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COMMITTEE AGAINST TORTURE BEGINS REVIEW OF REPORT OF THE UNITED STATES
05 May 2006
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Committee against Torture
5 May 2006
The Committee against Torture this morning began its consideration of the second periodic report of the United States on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Barry Lowenkron, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State of the United States, introducing the report, reiterated the Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere, and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition.
John Bellinger, Head of the Delegation and Legal Adviser of the Department of State, said that it was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex specialis applicable to those operations. At the conclusion of the negotiation of the Convention, the United States had made it clear that the Convention was never intended to apply to armed conflicts and had emphasized that that would result in an overlap of different treaties which would undermine the objective of eradicating torture.
Serving as Rapporteur for the report of the United States was Committee Expert Fernando Mariño Menendez, who said that he was concerned that the United States had not incorporated the full provisions of Article 1 in its laws. He understood the debate that had taken place with regard to "extreme" or "severe" suffering or pain induced by a certain act. He understood that extremely severe was not appropriate, because in his view the Convention did not refer to extremely severe, but just severe. It just needed to be severe. The expression mental suffering was also in the definition and this was the subject of a reservation or a qualification by the United States when it deposited its instrument of ratification, and it was limited to four particular modalities. Article 1, however, did not establish modalities for mental suffering. He wished to know what the delegation thought about that.
Guibril Camara, the Committee Expert serving as Co-Rapporteur for the report of the United States, said that the role of the Committee, while it was not a Court, was to interpret the Convention. In that respect it was the interpretation of the Committee that would hold, and not that of the delegation, in terms of determining whether the United States was or was not acting in conformity with the Convention.
Also representing the delegation of the United States was Barry F. Lowenkron, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State, Cully Stimson, Deputy Assistant Secretary of Defence for Detainee Affairs at the Department of Defense, and Tom Monheim, Associate Deputy Attorney General at the Department of Justice, along with more than 20 advisers.
The delegation will return to the Committee at 3 p.m. on Monday, 8 May, to provide its response to the questions raised this morning.
The United States is among the 141 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m., it will hear the answers of Guatemala to the questions posed by the Experts on Thursday, 4 May.
Report of the United States
The second periodic report of the United States (CAT/C/48/Add.3) says that with the attacks against the United States of 11 September 2001, global terrorism has fundamentally altered the world. In fighting terrorism, the United States remains committed to respecting the rule of law, including the United States Constitution, federal statutes, and international treaty obligations, including the Torture Convention. Under the law of armed conflict the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of the hostilities. The detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board and each enemy combatant is provided with an unclassified written summary. As of 26 September 2005, the United States has transferred 246 persons from Guantanamo: 178 for release and 68 transferred to the custody of other governments for further detention. All detainees receive three meals per day; adequate shelter; adequate clothing; opportunity to worship; the means to send and receive mail; reading materials; and excellent medical care.
Allegations of detainee abuse at the Abu Ghraib prison in Iraq became known with incidents documented in photographs and reported in the media throughout the world. These photographs, which depict acts of abuse and mistreatment of detainees by certain members of the United States Armed Forces in Iraq, involved blatant violations of the Uniform Code of Military Justice and the law of war. The Government of the United States has acted swiftly and is investigating allegations of abuse thoroughly and making structural, personnel, and policy changes necessary to reduce the risk of further such incidents.
The definition of torture accepted by the United States upon ratification of the Convention remains unchanged. The definition of torture is codified in United States law in several contexts. On 30 December 2004 the Department of Justice’s Office of Legal Counsel published a memorandum that addresses the legal standards applicable under the extraterritorial criminal torture statute, separately considering the meaning of “severe”; “severe physical pain or suffering”; the meaning of “severe mental pain or suffering”; and the meaning of “specifically intended”. Torture is also defined in the immigrations and extradition regulations as well as in the Torture Victim Protection Act, which permits victims of torture and extrajudicial killings to claim damages for such abuses. The core legal framework through which the United States gives effect to its Convention undertakings to prevent acts of torture has not changed fundamentally since the initial report.
Presentation of Report
BARRY F. LOWENKRON, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State of the United States, at the outset, reiterated the United States Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere, and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition.
The United States was also committed to transparency in its actions. It was fulfilling higher moral obligations that it had embraced since its earliest days, Mr. Lowenkron said. Indeed the United States was among the original signatories to the Convention against Torture and had helped to draft it. The Bill of Rights spelled out several rights that were reflected in the Convention, including the Eighth Amendment, which prohibited cruel or unusual punishment.
Mr. Lowenkron said that the United States had had a long tradition of combating torture. When allegations of torture arose, including allegations against government officials, they were investigated and, if needed, prosecuted. The Government was also committed to investigating other such abuses committed by law enforcement authorities. What had happened at Abu Ghraib was inexcusable and indefensible. The Government had carried out over 600 investigations and over 250 individuals had been held accountable for detainee abuse, and the investigations and charges continued.
The United States was an open society. It could not fail to have been noticed that there had been a wide public debate in United States civil society about the abuses. The Government had listened and made changes. A Parliamentary group from the Organization for Security and Cooperation in Europe had visited Guantanamo, Mr. Lowenkron observed, and one of the visitors had later told journalists that it was a model prison. The International Committee of the Red Cross (ICRC) had also recently visited the prison and said that conditions had improved and that they were satisfied with the conditions there.
An important part of the fight to combat torture worldwide included cooperation with international organizations. The Government also engaged in a number of key multilateral activities designed to eliminate and reduce the practice of torture. For example, the Government supported the work of the United Nations Special Rapporteur on torture throughout the world. It had invited the Special Rapporteur and his colleagues to visit Guantanamo – an invitation that he had unfortunately turned down, Mr. Lowenkron said. Though the United States was not seeking a seat on the new Human Rights Council, it was committed to upholding human rights, including the prevention of torture worldwide, and it would continue to do so.
