rights.

Fourth, Ignatieff fails to acknowledge that these tribunals are only one part of a complex, interactive global struggle against impunity for the worst crimes of concern to the international community. Various posts already have discussed many of these pieces to the puzzle, and a prior post summarized this interactive network

Finally, in my opinion, these tribunals have been successful for the foregoing reasons. The peoples of the world through their nation-state governments have been struggling to climb out of the pits of depravity of World War II by creating or codifying international norms or human rights and by constructing mechanisms to protect individuals that are beyond the control of their own national governments while such governments still have sovereignty over most aspects of their lives. This is an inherently difficult process, and many compromises are necessary in order to make any progress. But the story is not finished. Further developments, I am confident, will occur.

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Methods of Enforcing International Human Rights Norms

March 31, 2012

There are numerous ways in which international human rights norms are enforced, many of which already have been examined in this blog. Here is at least a partial list of such methods:

  • Countries like the U.S. that are parties to certain regional organizations like the Organization of American States can be sued for alleged violations of human rights treaties in bodies like the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.
  • Complaints about a country’s alleged violations can be reported to special rapportuers with specific subject-matter competence for an investigation and report.
  • Countries like the U.S. that are parties to certain human rights treaties like the Convention Against Torture submit reports to treaty bodies for review and recommendations for improving their compliance with the treaties.
  • All members of the U.N. are subject to Universal Periodic Review (UPR) by the U.N. Human Rights Council and obtain recommendations for ways they can improve their human rights records.
  • Victims of certain human rights violations can obtain protection through being recognized as a “refugee.”
  • Truth commissions can investigate and promulgate the results of those investigations as the “truth” of past violations which then can be used as evidence in the previously mentioned procedures.

These various institutions or mechanisms operate independently of one another. Other than the first two, they have limited power to force a recalcitrant government to change its behavior. Yet they also are all engaged in an interactive global struggle against impunity for violators of international human rights norms.

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The Persistence of the Inquisition

February 18, 2012

The Inquisition was a phenomenon limited to fifteenth and sixteenth century Spain. Correct? Not so says Cullen Murphy in his new book, God’s Jury: The Inquisition and the Making of the Modern World and in the Atlantic Magazine’s excerpt of the book, Torturer’s Apprentice. So too does Adam Gopnik in a recent New Yorker essay about this and related books, Inquiring Minds: The Spanish Inquisition revisited.

As Gopnik puts it,  the Inquisition is “an institution as deeply rooted in modernity as the scientific tradition that it opposed. Its fanaticism, its implicit totalitarianism . . ., its sheer bureaucratic brutality  . . . make it central to who we are and what we do. Its thumbprint is everywhere. . . .” What happens at the U.S. base in Guantanamo Bay, Cuba is only one of the recent examples. Another example is the close parallels of the Spanish Inquisition’s interrogation manuals and the current U.S. manuals about “enhanced interrogation.”

Gopnik also criticizes scholars who allegedly delve into the minutia of the Spanish Inquisition and in the process lose the forest for the trees: Benzion Netanyahu (the father of the Israeli Prime Minister), Henry Kamen and Eamon Duffy.

According to Gopnik, history needs to be done with “historical imagination,” which is the “ability to see small and think big.” Without such imagination, the historian “risks a failure of basic human empathy.”  For studying and writing about the Spanish Inquisition, this means, he says, that the historian must imagine “the horror of being burned alive.”

The persistence of the practices of the Inquisition unfortunately continues to be demonstrated by the news of the day. Minneapolis’ Center for Victims of Torture has treated over 23,000 victims over the last 24 years. A similar program at New York City’s Bellevue/N.Y.U. Program for Survivors of Torture recently reported that in its “20 years of examining torture victims, we have seen few as traumatized as the several Abu Ghraib, Guantanamo and black site (secret prison) detainees whom we evaluated.” And the European Court of Human Rights recently decided that under the European Convention for the Protection of Human Rights and Fundamental Freedoms, the U.K. could not deport a radical Muslim cleric to Jordan because there was a “real risk that evidence obtained by torture will be used against him.”

We also have seen in the following prior posts the persistence of torture and the efforts to stop such conduct:

  • the negotiation and adoption of a multilateral treaty against torture (the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment);
  • the U.S. first and second reports to the Committee Against Torture;
  • the U.S. adoption of the Torture Victims Protection Act (TVPA);
  • the U.S. federal court lawsuit under the TVPA over the torture, rape and murders of the four American churchwomen in El Salvador;
  • the criminal cases in Spain under the principle of universal jurisdiction against U.S. officials for alleged torture of detainees in Guantanamo Bay, Cuba and for  authoring legal memoranda allegedly justifying torture;
  • the granting of asylum to a Salvadoran for having been tortured in his home country and who came to Minnesota to be treated at the Center for Treatment of Victims of Torture; and
  • the jurisdiction over torture as part of crimes against humanity (Art. 7(1)(f)) and war crimes (Art. 8(2)(a)(ii), 8(2)(c)(i)) for the International Criminal Court and other international criminal tribunals.

