JOSHUA SONDHEIMER (SBN 152000)
MATTHEW J. EISENBRANDT (SBN 217335)
The Center for Justice & Accountability
870 Market Street, Suite 684
San Francisco, CA 94102
Tel: (415) 544-0444
Fax: (415) 544-0456
Email: jsond@cja.org
PAUL HOFFMAN (SBN 71244)
Schonbrun DeSimone Seplow Harris
& Hoffman LLP
723 Ocean Front Walk
Venice, CA 90291
Tel: (310) 396-0731
Fax: (310) 396-7040
Counsel for All Plaintiffs
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
1. The undersigned are professors who specialize in international law and international human rights. A list of credentials for the undersigned is attached to this affidavit in Appendix A.
I. INTRODUCTION
2. Torture, cruel, inhuman, or degrading treatment, crimes against humanity, and arbitrary detention are each well-recognized violations of customary international law.[1] These acts have been condemned by international agreements and state practice. They have also been condemned by the United States through executive statements, legislative pronouncements, and judicial decisions. In sum, the prohibitions against torture, cruel, inhuman, or degrading treatment, crimes against humanity, and arbitrary detention are each “specific, universal, and obligatory.” See Hilao v. Marcos: In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d 1467, 1475 (9th Cir. 1994).
II. TORTURE CONSTITUTES A VIOLATION OF
CUSTOMARY INTERNATIONAL LAW
3. The prohibition against torture has long been recognized in international law. According to the authoritative Restatement (Third) of the Foreign Relations Law of the United States §702(d) (1987) (“Restatement (Third)”), a state violates international law if it practices, encourages, or condones torture as a matter of state policy.
4. Torture may result from both physical and mental pain or suffering. See, e.g., J. Herman Burgers and Hans Danelius, The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 117, 118 (1988) (“The act of torture is defined as being the infliction of severe pain or suffering, whether physical or mental. The most characteristic and easily distinguishable case is that of infliction of physical pain . . . . The acts inflicting severe mental pain or suffering can be of very different kinds. One category consists of acts which imply threats or which create fear in the victim”).
A. International Law
Prohibits Torture
5. The prohibition against torture is recognized in all major international instruments. See, e.g., Universal Declaration of Human Rights, Dec. 10, 1948, art. 5, G.A. Res 217A (III), U.N. Doc. A/810, at 71 (1948) (“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”). The International Covenant on Civil and Political Rights (“ICCPR”), adopted in 1966, prohibits torture. International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. More than 147 countries, including the United States, have ratified the ICCPR. Article 7 of the ICCPR provides that “[n]o one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” This provision is non-derogable – neither public emergency nor any other extenuating circumstance may be invoked as justification for such acts. Id. at art. 4(2).
6. The Human Rights Committee, which was established to monitor compliance with the ICCPR, has clarified the nature and scope of Article 7. In General Comment No. 20, the Committee indicated that Article 7 is designed to “protect both the dignity and the physical and mental integrity of the individual.”[2] Human Rights Committee, General Comment No. 20, U.N. Doc. HRI/GEN/l/Rev.5 (2001), at para. 2. The determination of whether an Article 7 violation has occurred requires an assessment of all the circumstances of the case, “such as the duration and manner of the treatment, its physical or mental effects as well as the sex, age and state of health of the victim.” Vuolanne v. Finland, Communication No. 265/1987, U.N. Doc. Supp. No. 40 (A/44/40) at 249, 256 (1989). Thus, subjective factors can aggravate the effect of certain treatment. See Sarah Joseph et al., The International Covenant on Civil and Political Rights 150 (2000). The Human Rights Committee has identified numerous acts that give rise to an Article 7 violation of torture.[3] See, e.g., Cariboni v. Uruguay, Communication No. 159/1983, U.N. Doc. CCPR/C/OP/2 at 189 (1990) (abducting petitioner, keeping him hooded, bound, and seated for extended periods of time, providing him with minimal food, and subjecting him to hallucinogenic substances and psychological abuse constitutes torture); Herrera Rubio v. Colombia, Communication No. 161/1983, U.N. Doc. Supp. No. 40 (A/43/40) at 190 (1988) (beating and near drowning, hanging the detainee by his arms, and threatening his family members constitutes torture); Muteba v. Zaire, Communication No. 124/1982, U.N. Doc. Supp. No. 40 (A/39/40) at 182 (1984) (beatings, mock executions, electric shocks, deprivation of food, and incommunicado detention constitutes torture); Estrella v. Uruguay, Communication No. 74/1980, U.N. Doc. Supp. No. 40 (A/38/40) at 150 (1983) (abducting petitioner from his home, blindfolding him, and threatening him with amputation of his hands constitutes torture).
7. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Convention against Torture”), adopted in 1984, contains similar prohibitions against torture. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85. More than 128 countries, including the United States, have ratified the Convention against Torture. Article 1 defines torture as:
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.