JOHN B. BELLINGER, Head of the Delegation and Legal Adviser of the Department of State, said the United States recognized the importance of its legal obligations and the key role that the Committee played in the treaty-monitoring process.
At the outset, he reiterated the United States Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition. The Congress had also passed laws that provided for severe federal sanctions, both civil and criminal, against those who engaged in torture outside the territory of the United States.
The United States focus on eradicating torture and punishing its perpetrators would be incomplete without a parallel effort to help its victims recover from abuses, Mr. Bellinger said. Congress had established and funded programmes that assisted victims of torture, domestically and overseas, and the United States had contributed far more than any other country in the world to the United Nations Voluntary Fund for Victims of Torture, contributing more than $ 32 million.
Late last year, the President signed into law the Detainee Treatment Act of 2005, which included a provision that codified in law the already existing policy against the use of cruel, inhuman or degrading treatment, as that term was defined under the obligations of the United States assumed under the Convention, Mr. Bellinger said.
In respect of Committee questions concerning United States actions taken in response to the terrorist attacks upon the country on 11 September, Mr. Bellinger said that it was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex specialis applicable to those operations. At the conclusion of the negotiation of the Convention, the United States had made it clear that the Convention was never intended to apply to armed conflicts and had emphasized that that would result in an overlap of different treaties which would undermine the objective of eradicating torture. No country had objected to that understanding.
In any case torture was clearly and categorically prohibited under both human rights treaties and the law of armed conflict, Mr. Bellinger noted. While the United States maintained its view that the law of armed conflict was the lex specialis governing the detainee operations, they were pleased to provide extensive information about those operations in a sincere spirit of cooperation with the Committee.
While acutely aware of the innumerable allegations that had appeared in the press and in other fora about various United States actions, Mr. Bellinger asked that the Committee not believe every allegation it had ever heard. Allegations about United States military or intelligence activities had become so hyperbolic as to be absurd. The Committee should not lose sight of the fact that those incidents were not systemic.
Response by Delegation to Questions Sent by the Committee in Advance
JOHN B. BELLINGER, Legal Adviser at the Department of State, responding to a series of written questions prepared by the Committee in advance and sent to the State party beforehand, said that, concerning the memoranda drafted by the Department of Justice's Office of Legal Counsel in 2002 and December 2004 that provided legal advice on the meaning of the term "torture" under the extraterritorial criminal torture statute that implements portions of the Convention against Torture, nothing in those memos changed the definition of torture governing United States obligations under the Convention from what the United States accepted upon ratification of the Convention. The opinion was requested to provide operational guidance with respect to the implementation of the criminal statute at the level of detail needed to guide United States government officials.
The Office of Legal Counsel later withdrew the August 2002 opinion and issued another opinion dated 30 December 2004, which was confined to an interpretation of the extraterritorial criminal torture statute. The August 2002 opinion was withdrawn not because it purported to change the definition of torture, but rather because it addressed questions that were not necessary to address. Neither opinion purported to change the definition of torture set out in Article 1 as understood by the United States.
With regard to Committee concerns that references to "torture" as involving "extreme" acts in the December 2004 memorandum were compatible with the Convention, the fact that the Convention defined torture in Article 1 and then subsequently referred in Article 16 to "other acts of cruel, inhuman or degrading treatment or punishment" reflected the recognition of the negotiators that torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading treatment or punishment. Specifically because of the aggravated nature of torture, Mr. Bellinger said, States parties agreed to comprehensive measures to prohibit it under criminal law, to prosecute perpetrators found in territory under their jurisdiction, and not to return individuals to other States where there were substantial grounds for believing that such persons would be in danger of being subject to torture. In contrast, the obligations regarding cruel, inhuman or degrading treatment or punishment were far more limited.
Mr. Bellinger said the United States respectfully disagreed with the Committee’s suggestion that both of the Office of Legal Counsel memorandums on the extraterritorial criminal torture statute were more restrictive than previous United Nations standards, including the 1975 Declaration. The interpretation of the term “severe” in the December 2004 memorandum reflected the understanding that torture constituted a more aggravated form of abuse than that covered by “cruel, inhuman or degrading treatment or punishment”.
Before ratifying the Convention, the United States concluded that, with the sole exception of prohibiting certain acts of torture committed outside the territory of the United States, state and federal law covered all the offences stated in the Convention. The United States had filled that lone shortcoming, Mr. Bellinger noted, by enacting the extraterritorial criminal torture statute.
There was no specific federal crime styled as “torture” for acts occurring within United States territory, Mr. Bellinger said. The reason was simply that any act of torture falling within the Convention definition, as ratified by the United States, was already criminalized under United States federal and state laws. Those laws, which met the requirements of the Convention, were binding on government officials and were enforced through a variety of administrative procedures as well as criminal prosecutions. Additionally, civil suits provided remedies in many cases.
Concerning alleged secret detention facilities under the de facto effective control of the United States, Mr. Bellinger felt it important to underscore that all the components of the United States Government were obligated to act in compliance with the law. The United States Government did not permit, tolerate or condone unlawful practices by personnel or employees, including contractors, under any circumstances. The extraterritorial criminal torture statute made it a crime for a person acting under cover of law to commit, attempt to commit or conspire to commit torture outside the United States. In addition, pursuant to the Detainee Treatment Act of 2005, the United States prohibited cruel, inhuman or degrading treatment or punishment that applied to any persons in the custody or under the physical control of the United States Government, regardless of nationality or physical location.
Continuing to respond to Committee questions, another member of the delegation said that while the United States was aware of allegations of torture and ill-treatment, it disagreed with the assertion that they were widespread or systemic. Those allegations should be placed in context, as they related to a minute percentage of the overall number of persons who had been detained. Moreover, it was well-known that al-Qaida were trained to lie and that the “Manchester Manual” instructed all al-Qaida members, when captured, to allege torture, even if they were not subject to abuse. The United States had provided numerous examples of specific measures taken in response to incidents of maltreatment or misconduct at Department of Defense detention facilities at Guantanamo Bay and in Afghanistan and Iraq.
