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CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment

CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment. Roozbeh Pedramzad Genora Reed Carolina Restrepo Valerie Schaeublin. INTERNATIONAL AND U.S. LAW PROHIBITING TORTURE.

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CONVENTION AGAINST TORTURE and Other Cruel, Inhuman or Degrading Treatment or Punishment

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  1. CONVENTION AGAINST TORTUREand Other Cruel, Inhuman or Degrading Treatment or Punishment Roozbeh Pedramzad Genora Reed Carolina Restrepo Valerie Schaeublin

  2. INTERNATIONAL AND U.S. LAW PROHIBITING TORTURE Over the past decades, a number of international agreements and declarations have condemned and sought to prohibit torture. Some of these treaties include: * The four Geneva Conventions of 1949, which the United States ratified in 1955 (primary source of international humanitarian law). * International Covenant on Civil Rights and Political Rights, 1966. * American Convention on Human Rights (Pact of San Jose, Costa Rica, 1969). * Rome Statute of the International Criminal Court, 1998. * The most notable international agreement prohibiting torture is the United Nations Convention Against Torture and Other Cruel Inhuman or Degrading Treatment or Punishment (CAT) signed by the United States and other 140 nations. * The prohibition of torture is considered a fundamental principle of customary international law and is binding on all states (what is known as a “peremptory norm” of international law because it preempts all other customary laws).

  3. OVERVIEW OF THE CONVENTION AGAINST TORTURE Overview of Relevant Portions of the Convention Against Torture • CAT Article 1- Definition of Torture. Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.

  4. OVERVIEW OF THE CONVENTION AGAINST TORTURE It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. • This Definition includes both physical and mental pain. • CAT Article 2 – requires countries to prevent acts of torture.

  5. OVERVIEW OF THE CONVENTION AGAINST TORTURE • CAT Article 3- countries are not allowed to expel or extradite a person to another country where they might be subjected to torture. • CAT Article 4 – requires countries to punish anyone who commits torture. • CAT – Article 5 – establishes jurisdiction with respect to offenses described in CAT Article 4. • CAT – Article 14- states must ensure that their legal systems provide victims of torture with the ability to obtain civil redress in the form of fair and adequate compensation. • CAT – Article 16- states must prevent “cruel, inhumane or degrading treatment or punishment” within any territory under their jurisdiction.

  6. OVERVIEW OF THE CONVENTION AGAINST TORTURE • CAT –Articles 17 and 18 – enforcement and monitoring measures . CAT established a Committee against Torture, composed of ten experts in the field of human rights. The committee monitors state compliance with convention obligations and investigates violations of CAT and makes recommendations for improving compliance. • CAT – Article 30- dispute settlement provisions.

  7. IMPLEMENTATION OF THE CONVENTION AGAINST TORTURE IN THE UNITED STATES • The Unites States signed CAT on April 18, 1988, and ratified the Convention on October 21, 1994 subject to certain declarations, reservations and understandings. • The United States included a declaration in its instruments of ratification that CAT Articles 1 through 16 were not self –executing. • With Regard to Article 14 of the Convention, obligating states to make civil redress available to victims of torture, the Senate’s advice and consent was based on the understanding that a state was only obligated for provide a private right of action for acts of torture committed in territory under the state’s jurisdiction. • With regard to Article 16 of the convention, which requires states to prevent forms of cruel and unusual punishment that do not constitute torture, the Senate’s advice and consent was based on the reservation that the United States considered itself bound to Article 16 to the extent that such cruel, unusual and inhumane treatment was prohibited by the Fifth, Eight, and/or Fourteenth Amendments to the U.S. Constitution. • The United States also opted out of the dispute-settlement provisions of CAT, Article 30.

  8. U.S. ABUSES OF THE ACT • Throughout the 1980s, the United States was deeply involved in the internal conflicts in Central America. • In Guatemala 200,000 human beings were tortured, killed, or “disappeared” by the army and its death squads.

  9. U.S. ABUSES OF THE ACT • The U.S. Department of Defense, faced with the growing quagmire in Iraq, is planning to develop and utilize death squad teams similar to those which ravaged the populations of El Salvador and Guatemala throughout the 1980s. The Central American death squads, which were linked to the U.S-backed military forces, were responsible for systematic war crimes, and for the worst human rights violations in the Western Hemisphere. U.S. officials are calling the new plans for Iraq the “Salvadoran Option.”