As a result, eternal vigilance against torture is necessary. In the U.S., for example, various religious groups have banded together in a National Religious Campaign Against Torture. Its statement of conscience says, “Torture violates the basic dignity of the human person that all religions, in their highest ideals, hold dear. It degrades everyone involved — policy-makers, perpetrators and victims. It contradicts our nation’s most cherished ideals. Any policies that permit torture and inhumane treatment are shocking and morally intolerable.”

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Spain’s Criminal Case Against U.S. Authors of Legal Memoranda Allegedly Justifying Torture

January 25, 2012

Spain’s National Court (Audiencia Nacional) has three criminal cases on its docket involving allegations of illegal conduct by U.S. officials with respect to U.S. interrogation of foreigners and war crimes. The Spanish court is involved because it has exercised its right under the international law principle of universal jurisdiction for a national court to exercise jurisdiction over such cases even if the crimes did not occur on its territory.

On March 17, 2009, the Spanish Association for the Dignity of Prisoners filed a 98-page criminal complaint in the Spanish court against six officials of the George W. Bush Administration: (i) David Addington (former Counsel to, and Chief of Staff for, former U.S. Vice President Cheney); (ii) Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ)); (iii) Douglas Feith (former Under Secretary of Defense for Policy, U.S. Department of Defense (DOD)); (iv) Alberto R. Gonzales (former Counsel to former U.S. President George W. Bush, and former U.S. Attorney General); (v) William J. Haynes (former General Counsel, DOD); and (vi) John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).

The six officials are alleged to have participated in, or aided and abetted, the torture and other serious abuse of persons detained at U.S. run-facilities at Guantánamo and other overseas locations, all in violation of international law, including violations of the Geneva Conventions and the Convention Against Torture.

On March 28, 2009, Judge Baltasar Garzon decided that the complaint met jurisdictional requirements and opened a preliminary investigation.

On April 16, 2009, Spain’s Attorney General raised objections to the continuance of the case, and the next day, Spain’s Public Prosecutor filed a request that the complaint be dismissed and responsibility for investigating the matter be referred to a different judge. The latter was done on April 23rd with Judge Eloy Velasco being assigned.

On May 4, 2009, Judge Velasco, pursuant to the US-Spain Treaty on Mutual Assistance in Criminal Matters, sent a formal request (Letters Rogatory) to the U.S. asking it to state “whether the facts to which the complaint makes reference are or not now being investigated or prosecuted.”  If there had been an affirmative response to this question, the Spanish court undoubtedly would have closed its investigation.

Nearly two years later, on March 4, 2011, the U.S. finally responded to the Letters Rogatory. It stated that the U.S. had clear jurisdiction over the case and asking that the case be sent to the U.S. for further review and investigation.

On April 13, 2011, Judge Velasco temporarily stayed the case in Spain and transferred the case to the U.S. Department of Justice with a request for the U.S. to indicate the time frame for U.S. action on the complaint.

On April 19, 2011, the Spanish Association for the Dignity of Prisoners filed an appeal of Judge Velasco’s order staying the case. That appeal is still pending.

In summary, the case is still pending in Spain with unresolved issues.

In the meantime, the body responsible for monitoring compliance with the multilateral treaty against torture (the Committee Against Torture or CAT) has severely criticized U.S. treatment of detainees in the so-called “war on terrorism” and the U.S. purported legal justification of such treatment through so-called “enhanced interrogation” techniques.

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Spain Invokes Universal Jurisdiction for Three Criminal Cases Against U.S. Officials and Soldiers

January 21, 2012

As discussed in a prior post, under customary international law and certain treaties, a nation state has universal jurisdiction over certain crimes of international concern regardless of where the crimes were committed or the nationality of the victims or perpetrators. These crimes of international concern are (a) piracy; (b) slavery; (c) war crimes; (d) crimes against peace; (e) crimes against humanity; (f) genocide; and (g) torture.

Spain has implemented this principle in its own domestic law and has invoked it in significant cases, including the attempt to prosecute Augusto Pinochet, the former President of Chile, for alleged human rights violations in his home country and Spain’s pending prosecution of former Salvadoran military officers for the November 1989 murder in El Salvador of six Jesuit priests and their housekeeper and her daughter (the Jesuits case).

We also have seen that torture is illegal under international law and that the U.S. is a party to the multilateral treaty against torture. As a result, the U.S. has submitted reports about its compliance with the treaty to a U.N. committee.

