The Convention Against Torture

1. The Convention Against Torture and the Torture Convention Implementation Act Davida Lynn Crockett Destiny Gail Hamilton Kevin J. Fandl

2. Presentation Guide Explanation of the Convention Against Torture Legislative History leading to the implementation of the CAT in the United States Leading cases under the CAT Problems surrounding the CAT Assessment of our issue Policy proposal Implications and conclusions

3. The Convention Against Torture (CAT) The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46, 39 U.N. GAOR Supp. No. 51 at 197, U.N. Doc. A/Res/39/708 (1984) (CAT) was adopted by the United Nations General Assembly in December 1984. The CAT was ratified and entered into force in June 1987.

4. Torture defined • The CAT defines torture as the infliction of severe physical and/or mental suffering committed under the color of law. • There are no exceptions (national security, emergency situations) in which torture would be permitted. • Only severe acts are covered (i.e., police brutality would not be covered by the CAT).

5. Parts of the CAT Part I includes state party obligations Part II establishes the Committee Against Torture and its operating procedures Part III describes ratification of, withdrawal from and disputes under the CAT

6. Key Provisions: Role of States • States are obligated to prevent torture as defined by the Convention and other acts that are deemed cruel and inhumane. • States have to take effective legislative, administrative judicial or other measures to prevent torture from occurring in their territories. • States are obligated not to expel, return, or extradite an individual to another State where torture is practiced.

7. The Committee Against Torture • Monitors and review actions taken by states to fulfill their duties. • There are four procedures that the Committee uses to review actions by States: • States have to submit periodic reports to the Committee • If there is suspicion that a State is practicing torture the Committee can initiate a confidential inquiry. • The Committee can also hear complaints from individuals who claim to be victims of a violation by a State party. • State to State complaints can be provided

8. Significant CAT Articles Of the 33 Articles of the CAT, the following are most relevant to this presentation: Article 1: defines torture Article 2: limits exceptions to application Article 3: prevents refouler Article 4: requires criminalization of torture

9. Significant Articles (cont.) • Article 5: establishes jurisdiction requirements • Article 10: requires training on torture • Article 14: provides victim’s right to compensation

10. Implementation of the CAT in U.S. law The CAT was adopted by the United States via Congressional action on Oct. 21, 1998 by the fiscal year 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, Pub. L. No. 105-277, 112 Stat. 2681-822. The CAT is a non-self executing treaty. Because Part I is non-self executing, courts lacked jurisdiction and parties lacked standing to bring private claims under the CAT. Igartua De La Rosa v. United States, 32 F.3d 8, 10 (1st Cir. 1994). The Senate included a reservation requiring execution for articles 1-16 of the CAT (Part I).

11. Senate Reservations • The Senate’s advice and consent to CAT ratification was subject to certain reservations and declarations • Declaration - Convention not self-executing • Reservation - Art 16 • Opted Out - Art 30 • Understanding - Mental Torture (4 parts) • Understanding - Art 3

12. Implementing Regulations Atty. General was required to promulgate regulations implementing the CAT, effective March 22, 1999. These regulations affirm U.S. compliance with the provisions of the CAT. 8 C.F.R. 208.16-.18. The State Department has issued similar regulations to comply with our CAT obligations in extradition proceedings. 22 C.F.R. 95. Foreign Affairs Reform and Restructuring Act of 1998 CAT Art 4/US Criminal Code Ronald W. Reagan National Defense Authorization Act for FY2005

13. What Do Interest Groups Say? • American Immigration Lawyers Association (AILA) • Federation for American Immigration Reform • Human Rights Watch • Amnesty International • American Civil Liberties Union (ACLU)

14. Recognition of international human rights Expands jurisdiction over torturers despite lack of relationship to U.S. parties Treaty language “More likely or not” interpretation Diplomatic Assurances Extraordinary Rendition Pros Cons

15. The Issue: CAT and Aliens (Art. 3) • Defining Torture • No indefinite detainment under CAT • Implications for any existing “extraordinary renditions” policy by the United States • Diplomatic Assurances

16. Defining Torture • Interpretation • Definition • Defines torture as inflicting “severe” pain and suffering, but does not include all acts of mistreatment causing physical or mental suffering. • Ambiguous terms • “more likely than not” , “substantial grounds” for believing that a person would be in danger of being subject to torture, and “consistent” pattern of gross flagrant or mass violations of human rights

17. CAT and Aliens • Aliens that arrive in the United States and that are inadmissible can claim protection from forced return under the CAT. • To obtain protection under the CAT, the alien must prove that it is more likely than not that if he were returned to his homeland he would be subjected to torture at the hands of the state or an agent of the state. 8 C.F.R. 1208.18(a)(1). • Foreign Affairs Reform and Restructuring Act of 1998 • Excludes protection aliens described in 241 (b)(3)(B) of Immigration and Nationality Act

