[News] UN Committe Against Torture - Full Text Report

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Source: BBC News - May 19, 2006
http://news.bbc.co.uk/1/shared/bsp/hi/pdfs/19_05_06_torture.pdf

Converted from .pdf format by NY Transfer News - May 19, 2006

UNITED NATIONS COMMITTEE AGAINST TORTURE
36th session - 1-19 May 2006


         CONSIDERATION OF REPORTS SUBMITTED BY STATES PARTIES
                  UNDER ARTICLE 19 OF THE CONVENTION
   Conclusions and recommendations of the Committee against Torture:

                       UNITED STATES OF AMERICA


1. The Committee against Torture ("the Committee") considered the second
report of the United States of America (CAT/C/48/Add.3/Rev.1) at its 702nd
and 705th meetings (CAT/C/SR.702 and 705), held on 5 and 8 May 2006, and
adopted, at its 720th and 721st meetings, on 17 and 18 May 2006
(CAT/C/SR.720 and 721) the following conclusions and recommendations.

A. Introduction

2. The second periodic report of the United States of America was due on 19
November 2001, as requested by the Committee at its twenty-fourth session in
May 2000 (A/55/44, para. 180 (f)) and was received on 6 May 2005. The
Committee notes that the report includes a point-by-point reply to the
Committee's previous recommendations.

3. The Committee commends the State party for its exhaustive written
responses to the Committee's list of issues, as well as the detailed
responses provided both in writing and orally to the questions posed by the
members during the examination of the report. The Committee expresses its
appreciation for the large and high-level delegation, comprising
representatives from relevant Departments of the State party, which
facilitated a constructive oral exchange during the consideration of the
report.

4.  The Committee notes that the State party has a federal structure, but
recalls that the United States of America is a single State under
international law and has the obligation to implement the Convention against
Torture ("the Convention") in full at the domestic level.

5.  Recalling its statement adopted on 22 November 2001 condemning utterly
the terrorist attacks of 11 September 2001, the terrible threat to
international peace and security posed by acts of international terrorism
and the need to combat by all means, in accordance with the Charter of the
United Nations, the threats caused by terrorist acts, the Committee
recognizes that these attacks caused profound suffering to many residents of
the State party. The Committee acknowledges that the State party is engaged
in protecting its security and the security and freedom of its citizens in a
complex legal and political context.

B. Positive aspects

6.  The Committee welcomes the State party's statement that all United
States' officials, from all Government agencies, including its contractors,
are prohibited from engaging in torture at all times and in all places, and
that all United States' officials from all Government agencies, including
its contractors, wherever they may be, are prohibited from engaging in
cruel, inhuman or degrading treatment or punishment, in accordance with the
obligations in the Convention.

7.  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, and that this also
applies, as a matter of policy, to the transfer of any individual, in the
State party's custody, or control, regardless of where they are detained.

8. The Committee welcomes the State party's clarification that the statement
of the U.S. President on signing the Detainee Treatment Act on 30 December
2005 is not to be interpreted as a derogation by the President from the
absolute prohibition of torture.

9.  The Committee also notes with satisfaction the enactment of:

a)  The Prison Rape Elimination Act of 2003, which addresses sexual assault
of persons in the custody of correctional agencies, with the purpose, inter
alia, of establishing a "zero-tolerance standard" for rape in detention
facilities in the State party; and

b)  That part of the Detainee Treatment Act of 2005 which prohibits cruel,
inhuman, or degrading treatment and punishment of any person, regardless of
nationality or physical location, in the custody or under the physical
control of the State party.

10. The Committee welcomes the adoption of National Detention Standards in
2000, which set minimum standards for detention facilities holding
Department of Homeland Security detainees, including asylum-seekers.

11. The Committee also notes with satisfaction the sustained and substantial
contributions of the State party to the United Nations Voluntary Fund for
the Victims of Torture.

12. The Committee notes the State party's intention to adopt a new Army
Field Manual for intelligence interrogation, applicable to all its
personnel, which, according to the State party, will ensure that
interrogation techniques fully comply with the Convention.