All of these elements come together in three pending criminal cases in Spain against certain U.S. officials for their alleged involvement in torture allegedly committed by U.S. citizens who were employees of the U.S. military or government:

  • One relates to the alleged use of torture at the U.S. detention facility at Guantanamo Bay, Cuba. It is directed at “members of the American air forces or military intelligence and all those who executed and/or designed a systemic torture plan and inhuman and degrading treatment against prisoners in their custody.”
  • Another case is against six members of the George W. Bush Administration who were involved in drafting legal memoranda that allegedly facilitated the torture of detainees at Guantanamo Bay and other U.S. detention facilities around the world (the so-called “Bush Six” case)  .
  • The third case concerns the killing of a Spanish journalist-cameraman in Baghdad, Iraq on April 8, 2003, by a U.S. tank’s firing on a hotel where the man was staying.

Each of these three cases will be the subjects of subsequent posts.

On January 19, 2012, another front in these battles was opened with the filing of a complaint with the United Nations Human Rights Council’s Special Rapporteur on the Independence of Judges and Lawyers. On the basis of U.S. diplomatic cables released by WikiLeaks, the Center for Constitutional Rights of New York City and Berlin’s European Center for Constitutional and Human Rights alleged that U.S. and Spanish senior governmental officials improperly have attempted to interfere with the judicial process in these three cases. This important development also will be discussed in a subsequent post.[1]

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[1] The issue of judicial independence under international law is currently being litigated in a case against Ecuador.

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U.S. Second Report to U.N. Committee Against Torture

December 8, 2011

As previously noted, States Parties to the multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are obligated to submit periodical reports to the Committee Against Torture  (CAT) “on the measures they have taken” to implement the treaty. We also have examined the U.S. initial report to CAT (First Report).[1]

In CAT’s comments on the First Report, it requested the U.S. to submit its second report on or before November 19, 2001. The U.S. did not do so. Instead, the U.S. belatedly submitted its second report (the Second Report) on May 6, 2005.[2]

It is important to remember that the Second Report came after 9/11 and during the U.S.’ so called “war on terror.” It was also after there was world-wide publicity and criticism of the U.S. about horrible abuses of prisoners by U.S. personnel at the Abu Ghraib prison in Iraq, U.S. transfer of detainees to other countries (so called “rendition”) where torture was known to occur and the U.S. use of its base at Guantanamo Bay, Cuba for detention of men arrested in the “war on terrorism.” As we will see below, this led to an intensive examination and criticism of the U.S. by CAT.

We will examine the Second Report (85-pages plus annexes, including two sworn statements about transfers of detainees from Guantanamo Bay), CAT’s hearings regarding that report, CAT’s responsive comments and the U.S. reaction to those comments.

1. U.S. Second Report to CAT

The report started with positive general statements. The U.S. “is unequivocally opposed to the use and practice of torture. No circumstance whatsoever, including war, the threat of war, internal political instability, public emergency, or an order from a superior officer or public authority, may be invoked as a justification for or defense to committing torture. This is a longstanding commitment of the [U.S.].”[3]

Moreover, “All components of the [U.S.] Government are obligated to act in compliance with the law, including all [U.S.] constitutional, statutory, and treaty obligations relating to torture and cruel, inhuman or degrading treatment or punishment.The U.S. . . . does not permit, tolerate, or condone torture, or other unlawful practices, by its personnel or employees under any circumstances. U.S. laws prohibiting such practices apply both when the employees are operating in the United States and in other parts of the world.”

The report also said the U.S. “is aware of allegations that detainees held in U.S. custody pursuant to the global war on terrorism have been subject to torture or other mistreatment. The President of the United States [George W. Bush, however,] . . . has clearly stated that torture is prohibited. When allegations of torture or other unlawful treatment arise, they are investigated and, if substantiated, prosecuted.”

The report further stated that the U.S. recognizes “its obligation not to 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. . . . [A]llegations that it has transferred individuals to third countries where they have been tortured [are contrary to U.S. policies and procedures].”

After the submission of the Second Report and before the hearings, CAT in February 2006 provided the U.S. with a document containing 59 very detailed questions or issues that it wanted addressed before or at the hearings. The document demonstrated the Committee’s awareness of what was happening in the U.S. “war on terrorism” and of internal U.S. documents that had entered the public domain.[4] On April 28th the U.S. submitted its written responses to these issues.[5]

2. Committee’s Hearings Regarding  the U.S. Second Report

There were two parts to the Committee’s hearing regarding the U.S. in Geneva, Switzerland. The initial hearing took place on May 5, 2006.[6] The second, on May 8th.[7]

These hearings were the first time since 9/11 that the U.S. had answered questions from an international body about alleged U.S. abuses in the so-called war on terrorism. The seriousness of the occasion was underscored by the U.S.’ sending a delegation of 26 officials from the Departments of State, Defense, Justice and Homeland Security. It was headed by Barry Lowenkron (Assistant Secretary of State for Bureau of Democracy, Human Rights and Labor) and John Bellinger (Legal Advisor to the State Department) with high-level support from Thomas Monheim, (Associate Deputy Attorney General) and Charles Stimson (Deputy Assistant Secretary of Defense for Detainee Affairs).

a. May 5, 2006 Hearing

The initial hearing was opened by Mr. Lowenkron. He emphasized the U.S. commitment to uphold its obligations to eradicate torture and prevent cruel, inhuman or degrading treatment or punishment. Abuses, like those at Abu Ghraib in Iraq, sickened American people and were inexcusable and indefensible. The U.S. is taking steps to hold accountable those who were involved. The U.S. values transparency and openness. For example, the International Committee of the Red Cross, a European governmental group and over 1,000 journalists have visited the U.S. facility at Guantanamo Bay, and some have made positive statements about the facility.