  10. U.S. ABUSES OF THE ACT Guantanamo Bay • The Department of Defense continues to hold hundreds of foreign nationals without charge or trial in the US Naval Base in Guantánamo Bay in Cuba. Personal Testimony • Former Guantánamo detainee Sayed Abbasin recalled: “I arrived tied and gagged; it was the act of an animal to treat a human being like that. It was the worst day of my life.”

  11. Mohammed Ismail Aghasaid: “They were interrogating me every day and in the first three or four days giving just a little food, and giving punishment”. They forced him to sit on his haunches for 3 or 4 hours at a time, even when he wanted to sleep. He said: “It was a very bad place. When they tried to get me to confess, they made me stand partway, with my knees bent, for one or two hours. Sometimes I couldn’t bear it anymore and I fell down, but they made me stand that way some more.” GUANTANAMO BAY Personal Testimony

  12. ABU GHRAIB Armyinvestigation confirms that soldiers at Abu Gharib were not trained at all in Geneva Convention rules. March 2004- 17 U.S. Army soldiers in Iraq, including a brigadier general, were removed from duty after charges of mistreating Iraqi prisoners.

  13. ABU GHRAIB One Iraqi prisoner was told to stand on a box with his head covered. "I visited Abu Ghraib a couple of days after it was liberated. It was the most awful sight I've ever seen. I said, ‘If there's ever a reason to get rid of Saddam Hussein, it's because of Abu Ghraib,'” says one U.S. soldier. "We went into Iraq to stop things like this from happening, and indeed, here they are happening under our tutelage,” says Cowan.

  14. Account of a Sergeant who served in Afghanistan from September 2002 to March 2003 and in Iraq from August 2003 to April 2004 We started to go out on missions right away once we arrived at camp. • My 1st observation of an interrogation I saw a PUC pushed to the brink of a stroke. • The “Murderous Maniacs” was what they called us at our camp.

  15. Adopted December 2002. 48 signatories; 13 parties have ratified. U.S. has NOT signed on. 'Two pillar' visiting mechanism. Examination of conditions Ongoing dialogue with detention personnel Provide support to persons deprived of their liberty Acts as a deterrent Creates an expert international visiting body, a Sub-Committee to the UN Committee against Torture. States that ratify the Optional Protocol must establish or maintain a national visiting body to carry out visits to places of detention. THE OPTIONAL PROTOCOL TO THE CONVENTION AGAINST TORTURE

  16. Sign onto the CAT Optional Protocol. Establish a fully independent and impartial commission. Do such acts violate relevant federal statutes and international law? Assessment of accountability and responsibility of the chain of command; Recommend safeguards to prevent further torture and ill-treatment. The commission should be composed of credible experts, independent of the government. Hearings and findings should be made public. POLICY PROPOSAL

  17. CRITICISMS OF U.S. RESPONSE TO TORTURE • The meaning of "torture" as regarded by the U.S. • U.S. reservation to Article 16 • Classified memorandum concluded that the President need not comply with the Convention Against Torture or with the federal statute criminalizing torture, outside the territorial jurisdiction of the United States, if the President acts in his capacity as commander-in-chief of the armed forces during a war, including the war on terrorism. • A matter of international law or of U.S. foreign relations law? • U.S. law • Congress may no more regulate the President's ability to detain and interrogate enemy combatants than it may regulate his ability to direct troop movements on the battlefield. • The lines are blurred on the relevant distinctions between international law and the foreign relations law of the United States. • The United States has consistently regarded international law and U.S. foreign relations law as overlapping side-by-side legal systems, rather than as a hierarchical system in which international law would invariably trump U.S. law in U.S. courts. 

  18. CRITICISMS OF U.S. RESPONSE TO TORTURE • Administration officials have failed to state clearly their opposition to cruel, inhuman and degrading treatment. • Difficulty characterizing instances at Abu Ghraib as "torture." • Attorney General Alberto Gonzales and Secretary of State Condoleezza Rice. • Amnesty International & ACLU.

  19. ARGUMENTS IN FAVOR OF UNCAT AND OPTIONAL PROTOCOL • Contributes to the safety of our troops abroad. • Reinforces the creation of a viable international system to ensure respect for human rights. • The use of evidence obtained as a result of torture found to be unreliable. • Promotes a higher degree of U.S. legitimacy abroad.

