A very good friend from college sent me a newspaper article last week. It was short, to the point, and utterly disturbing. The United States, according to recent polling, is the most permissive nation when it comes to torture. The article in question makes reference to a communication to the Senate, from the President, on May 20, 1988. On that day the President of the United States, Ronald Reagan, communicated to the Senate that he had signed the United Nations Convention Against Torture. The Text of that convention, along with the signature of the President and all other nations whom at that point had signed was sent to the Senate for ratification. To date, twenty-one years and three presidents later, that ratification has not happened.
According to a recent Pew poll Americans have the most permissive attitude when it comes to torture. 19% of Americans believe that torture is often justified when used to gain important information. A further 35% believe that torture is sometimes justified. That makes a total of 54% of Americans believing that torture is sometimes or often justified. Only 25% responded that torture was never justifiable. 25%. Startling when compared with date from that same poll from other countries. It was found that 46% of Iranians, 54% of Egyptians, 66% of Palestinians, and 80% of Western Europeans believe that torture should be strictly prohibited. That means that Iran Egypt, the Palestinian Territories, and the whole of Western Europe are far more progressively minded on the issue of torture than the United States is. These facts in and of themselves should be profoundly depressing and disconcerting. What is more disconcerting is the language of this Convention mentioned above and the United States continued reluctance to ratify that treaty.
The language of this Convention, unlike others, is very explicit in its definitions of torture, how those accused of torture are to be treated, how the law is to be enforced, and how nations may opt out of UN investigation of torture and undertake that venture itself. Part 1, Article 1, Section 1 of the U.N. Convention on Torture gives a clear and unambiguous definition of what constitutes torture. “For the purposes of this Convention, 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. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.” Article 2, Section 2 of Part one likewise makes plain that there are no situations which would make the use of torture justified stating, “No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.” Section 3 of Article 2, and Section 1 of Article 4 makes Section 2 ironclad by stating respectively, “An order from a superior officer or a public authority may not be invoked as a justification of torture.” and, “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.”
The convention does however do more than define torture. It spells out the legal remedies for torture. The convention states in Article 4 that, “Each State Party shall ensure that all acts of torture are offences under its criminal law.”, and stipulates the same for attempts to torture. That same article also requires signers to ensure that both torture and the attempt to torture are given the appropriate punishment under criminal law which take into account their “…grave nature.”. Article 5 of the convention deals with the establishing of jurisdiction for the offence of torture. This article ensures that torture is a prosecutable offence if the offender is a national of the United States and undertakes these actions outside the United States, or if the victim of torture is a national of the United States. Put simply, if a citizen of the United States undertakes the torture of another, they can be brought to trial either under U.S. law, or, if a citizen of the United States is tortured the offender, even if they are a foreign national may likewise, be brought to trial under U.S. law. Articles 6,7,8, and 9 deal with the extradition and prosecution under criminal law, as well as rights extended to victims, including foreign nationals, to seek redress under civil law. Article 10 stipulates that all signers continually review their policies and educate all members of Intelligence, law enforcement, and military community on what is and is not allowable under the law and what is torture as defined by the convention. Articles 11-14 require States to seriously undertake an investigation into any accusation of torture, and insure that the rights of the aggrieved party are protected while said investigation is conducted. In the law Articles, Article 15 is of particular interest stating, “Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made.” Put plainly, the only way to legally use a statement, even a confession obtained under torture is against the person performing the torture as evidence of information obtained under duress.
Articles 17-24 deal with the establishment of the United Nations Committee Against Torture. That committee, composed of 10 members elected from parties nominated from the signer nations, shall have the authority to review the policies regarding torture, of the signer nations, and shall be the investigation body when one nation makes a claim of torture against another.
In the simplest terms this convention defines what torture is and states that there is never a justification for using torture. It also says that all nations should take all measures they may to prevent torture, and if such an act is committed it should be punishable under criminal law; that victims of torture should be able to seek redress over international boundaries, and that likewise prosecutions should be able to cross international boundaries.