These comments were reiterated by Mr. Bellinger, who emphasized U.S. efforts to help torture victims recover. The Torture Convention, he argued, was not intended to apply to armed conflicts which are governed by humanitarian law. There were many allegations about U.S. mistreatment of detainees, but he urged the Committee to remember they were only allegations, not proof, and to keep a sense of perspective and proportion regarding these claims. Bellinger then summarized the U.S.’ written responses to the Committee’s list of issues.

Mr. Monheim discussed the role of the Department of Justice’s Civil Rights Division in enforcing federal civil rights statutes and U.S. legal protections for victims of torture. Mr. Stimson spoke about the U.S. treatment of detainees in Afghanistan, Iraq and Guantanamo Bay.

After these presentations, several Committee members appeared skeptical about aspects of the U.S. presentation. Fernando Marino Menendez of Spain, the Committee’s Rapporteur for the U.S., raised several concerns. He said the International Court of Justice and the Committee believed that the Convention was applicable in times of armed conflict contrary to the U.S. position; that the U.S. failure to disclose information about intelligence services could be a violation of victims’ rights; that the U.S. had failed to adopt the Convention’s definition of “torture” and instead improperly had adopted a different definition; and international tribunals and opinion had concluded that forced disappearances constituted torture contrary to the U.S. position. Menendez also expressed skepticism of the U.S. assertions that its interrogation practices complied with the treaty, that the abuses were not systematic and that the U.S. complied with the treaty with respect to transfer of detainees to other countries.

The Committee’s Alternate Rapporteur for the U.S., Guibril Camara of Senegal, emphasized that the Committee’s interpretation of the treaty trumped that of the U.S., and he questioned the legitimacy of the U.S. reservations to its ratification of the treaty.

Other members of the Committee reiterated some of these concerns and added others as well.

b. May 8, 2006 Hearing

The U.S. delegation returned on May 8th to respond to the oral questions raised at the initial hearing. These responses focused on legal issues regarding U.S. implementation of the treaty; U.S. treatment of detainees and accountability for abuses; and monitoring and oversight of U.S. intelligence activities.

Immediately after the conclusion of the hearings, the U.S. delegation released a written “Departure Statement.” It emphasized that (1) all U.S. officials are prohibited from engaging in torture and cruel, inhuman or degrading treatment or punishment at all times and in all places; (2) the U.S. deplores its personnel’s occasional violations of these bans and will investigate and hold perpetrators accountable; (3) the U.S. does not transfer people to countries where it is more likely than not that they would be tortured; and (4) the U.S. is able to recognize its failures and make things better and comply with the torture treaty. The statement also mentioned that while in Geneva, members of the delegation also met with the U.N. High Commissioner for Human Rights, the International Committee of the Red Cross and several human rights NGOs.[8]

3.   Committee’s Conclusions and Recommendations Regarding the U.S. Second Report

On July 25, 2006, the Committee issued its conclusions and recommendations regarding the U.S. Second Report. CAT complimented the U.S. for its exhaustive written responses to the Committee’s list of issues and to the questions raised at the hearing and for the presence of the large and high-level U.S. delegation at the hearing. CAT also welcomed the U.S. commitment to prohibition of torture and improper transfer of detainees to other countries. Finally CAT was pleased with new U.S. legislation on treatment of prisoners and detainees.[9]

The U.S.’ major effort to persuade the Committee that the U.S. was in full compliance with the Convention Against Torture, however, was unsuccessful. The Committee’s report recorded a lengthy list of concerns and recommendations. Although polite, diplomatic language was used, it was a stinging rebuke of the U.S. According to the Committee, the U.S. should:

  • (a) enact a federal crime of torture consistent with Article 1 of the treaty;
  • (b) ensure that acts of psychological torture, prohibited by CAT, are not limited to “prolonged mental harm” as set out in U.S. “understandings, ” but constitute a wider category of acts, which cause severe mental suffering, irrespective of their prolongation or its duration and withdraw its reservation to article. 16 (prevention of cruel, inhuman or degrading treatment);
  • (c) investigate, prosecute and punish perpetrators under the U.S. extraterritorial torture statute;
  • (d) recognize and ensure that CAT applies at all times, whether in peace, war or armed conflict, in any territory under its jurisdiction and that CAT’s provisions are without prejudice to provisions of any other international instrument;
  • (e) recognize and ensure that CAT’s provisions apply to, and are fully enjoyed  by, all persons under the de facto effective control of its authorities, of whichever type, wherever located in the world as opposed to the regrettable U.S. view that they applied only to its de jure territory;
  • (f) register all persons it detains in any territory under its jurisdiction;
  • (g) ensure that no one is detained in any secret detention facility under its de facto effective control because doing so is a per se violation of the treaty; the U.S. “no comment” policy regarding such facilities is regrettable;
  • (h) adopt all necessary measures to prohibit and prevent enforced disappearance in any territory under its jurisdiction, and prosecute and punish perpetrators because such practices are per se violations of the treaty; the U.S. view that such practices do not constitute torture is regrettable;
  • (i) adopt clear legal provisions to implement the principle of absolute prohibition of torture in its domestic law without any possible derogation, ensure that perpetrators of acts of torture are prosecuted and punished appropriately, ensure that any interrogation rules, instructions oR methods do not derogate from the principle of absolute prohibition of torture and that no doctrine under domestic law impedes the full criminal responsibility of perpetrators of acts of   torture, and promptly, thoroughly, and impartially investigate any responsibility of senior military and civilian officials authorizing, acquiescing or consenting, in any way, to                    acts of torture committed by their subordinates;
  • (j) apply the non-refoulement guarantee to all detainees in its custody, cease the rendition of suspects, in particular by its intelligence agencies, to States where they face a real risk of torture, and ensure that suspects have the possibility to challenge decisions of refoulement; the Committee is concerned that the U.S. does not consider its non-refoulement obligation to extend to its detainees outside its territory;
  • (k) with respect to refoulement only rely on “diplomatic assurances” from States which do not systematically violate the Convention’s provisions, and after a thorough examination of the merits of each individual case, establish and implement clear procedures for obtaining such assurances, with adequate judicial mechanisms for review, and effective post-return monitoring arrangements, and provide detailed information to the Committee on all cases since 9/11/01 where assurances have been provided;
  • (l) cease to detain any person at Guantánamo Bay and close this detention facility, permit access by the detainees to judicial process or release them as soon as possible, ensuring that they are not returned to any State where they could face a real risk of being tortured because detaining people indefinitely without charges constitutes a per se violation of the treaty;
  • (m) ensure that education and training of all law-enforcement or military personnel, are conducted on a regular basis, in particular for personnel involved in the interrogation of suspects;  training to include interrogation rules, instructions and methods, and specific training on how to identify signs of torture and cruel, inhuman or degrading treatment; such personnel should also be instructed to report such incidents; regularly evaluate such training and education and ensure regular and independent monitoring of their conduct;
  • (n) rescind any interrogation technique, including methods involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to induce fear, that constitute torture or cruel, inhuman or degrading treatment or punishment, in all places of detention under its de facto effective control;
  • (o) promptly, thoroughly and impartially investigate all allegations of acts of torture or cruel, inhuman or degrading treatment or punishment by law-enforcement personnel and bring perpetrators to       justice, and provide the Committee with information on the ongoing investigations and prosecution relating to Chicago Police Department;
  • (p) eradicate all forms of torture and ill-treatment of detainees by its military or civilian personnel, in any territory under its jurisdiction, and promptly and thoroughly investigate such acts, prosecute all those responsible for such acts, and ensure they are appropriately punished, in accordance with the seriousness of the crime;
  • (q) ensure that independent, prompt and thorough procedures to review the circumstances of detention and the status of detainees are available to all detainees;
  • (r) ensure that mechanisms to obtain full redress, compensation and rehabilitation are accessible to all victims of acts of torture or abuse, including sexual violence, perpetrated by its officials;
  • (s) amend the U.S. Prison Litigation Reform Act to eliminate the requirement that there can be no lawsuit for mental or emotional injury suffered while in custody without a prior showing of physical injury;
  • (t) ensure that the ban on use of statements induced by torture are fulfilled in all circumstances, including in the context of military commissions, and establish  an independent mechanism to guarantee the rights of all detainees in its custody;
  • (u) review and revise its execution methods, in particular lethal injection, in order to prevent severe pain and suffering;
  • (v) design and implement appropriate measures to prevent all sexual violence in all it detention centers, and ensure that all allegations of violence in detention centers are investigated promptly and independently, perpetrators are prosecuted and appropriately sentenced and victims can seek redress, including appropriate compensation;
  • (w) ensure that detained children are kept in facilities separate from those for adults in conformity with international standards, and address the question of sentences of life imprisonment of children, as these could constitute cruel, inhuman or degrading treatment or punishment;
  • (x) review the use of electroshock devices, strictly regulate their use, restricting it to substitution for lethal weapons, and eliminate the use of these devices to restrain persons in custody;
  • (y) review the regime imposed on detainees in “supermaximum prisons,” in particular the practice of prolonged isolation;
  • (z) ensure that reports of brutality and ill-treatment of members of vulnerable groups by its law-enforcement personnel are independently, promptly and thoroughly investigated and that perpetrators are prosecuted and appropriately punished;
  • (aa) invite the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, in full conformity with the terms of reference for fact-finding missions by U.N. special procedures, to visit Guantánamo Bay and any other detention facility under its de facto control;
  • (bb) reconsider its intent not to join the International Criminal Court;
  • (cc) withdraw all U.S. reservations, declarations and understandings lodged at the time of ratification of CAT;
  • (dd) make declaration under article 22, thereby recognizing the competence of the Committee to receive and consider individual communications, and ratify Optional Protocol to CAT;
  • (ee) provide detailed statistical data, disaggregated by sex, ethnicity and conduct, on complaints related to torture and ill-treatment allegedly committed by law-enforcement officials, investigations, prosecutions, penalties and disciplinary action relating to such complaints, etc.

