[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Rules and Regulations]
[Pages 9435-9437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4560]


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DEPARTMENT OF STATE

22 CFR Part 95

[Public Notice 2991]


Office of the Secretary; Implementation of Torture Convention in 
Extradition Cases

AGENCY: Department of State.

ACTION: Final rule.

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SUMMARY: The Department of State issues these regulations implementing 
the Convention Against Torture and Other Cruel, Inhuman, or Degrading 
Treatment or Punishment, as required by section 2242 of the Foreign 
Affairs Reform and Restructuring Act of 1998, Public Law 105-277.
    Article 3 of the Torture Convention prohibits, among other things, 
the extradition of a person to a State if there are ``substantial 
grounds for believing'' that the individual ``would be in danger of 
being subjected to torture'' in that State. In its instrument of 
ratification to the Torture Convention, the United States included an 
understanding that the Article 3 standard means that the person would 
be ``more likely than not'' to be tortured if extradited to that 
requesting State. This rule records procedures currently in place for 
considering the question of torture in appropriate cases when the 
Secretary of State determines whether to sign a warrant surrendering a 
fugitive for extradition.

DATES: Effective date: February 26, 1999.


[[Page 9436]]


FOR FURTHER INFORMATION CONTACT: Samuel L. Witten, Assistant Legal 
Officer, Office of Law Enforcement and Intelligence, Office of the 
Legal Adviser, Department of State, 202-647-7324.