Under the Convention against Torture, countries must take effective legislative, administrative, and judicial measures to prevent acts of torture. Significantly, Article 2(2) provides that “[n]o exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”
8. The Committee against Torture, which was established to monitor compliance with the Convention against Torture, has recognized the absolute prohibition against torture. No circumstances, including terrorist threats or conditions of war, justify acts of torture. See, e.g., Committee against Torture, Israel’s Second Periodic Report under the Convention against Torture, U.N. Doc. CAT/C/18/CRP1/Add.4, at para. 134, quoted in Joseph, supra, at 151. (“The Committee acknowledges the terrible dilemma that Israel confronts in dealing with terrorist threats to its security, but as a State party to the Convention Israel is precluded from raising before this Committee exceptional circumstances as justification for acts prohibited by article 1 of the Convention. This is plainly expressed in article 2 of the Convention”).
9. The prohibition against torture is also set forth in a variety of United Nations instruments and statements. The U.N. Special Rapporteur on Torture, established by the U.N. Commission on Human Rights, has issued many official statements on this matter. For example, the Special Rapporteur has expressed concern about the use of intimidation as a form of torture and has indicated that threats to the physical integrity of the victim “can amount to cruel, inhuman or degrading treatment or even to torture, especially when the victim remains in the hands of law enforcement officials.” Report of the Special Rapporteur on the Question of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, U.N. Doc. A/56/156 (2001), at para. 8. See also U.N. Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, Principle 6, G.A. Res. 43/173, 43 U.N. GAOR Supp. (No. 49) at 298, U.N. Doc. A/43/49, (1988) (“No person under any form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment”); Standard Minimum Rules for the Treatment of Prisoners, U.N. Doc. E/3048 (1957), amended E.S.C. res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N. Doc. E/5988 (1977).
10. Regional agreements also prohibit torture. For example, the American Convention on Human Rights (“American Convention”), which the United States has signed, provides that “[n]o one shall be subjected to torture or to cruel, inhuman, or degrading punishment or treatment.” See American Convention on Human Rights, Jan. 7, 1970, art.5, 1144 U.N.T.S. 123. See also Inter-American Convention to Prevent and Punish Torture, Dec. 9, 1985, OAS Treaty Series No. 67.[4] The Inter-American Court on Human Rights, which reviews compliance with the American Convention, has noted that Article 5 prohibits torture and cruel, inhuman and degrading treatment “and that all persons deprived of their liberty should be treated with respect for the inherent dignity of the human person.” Neira Alegria et al. v. Peru, 3 International Human Rights Reports 362, 382 (1996). See also Bamaca Velasquez v. Guatemala, 9 International Human Rights Reports 80, 137 (2002). The Inter-American Commission on Human Rights, which also monitors compliance with the American Convention, has made similar findings. See, e.g., Case 10.574 (El Salvador), Report No. 5/94 (February 1, 1994) (applying electrical shocks to detainee, burning him with cigarettes, beating him, and putting a hood over his head constitutes torture).
11. The European Convention for the Protection of Human Rights and Fundamental Freedoms (“European Convention”), which has been ratified by 43 states, provides that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment.” European Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 3, 213 U.N.T.S. 221. See also European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, Nov. 26, 1987, E.T.S. No. 126. The European Court of Human Rights, which reviews compliance with the European Convention, has indicated that the prohibition against torture is one of the most fundamental values of a democratic society. This norm is non-derogable. As the European Court noted in Selmouni v. France, 29 E.H.R.R. 403, 440 (1999), “[e]ven in the most difficult circumstances, such as the fight against terrorism and organized crime, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment.”[5] In Selmouni v. France, the European Court concluded that the petitioner was subject to torture as a result of severe and repeated police beatings that left marks on his entire body and as a result of humiliating treatment. Id. at 442-443. See also Aydin v. Turkey, 25 E.H.R.R. 251 (1997) (raping, beating, and blindfolding detainee constitutes torture); Aksoy v. Turkey, 23 E.H.R.R. 553 (1997) (stripping detainee with arms tied behind his back and suspending him by the arms constitutes torture).
12. Finally, the African Charter on Human and Peoples' Rights provides that “[a]ll forms of exploitation and degradation of man particularly slavery, slave trade, torture, cruel, inhuman or degrading punishment and treatment shall be prohibited.” See African Charter on Human and Peoples' Rights, June 27, 1981, art. 5, OAU Doc. CAB/LEG/67/3/Rev. 5 (1981). The African Commission on Human and Peoples’ Rights, which was established to monitor compliance with the African Charter, has found various actions to constitute torture. See, e.g., Amnesty International et al. v. Sudan, Comm. Nos. 48/90, 50/91, 52/91, 89/93 (2000) (placing detainees in small cells, soaking them with cold water, and subjecting them to mock executions constitutes torture).
B. The United States Recognizes the
Prohibition against Torture
13. This prohibition against torture has been recognized by the United States in executive statements, legislative pronouncements, and judicial decisions.