The ICRC had access to Department of Defense theatre interment detention facilities, including Guantanamo, Iraq and Afghanistan, and met privately with detainees. The Department of Defense accounted for detainees under its control fully and provided notice of detention to the ICRC as soon as possible, normally within 14 days of capture. While their dialogue with the ICRC was confidential, the delegation noted, the United States Government took seriously the matters the ICRC raised and greatly valued its historic and ongoing relationship with them.
With regard to the Committee’s concerns about investigations, the United States report described those in great detail in the annex to its report. The Department of Defense had conducted 12 major investigations into all aspects of its detention operations following the events of Abu Ghraib.
Turning to the Committee's questions about interrogation rules, the Detainee Treatment Act of 2005, previously mentioned, also provided for uniform interrogation standards that no person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defence facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. The delegation said that those standards applied to military, Department of Defense civilians, and contract interrogators. Any activities of the CIA would be subject to the extraterritorial criminal torture statute and the Detainee Treatment Act's prohibition on cruel, inhuman or degrading treatment or punishment.
The delegation said that, consistent with its obligations under Article 3, the United States did not transfer persons to countries where it determined that it was "more likely than not" that they would be tortured. That policy applied to all components of the United States Government and to individuals in United States custody or control, regardless of where they might be detained.
Generally speaking, in immigration removal proceedings an individual seeking protection from removal from the United States under Article 3 could appeal an adverse decision of the immigration judge to the Board of Immigration Appeals. If the Board dismissed the individual's administrative appeal or denied his or her motion to reopen, the individual could file a petition for review of the Board's decision with the appropriate federal court of appeals.
The delegation said that Secretary Rice had recently explained that the United States and other countries had long used renditions to transport terrorist suspects from the country where they were captured to their home country or to other countries where they could be questioned, held or brought to justice. Rendition was a vital tool in combating international terrorism, which took terrorists out of action and saved lives. The delegation emphasized that the United States did not transport and had not transported detainees from one country to another for the purpose of interrogation using torture. The United States had not transported anyone, and would not transport anyone, to a country if it believed he or she would be tortured.
Concerning Committee questions about diplomatic assurances, the delegation emphasized that diplomatic assurances were used sparingly and were not a substitute for case-by-case determination. There had been cases where the United States had considered the use of diplomatic assurances, but declined to return individuals because the it was not satisfied such an assurance would satisfy its obligations under Article 3.
Regarding concerns that the United States had returned individuals to countries that the United States considered not to respect human rights, the delegation emphasized that Article 3 did not prohibit the return or transfer of individuals to countries with a poor human rights record per se, not did it apply with respect to returns that might involve "ill-treatment" that did not amount to torture, the delegation noted.
The delegation said that there was no penal immunity for any person for the crime of torture under United States law. Additionally, although there had been no criminal prosecutions initiated under the extraterritorial criminal torture statute to date, there had been prosecutions for offences occurring outside the United States under other statutory provisions, including the Uniform Code of Military Justice.
Concerning the education and training of military and Department of Defense civilian personnel, including contractor employees, the Department of Defense conducted comprehensive training programmes on treatment and interrogation of detainees, the delegation said. Law of War training was provided at least annually for all Department of Defense personnel involved in conducting or supporting detention operations, including contractors. That extensive training on the law of war also included instruction on the prohibition against acts of torture and the requirement of human treatment. Mechanisms for systematic review of military, Department of Defense civilians and contractor employees involved in detention operations included inspector general visits, command visits and inspections and Congressional and intelligence oversight committees and visits, as well as reviews conducted pursuant to unit procedures and by the chain of command. They also included case-by-case specific investigations and overall reviews.
Regarding whether the December 2004 memorandum created unnecessary confusion for trainers and personnel, the answer was no, the delegation said. The main finding of the investigation was that a small group of individuals, acting in contravention of United States law and Department of Defense policy, had been responsible for perpetrating the acts of abuse at Abu Ghraib. That finding had been supported in the 12 other major reviews conducted by the Department of Defense, the delegation said. There had been a total of 120 deaths of detainees in Department of Defense control in Afghanistan and Iraq. There had been no deaths in Guantanamo. The vast majority of deaths were caused by factors such as natural causes, injuries sustained on the battlefield, or detainee-on-detainee violence. In only 29 cases had abuse or other violations of law or policy been suspected.
The process of holding violators accountable was ongoing, the delegation observed. Between the time they had submitted their answers last Friday and today, the Army had charged a senior officer, the former head of the Abu Ghraib prison, for his alleged involvement in the abuse of detainees and for allegedly interfering with the abuse investigation.
Regarding remedies and compensation available to detainees who had allegedly been abused while under United States control, 33 detainees, including some from Abu Ghraib, had filed claims and the process was still ongoing.
Questions by Experts
FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of the United States, said that the United States was a leader in the international community and an important guide and touchstone for the application of international law.
Regarding lex specialis, he understood the United States delegation to say that the Convention against Torture did not apply in time of armed conflict. In that connection, did the United States still hold that they were still engaged in a sui generis armed conflict against terrorism? There were other international human rights instruments that held during the time of armed conflict including the International Covenant on Civil and Political Rights, Mr. Mariño Menendez said. While he understood the delegation's reservations about revealing confidential information, he noted that any act undertaken by an intelligence service was attributable to the State itself, under international law, and that was still a concern of the Committee.