  C. Principal subjects of concern and recommendations

13. Notwithstanding the statement by the State party that "every act of
torture within the meaning of the Convention is illegal under existing
federal and/or state law", the Committee reiterates the concern expressed in
its previous Conclusions and Recommendations with regard to the absence of a
federal crime of torture, consistent with article 1 of the Convention, given
that sections 2340 and 2340 A of the United States Code limit federal
criminal jurisdiction over acts of torture to extraterritorial cases. The
Committee also regrets that, despite the occurrence of cases of
extraterritorial torture of detainees, no prosecutions have been initiated
under the extraterritorial criminal torture statute. (articles 1, 2, 4 and
5)

The Committee reiterates its previous recommendation that the State party
should enact a federal crime of torture consistent with article 1 of the
Convention, which should include appropriate penalties, in order to fulfill
its obligations under the Convention to prevent and eliminate acts of
torture causing severe pain or suffering, whether physical or mental, in all
its forms.

The State party should ensure that acts of psychological torture, prohibited
by the Convention, are not limited to "prolonged mental harm" as set out in
the State party's understandings lodged at the time of ratification of the
Convention, but constitute a wider category of acts, which cause severe
mental suffering, irrespective of their prolongation or its duration.

The State party should investigate, prosecute and punish perpetrators under
the federal extraterritorial criminal torture statute.

14.  The Committee regrets the State party's opinion that the Convention is
not applicable in times and in the context of armed conflict, on the basis
of the argument that the "law of armed conflict" is the exclusive lex
specialis applicable, and that the Convention's application "would result in
an overlap of the different treaties which would undermine the objective of
eradicating torture". (articles 1 and 16).

The State party should recognize and ensure that the Convention applies at
all times, whether in peace, war or armed conflict, in any territory under
its jurisdiction and that the application of the Convention's provisions are
without prejudice to the provisions of any other international instrument,
pursuant to paragraph 2 of its articles 1 and 16.

15. The Committee notes that a number of the Convention's provisions are
expressed as applying to "territory under [the State party's] jurisdiction"
(articles 2, 5, 13, 16). The Committee reiterates its previously expressed
view that this includes all areas under the de facto effective control of
the State party, by whichever military or civil authorities such control is
exercized. The Committee considers that the State party's view that those
provisions are geographically limited to its own de jure territory to be
regrettable.

The State party should recognize and ensure that the provisions of the
Convention expressed as applicable to "territory under the State party's
jurisdiction" apply to, and are fully enjoyed, by all persons under the
effective control of its authorities, of whichever type, wherever located in
the world.

16. The Committee notes with concern that the State party does not always
register persons detained in territories under its jurisdiction outside the
United States, depriving them of an effective safeguard against acts of
torture (article 2)

The State party should register all persons it detains in any territory
under its jurisdiction, as one measure to prevent acts of torture.
Registration should contain the identity of the detainee, the date, time and
place of the detention, the identity of the authority that detained the
person, the ground for the detention, the date and time of admission to the
detention facility and the state of health of the detainee upon admission
and any changes thereto, the time and place of interrogations, with the
names of all interrogators present, as well as the date and time of release
or transfer to another detention facility.

17. The Committee is concerned by allegations that the State party has
established secret detention facilities, which are not accessible to the
International Committee of the Red Cross. Detainees are deprived of
fundamental legal safeguards, including an oversight mechanism in regard to
their treatment and review procedures with respect to their detention. The
Committee is also concerned by allegations that those detained in such
facilities could be held for prolonged periods and face torture or cruel,
inhuman or degrading treatment. The Committee considers the "no comment"
policy of the State party regarding the existence of such secret detention
facilities, as well as on its intelligence activities, to be regrettable.
(articles 2 and 16)

The State party should ensure that no one is detained in any secret
detention facility under its de facto effective control. Detaining persons
in such conditions constitutes, per se, a violation of the Convention. The
State party should investigate and disclose the existence of any such
facilities and the authority under which they have been established and the
manner in which detainees are treated. The State party should publicly
condemn any policy of secret detention.

The Committee recalls that intelligence activities, notwithstanding their
author, nature or location, are acts of the State party, fully engaging its
international responsibility.

18. The Committee is concerned by reports of the involvement of the State
party in enforced disappearances. The Committee considers the State party's
view that such acts do not constitute a form of torture to be regrettable.
(articles 2 and 16)

The State party should adopt all necessary measures to prohibit and prevent
enforced disappearance in any territory under its jurisdiction, and
prosecute and punish perpetrators, as this practice constitutes, per se, a
violation of the Convention.