Indeed, journalists saw the Committee’s report as “a rebuke of Bush administration counter-terrorism policies.” Human Rights Watch said it was a “strong and thorough critique” and “a complete repudiation of virtually every legal theory that the Bush administration has offered for its controversial detention and interrogation policies.” [10]                   

4. U.S. Reaction to the Committee’s Conclusions and Recommendations

Immediately after the release of the Committee’s report, U.S. officials were very critical of the Committee and its report. Mr. Bellinger was reported as saying that the report was “skewed and reaches well beyond the scope and mandate of the Committee,” and he reiterated the U.S. argument that in any war, a belligerent nation holds captured combatants without charges indefinitely until the war is over. Bellinger even said the Committee had not provided a fair hearing.[11]

Pursuant to CAT’s request, within one year after the issuance of its conclusions and recommendation, the U.S. on July 25, 2007, submitted its follow-up report to the Committee regarding some of its conclusions and recommendations.[12] Here is what the U.S. said:

  • The treaty has no provision regarding the registration of prisoners and, therefore, the recommendation to do so was not required; U.S. personnel, however, “generally maintain appropriate records” on detainees;
  • The U.S. determines whether it is more likely than not that a person would be tortured in another country before transferring him, not whether there is a “real risk” of that occurring, and the treaty does not give such individuals a right to challenge the transfer;
  • There is no basis in the treaty to recommend that the Guantanamo Bay facility be closed or that every detainee there have a right to judicial review of their detention;
  • The law of war, not CAT, applies to detention of enemy combatants in the war on terrorism; and
  • Juveniles are not regularly and generally held in federal and state prisons with adult prisoners. The U.S. is not a party to the Convention on the Rights of the Child and is not subject to any of its provisions.

Conclusion

CAT also requested the U.S. to submit its next periodical report on or before November 19, 2011.[13] The U.S., however, did not do so. Once again we see that CAT does not have power to order the U.S. or any other State Party to do anything or to impose sanctions on the party when it does not do what CAT politely had requested.

[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011); Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011); Post: U.S. First Report to the Committee Against Torture (Dec. 5, 2011).

[2] Post: U.S. First Report to the Committee Against Torture (Oct. 15, 1999); U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm.

[3]  Id. The second report also contained responses to CAT’s concerns and recommendations to the first U.S. report. In connection with the second report, the U.S. in October 2005 also provided CAT with supplemental responses that are contained in a U.S. Department of State website, http://www.state.gov/g/drl/hr/treaties/index.htm.

[4] CAT, List of issues to be considered during the examination of the second periodic report of the UNITED STATES OF AMERICA (Feb. 8, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[5] U.S. Dep’t of State, Response of the U.S.A. to List of issues to be considered during the examination of the second periodic report of the U.S.A. (April 28, 2006), http://www.state.gov/g/drl/hr/treaties/index.htm.

[6]  U.S. Dep’t of State, U.S. Treaty Reports, http://www.state.gove/g/drl/hr/treaties/index.htm: has posted the following documents at U.S. Dep’t of State, Opening Statement for U.S. Hearing at Committee Against Torture (May 5, 2006); U.S. Dep’t of State, Opening Remarks by John Bellinger (May 5, 2006); U.S. Dep’t of State, U.S. Delegation Oral Responses to CAT Committee Questions (May 5, 2006). See also U.N. Committee Against Torture, Summary Record of 703rd Meeting–Consideration of Second Periodic Report of the U.S.A. (May 5, 2006); Wright, U.S. Defends Rights Record Before U.N. Panel in Geneva, N.Y. Times (May 6, 2006).