Mr. Mariño Menendez said that he was concerned that the United States had not incorporated the full provisions of Article 1 in its laws. He understood the debate that had taken place with regard to "extreme" or "severe" suffering or pain induced by a certain act. He understood that extremely severe was not appropriate, because in his view the Convention did not refer to extremely severe, but just severe. It just needed to be severe. The expression mental suffering was also in the definition and this was the subject of a reservation or a qualification by the United States when it deposited its instrument of ratification, and it was limited to four particular modalities. Article 1, however, did not establish modalities for mental suffering. He wished to know what the delegation thought about that.
It was true that there was a distinction between torture and cruel and inhuman treatment. Article 15 prohibited a confession extracted under torture, but not one extracted under cruel or inhuman treatment. Maybe they could speak of specific practices that would rise to the level of torture, such as those committed during interrogation. Forced disappearance did constitute a sort of torture, as in that relatives of the disappeared suffered mental or physical anguish that was the equivalent. There were legal instruments, such as the draft convention against forced disappearances, and he felt that there was a sort of consensus by the international community that it did represent a form of torture. Water boarding should be a prohibited practice because it was at the very limits of the practice of torture. The holding of persons incommunicado. The practice of sexual aggression in prisons, was that a form of torture or not?
Speaking of Guantanamo, Mr. Mariño Menendez said he had heard the delegation's statement that the ICRC and other NGOs had visited the facilities there and found the conditions to be good, but given that the United Nations Special Rapporteur had not been able to visit with detainees there, he remained concerned that the practices carried out there might be in contravention of the Convention.
Human Rights Watch had, in many documented cases, found that civil and military personnel in the United States had abused or killed detainees, involving 600 personnel and 450 detainees. Mr. Mariño Menendez said only 54 members of the military had been convicted, 40 sentenced to prison, and only 10 received prison sentences of one year or more, even in cases of serious abuse. Under the doctrine of chain of command, responsibility should be held against a superior in the case. By that logic, the State was ultimately responsible for those acts of torture.
Regarding extraordinary renditions, the European Parliament was organizing investigations concerning the flights of detainees to secret prisons and the Committee would await the outcome of these investigations. Secret or clandestine prisons were contrary to international law and he referred to the crime of forced disappearance, which also had a link to torture.
In that context, he was pleasantly surprised that the delegation reported the United States policy was generally not to rely on diplomatic assurances, but he wondered if the actual practice of the United States was in conformity with the Convention's standards. That was related to the expulsion of foreigners in extradition proceedings. He understood that the Secretary of State made that final determination and that there was no appeal possible. He would appreciate the delegation's confirmation of that understanding.
GUIBRIL CAMARA, the Committee Expert serving as Co-Rapporteur for the report of the United States, said that the role of the Committee, while it was not a Court, was to interpret the Convention. In that respect it was the interpretation of the Committee that would hold, and not that of the delegation, in terms of determining whether the United States was or was not acting in conformity with the Convention.
He felt they needed to go back to Article 1 of the Convention itself to look at the definition of torture. What was the legal foundation of the practice of legal reservations by the United States? Mr. Guibril felt that one or the other would have to give way, and it was the interpretation of the Committee, once again, that would prevail.
He recognized that not all acts constituted torture. A State could penalize various offences, but if they constituted torture and were not prosecuted as torture, there was non-compliance with the provisions of the Convention, Mr. Guibril commented. He recommended that the delegation reread paragraph 2 of Article 16 of the Convention.
He had read in a French newspaper an article about a young British man, originally from Zambia, who had been held in Guantanamo for thirty-three months. He was released, but he stated that he was tortured. He was tortured, with a view, probably, to obtain evidence, Mr. Guibril said, but the man had said that he was also the victim of racist insults by his guards. That man was in London now and, as far as he knew, there had been no inquiry and no compensation. As Mr. Guibril understood the delegation to say, the United States were thus obliged to undertake an inquiry and make reparations. The young man also said that it was because he had converted to Islam that he had been subjected to all that he had undergone.
In the French language there was a distinction between law and right. There was not just a rule of law, there was also a moral aspect. With regard to the United States, it should apply both to citizens and foreigners, he said.
Other Committee Experts also raised a series of questions. An Expert asked a question on sexual violence against female detainees in United States facilities. In that regard, she wondered why the enactment of the Prison Rape Act had been delayed and whether prison officials received training that included a gender dimension. Other issues raised included the fact that the United States was not a signatory to the Rome Statute of the International Criminal Code; the existence of clandestine or secret prisons; did the United States delegation consider that mock drowning constituted torture, or simply cruel or inhuman treatment; and whether there were measures to monitor CIA operations to ensure that they were not violating the provisions of the Convention.
The Chairman of the Committee, Andreas Mavrommatis, said that although the United States had a long and illustrious human rights record, it also bore a great responsibility. The photos of Abu Ghraib recalled for him the time of Saddam Hussein and brought back many memories. He was really shocked that those abuses were committed by authorities of a country like the United States. The duty of the United States was to take the appropriate monitoring measures to prevent the occurrence of the events at all, and who took responsibility for that? His advice was that they should have more contact with NGOs and really examine the complaints they alleged, rather than dismissing them as false. He reiterated strongly his belief that habeas corpus provided one of the strongest protections against impunity, and he strongly suggested the United States reconsider its position in that regard.
Mr. Mavrommatis noted that the Committee had been made aware of at least one case of rendition. He was sure that investigations were being carried out, but suggested that perhaps they could be done in a more independent manner, by being carried out by the courts instead of the Department of Defense, for example.
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For use of the information media; not an official record
5 May 2006
The Committee against Torture this morning began its consideration of the second periodic report of the United States on the efforts of that country to give effect to the provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Barry Lowenkron, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State of the United States, introducing the report, reiterated the Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere, and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition.
John Bellinger, Head of the Delegation and Legal Adviser of the Department of State, said that it was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex specialis applicable to those operations. At the conclusion of the negotiation of the Convention, the United States had made it clear that the Convention was never intended to apply to armed conflicts and had emphasized that that would result in an overlap of different treaties which would undermine the objective of eradicating torture.