18. Significant CAT Cases • Zadvydas v. Davis, 533 U.S. 678  (2001) (concluding that an alien could not be detained indefinitely but rather had to be released in a reasonable amount of time not to exceed six months). • Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (finding that U.S. citizens held as enemy combatants maintain a Fifth Amendment right to be heard by a neutral decision maker; briefly discussing the non-self executing nature of the CAT). • Efe v. Ashcroft, 293 F.3d 899 (5th Cir. 2002) (holding that torture is a higher standard than persecution). • Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985) (defining persecution as a threat to life or freedom or the infliction of suffering or harm). • Filartiga v. Pena-Irala, 630 F.2d 876, 880 (2d Cir.1980) (“in light of the universal condemnation of torture in numerous international agreements, and the renunciation of torture as an instrument of official policy by virtually all of the nations of the world (in principle if not in practice), ... an act of torture committed by a state official against one held in detention violates established norms of the international law of human rights, and hence the law of nations.”)

19. Issue Assessment: Khouzam Khouzam v. Hogan, 2008 WL 98545 (2d Cir. filed Jan. 10, 2008) Khouzam is an Egyptian Coptic Christian that applied for and received relief under the CAT in 2007. He fled Egypt after alleged torture by Islamic extremists and government officials and after being accused of murder. He was denied entry into the United States and placed into removal proceedings for having committed a serious crime outside the country prior to arrival. He petitioned for asylum but was denied because of his prior commission of a serious crime. He then sought relief under CAT and the immigration judge found his claim credible as a violation of CAT Article 3. He was released from detention and his removal was stayed.

20. Article 3 of CAT provides: 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. Khouzam - CAT Article 3

21. “At any time while deferral of removal is in effect, the Attorney General may determine whether deferral should be terminated based on diplomatic assurances forwarded by the Secretary of State pursuant to the procedures in § 208.18(c).” 8 C.F.R. § 208.17(f) (2003). Khouzam - Diplomatic Assurances

22. Khouzam’s CAT protection was removed. Court requested review of diplomatic assurances but was denied by the Departments of Homeland Security and State. Issue Assessment: Khouzam

23. “[N]ot ‘every case or controversy which touches foreign relations lies beyond judicial cognizance.’ ‘[U]nder the Constitution, one of the Judiciary's characteristic roles is to interpret statutes[, treaties and executive agreements],’ and ‘we cannot shirk this responsibility merely because our decision may have significant political overtones.” Gross v. German Foundation Indus. Initiative, 456 F.3d 363, 377 (3d Cir.2006). Judicial review of diplomatic assurances is required by the majority of state parties to the CAT. Khouzam - Foreign Affairs Judicial Review

24. The court concluded that, since the government failed to provide the diplomatic assurances to the court for judicial review, and since proper high-level consultation between the Secretaries of State and Homeland Security had not taken place, cancelling Khouzam’s deferral of removal would violate Article 3 of the CAT. Accordingly, the cancellation order was vacated and Khouzam was granted habeas relief. Khouzam - relief

25. Policy Proposal/Legislative Change • Proposal - amend implementing legislation language • Purpose of Proposal - maintain judicial review; clarify CAT procedures and protections • Barriers - concern over actions of U.S. military officials abroad (interrogation techniques); political tensions • Implications - may open some U.S. practices, such as the death penalty, to challenge

26. Conclusion • The CAT is a useful tool in limiting the use of torture for any purposes anywhere in the world. It has significant flaws and does not yet have the assent of all states; however, it codifies a growing belief that state-sponsored torture is not to be tolerated in international law.

27. Questions?

28. Bibliography • American Civil Liberties Union, “Egyptian Torture Victim Released from Immigration Detention”, January 15, 2008. http://www.aclu.org/immigrants/detention/33665prs20080115.html • CRS Report for Congress, The UN Convention Against Torture:Overview of U.S. Implementation Policy Concerning the Removal of Aliens, 2006, 1-18. www.trac.syr.edu-immigration-library-P1339.pdf • Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment.http://www.un.org/millenium/law/iv-9.htm • Deen, Thalif. “rights: U.N. Blasts Practice of Outsourcing Torture.” Inter Press Agency. Http://ipsnews.net/news.asp?idnews=30949. • Hearing before the Subcommittee on Immigration, Border Security, and Claims, Immigration Relief Under the Convention Against Torture For Serious Criminals and Human Rights Violators , 2003, http://commdocs.house.gov/committees/judiciary/hju88220.000/hju88220_0.HTM