14. As indicated, the United States has ratified the ICCPR and the Convention against Torture, both of which prohibit torture.[6] The United States has implemented its obligations under the Convention against Torture in several ways. In 1991, for example, Congress enacted the Torture Victim Protection Act, which establishes civil liability for acts of torture. See 28 U.S.C. § 1350 (Notes). In 1994, Congress imposed criminal liability for acts of torture, regardless of where such acts occur. See 18 U.S.C. § 2340A. In 1998, Congress enacted the Torture Victims Relief Act to provide financial assistance to victims of torture in the United States and abroad. See 22 U.S.C. § 2152 (History).
15. In October 1999, the United States Government issued its Initial Report to the Committee Against Torture describing its compliance with the Convention against Torture. In the Initial Report, the United States Government reiterated that torture is categorically denounced as a matter of policy and as a tool of state authority.
No official of the government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances . . . or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory.
Committee Against Torture, “Consideration of Reports Submitted By States Parties Under Article 19 of the Convention: United States of America” (Oct. 15, 1999), U.N. Doc. CAT/C/28/Add.5 (2000), at 5 (“Initial Report of the United States”).[7] The Initial Report notes that “[e]very system of criminal law in the United States clearly and categorically prohibits acts of violence against the person, whether physical or mental, which would constitute an act of torture within the meaning of the Convention.” Id. at 26.
Such acts may be prosecuted, for example, as assault, battery or mayhem in cases of physical injury; as homicide, murder or manslaughter when a killing results; as kidnapping, false imprisonment or abduction where an unlawful detention is concerned; as rape, sodomy, or molestation; or as part of an attempt or conspiracy, an act of racketeering, or a criminal violation of an individual’s civil rights.
Id. Other specific issues raised in the Initial Report with respect to torture include police brutality, abuse of detainees, and substandard prison conditions. Id.
16. U.S. courts have also recognized the international prohibition against torture. In Filartiga v. Pena-Irala 630 F.2d 876, 880 (2d Cir. 1980), the Second Circuit indicated that:
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), we find that 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.
See also Mehinovic v. Vuckovic, 198 F. Supp. 2d 1322 (N.D. Ga. 2002) (torture is a well-recognized violation of customary international law); Wiwa v. Royal Dutch, 2002 U.S. Dist. LEXIS 3293, *21 (S.D.N.Y. 2002) (torture constitutes fully recognized violation of international law); Doe v. Islamic Salvation Front, 993 F. Supp. 3, 8 (D. D.C. 1998) (international law prohibits torture); Doe v. Unocal, 963 F. Supp. 880, 890 (C.D. Cal. 1997) (international law prohibits torture); Abebe-Jira v. Negewo, 72 F.3d 844, 847 (11th Cir. 1996) (citing Filartiga precedent that official torture is now prohibited by the law of nations); Kadic v. Karadzic, 70 F.3d 232, 243 (2d Cir. 1995) (“[O]fficial torture is prohibited by universally accepted norms of international law . . . .”); Xuncax v. Gramajo, 886 F. Supp. 162 (D. Mass. 1995) (torture is a well-recognized violation of customary international law); Paul v. Avril, 901 F. Supp. 330 (S.D. Fla.1994) (imposing civil liability for acts of torture); Hilao v. Marcos: In re Estate of Ferdinand Marcos, Human Rights Litigation, 25 F.3d at 1475 (torture is a specific, universal, and obligatory norm of international law); Trajano v. Marcos: In re Estate of Ferdinand Marcos, Human Rights Litigation, 978 F.2d 493, 499 (9th Cir. 1992) (“And, as we have recently held, ‘it would be unthinkable to conclude other than that acts of official torture violate customary international law.’”); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 716 (9th Cir. 1992) (“There is no doubt that the prohibition against official torture is a norm of customary international law . . . .”).
17. Based on the foregoing review, it is evident that the prohibition against torture is a specific, universal, and obligatory norm under international law.
III.
CRUEL, INHUMAN OR DEGRADING TREATMENT CONSTITUTES A VIOLATION OF
CUSTOMARY INTERNATIONAL LAW
18. The prohibition against cruel, inhuman or degrading treatment is also recognized in international law. According to the Restatement (Third), supra, at § 702(d), a state violates international law if, as a matter of state policy, it practices, encourages, or condones cruel, inhuman, or degrading treatment or punishment.
19. There is a close relationship between torture and cruel, inhuman or degrading treatment. The difference between these two violations of international law can be measured by the severity of the act and the degree of suffering. “Degrading treatment” is an act that tends to humiliate the victim; “inhuman treatment” is the deliberate infliction of severe mental or physical suffering.[8] Torture constitutes the most aggravated form of severe physical or mental suffering.[9] See generally Nigel S. Rodley, The Treatment of Prisoners under International Law 77-78 (2d ed. 1999) (“So, for torture to occur, a scale of criteria has to be climbed. First, the behavior must be degrading treatment; second, it must be inhuman treatment; and third, it must be an aggravated form of inhuman treatment, inflicted for certain purposes”). In addition, torture requires purpose; cruel, inhuman or degrading treatment does not. Id. at 84-85.
20. In sum, determinations of whether torture or other cruel, inhuman or degrading treatment have occurred require an assessment of all the circumstances in the case, including the form and duration of mistreatment, the level of suffering, the physical and mental status of the victim, and the purpose of the perpetrator.