Serving as Rapporteur for the report of the United States was Committee Expert Fernando Mariño Menendez, who said that he was concerned that the United States had not incorporated the full provisions of Article 1 in its laws. He understood the debate that had taken place with regard to "extreme" or "severe" suffering or pain induced by a certain act. He understood that extremely severe was not appropriate, because in his view the Convention did not refer to extremely severe, but just severe. It just needed to be severe. The expression mental suffering was also in the definition and this was the subject of a reservation or a qualification by the United States when it deposited its instrument of ratification, and it was limited to four particular modalities. Article 1, however, did not establish modalities for mental suffering. He wished to know what the delegation thought about that.
Guibril Camara, the Committee Expert serving as Co-Rapporteur for the report of the United States, said that the role of the Committee, while it was not a Court, was to interpret the Convention. In that respect it was the interpretation of the Committee that would hold, and not that of the delegation, in terms of determining whether the United States was or was not acting in conformity with the Convention.
Also representing the delegation of the United States was Barry F. Lowenkron, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State, Cully Stimson, Deputy Assistant Secretary of Defence for Detainee Affairs at the Department of Defense, and Tom Monheim, Associate Deputy Attorney General at the Department of Justice, along with more than 20 advisers.
The delegation will return to the Committee at 3 p.m. on Monday, 8 May, to provide its response to the questions raised this morning.
The United States is among the 141 States parties to the Convention and as such it must present periodic reports to the Committee on how it is implementing the provisions of the Convention.
When the Committee reconvenes at 3 p.m., it will hear the answers of Guatemala to the questions posed by the Experts on Thursday, 4 May.
Report of the United States
The second periodic report of the United States (CAT/C/48/Add.3) says that with the attacks against the United States of 11 September 2001, global terrorism has fundamentally altered the world. In fighting terrorism, the United States remains committed to respecting the rule of law, including the United States Constitution, federal statutes, and international treaty obligations, including the Torture Convention. Under the law of armed conflict the United States has the authority to detain persons who have engaged in unlawful belligerence until the cessation of the hostilities. The detention of each Guantanamo detainee is reviewed annually by an Administrative Review Board and each enemy combatant is provided with an unclassified written summary. As of 26 September 2005, the United States has transferred 246 persons from Guantanamo: 178 for release and 68 transferred to the custody of other governments for further detention. All detainees receive three meals per day; adequate shelter; adequate clothing; opportunity to worship; the means to send and receive mail; reading materials; and excellent medical care.
Allegations of detainee abuse at the Abu Ghraib prison in Iraq became known with incidents documented in photographs and reported in the media throughout the world. These photographs, which depict acts of abuse and mistreatment of detainees by certain members of the United States Armed Forces in Iraq, involved blatant violations of the Uniform Code of Military Justice and the law of war. The Government of the United States has acted swiftly and is investigating allegations of abuse thoroughly and making structural, personnel, and policy changes necessary to reduce the risk of further such incidents.
The definition of torture accepted by the United States upon ratification of the Convention remains unchanged. The definition of torture is codified in United States law in several contexts. On 30 December 2004 the Department of Justice’s Office of Legal Counsel published a memorandum that addresses the legal standards applicable under the extraterritorial criminal torture statute, separately considering the meaning of “severe”; “severe physical pain or suffering”; the meaning of “severe mental pain or suffering”; and the meaning of “specifically intended”. Torture is also defined in the immigrations and extradition regulations as well as in the Torture Victim Protection Act, which permits victims of torture and extrajudicial killings to claim damages for such abuses. The core legal framework through which the United States gives effect to its Convention undertakings to prevent acts of torture has not changed fundamentally since the initial report.
Presentation of Report
BARRY F. LOWENKRON, Assistant Secretary for Democracy, Human Rights and Labour of the Department of State of the United States, at the outset, reiterated the United States Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere, and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition.
The United States was also committed to transparency in its actions. It was fulfilling higher moral obligations that it had embraced since its earliest days, Mr. Lowenkron said. Indeed the United States was among the original signatories to the Convention against Torture and had helped to draft it. The Bill of Rights spelled out several rights that were reflected in the Convention, including the Eighth Amendment, which prohibited cruel or unusual punishment.
Mr. Lowenkron said that the United States had had a long tradition of combating torture. When allegations of torture arose, including allegations against government officials, they were investigated and, if needed, prosecuted. The Government was also committed to investigating other such abuses committed by law enforcement authorities. What had happened at Abu Ghraib was inexcusable and indefensible. The Government had carried out over 600 investigations and over 250 individuals had been held accountable for detainee abuse, and the investigations and charges continued.
The United States was an open society. It could not fail to have been noticed that there had been a wide public debate in United States civil society about the abuses. The Government had listened and made changes. A Parliamentary group from the Organization for Security and Cooperation in Europe had visited Guantanamo, Mr. Lowenkron observed, and one of the visitors had later told journalists that it was a model prison. The International Committee of the Red Cross (ICRC) had also recently visited the prison and said that conditions had improved and that they were satisfied with the conditions there.
An important part of the fight to combat torture worldwide included cooperation with international organizations. The Government also engaged in a number of key multilateral activities designed to eliminate and reduce the practice of torture. For example, the Government supported the work of the United Nations Special Rapporteur on torture throughout the world. It had invited the Special Rapporteur and his colleagues to visit Guantanamo – an invitation that he had unfortunately turned down, Mr. Lowenkron said. Though the United States was not seeking a seat on the new Human Rights Council, it was committed to upholding human rights, including the prevention of torture worldwide, and it would continue to do so.
JOHN B. BELLINGER, Head of the Delegation and Legal Adviser of the Department of State, said the United States recognized the importance of its legal obligations and the key role that the Committee played in the treaty-monitoring process.
