Review of the United States before the Committee against Torture

Marie Soueid is a Legal Fellow in CVT’s Washington, DC office. She graduated from the American University Washington College of Law and was a recipient of its 2014 Human Rights Brief Award.

Next week, the United States will make its presentation before the UN Committee against Torture in Geneva, which reviews States Parties’ compliance with their obligations under the Convention against Torture.

The United States delegation, headed by Assistant Secretary of State for Democracy, Human Rights and Labor Tom Malinowski, will field questions from Committee members on issues ranging from prison conditions, sexual violence, solitary confinement, and the death penalty. The United States does not accept the Committee’s jurisdiction over individual petitions; therefore the periodic review process is the only opportunity for the Committee to address U.S. compliance with the Convention.

Several Issues before the Committee  

National Security. Lingering and new issues surrounding the United States’ treatment and detention of national security detainees will likely dominate the hearing, as evidenced by the number of questions raised by the Committee’s list of issues. Articles 7 and 12 of the Convention require investigation and prosecution of those who perpetrate torture. Despite credible evidence of systematic torture and cruelty in the so-called war on terror, not a single U.S. senior official has been held to account. Even the limited review of CIA interrogators who went beyond the authorized torture tactics did not result in a single prosecution. The CIA and White House are still holding up the summary of the Senate Select Committee on Intelligence’s comprehensive report into the CIA’s torture program, which is a minimal step towards establishing the truth and meeting a number of its obligations under the Convention. Furthermore, the United States has blocked survivors of torture from the right to an effective remedy in courts through claims of state secrecy and immunity violating their rights under Article 14.

Despite President Obama ending most of the Bush-era abusive interrogation practices, the compliance of future interrogations with the Convention is called into question because Appendix M of the Army Field Manual still permits sensory deprivation, isolation, and sleep deprivation in some circumstances. Finally, the U.S. continues to detain 148 men at the Guantanamo Bay prison facility, with the overwhelming number of men being held without charge or trial for nearly 13 years, and over half being cleared for transfer since 2009. Some of them are being force-fed, given invasive searches, and placed in prolonged solitary confinement.

Right to Rehabilitation. Article 14 of the Convention requires each State Party to ensure that any victim of torture has access to rehabilitative services. The Committee’s General Comment 3 on the right to redress emphasized that the right to rehabilitation was an essential component of redress. Although the United States is a leader in funding torture rehabilitation around the world, more can be done to support rehabilitative services in the United States, many of which depend on government funding, as well as the UN Voluntary Fund for Victims of Torture, which remains severely underfunded. Furthermore, the United States does not provide adequate mental health rehabilitation for detainees at Guantanamo, and has failed to provide any mental or physical health services to former detainees who were tortured by the United States.

Immigration and Non-Refoulement. The conditions of immigration detention are the subject of several shadow reports. CVT’s, “Tortured and Detained: Survivor Stories of U.S. Immigration Detention” highlighted some challenges survivors of torture face when seeking asylum in the United States. Another issue likely to be raised is the concern that people with credible fear of being tortured being placed into expedited removal proceedings without adequate review of their protection claim in contravention of Article 3 of the Convention prohibiting the return of a person to a country where they face torture.  

Extraterritoriality of the Convention against Torture. A recent report suggested that some agencies in the U.S. government were considering advancing an interpretation of Article 16 of the Convention—prohibiting cruel, inhuman or degrading treatment or punishment—that would restrict its application abroad. The language in the Convention requires a State Party to prevent and investigate acts of cruel, inhuman or degrading treatment or punishment “in any territory under its jurisdiction.” Because it likely would not have an effect on U.S. interrogations in places like Guantanamo, experts have advanced many different theories as to why the Obama Administration would be considering such a stance.

The reports triggered a series of letters to the Administration to reconsider this interpretation, including one by prominent Nobel laureates and another by members of Congress. The theory that Article 16 does not apply abroad, advanced by the Bush Administration, is not accepted by much of the international community. President Obama’s previous Legal Advisor in the State Department, Harold Koh, wrote a lengthy memo in 2013 concluding such an interpretation is untenable, an argument he reiterated this week. It remains to be seen whether the State Department’s interpretation that Article 16 of the Convention applies extraterritorially wins the day in Geneva.

CVT’s Participation in the Review Session

In August 2013, the United States submitted its overdue third through fifth reports to the Committee responding to the list of issues raised by the Committee. In addition, members of civil society submitted over sixty shadow reports to the Committee on relevant issues, highlighting the importance of a transparent and comprehensive review process.

As civil society members with a specialty in the right to rehabilitation, CVT and its partners in the National Consortium of Torture Treatment Programs submitted a shadow report to the Committee on compliance with Article 14. CVT is also coordinating a group of civil society organizations on the right to rehabilitation and will make an intervention during the review session before the Committee to flag the key recommendations from the report.

CVT is also co-chairing the coordination of a group of civil society organizations raising national security issues before the Committee during the Geneva consultations.

For updates, follow CVT’s twitter account as Senior Policy Counsel Melina Milazzo will provide live tweets from the session as well as other side events.