  20. CONCLUDING REMARKS AND RECOMENDATIONS • “International Law is our law…” ??? • UNCAT defines torture as acts having caused “severe pain or suffering” or “severe mental pain or suffering” • Inflicting pain and suffering not “severe” enough to be considered torture. • Sensory deprivation: deliberately removing stimuli from the senses for extended periods of time. • i.e. blind folds, earmuffs. • Five Sensory Deprivation Techniques: • Wall standing • Hooding • Subjection to noise • Deprivation of sleep • Deprivation of food and drink

  21. “INTERNATIONAL LAW IS OUR LAW?? INTERNATIONAL CASE LAW AS PRECEDENT • Ireland v. United Kingdom (1977) • European Court of Human Rights, a.k.a. Strasbourg Court. • Ruling: The five sensory deprivation techniques constitute “inhumane and degrading punishment” BUT do not constitute torture as universally understood and defined by the Geneva Conventions. • U.S Govt. opinions: Office of Legal Counsel • 2002: In order to be “severe,” the pain had to be at a level that is “excruciating or agonizing” or “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” • 2004: This opinion repudiated the 2002 opinion and merely stated that “severe” is “extremely violent and intense.” • Also cited the Ireland v. United Kingdom and specifically mentioned that the five sensory deprivation techniques did not constitute torture. • specific showing of prolonged mental harm to the victim is required before sever mental pain and suffering can be considered torture. • These opinions were used by the Defense Dept. to guide interrogations.

  22. TORTURE PREVENTION IS KEY • 18USCSec. 2340 • Observations (FBI opinions, Red Cross…)have shown that Abu Ghraib and Guantanamo detainees have suffered what amounts to “severe mental pain and suffering,” as defined by 18 USC Sec. 2340, from sensory deprivation interrogation techniques. • However, under current legal opinion the Bush Administration will only consider these acts of sensory deprivation and other interrogation techniques “torture” IF there is proof of long term harm. • BUT this negates the purpose of anti-torture laws. • Laws are passed to prevent interrogators from using torture in the first place rather than wait to see what the long-term impacts. http://www.npr.org/templates/story/story.php?storyId=4987598 http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101644.html

  23. REFERENCES The United Nations Convention Against Torture http://www.hrweb.org/legal/cat.html Definition of Torture Under International Law Compilation http://www.apt.ch/un/definition.shtml CRC Report for Congress. UN Convention Against Torture: Overview and Application to Interrogation Techniques http://www.fas.org/sgp/crs/misc/RL32438.pdf Kirgis, Frederic L. The American Society of International Law, Distinctions Between International and U.S. Foreign Relations Law Issues Regarding Treatment of Suspected Terrorists June 2004.http://www.asil.org/insights/insigh138.htm Office of the United Nations High Commissioner for Human Rights, Optional Protocol to the Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment; New York, 18 December 2002.http://www.ohchr.org/english/countries/ratification/9_b.htm

  24. REFERENCES International Rehabilitation Council for Torture Victims, A World Without Torture, 2005.http://www.irct.org/usr/irct/home.nsf/unid/BKEN-5YPCZ9 Amnesty International USA, Denounce Torture, 2005http://www.amnestyusa.org/stoptorture/talking_points.html Cartoons http://politicalhumor.about.com/gi/dynamic/offsite.htm?site=http://cagle.com/news/Gonzales/main.asphttp://www.fewings.ca/polus/040506Torture.htmlWashington Post (October 31, 2005)http://www.nationalsecuritylaw.net/Teams%20

  25. REFERENCES Worlds Apart: How Deporting Immigrants After 9/11 Tore Families Apart and Shattered Communities.” American Civil Liberties Union December 2004. “UNITED STATES OF AMERICA Undermining security: violations of human dignity, the rule of law and the National Security Strategy in “war on terror” detentions.”Amnesty International April 2004. http://web.amnesty.org/library/pdf/AMR510832005ENGLISH/$File/AMR5108305.pdf Levy, Robert A. “Tribunals, Trials and Tribulations.” Cato Institute, November 27, 2001. http://www.cato.org/dailys/11-27-01.html CBS News www.cbsnews.com/stories/ 2004/04/27/60II/main614063.shtml - 74k - Nov 1, 2005 New Accounts of Torture by U.S. Troops. “Human Rights Watch.” www.hrw.org/english/docs/2005/09/25/usint11776.htm - 18k - Oct 31, 2005

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