At the outset, he reiterated the United States Government's absolute commitment to upholding its national and international obligations to eradicate torture and to prevent cruel, inhuman or degrading treatment or punishment worldwide. The President of the United States had made it clear that torture anywhere was an affront to human dignity everywhere and that freedom from torture was an inalienable right. Beyond the protections in the Constitution, United States criminal law prohibited torture. There were no exceptions to that prohibition. The Congress had also passed laws that provided for severe federal sanctions, both civil and criminal, against those who engaged in torture outside the territory of the United States.
The United States focus on eradicating torture and punishing its perpetrators would be incomplete without a parallel effort to help its victims recover from abuses, Mr. Bellinger said. Congress had established and funded programmes that assisted victims of torture, domestically and overseas, and the United States had contributed far more than any other country in the world to the United Nations Voluntary Fund for Victims of Torture, contributing more than $ 32 million.
Late last year, the President signed into law the Detainee Treatment Act of 2005, which included a provision that codified in law the already existing policy against the use of cruel, inhuman or degrading treatment, as that term was defined under the obligations of the United States assumed under the Convention, Mr. Bellinger said.
In respect of Committee questions concerning United States actions taken in response to the terrorist attacks upon the country on 11 September, Mr. Bellinger said that it was the view of the United States that the detention operations in Guantanamo Bay, Cuba, in Afghanistan and in Iraq were governed by the law of armed conflict, which was the lex specialis applicable to those operations. At the conclusion of the negotiation of the Convention, the United States had made it clear that the Convention was never intended to apply to armed conflicts and had emphasized that that would result in an overlap of different treaties which would undermine the objective of eradicating torture. No country had objected to that understanding.
In any case torture was clearly and categorically prohibited under both human rights treaties and the law of armed conflict, Mr. Bellinger noted. While the United States maintained its view that the law of armed conflict was the lex specialis governing the detainee operations, they were pleased to provide extensive information about those operations in a sincere spirit of cooperation with the Committee.
While acutely aware of the innumerable allegations that had appeared in the press and in other fora about various United States actions, Mr. Bellinger asked that the Committee not believe every allegation it had ever heard. Allegations about United States military or intelligence activities had become so hyperbolic as to be absurd. The Committee should not lose sight of the fact that those incidents were not systemic.
Response by Delegation to Questions Sent by the Committee in Advance
JOHN B. BELLINGER, Legal Adviser at the Department of State, responding to a series of written questions prepared by the Committee in advance and sent to the State party beforehand, said that, concerning the memoranda drafted by the Department of Justice's Office of Legal Counsel in 2002 and December 2004 that provided legal advice on the meaning of the term "torture" under the extraterritorial criminal torture statute that implements portions of the Convention against Torture, nothing in those memos changed the definition of torture governing United States obligations under the Convention from what the United States accepted upon ratification of the Convention. The opinion was requested to provide operational guidance with respect to the implementation of the criminal statute at the level of detail needed to guide United States government officials.
The Office of Legal Counsel later withdrew the August 2002 opinion and issued another opinion dated 30 December 2004, which was confined to an interpretation of the extraterritorial criminal torture statute. The August 2002 opinion was withdrawn not because it purported to change the definition of torture, but rather because it addressed questions that were not necessary to address. Neither opinion purported to change the definition of torture set out in Article 1 as understood by the United States.
With regard to Committee concerns that references to "torture" as involving "extreme" acts in the December 2004 memorandum were compatible with the Convention, the fact that the Convention defined torture in Article 1 and then subsequently referred in Article 16 to "other acts of cruel, inhuman or degrading treatment or punishment" reflected the recognition of the negotiators that torture applied to more severe acts of cruelty and abuse than did cruel, inhuman or degrading treatment or punishment. Specifically because of the aggravated nature of torture, Mr. Bellinger said, States parties agreed to comprehensive measures to prohibit it under criminal law, to prosecute perpetrators found in territory under their jurisdiction, and not to return individuals to other States where there were substantial grounds for believing that such persons would be in danger of being subject to torture. In contrast, the obligations regarding cruel, inhuman or degrading treatment or punishment were far more limited.
Mr. Bellinger said the United States respectfully disagreed with the Committee’s suggestion that both of the Office of Legal Counsel memorandums on the extraterritorial criminal torture statute were more restrictive than previous United Nations standards, including the 1975 Declaration. The interpretation of the term “severe” in the December 2004 memorandum reflected the understanding that torture constituted a more aggravated form of abuse than that covered by “cruel, inhuman or degrading treatment or punishment”.
Before ratifying the Convention, the United States concluded that, with the sole exception of prohibiting certain acts of torture committed outside the territory of the United States, state and federal law covered all the offences stated in the Convention. The United States had filled that lone shortcoming, Mr. Bellinger noted, by enacting the extraterritorial criminal torture statute.
There was no specific federal crime styled as “torture” for acts occurring within United States territory, Mr. Bellinger said. The reason was simply that any act of torture falling within the Convention definition, as ratified by the United States, was already criminalized under United States federal and state laws. Those laws, which met the requirements of the Convention, were binding on government officials and were enforced through a variety of administrative procedures as well as criminal prosecutions. Additionally, civil suits provided remedies in many cases.
Concerning alleged secret detention facilities under the de facto effective control of the United States, Mr. Bellinger felt it important to underscore that all the components of the United States Government were obligated to act in compliance with the law. The United States Government did not permit, tolerate or condone unlawful practices by personnel or employees, including contractors, under any circumstances. The extraterritorial criminal torture statute made it a crime for a person acting under cover of law to commit, attempt to commit or conspire to commit torture outside the United States. In addition, pursuant to the Detainee Treatment Act of 2005, the United States prohibited cruel, inhuman or degrading treatment or punishment that applied to any persons in the custody or under the physical control of the United States Government, regardless of nationality or physical location.