19. Notwithstanding the State party's statement that "[u]nder U.S. law,
there is no derogation from the express statutory prohibition of torture"
and that "[n]o circumstances whatsoever (...) may be invoked as a
justification or defense to committing torture", the Committee remains
concerned at the absence of clear legal provisions ensuring that the
Convention's prohibition against torture is not derogated from under any
circumstances, in particular since 11 September 2001. (articles 2, 11 and
12)

The State party should adopt clear legal provisions to implement the
principle of absolute prohibition of torture in its domestic law without any
possible derogation. Derogation from this principle is incompatible with
paragraph 2, of article 2, of the Convention and cannot limit criminal
responsibility. The State party should also ensure that perpetrators of acts
of torture are prosecuted and punished appropriately.

The State party should also ensure that any interrogation rules,
instructions or methods do not derogate from the principle of absolute
prohibition of torture and that no doctrine under domestic law impedes the
full criminal responsibility of perpetrators of acts of torture.

The State party should promptly, thoroughly, and impartially investigate any
responsibility of senior military and civilian officials authorizing,
acquiescing or consenting, in any way, to acts of torture committed by their
subordinates.

20. The Committee is concerned that the State party considers that the
non-refoulement obligation, under article 3 of the Convention, does not
extend to a person detained outside its territory. The Committee is also
concerned by the State party's rendition of suspects, without any judicial
procedure, to States where they face a real risk of torture. (article 3)

The State party should apply the non-refoulement guarantee to all detainees
in its custody, cease the rendition of suspects, in particular by its
intelligence agencies, to States where they face a real risk of torture, in
order to comply with its obligations under article 3 of the Convention. The
State party should always ensure that suspects have the possibility to
challenge decisions of refoulement.

21. The Committee is concerned by the State party's use of "diplomatic
assurances", or other kinds of guarantees, assuring that a person will not
be tortured if expelled, returned, transferred or extradited to another
State. The Committee is also concerned by the secrecy of such procedures
including the absence of judicial scrutiny and the lack of monitoring
mechanisms put in place to assess if the assurances have been honoured.
(article 3)

When determining the applicability of its non-refoulement obligations under
article 3 of the Convention, 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. The State party should establish and implement clear
procedures for obtaining such assurances, with adequate judicial mechanisms
for review, and effective post-return monitoring arrangements. The State
party should also provide detailed information to the Committee on all cases
since 11 September 2001 where assurances have been provided.

22. The Committee, noting that detaining persons indefinitely without
charge, constitutes per se a violation of the Convention, is concerned that
detainees are held for protracted periods at Guantánamo Bay, without
sufficient legal safeguards and without judicial assessment of the
justification for their detention. (articles 2, 3 and 16)

The State party should cease to detain any person at Guantánamo Bay and
close this detention facility, permit access by the detainees to judicial
process or release them as soon as possible, ensuring that they are not
returned to any State where they could face a real risk of being tortured,
in order to comply with its obligations under the Convention.

23. The Committee is concerned that information, education and training
provided to the State party's law enforcement or military personnel are not
adequate and do not focus on all provisions of the Convention, in particular
on the non-derogable nature of the prohibition of torture and the prevention
of cruel, inhuman and degrading treatment or punishment. (articles 10 and
11)

The State party should ensure that education and training of all law
enforcement or military personnel, are conducted on a regular basis, in
particular for personnel involved in the interrogation of suspects. This
should include training on interrogation rules, instructions and methods,
and specific training on how to identify signs of torture and cruel, inhuman
or degrading treatment. Such personnel should also be instructed to report
such incidents.

The State party should also regularly evaluate the training and education
provided to its law enforcement and military personnel as well as ensure
regular and independent monitoring of their conduct.

24. The Committee is concerned that in 2002 the State party authorized the
use of certain interrogation techniques, which have resulted in the death of
some detainees during interrogation. The Committee also regrets that
"confusing interrogation rules" and techniques defined in vague and general
terms, such as "stress positions", have led to serious abuses of detainees.
(articles 11, 1, 2 and 16)

The State party should rescind any interrogation technique, including
methods involving sexual humiliation, "water boarding", "short shackling"
and using dogs to induce fear, that constitute torture or cruel, inhuman or
degrading treatment or punishment, in all places of detention under its de
facto effective control, in order to comply with its obligations under the
Convention.