SUPPLEMENTARY INFORMATION: This rule implements certain obligations in 
the context of extradition undertaken by the United States as party to 
the Convention Against Torture and Other Cruel, Inhuman, or Degrading 
Treatment or Punishment (``Torture Convention''). Article 3 of the 
Torture Convention provides that 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.'' Promulgation of the rule is required by section 
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, P.L. 
105-277, which provides that, not later than 120 days after the date of 
enactment of that Act, ``the heads of the appropriate agencies shall 
prescribe regulations to implement the obligations of the United States 
under Article 3 of the [Torture Convention], subject to any 
reservations, understandings, declarations, and provisos contained in 
the United States Senate resolution of ratification of the 
Convention.''
    Pursuant to sections 3184 and 3186 of Title 18 of the United States 
Criminal Code, the Secretary of State is the U.S. official responsible 
for determining whether to surrender a fugitive to a foreign country by 
means of extradition. In order to implement the obligation assumed by 
the United States pursuant to Article 3 of the Convention when making 
this determination, the Department considers, when appropriate, the 
question of whether a person facing extradition from the U.S. ``is more 
likely than not'' to be tortured in the State requesting extradition. 
These regulations record the already existing procedures followed in 
this consideration.
    Section 95.1 provides definitions for key terms. Subsection (b) 
defines ``torture,'' incorporating the definition from the Torture 
Convention and the understandings included in the Instrument of 
Ratification.
    The definition set forth in subparagraph (b)(1) provides that 
torture includes the intentional infliction of severe pain or suffering 
on a person, whether physical or mental, for purposes such as obtaining 
from that person or a third person information or a confession; 
punishing that person for an act he or a third person has committed or 
is suspected of having committed; or intimidating or coercing that 
person or a third person; or for any reason based on discrimination of 
any kind.
    The definition also limits torture to situations where the 
treatment 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. Subparagraph (4) further provides in this respect 
that torture applies only to acts directed against persons in the 
offender's custody or physical control; the term ``acquiescence'' is 
further defined in subparagraph (5) to mean that the public official, 
prior to the treatment at issue, must be aware of the activity and 
thereafter breach his or her legal responsibility to intervene to 
prevent such activity.
    The final sentence in subparagraph (1) provides that torture does 
not include pain or suffering arising only from, inherent in or 
incidental to lawful sanctions. The term ``lawful sanctions'' is 
further defined in subparagraph (6) which provides that it includes 
judicially imposed sanctions and other enforcement actions authorized 
by law, provided that such sanctions or actions were not adopted in 
order to defeat the object and purpose of the Convention to prohibit 
torture.
    Subparagraph (b)(2) requires that the act be specifically intended 
to inflict severe physical or mental pain or suffering and provides 
that mental pain or suffering refers to prolonged mental harm caused by 
or resulting from certain enumerated actions. Subparagraph (3) provides 
that noncompliance with applicable legal procedural standards does not 
per se constitute torture.
    Subparagraph (7) makes clear that the term ``torture'' refers to an 
extreme form of cruel and inhuman treatment. As reflected in the title 
to the Convention, torture does not include lesser forms of cruel, 
inhuman or degrading treatment or punishment.
    On the standard established in Article 3 of the Torture Convention, 
paragraph (c) records the U.S. understanding from the Instrument of 
Ratification that ``[w]here there are substantial grounds for believing 
that [a fugitive] would be in danger of being subjected to torture'' 
means ``if it is more likely than not that the fugitive would be 
tortured.''
    Paragraph (d) reflects the fact that all decisions on extradition 
are made by the Secretary (including an Acting Secretary in the 
Secretary's absence) or the Deputy Secretary, by delegation. For ease 
of reference, the term Secretary as used in the rule includes the 
Deputy Secretary.
    Subsection 95.2 entitled ``Application'' sets forth the relevant 
provisions of the Convention and describes the Secretary's authority 
under 18 U.S.C. 3184 and 3186 to determine whether to surrender a 
fugitive for extradition to a foreign country. It also explains that it 
is in the context of making this decision that the Department considers 
the question of likelihood that a given individual will be tortured.
    Subsection 95.3 reflects the statutory framework in which decisions 
on extradition are presented to the Secretary only after a fugitive has 
been found extraditable by a United States judicial officer. This 
subsection explains that appropriate policy and legal offices in the 
Department review and analyze relevant information in cases where 
allegations relating to torture are made or the issue is otherwise 
brought to the Department's attention in preparing a recommendation to 
the Secretary as to whether or not to sign the surrender warrant. Once 
this analysis is complete, the Secretary may decide to surrender the 
fugitive to the requesting State, to deny surrender of the fugitive, or 
to surrender the fugitive subject to conditions.
    Subsection 95.4 sets forth the fact that decisions of the Secretary 
concerning surrender of fugitives for extradition are matters of 
executive discretion not subject to judicial review. The statute 
requiring publication of this rule also provides that, notwithstanding 
any other provision of law, no court shall have jurisdiction to review 
these regulations, and nothing in that statute shall be construed as 
providing any court jurisdiction to consider or review claims raised 
under the Torture Convention or that statute, or any other 
determination made with respect to the application of the policy set 
forth in that statute. The statute provides for two exceptions to this 
lack of jurisdiction, neither of which is relevant here. The first is 
for review of a final order of removal pursuant to section 22 of the 
Immigration and Nationality Act, which is not applicable to 
extradition. The second allows for the possibility that the regulations 
themselves might provide for review; this rule does not do so.
    This rule involves a foreign affairs function of the United States 
and thus is excluded from the procedures of Executive Order 12866 (58 
FR 51735) and 5 U.S.C. 553 and 554, but has been reviewed internally by 
the Department to ensure consistency with the purposes thereof.

List of Subjects in 22 CFR Part 95

    Extradition, Torture Treaties


[[Page 9437]]


    For the reasons set out in the preamble, 22 CFR part 95 is added to 
subchapter J as follows:

PART 95--IMPLEMENTATION OF TORTURE CONVENTION IN EXTRADITION CASES

Sec.
95.1  Definitions.
95.2  Application.
95.3  Procedures.
95.4  Review and construction.

    Authority: 18 U.S.C. 3181 et seq.; Convention Against Torture 
and Other Cruel, Inhuman or Degrading Treatment or Punishment.


Sec. 95.1.  Definitions.