Continuing to respond to Committee questions, another member of the delegation said that while the United States was aware of allegations of torture and ill-treatment, it disagreed with the assertion that they were widespread or systemic. Those allegations should be placed in context, as they related to a minute percentage of the overall number of persons who had been detained. Moreover, it was well-known that al-Qaida were trained to lie and that the “Manchester Manual” instructed all al-Qaida members, when captured, to allege torture, even if they were not subject to abuse. The United States had provided numerous examples of specific measures taken in response to incidents of maltreatment or misconduct at Department of Defense detention facilities at Guantanamo Bay and in Afghanistan and Iraq.
The ICRC had access to Department of Defense theatre interment detention facilities, including Guantanamo, Iraq and Afghanistan, and met privately with detainees. The Department of Defense accounted for detainees under its control fully and provided notice of detention to the ICRC as soon as possible, normally within 14 days of capture. While their dialogue with the ICRC was confidential, the delegation noted, the United States Government took seriously the matters the ICRC raised and greatly valued its historic and ongoing relationship with them.
With regard to the Committee’s concerns about investigations, the United States report described those in great detail in the annex to its report. The Department of Defense had conducted 12 major investigations into all aspects of its detention operations following the events of Abu Ghraib.
Turning to the Committee's questions about interrogation rules, the Detainee Treatment Act of 2005, previously mentioned, also provided for uniform interrogation standards that no person in the custody or under the effective control of the Department of Defense or under detention in a Department of Defence facility shall be subject to any treatment or technique of interrogation not authorized by and listed in the United States Army Field Manual on Intelligence Interrogation. The delegation said that those standards applied to military, Department of Defense civilians, and contract interrogators. Any activities of the CIA would be subject to the extraterritorial criminal torture statute and the Detainee Treatment Act's prohibition on cruel, inhuman or degrading treatment or punishment.
The delegation said that, consistent with its obligations under Article 3, the United States did not transfer persons to countries where it determined that it was "more likely than not" that they would be tortured. That policy applied to all components of the United States Government and to individuals in United States custody or control, regardless of where they might be detained.
Generally speaking, in immigration removal proceedings an individual seeking protection from removal from the United States under Article 3 could appeal an adverse decision of the immigration judge to the Board of Immigration Appeals. If the Board dismissed the individual's administrative appeal or denied his or her motion to reopen, the individual could file a petition for review of the Board's decision with the appropriate federal court of appeals.
The delegation said that Secretary Rice had recently explained that the United States and other countries had long used renditions to transport terrorist suspects from the country where they were captured to their home country or to other countries where they could be questioned, held or brought to justice. Rendition was a vital tool in combating international terrorism, which took terrorists out of action and saved lives. The delegation emphasized that the United States did not transport and had not transported detainees from one country to another for the purpose of interrogation using torture. The United States had not transported anyone, and would not transport anyone, to a country if it believed he or she would be tortured.
Concerning Committee questions about diplomatic assurances, the delegation emphasized that diplomatic assurances were used sparingly and were not a substitute for case-by-case determination. There had been cases where the United States had considered the use of diplomatic assurances, but declined to return individuals because the it was not satisfied such an assurance would satisfy its obligations under Article 3.
Regarding concerns that the United States had returned individuals to countries that the United States considered not to respect human rights, the delegation emphasized that Article 3 did not prohibit the return or transfer of individuals to countries with a poor human rights record per se, not did it apply with respect to returns that might involve "ill-treatment" that did not amount to torture, the delegation noted.
The delegation said that there was no penal immunity for any person for the crime of torture under United States law. Additionally, although there had been no criminal prosecutions initiated under the extraterritorial criminal torture statute to date, there had been prosecutions for offences occurring outside the United States under other statutory provisions, including the Uniform Code of Military Justice.
Concerning the education and training of military and Department of Defense civilian personnel, including contractor employees, the Department of Defense conducted comprehensive training programmes on treatment and interrogation of detainees, the delegation said. Law of War training was provided at least annually for all Department of Defense personnel involved in conducting or supporting detention operations, including contractors. That extensive training on the law of war also included instruction on the prohibition against acts of torture and the requirement of human treatment. Mechanisms for systematic review of military, Department of Defense civilians and contractor employees involved in detention operations included inspector general visits, command visits and inspections and Congressional and intelligence oversight committees and visits, as well as reviews conducted pursuant to unit procedures and by the chain of command. They also included case-by-case specific investigations and overall reviews.
Regarding whether the December 2004 memorandum created unnecessary confusion for trainers and personnel, the answer was no, the delegation said. The main finding of the investigation was that a small group of individuals, acting in contravention of United States law and Department of Defense policy, had been responsible for perpetrating the acts of abuse at Abu Ghraib. That finding had been supported in the 12 other major reviews conducted by the Department of Defense, the delegation said. There had been a total of 120 deaths of detainees in Department of Defense control in Afghanistan and Iraq. There had been no deaths in Guantanamo. The vast majority of deaths were caused by factors such as natural causes, injuries sustained on the battlefield, or detainee-on-detainee violence. In only 29 cases had abuse or other violations of law or policy been suspected.
The process of holding violators accountable was ongoing, the delegation observed. Between the time they had submitted their answers last Friday and today, the Army had charged a senior officer, the former head of the Abu Ghraib prison, for his alleged involvement in the abuse of detainees and for allegedly interfering with the abuse investigation.
Regarding remedies and compensation available to detainees who had allegedly been abused while under United States control, 33 detainees, including some from Abu Ghraib, had filed claims and the process was still ongoing.
Questions by Experts
FERNANDO MARIÑO MENENDEZ, the Committee Expert serving as Rapporteur for the report of the United States, said that the United States was a leader in the international community and an important guide and touchstone for the application of international law.