25. The Committee is concerned with allegations of impunity of some of the
State party's law enforcement personnel in respect of acts of torture or
cruel, inhuman or degrading treatment or punishment. The Committee notes the
limited investigation and lack of prosecution in respect of the allegations
of torture perpetrated in areas 2 and 3 of the Chicago Police Department.
(article 12)

The State party should promptly, thoroughly and impartially investigate all
allegations of acts of torture or cruel, inhuman or degrading treatment or
punishment by law enforcement personnel and bring perpetrators to justice,
in order to fulfill its obligations under article 12 of the Convention. The
State party should also provide the Committee with information on the
ongoing investigations and prosecution relating to the above mentioned case.

26. The Committee is concerned by reliable reports of acts of torture or
cruel, inhuman and degrading treatment or punishment committed by certain
members of the State party's military or civilian personnel in Afghanistan
and Iraq. It is also concerned that the investigation and prosecution of
many of these cases, including some resulting in the death of detainees,
have led to lenient sentences, including of an administrative nature or less
than one year's imprisonment. (article 12)

The State party should take immediate measures to eradicate all forms of
torture and ill-treatment of detainees by its military or civilian
personnel, in any territory under its jurisdiction, and should promptly and
thoroughly investigate such acts and prosecute all those responsible for
such acts, and ensure they are appropriately punished, in accordance with
the seriousness of the crime.

27. The Committee is concerned that the Detainee Treatment Act of 2005 aims
to withdraw the jurisdiction of the State party's federal courts with
respect to habeas corpus petitions, or other claims by or on behalf of
Guantánamo Bay detainees, except under limited circumstances. The Committee
is also concerned that detainees in Afghanistan and Iraq, under the control
of the Department of Defence, have their status determined and reviewed by
an administrative process of that Department. (article 13)

The State party should ensure that independent, prompt and thorough
procedures to review the circumstances of detention and the status of
detainees are available to all detainees as required by article 13 of the
Convention.

28. The Committee is concerned by the difficulties certain victims of abuses
have faced in obtaining redress and adequate compensation, and that only a
limited number of detainees have filed claims for compensation for alleged
abuse and maltreatment, in particular under the Foreign Claims Act. (article
14)

The State party should ensure, in accordance with the Convention, that
mechanisms to obtain full redress, compensation and rehabilitation are
accessible to all victims of acts of torture or abuse, including sexual
violence, perpetrated by its officials.

29. The Committee is concerned by section 1997 e (e) of the 1995 Prison
Litigation Reform Act which provides "that no federal civil action may be
brought by a prisoner for mental or emotional injury suffered while in
custody without a prior showing of physical injury." (article 14)

The State party should not limit the right of victims to bring civil actions
and amend the Prison Litigation Reform Act accordingly.

30. The Committee, while taking note of the State party's instruction number
10 of 24 March 2006 which provides that military commissions shall not admit
statements established to be made as a result of torture in evidence, is
concerned about the implementation of the instruction in the context of such
commissions and the limitations on detainees' effective right to complain.
The Committee is also concerned about the Combatant Status Review Tribunals
and the Administrative Review Boards. (articles 13 and 15)

The State party should ensure that its obligations under articles 13 and 15
are fulfilled in all circumstances, including in the context of military
commissions and should consider establishing an independent mechanism to
guarantee the rights of all detainees in its custody.

31. The Committee is concerned by the fact that substantiated information
indicates that executions in the State party can be accompanied by severe
pain and suffering. (articles 16, 1 and 2)

The State party should carefully review its execution methods, in particular
lethal injection in order to prevent severe pain and suffering.

32. The Committee is concerned by reliable reports of sexual assault of
sentenced detainees, as well as persons in pre-trial or immigration
detention, in places of detention in the State party. The Committee is
concerned that there are numerous reports of sexual violence perpetrated by
detainees on each other, and that persons of differing sexual orientation
are particularly vulnerable. The Committee is also concerned by the lack of
prompt and independent investigation of such acts and that appropriate
measures to combat these abuses have not been implemented by the State
party. (articles 16, 12, 13 and 14)

The State party should design and implement appropriate measures to prevent
all sexual violence, in all its detention centres. The State party should
ensure that all allegations of violence in detention centres are
investigated promptly and independently, perpetrators are prosecuted and
appropriately sentenced and victims can seek redress, including appropriate
compensation.