[7] U.N. Committee Against Torture, Summary Record of 706th Meeting–Consideration of Second Periodic Report of the U.S.A. (May 8, 2006) (original in French);U.S. Dep’t of State, The United States’ Oral Responses to the Questions Asked by the Committee Against Torture (May 8, 2006); Wright, U.S. Defends Itself on Inmate Abuse, N.Y. Times (May 9, 2006).

[8] U.S. Dep’t of State, U.S. Delegation Departure Statement (May 9, 2006) (available on State Department website).

[9] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (7/25/06), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/e2d4f5b2dccc0a4cc12571ee00290ce0.

[10] Human Rights Watch, U.N. Torture Committee Critical of U.S. (May 19, 2006); Lynch & Brubaker, U.N. Urges Closure of Guantanamo Detention Facility, Wash. Post (May 19, 2006); Lynch, Military Prison’s Closure Is Urged, Wash. Post (May 20, 2006); Golden, U.S. Should Close Prison in Cuba, U.N. Panel Says, N.Y. Times (May 20, 2006); Human Rights Watch, United States: Committee Against Torture Denounces U.S. Practices (June 1, 2006).

[11]  Id.

[12] Id.; U.S. Dep’t of State, U.S. Response to Specific Recommendations Identified by CAT, (7/25/07), http://www.state.gov/g/drl/rls/100736.htm.

[13]  See n.9 supra.

 

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U.S. First Report to Committee Against Torture

December 5, 2011

As previously noted, States Parties to the multilateral treaty against torture (Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment) are obligated to submit periodical reports to the Committee Against Torture  (CAT) “on the measures they have taken” to implement the treaty. The first such report is due within one year after the treaty went into force for that State Party, and supplemental reports on new measures every four years thereafter.[1]

The treaty went into force for the U.S. on November 20, 1994.[2] Therefore, its first such report was due on or before November 20, 1995. As is too often true for such reporting to the CAT or to other treaty bodies by all states, the U.S. did not meet this deadline.  Instead, the U.S. submitted its first report (the First Report) on October 15, 1999. It is important to remember that this was before 9/11 and the U.S.’ so-called “war on terror.”[3]

We will examine the First Report (73 pages plus annexes), the CAT hearing regarding the First Report, CAT’s responsive comments and the U.S. reaction to those comments.

1. The U.S. First Report

The First Report states the U.S. “has long been a vigorous supporter of the international fight against torture. . . .  Torture is prohibited by law throughout the United States.  It is categorically denounced as a matter of policy and as a tool of state authority.  Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States.  No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture.  Nor may any official condone or tolerate torture in any form.”

In addition, the First Report asserted, “No exceptional circumstances may be invoked as a justification of torture.  United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a ‘state of public emergency’) or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension.  The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory . . . .”

According to the First Report, torture “does not occur in the United States except in aberrational situations and never as a matter of policy.  When it does, it constitutes a serious criminal offence, subjecting the perpetrators to prosecution and entitling the victims to various remedies, including rehabilitation and compensation.”

The First Report discussed the U.S.’ domestic law background for its ratification’s declaration that the treaty was not self-executing and asserted that nevertheless the treaty remained binding on the U.S. as a matter of international law.

In addition, the U.S. said in the First Report that the U.S. had enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside U.S. territory.[4] On the other hand, the U.S. considered its existing federal and state laws to be adequate to its obligations under the Convention to prosecute and punish acts of torture committed in the U.S. and, therefore, determined that it would not be appropriate to establish a new federal cause of action, or to “federalize” existing state protections, through adoption of omnibus implementing legislation.

2. Committee’s Hearing Regarding  the U.S. First Report

In May 2000 CAT held a hearing on the First Report.[5]

3.CAT’s Comments on the U.S. First Report

On May 15, 2000, CAT issued its Conclusions and Recommendations on the First Report (CAT Comments).[6]

After noting that the First Report was overdue, CAT complimented the U.S. on its extensive legal protection against torture and other cruel, inhuman or degrading treatment or punishment and its efforts to achieve transparency of its institutions and practices. CAT also appreciated
the U.S.’ broad legal rights to compensation for victims of torture, whether or not such torture occurred in the country, and its implementation of the principle of universal jurisdiction by adopting a criminal statute that applies whenever an alleged torturer is found within its territory. Another positive development was the U.S. regulations preventing refoulement of potential torture victims.

The Committee expressed its concern about the following aspects of U.S. compliance with the treaty:

  • (a) the U.S. failure to adopt a federal crime of torture consistent with Article 1 of the Convention.
  • (b) the U.S. reservation to Article 16 regarding “cruel, inhuman or degrading treatment or punishment” in violation of the Convention.
  • (c) the number of U.S. cases of police mistreatment of civilians and prisoners, many based on discrimination.
  • (d) U.S. use of electro-shock and restraint chairs as means of constraint and the harsh regime of  its”supermaximum” prisons and public chain gangs, all of which might violate Article 16 of the Convention.
  • (e) U.S. holding of minors (juveniles) with adults in the regular prison population.