At the completion of the convention the following countries have ratified the convention and agree to allow individual complaints to the Committee Against Torture: Algeria, Argentina, Austria, Canada, Denmark, Ecuador, Finland, France, Greece, Hungary, Italy, Liechtenstein, Luxembourg, Malta, Monaco, Netherlands, New Zealand, Norway, Portugal, Russia, Spain, Sweden, Switzerland, Togo, Tunisia, Turkey, Uruguay, Yugoslavia.
These next countries have ratified the treaty but have not made allowance for individual complaints to the Committee: Australia, Belize, Brazil, Cameroon, Chile, Colombia, Cyprus, Egypt, Estonia, Germany, Guatemala, Guinea, Guyana, Jordan, Libya, Mexico, Nepal, Panama, Paraguay, Peru, Philippines, Poland, Romania, Senegal, Somalia, Uganda, United Kingdom, Venezuela, Yemen.
Further still, these countries have signed the convention but have specifically stated under Article 28, they do not recognize the competence of the Committee to investigate torture claims within their boundaries: Afghanistan, Belarus, Bulgaria, China, Czech Republic, Slovakia, Israel, Ukraine.
The following countries have signed the Convention but have yet to ratify it: Belgium, Bolivia, Costa Rica. Cuba, Dominican Republic, Gabon, Gambia, Iceland, Indonesia, Morocco, Nicaragua, Nigeria, Sierra Leone, Sudan, United States of America.
A close examination of the lists of countries above and the actions they have taken regarding this convention is quite instructive. The United States is currently keeping company with Cuba, Sierra Leone, and Sudan. Cuba, well known for abuses of human rights, Sierra Leone that suffered a bloody civil war rife with torture, human rights abuses, and the widespread implementation of child soldiers, and Sudan, that has in the past few years, and still is engaging in bloodiest genocides on record. Russia has fully agreed to participate in this convention; Jordan, Libya, Egypt, Somalia, Uganda and Venezuela fully agree to abide by this treaty. Even Afghanistan, China and Israel have agreed to at least pay lip service to what the Convention states, but the United States does not. China, CHINA has taken a firmer moral stand signing the convention than the United States has. Something is profoundly wrong when China takes a firm stand signing a treaty stating the torture is never justified and should be punished under the law and the United States will not. All that can be said is that on this issue Ronald Reagan was right, George H.W. Bush, Bill Clinton, and George W. Bush were wrong, and Barak Obama, until he pushes for the ratification of the United Nations Convention Against Torture will continue to be wrong.
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{ 2 comments… read them below or add one }
JFesta,
Kudos for the normal due diligence and comprehensive reporting.
With that being said, this whole issue creates a very slippery slope. Of course China is going to agree with any UN convention since China is basically the UN poster child. Even though they are known around the world for eugenics in the form of genocide and are well-known for the abuse of women, the UN constantly praises them as a good model of depopulation. If China would not be in agreement, they would be basically biting the hand that feeds them, for lack of a more eloquent cliche.
The UN is hypocritical with this issue (as with every issue) since their “peacekeepers” with the white helmets have been caught slaughtering African populations and the UN itself is known to praise infamous leaders such as Castro, Gaddafi, Chavez, etc. As a result, their input into the matter is questionable at best and I place no credence on their opinions and have no problem with the USA’s lack of adherence.
On a personal note, there was a time when I supported “some” torture. But I have come to realize that it is not what we do (or are at least supposed to do, anyway). In World War II, the prisoners of war would always prefer to surrender to us because we had a merciful reputation. I am not going to be so naive, however, as to not see that it really is more complicated than that.
You did make an excellent point of how this has failed to be ratified over the course of 4 presidencies – yet another indicator of how they are all following the same playbook. They can talk tough in support of torture and can talk tough in opposition of it. But the proof of where they stand on the issue lies within the context of your article.
“That means that Iran Egypt, the Palestinian Territories, and the whole of Western Europe are far more progressively minded on the issue of torture than the United States is.”
I take exception to Iran, Egypt, and the Palestinians. One doesn’t have to look far or hard to find reports of torture, beheadings, hangings, and other vile acts especially against women. (Genital mutilation anyone?) While they may have signed the document they do not abide by it.
Other than that great article and I agree with you that it’s high time the US signs on.