    (a) Convention means the United Nations Convention Against Torture 
and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment, 
done at New York on December 10, 1984, entered into force for the 
United States on November 10, 1994. Definitions provided below in 
paragraphs (b) and (c) of this section reflect the language of the 
Convention and understandings set forth in the United States instrument 
of ratification to the Convention.
    (b) Torture means:
    (1) 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) In order to constitute torture, an act must be specifically 
intended to inflict severe physical or mental pain or suffering and 
that mental pain or suffering refers to prolonged mental harm caused by 
or resulting from:
    (i) The intentional infliction or threatened infliction of severe 
physical pain or suffering;
    (ii) The administration or application, or threatened 
administration or application, of mind altering substances or other 
procedures calculated to disrupt profoundly the senses or the 
personality;
    (iii) The threat of imminent death; or
    (iv) The threat that another person will imminently be subjected to 
death, severe physical pain or suffering, or the administration or 
application of mind altering substances or other procedures calculated 
to disrupt profoundly the senses or personality.
    (3) Noncompliance with applicable legal procedural standards does 
not per se constitute torture.
    (4) This definition of torture applies only to acts directed 
against persons in the offender's custody or physical control.
    (5) The term ``acquiescence'' as used in this definition requires 
that the public official, prior to the activity constituting torture, 
have awareness of such activity and thereafter breach his or her legal 
responsibility to intervene to prevent such activity.
    (6) The term ``lawful sanctions'' as used in this definition 
includes judicially imposed sanctions and other enforcement actions 
authorized by law, provided that such sanctions or actions were not 
adopted in order to defeat the object and purpose of the Convention to 
prohibit torture.
    (7) Torture is an extreme form of cruel and inhuman treatment and 
does not include lesser forms of cruel, inhuman or degrading treatment 
or punishment.
    (c) Where there are substantial grounds for believing that [a 
fugitive] would be in danger of being subjected to torture means if it 
is more likely than not that the fugitive would be tortured.
    (d) Secretary means Secretary of State and includes, for purposes 
of this rule, the Deputy Secretary of State, by delegation.


Sec. 95.2  Application.

    (a) Article 3 of the Convention imposes on the parties certain 
obligations with respect to extradition. That Article provides as 
follows:
    (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.
    (b) Pursuant to sections 3184 and 3186 of Title 18 of the United 
States Criminal Code, the Secretary is the U.S. official responsible 
for determining whether to surrender a fugitive to a foreign country by 
means of extradition. In order to implement the obligation assumed by 
the United States pursuant to Article 3 of the Convention, the 
Department considers the question of whether a person facing 
extradition from the U.S. ``is more likely than not'' to be tortured in 
the State requesting extradition when appropriate in making this 
determination.


Sec. 95.3.  Procedures.

    (a) Decisions on extradition are presented to the Secretary only 
after a fugitive has been found extraditable by a United States 
judicial officer. In each case where allegations relating to torture 
are made or the issue is otherwise brought to the Department's 
attention, appropriate policy and legal offices review and analyze 
information relevant to the case in preparing a recommendation to the 
Secretary as to whether or not to sign the surrender warrant.
    (b) Based on the resulting analysis of relevant information, the 
Secretary may decide to surrender the fugitive to the requesting State, 
to deny surrender of the fugitive, or to surrender the fugitive subject 
to conditions.


Sec. 95.4  Review and construction.

    Decisions of the Secretary concerning surrender of fugitives for 
extradition are matters of executive discretion not subject to judicial 
review. Furthermore, pursuant to section 2242(d) of the Foreign Affairs 
Reform and Restructuring Act of 1998, P.L. 105-277, notwithstanding any 
other provision of law, no court shall have jurisdiction to review 
these regulations, and nothing in section 2242 shall be construed as 
providing any court jurisdiction to consider or review claims raised 
under the Convention or section 2242, or any other determination made 
with respect to the application of the policy set forth in section 
2242(a), except as part of the review of a final order of removal 
pursuant to section 242 of the Immigration and Nationality Act (8 
U.S.C. 1252), which is not applicable to extradition proceedings.

    Dated: February 18, 1999.
Strobe Talbott,
Deputy Secretary of State.
[FR Doc. 99-4560 Filed 2-25-99; 8:45 am]
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