Friday, May 19, 2006

Committee Against Torture on US Report

The UN Committee Against Torture has released its response to the US report filed under Art. 19 of the Torture Convention. It can be read in full here or see the BBC's summary here. A couple of interesting points:

- At para. 7, under the heading of "positive aspects", the Committee "notes with satisfaction the State party's statement that the United States does not transfer persons to countries where it believes it is 'more likely than not' that they will be tortured". This does not seem to set the evidential threshold for the non-refoulement clause of Art. 3 particularly high, and certainly lower than the "substantial grounds for believing"that there is a danger of torture if returned, which is the actual wording of the text. (On this point further, see the Committee's General Comment 1, in which it notes that the risk must go beyond the level of theory or mere suspicion, but that it "does not have to meet the test of being highly probable").

- At para. 13 - the Committee reiterates the need for a federal statute outlawing torture, despite the US's claims that all of its obligations to criminalise conduct under the Convention are already met by existing federal and state statutes. It also regrets that "despite the occurence of cases of extraterritorial torture of detainees" no prosecutions have been initiated under the extraterritorial criminal torture statute.

- At para. 14 - the Committee rejects the assertion by the US that the Torture Convention is not applicable in times of war, and that the "law of armed conflict" exclusively prevails. Only really surprising thing here is that this was even suggested.

- At para. 15 - the phrase "territory under the State party's jurisdiction" includes those areas over which they exercise de facto control; again, not particularly surprising, and the US Courts seem to be moving in this direction in terms of Guantanamo.

- At para. 17 - the Committee "regrets" the US response of "no comment" to the allegations of secret detention facilities in which detainees are subjected to cruel, inhuman and degrading treatment. All acts acts of intelligence gathering also engage the full international responsibility of the state.

- At paras. 20 and 21 - concern is expressed here about the fact that the US does not view the prohibition of refoulement as applying to detainees outside of its territory; perhaps most interesting here, however, is the recommendation on diplomatic assurances: "the State party should only rely on "diplomatic assurances" in regard to states which do not systematically violate the Convention's provisions, and after a thorough examination of the merits of each individual case". This may well be important in the context of the upcoming case in the UK, which I discussed here.

- At para. 22 - The Committee calls explicitly for the closure of Guantanamo Bay.

- At para. 24 - clarification (for those who needed it) that "water-boarding", "short shackling", sexual humiliation and the like are indeed forms of cruel, inhuman and degrading punishment, and hence outlawed under the Convention.

- At para. 40 - The Committee here invites the US to reconsider its decision not to become a party to the ICC.

These are, to my eye, the interesting international law-related passages. There are of course, many others, such as condemning the use of torture in Iraq and Afghanistan, calling for proper education and training of military and law-enforcement personnel, treatment of women and children, and calls to reconsider the certain devices and methods of execution. In terms of the last of these, what is perhaps most striking is that the Committee calls only for a reconsideration of the methods, and not the fact itself, of execution.

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