Regarding lex specialis, he understood the United States delegation to say that the Convention against Torture did not apply in time of armed conflict. In that connection, did the United States still hold that they were still engaged in a sui generis armed conflict against terrorism? There were other international human rights instruments that held during the time of armed conflict including the International Covenant on Civil and Political Rights, Mr. Mariño Menendez said. While he understood the delegation's reservations about revealing confidential information, he noted that any act undertaken by an intelligence service was attributable to the State itself, under international law, and that was still a concern of the Committee.
Mr. Mariño Menendez said that he was concerned that the United States had not incorporated the full provisions of Article 1 in its laws. He understood the debate that had taken place with regard to "extreme" or "severe" suffering or pain induced by a certain act. He understood that extremely severe was not appropriate, because in his view the Convention did not refer to extremely severe, but just severe. It just needed to be severe. The expression mental suffering was also in the definition and this was the subject of a reservation or a qualification by the United States when it deposited its instrument of ratification, and it was limited to four particular modalities. Article 1, however, did not establish modalities for mental suffering. He wished to know what the delegation thought about that.
It was true that there was a distinction between torture and cruel and inhuman treatment. Article 15 prohibited a confession extracted under torture, but not one extracted under cruel or inhuman treatment. Maybe they could speak of specific practices that would rise to the level of torture, such as those committed during interrogation. Forced disappearance did constitute a sort of torture, as in that relatives of the disappeared suffered mental or physical anguish that was the equivalent. There were legal instruments, such as the draft convention against forced disappearances, and he felt that there was a sort of consensus by the international community that it did represent a form of torture. Water boarding should be a prohibited practice because it was at the very limits of the practice of torture. The holding of persons incommunicado. The practice of sexual aggression in prisons, was that a form of torture or not?
Speaking of Guantanamo, Mr. Mariño Menendez said he had heard the delegation's statement that the ICRC and other NGOs had visited the facilities there and found the conditions to be good, but given that the United Nations Special Rapporteur had not been able to visit with detainees there, he remained concerned that the practices carried out there might be in contravention of the Convention.
Human Rights Watch had, in many documented cases, found that civil and military personnel in the United States had abused or killed detainees, involving 600 personnel and 450 detainees. Mr. Mariño Menendez said only 54 members of the military had been convicted, 40 sentenced to prison, and only 10 received prison sentences of one year or more, even in cases of serious abuse. Under the doctrine of chain of command, responsibility should be held against a superior in the case. By that logic, the State was ultimately responsible for those acts of torture.
Regarding extraordinary renditions, the European Parliament was organizing investigations concerning the flights of detainees to secret prisons and the Committee would await the outcome of these investigations. Secret or clandestine prisons were contrary to international law and he referred to the crime of forced disappearance, which also had a link to torture.
In that context, he was pleasantly surprised that the delegation reported the United States policy was generally not to rely on diplomatic assurances, but he wondered if the actual practice of the United States was in conformity with the Convention's standards. That was related to the expulsion of foreigners in extradition proceedings. He understood that the Secretary of State made that final determination and that there was no appeal possible. He would appreciate the delegation's confirmation of that understanding.
GUIBRIL CAMARA, the Committee Expert serving as Co-Rapporteur for the report of the United States, said that the role of the Committee, while it was not a Court, was to interpret the Convention. In that respect it was the interpretation of the Committee that would hold, and not that of the delegation, in terms of determining whether the United States was or was not acting in conformity with the Convention.
He felt they needed to go back to Article 1 of the Convention itself to look at the definition of torture. What was the legal foundation of the practice of legal reservations by the United States? Mr. Guibril felt that one or the other would have to give way, and it was the interpretation of the Committee, once again, that would prevail.
He recognized that not all acts constituted torture. A State could penalize various offences, but if they constituted torture and were not prosecuted as torture, there was non-compliance with the provisions of the Convention, Mr. Guibril commented. He recommended that the delegation reread paragraph 2 of Article 16 of the Convention.
He had read in a French newspaper an article about a young British man, originally from Zambia, who had been held in Guantanamo for thirty-three months. He was released, but he stated that he was tortured. He was tortured, with a view, probably, to obtain evidence, Mr. Guibril said, but the man had said that he was also the victim of racist insults by his guards. That man was in London now and, as far as he knew, there had been no inquiry and no compensation. As Mr. Guibril understood the delegation to say, the United States were thus obliged to undertake an inquiry and make reparations. The young man also said that it was because he had converted to Islam that he had been subjected to all that he had undergone.
In the French language there was a distinction between law and right. There was not just a rule of law, there was also a moral aspect. With regard to the United States, it should apply both to citizens and foreigners, he said.
Other Committee Experts also raised a series of questions. An Expert asked a question on sexual violence against female detainees in United States facilities. In that regard, she wondered why the enactment of the Prison Rape Act had been delayed and whether prison officials received training that included a gender dimension. Other issues raised included the fact that the United States was not a signatory to the Rome Statute of the International Criminal Code; the existence of clandestine or secret prisons; did the United States delegation consider that mock drowning constituted torture, or simply cruel or inhuman treatment; and whether there were measures to monitor CIA operations to ensure that they were not violating the provisions of the Convention.
The Chairman of the Committee, Andreas Mavrommatis, said that although the United States had a long and illustrious human rights record, it also bore a great responsibility. The photos of Abu Ghraib recalled for him the time of Saddam Hussein and brought back many memories. He was really shocked that those abuses were committed by authorities of a country like the United States. The duty of the United States was to take the appropriate monitoring measures to prevent the occurrence of the events at all, and who took responsibility for that? His advice was that they should have more contact with NGOs and really examine the complaints they alleged, rather than dismissing them as false. He reiterated strongly his belief that habeas corpus provided one of the strongest protections against impunity, and he strongly suggested the United States reconsider its position in that regard.
Mr. Mavrommatis noted that the Committee had been made aware of at least one case of rendition. He was sure that investigations were being carried out, but suggested that perhaps they could be done in a more independent manner, by being carried out by the courts instead of the Department of Defense, for example.
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