from these instruments, Article 1 of CAT provides additional guidance to states parties in preventing and punishing torture by setting forth an explicit definition of torture: ...torture means any act by which severe pain or suffering, whether This definition makes it clear that the result of torture need not be physical pain or suffering, but can also be mental. In addition, torture is defined to include such conduct undertaken for the purpose of obtaining information. Finally, the prohibition is not directed at private citizens, acting independently of government; it applies rather to acts committed by government officials and agents, or persons acting with official consent or acquiescence. CAT's prohibition of torture is absolute. An order from a superior officer or a public authority may not be invoked as a justification of torture. Specifically, Article 2(2) provides: "No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture." Although CAT does not provide a definition of CID punishment or treatment, Article 16 requires ratifying countries to prevent "other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture...." This language suggests that cruel, inhuman or degrading treatment is on a continuum with torture. CAT requires each signatory state to prevent the commission of the prohibited acts within any territory under the state's jurisdiction. Specifically, each ratifying country must ensure that any official who may be involved in the interrogation of anyone under any form of detention or imprisonment is informed of and educated about the prohibitions against torture and cruel, inhuman or degrading treatment. CAT also requires each ratifying country to ensure that allegations of torture and CID treatment are fully and impartially investigated. See CAT Articles 12 and 16(1). CAT's Prohibition against Torture and CID Treatment as Interpreted The U.N. Committee Against Torture, created by CAT, is charged with monitoring implementation of the treaty by ratifying countries through the determination of individual complaints, considering country reports submitted under CAT, and resolving interState disputes. Given the importance of international standards in interpreting U.S. domestic law 32 as well as the recent Lawrence v. Texas decision, in which the U.S. Supreme Court expressly looked to foreign and international law for guidance," U.N. Committee decisions are relevant to the assessment of whether the actions of U.S. personnel involved in the interrogation of detainees constitute torture or cruel, inhuman or degrading treatment. 32 See Murray v. The Charming Betsy, 6 U.S. (2 Cranch) 64, 118 (1804) (a statute “ought never to be construed to violate the law of nations, if any other possible construction remains"). See also United States v. P.L.O., 695 F. Supp. 1456, 1468 (S.D.N.Y. 1988) (noting "the lengths to which our courts have sometimes gone in construing domestic statutes so as to avoid conflict with international agreements..."). 33 Lawrence v. Texas, 539 U.S. 558 (2003). under CAT: The U.N. Committee has concluded that the following acts3 constitute torture daily beatings and detaining someone in a small, uncomfortable space for two weeks;35 • forcing someone to sleep on the floor of a cell while handcuffed following Furthermore, the U.N. Committee has recommended that the use of a blindfold during questioning be expressly prohibited." More generally, the U.N. Committee has expressed concern that States have defined torture too narrowly, covering only "systematic blows or other violent acts.' The U.N. Committee has also expressed concern whether the penal law of one 1940 34 35 This list is by no means comprehensive. Practices were selected for inclusion here because of their similarity to the practices allegedly used by U.S. agents with respect to detainees held in connection with the War in Afghanistan and the ongoing conflict in Afghanistan. The findings and concluding observations of the Committee Against Torture are available at http://www.unhchr.ch/tbs/doc.nsf. Case of A. (name withheld) v. The Netherlands, Committee Against Torture, Comm. No. 91/1997 (1998), U.N. Doc. No. CAT/C/21/D/91/1997. 36 See Inquiry under Article 20: Committee Against Torture, Findings concerning Peru (2001), U.N. Doc. No. A/56/44, at para. 35. 37 38 39 40 Concluding Observations concerning Republic of Korea (1996), U.N. Doc. No. A/52/44, at para. 56. Concluding Observations concerning New Zealand (1993), U.N. Doc. No. A/48/44, at para. 148. See Inquiry Under Article 20: Committee Against Torture, Findings concerning Turkey (1993), U.N. Doc. No. A/48/44/Add. 1, at para. 48. Concluding Observations concerning Azerbaijan (2003), U.N. Doc. No. CAT/C/CR/30/1, at para. 5(b). State was too narrow in defining torture because it failed to prohibit "certain aspects of torture, such as psychological pressure, threats and intimidation."41 The U.N. Committee has found that the following acts amount to cruel, inhuman or degrading treatment or punishment under CAT: ⚫ depriving someone of food and/or water;" ⚫ in some cases, binding someone in a restraint chair;43 the use by prison authorities of instruments of physical restraint that may cause long periods of detention (two weeks or more) in detention cells that are sub-standard 45 (this conduct may amount to torture if the period of detention is extremely long).“ The U.N. Committee has found that the following acts may amount to torture 41 42 43 44 Concluding Observations concerning Germany (1993), U.N. Doc. No. A/48/44, at para. 167. Id.; see also Concluding Observations concerning New Zealand (1998), U.N. Doc. No. Concluding Observations concerning the United States (2000), U.N. Doc. No. A/55/44, at para. 179(e). Concluding Observations concerning Australia (2000), U.N. Doc. No. A/56/44, at para. 52(b). In sum, the U.N. Committee Against Torture has indicated that the classification of treatment as CID or torture is often a matter of severity, intensity, and the totality of the circumstances. Combining several forms of cruel, inhuman or degrading treatment will frequently amount to torture, and ratifying countries are required under CAT to refrain from all such practices, whether they reach the level of severity to be considered torture or not. Thus, according to U.N. Committee jurisprudence, alleged interrogation practices such as forcing detainees to stand or kneel for hours in black hoods or spray-painted goggles, 24-hour bombardment with lights, binding detainees in painful positions, withholding painkillers from wounded detainees, and subjecting detainees to loud noises and sleep deprivation, at a minimum, constitute cruel, inhuman or degrading treatment and may, depending on the circumstances, rise to the level of torture. U.N. Committee decisions critical of blindfolding, psychological pressure and threats and intimidation strongly suggest that "false-flag" operations meant to deceive detainees about their whereabouts and "stress and duress" interrogation techniques are also prohibited. U.S. Law Implementing CAT's Prohibitions against Torture and Cruel, Inhuman or The Senate adopted a resolution of advice and consent to U.S. ratification of CAT, subject to the declaration that it be deemed non-self-executing, on October 27, 1990.47 46 These techniques were found by the Committee to constitute "breaches of article 16 and also constitute torture as defined in article 1 of the Convention. This conclusion is particularly evident where such methods of interrogation are used in combination, which appears to be the standard case." Concluding Observations concerning Israel (1997), U.N. Doc. No. A/52/44, at para. 257. |