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.
The treaty went into force for the U.S. on November 20, 1994. 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.”
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. 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.
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).
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. 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.
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.
 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).
 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.
 See n.2 supra.
 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.
 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.