33.  The Committee is concerned by the treatment of detained women in the
State party, including gender-based humiliation and incidents of shackling
of women detainees during child- birth. (article 16)

The State party should adopt all appropriate measures to ensure that women
in detention are treated in conformity with international standards.

34. The Committee reiterates the concern expressed in its previous
recommendations about the conditions of the detention of children, in
particular the fact that they may not be completely segregated from adults
during pre-trail detention and after sentencing. The Committee is also
concerned by the large number of children sentenced to life imprisonment in
the State party. (article 16)

The State party should ensure that detained children are kept in facilities
separate from those for adults in conformity with international standards.
The State party should address sentences of life imprisonment of children as
these could constitute cruel, inhuman or degrading treatment or punishment.

35. The Committee remains concerned about the extensive use by the State
party's law enforcement personnel of electro-shock devices which have caused
in several deaths. The Committee is concerned that this practice raises
serious issues of compatibility with article 16 of the Convention. (article
16)

The State party should carefully review the use of electro-shock devices,
strictly regulate their use, restricting it to substitution for lethal
weapons and eliminate the use of these devices to restrain persons in
custody, as this leads to breaches of article 16 of the Convention.

36. The Committee remains concerned about the extremely harsh regime imposed
on detainees in "supermaximum prisons." The Committee is concerned about the
prolonged isolation periods detainees are subjected to, the effect such
treatment has on their mental health, and that its purpose may be
retribution, in which case it would constitute cruel, inhuman or degrading
treatment or punishment. (article 16)

The State party should review the regime imposed on detainees in
"supermaximum prisons," in particular the practice of prolonged isolation.

37. The Committee is concerned about reports of brutality and use of
excessive force by the State party's law enforcement personnel, and the
numerous allegations of their ill-treatment of vulnerable groups, in
particular racial minorities, migrants and persons of different sexual
orientation which have not been adequately investigated. (article 16 and 12)

The State party should ensure that reports of brutality and ill-treatment of
members of vulnerable groups by its law enforcement personnel are
independently, promptly and thoroughly investigated and that perpetrators
are prosecuted and appropriately punished.

38. The Committee strongly encourages the State party to invite the Special
Rapporteur on torture and other cruel, inhuman or degrading treatment or
punishment, in full conformity with the terms of reference for fact-finding
missions by Special Procedures of the United Nations, to visit Guantánamo
Bay and any other detention facility under its effective de facto control.

39. The Committee invites the State party to reconsider its express
intention not to become party to the Rome Statute of the International
Criminal Court.

40. The Committee reiterates its recommendation that the State party should
consider withdrawing its reservations, declarations and understandings
lodged at the time of ratification of the Convention.

41. The Committee encourages the State party to consider making the
declaration under article 22, thereby recognizing the competence of the
Committee to receive and consider individual communications, as well as
ratifying the Optional Protocol to the Convention.

42. The Committee requests the State party to provide detailed statistical
data, disaggregated by sex, ethnicity and conduct, on complaints related to
torture and ill-treatment allegedly committed by law enforcement officials,
investigations, prosecutions, penalties and disciplinary action relating to
such complaints. It requests the State party to provide similar statistical
data and information on the enforcement of the Civil Rights of
Institutionalized Persons Act by the Department of Justice, in particular in
respect to the prevention, investigation and prosecution of acts of torture,
or cruel, inhuman or degrading treatment or punishment in detention
facilities and the measures taken to implement the Prison Rape Elimination
Act and their impact. The Committee requests the State party to provide
information on any compensation and rehabilitation provided to victims. The
Committee encourages the State party to create a federal database to
facilitate the collection of such statistics and information which assist in
the assessment of the implementation of the provisions of the Convention and
the practical enjoyment of the rights it provides. The Committee also
requests the State party to provide information on investigations into the
alleged ill-treatment perpetrated by law enforcement personnel in the
aftermath of Hurricane Katrina.

43. The Committee requests the State party to provide, within one year,
information on its response to its recommendations in paragraphs 16, 20, 21,
22, 24, 33, 34 and 42 above.

44. The Committee requests the State party to disseminate its report, with
its addenda and the written answers to the Committee's list of issues and
oral questions and the conclusions and recommendations of the Committee
widely, in all appropriate languages through official websites, the media
and non-governmental organizations.

45. The State party is invited to submit its next periodic report, which
will be considered as its fifth periodic report, by 19 November 2011, the
due date of the fifth periodic report.

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