[Congressional Record Volume 144, Number 143 (Sunday, October 11, 1998)]
[Extensions of Remarks]
[Pages E2055-E2057]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  STARTING TO USE THE NEWLY RATIFIED TREATY AGAINST TORTURE AND OTHER 
          CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT

                                 ______
                                 

                            HON. BARBARA LEE

                             of california

                    in the house of representatives

                        Friday, October 9, 1998

  Ms. LEE. Mr. Speaker, I rise to call to the attention of the 
Honorable Members of the House, and the American people, the recently 
ratified Convention Against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment. This is one of the five basic human 
rights treaties the United States has ratified.
  I am following the lead of Congressman Ronald V. Dellums, who read 
into the Record important sections of the International Convenant on 
Civil and Political Rights. It is important that its provisions become 
part of our thinking and that we carry out our treaty commitments as we 
build enforcement of human rights law throughout this country at the 
federal, state and local levels. Our work against torture and other 
illegal practices in this country will strengthen work against torture 
in other countries.
  This Convention Against Torture entered into force for the United 
States on October 21st, 1994 with no fanfare or coverage by the media. 
By ratifying this Convention, the United States made it part of the 
supreme law of the land under the U.S. Constitution, Article VI, 
paragraph 2. And the U.S. Government committed itself to take three 
steps:
  1. To publicize the text throughout the nation, including notifying 
the states to publicize the text at the state and local levels;
  2. To prepare a report on ``the measures they have taken to give 
effect to their undertakings'' under the treaty within one year after 
its entry into force, and every four years thereafter;
  3. To meet with the UN Committee Against Torture after filing each 
report in order to work toward compliance with all provisions of the 
Convention in all federal agencies and at the state and local levels.
  The treaty describes at length what the United States and all 
signatory nations must do to stop torture. Article 16 commits each 
nation to take the same steps to stop cruel, inhuman or degrading 
treatment or punishment. In order to stop both kinds of practices, the 
United States made a commitment in Article 10 to ``ensure that 
education and information regarding the prohibition against torture 
[and other cruel, inhuman or degrading treatment or punishment] are 
fully included in the training of law enforcement personnel, . . .'', 
as I will read in full later.
  I am happy to report to the House, and to the American people, that 
experience with UN human rights treaties is that the reporting process 
works. Studies show that 32 out of 36 countries have improved their 
human rights laws after going through the reporting process more than 
once. The method of enforcement is familiar to many of us: it is the 
mobilization of shame. The Committee hears from a government, dialogues 
with officials of that government, makes its report, which it discusses 
with that government, and then can report its findings to the UN 
General Assembly.
  However, the United States has not yet filed its first report, due 
Oct. 21, 1995. The second U.S. report will be due Oct. 21, 1999. Each 
report by the UN Committee Against Torture must mention that the U.S. 
has not met its treaty obligations to date.
  I now offer several pages of excerpts from the Convention. All 
deletions are marked with. . . . The full treaty is available in 
International Legal Materials, Volume 23, page 1027 and Volume 24 at p. 
535 (1985). Convention against Torture and Other Cruel, Inhuman or 
Degrading Treatment or Punishment

[[Page E2056]]

Adopted and opened for signature, ratification and accession by General 
Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 
1987, in accordance with article 27 (1) entry into force for the United 
States 21 October 1994 (President signed 18 April 1988; see 136 Cong. 
Rec. S17491-2, October 1, 1990.

       The States Parties to this Convention, Considering that, in 
     accordance with the principles proclaimed in the Charter of 
     the United Nations, recognition of the equal and inalienable 
     rights of all members of he human family is the foundation of 
     freedom, justice and peace in the world,
       Recognizing that those rights derive from the inherent 
     dignity of the human person, Considering the obligation of 
     States under the Charter, in particular Article 55, to 
     promote universal respect for, and observance of, human 
     rights and fundamental freedoms, Having regard to article 
     5 of the Universal Declaration of Human Rights and article 
     7 of the International Covenant on Civil and Political 
     Rights, both of which provide that no one shall be 
     subjected to torture or to cruel, inhuman or degrading 
     treatment or punishment, . . .
       Desiring to make more effective the struggle against 
     torture and other cruel, inhuman or degrading treatment or 
     punishment throughout the world, Have agreed as follows:

                                 PART I

       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 in stability 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;
       (c) When the victim is a national of that State if that 
     State considers it appropriate.
       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 I 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 I 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. . . 
     .
       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 of preventing any cases of torture.
       Article 12: Each State Party shall ensure that its 
     competent authorities proceed to a prompt and impartial 
     investigation, wherever there is reasonable ground to believe 
     that an act of torture has been committed in any territory 
     under its jurisdiction.
       Article 13: Each State Party shall ensure that any 
     individual who alleges he has been subjected to torture in 
     any territory under its jurisdiction has the right to 
     complain to, and to have his case promptly and impartially 
     examined by, its competent authorities. Steps shall be taken 
     to ensure that the complainant and witnesses are protected 
     against all ill-treatment or intimidation as a consequence of 
     his complaint or any evidence given.
       Article 14: 1. Each State Party shall ensure in its legal 
     system that the victim of an act of torture obtains redress 
     and has an enforceable right to fair and adequate 
     compensation, including the means for as full rehabilitation 
     as possible. In the event of the death of the victim as a 
     result of an act of torture, his dependants shall be 
     entitled to compensation.
       2. Nothing in this article shall affect any right of the 
     victim or other persons to compensation which may exist under 
     national law.
       Article 15: Each State Party shall ensure that any 
     statement which is established to have been made as a result 
     of torture shall not be invoked as evidence in any 
     proceedings, except against a person accused of torture as 
     evidence that the statement was made.
       Article 16: 1. Each State Party shall undertake to prevent 
     in any territory under its jurisdiction other acts of cruel, 
     inhuman or degrading treatment or punishment which do

[[Page E2057]]

     not amount to torture as defined in article I, when such acts 
     are committed by or at the instigation of or with the consent 
     or acquiescence of a public official or other person acting 
     in an official capacity. In particular, the obligations 
     contained in articles 10, 11, 12 and 13 shall apply with the 
     substitution for references to torture of references to other 
     forms of cruel, inhuman or degrading treatment or punishment.
       2. The provisions of this Convention are without prejudice 
     to the provisions of any other international instrument or 
     national law which prohibits cruel, inhuman or degrading 
     treatment or punishment or which relates to extradition or 
     expulsion.

                                PART II

       Article 17: 1. There shall be established a Committee 
     against Torture (hereinafter referred to as the Committee) 
     which shall carry out the functions hereinafter provided. The 
     Committee shall consist of ten experts of high moral standing 
     and recognized competence in the field of human rights, who 
     shall serve in their personal capacity. The experts shall be 
     elected by the States Parties, consideration being given to 
     equitable geographical distribution and to the usefulness of 
     the participation of some persons having legal experience.
       2. The members of the Committee shall be elected by secret 
     ballot from a list of persons nominated by States Parties. 
     Each State Party may nominate one person from among its own 
     nationals. . . .
       3. Elections of the members of the Committee shall be held 
     at biennial meetings of States Parties convened by the 
     Secretary-General of the United Nations. At those meetings, 
     for which two thirds of the States Parties shall constitute a 
     quorum, the persons elected to the Committee shall be those 
     who obtain the largest number of votes and an absolute 
     majority of the votes of the representatives of States 
     Parties present and voting. . . .
       5. The members of the Committee shall be elected for a term 
     of four years. They shall be eligible for re-election if 
     renominated. . . .
       6. If a member of the Committee dies or resigns or for any 
     other cause can no longer perform his Committee duties, the 
     State Party which nominated him shall appoint another expert 
     from among its nationals to serve for the remainder of his 
     term, subject to the approval of the majority of the States 
     Parties. . . .
       7. States Parties shall be responsible for the expenses of 
     the members of the Committee while they are in performance of 
     Committee duties.
       Article 18: 1. The Committee shall elect its officers for a 
     term of two years. They may be re-elected.
       2. The Committee shall establish its own rules of 
     procedure, but these rules shall provide, inter alia, that:
       (a) Six members shall constitute a quorum;
       (b) Decisions of the Committee shall be made by a majority 
     vote of the members present.
       3. The Secretary-General of the United Nations shall 
     provide the necessary staff and facilities for the effective 
     performance of the functions of the Committee under this 
     Convention.
       4. . . . After its initial meeting, the Committee shall 
     meet at such times as shall be provided in its rules of 
     procedure.
       5. The States Parties shall be responsible for expenses 
     incurred in connection with the holding of meetings of the 
     States Parties and of the Committee, including reimbursement 
     to the United Nations for any expenses, such as the cost of 
     staff and facilities, incurred by the United Nations pursuant 
     to paragraph 3 of this article.
       Article 19: 1. The States Parties shall submit to the 
     Committee, through the Secretary-General of the United 
     Nations, reports on the measures they have taken to give 
     effect to their undertakings under this Convention, within 
     one year after the entry into force of the Convention for the 
     State Party concerned. Thereafter the States Parties shall 
     submit supplementary reports every four years on any new 
     measures taken and such other reports as the Committee may 
     request.
       2. The Secretary-General of the United Nations shall 
     transmit the reports to all States Parties.

     

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