As a result, CAT recommended that the U.S. (1) enact a federal crime of torture in terms consistent with Article 1 of the Convention;  (2)withdraw its reservations, interpretations and understandings relating to the Convention; (3) ensure that those who violate the Convention are investigated, prosecuted and punished, especially those who are motivated by discriminatory purposes or sexual gratification; (4) abolish electro-shock stun belts and restraint chairs as methods of restraining those in custody; (5) consider declaring in favor of article 22 of the Convention (allowing individual complaints against the U.S. to CAT over alleged violations of the treaty); and (6) ensure that minors (juveniles) are not held in prison with the regular prison population.

CAT then asked the U.S. to submit its second periodic report by November 19, 2001.

4. U.S. Response to CAT’s Comments on First Report

The U.S. responded to these CAT conclusions and recommendations in the U.S.’ second report to the Committee in May 2005, not the November 2001 date specified by CAT.[7] In this subsequent report the U.S. stated the following:

  • Federal Crime of Torture. Every act of torture within the meaning of the Convention, as ratified by the U.S., is illegal under existing federal and/or state law, and any individual who commits such an act is subject to penal sanctions as specified in criminal statutes at either the state or federal level. While the specific legal nomenclature and definitions vary from jurisdiction to jurisdiction, it is clear that any act of torture falling within the Convention would in fact be criminally prosecutable in every jurisdiction within the U.S. Therefore, the U.S. has decided to retain its current statutory regime on this point.
  • U.S. Reservation to Article 16. The Torture Convention does not prohibit the making of a reservation, and the U.S. reservation in question is not incompatible with the object and purpose of the Convention. In short, there is nothing in the U.S. reservation that would be unlawful or otherwise constitute a violation of the Convention. Therefore, the U.S. does not agree that its reservation to Article 16 violates the Convention. Moreover, the U.S. had valid reasons for the reservation and will not withdraw it.
  • Other U.S. reservations, understandings and declarations.The U.S. reached its conclusion that it would be necessary to condition U.S. ratification of the Convention on certain reservations, understandings and declarations as a result of a serious and careful review of U.S. law. The First Report sets forth the rationale for each of those conditions. There have been no developments in the interim that have caused the U.S. to revise its view of the continuing validity and necessity of the conditions set forth in its instrument of ratification.
  • Article 22. In light of CAT’s recommendation regarding Article 22, the U.S. has further considered whether to make a declaration recognizing the competence of the Committee to consider communications made by or on behalf of individuals claiming to be victims of a violation of the Convention by the U.S. Because the U.S. legal system legal system affords numerous opportunities for individuals to complain of abuse and seek remedies for such alleged violations, the U.S. will continue to direct its resources to addressing and dealing with violations of the Convention pursuant to the operation of its own domestic legal system. Therefore, the U.S. continues to decline to make such a declaration.

Conclusion

 Moreover, to this date the U.S. has not enacted a general federal crime of torture. Nor has the U.S. withdrawn its reservations, understandings and declarations to its ratification of the treaty or declared in favor of Article 22 of the Convention.  Thus, there are still unresolved disputes between the U.S. and CAT over these important issues.

This brief review illustrates several significant features of the phenomenon of post-World War II human rights treaties. The world is still organized on the basis of nation-state sovereignty. Those nation states, however, have banded together to create various international institutions and laws with limited powers when an international consensus emerges that the world would be better off with such institutions and laws. Treaty bodies like CAT have very little power. CAT cannot order the U.S. to withdraw its conditions to ratification of the Convention Against Torture or to enact a federal law to criminalize torture in the U.S. Nor can CAT impose sanctions on the U.S. when it fails to do these things or submit its reports on time. On the other hand, being criticized by a treaty body like CAT can affect the international reputation of a nation state with other states, especially if the criticism is not just one treaty body and not a one-time occurrence on relatively minor issues. Most states would prefer to avoid these adverse reputational consequences.

[1] Convention Against Torture, Art. 19(1); Post: The Multilateral Treaty Against Torture (Nov. 29, 2011).

[2] Post: U.S. Ratification of the Multilateral Treaty Against Torture (Dec. 1, 2011).

[3] U.S. Dep’t of State, Initial Report to Committee Against Torture (Oct. 15, 1999), http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G00/406/56/PDF/G0040656.pdf?OpenElement; http://2001-2009.state.gov/documents/organization/100296.pdf.

[4]  See n.2 supra.

[5] Committee Against Torture, Conclusions and Recommendations Regarding U.S.A. (May 15, 2000), http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.55.44,paras.175-180.En?OpenDocument.

[6] Id.

[7] U.S. Dep’t of State, Second Periodic Report of the United States of America to the Committee Against Torture (May 6, 2005), http://www.state.gov/g/drl/rls/45738.htm; http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G05/425/90/PDF/G0542590.pdf?OpenElement.

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