UNITED
NATIONS
CAT
Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment
Distr.
GENERAL
CAT/C/USA/CO/2
25 July 2006
Original: ENGLISH
COMMITTEE AGAINST TORTURE
Thirty-sixth 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 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
CAT/C/USA/CO/2
page 2
implement the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (“the Convention”) in full at the domestic level.
GE.06-43225 (E) 070806
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 under 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
United States 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.
CAT/C/USA/CO/2
page 3
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. 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 (arts. 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 fulfil 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” (arts. 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” (arts. 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 exercised.
CAT/C/USA/CO/2
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The Committee considers that the State party’s view that those provisions are geographically
limited to its own de jure territory to be regrettable.
CAT/C/USA/CO/2
page 5
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 (art. 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 allegedly 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 (arts. 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 (arts. 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
CAT/C/USA/CO/2
page 6
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 (arts. 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 (art. 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 (art. 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
CAT/C/USA/CO/2
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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
CAT/C/USA/CO/2
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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 (arts. 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 (arts. 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 that 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
(arts. 11, 1, 2 and 16).
The State party should rescind any interrogation technique, including methods
involving sexual humiliation, “waterboarding”, “short shackling” and using dogs to
induce fear, that constitutes 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.
CAT/C/USA/CO/2
page 9
25. The Committee is concerned at 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
(art. 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 fulfil 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
(art. 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,
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 Defense, have their status determined and reviewed by an administrative process
of that department (art. 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 at 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 (art. 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.
CAT/C/USA/CO/2
page 10
29. The Committee is concerned at 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” (art. 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 (arts. 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 at the fact that substantiated information indicates that
executions in the State party can be accompanied by severe pain and suffering (arts. 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 at reliable reports of sexual assault of sentenced detainees,
as well as persons in pretrial 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 one another, 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 (arts. 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 at the treatment of detained women in the State party,
including gender-based humiliation and incidents of shackling of women detainees during
childbirth (art. 16).
The State party should adopt all appropriate measures to ensure that women in
detention are treated in conformity with international standards.
CAT/C/USA/CO/2
page 11
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 pretrial detention and after sentencing. The Committee is also
concerned at the large number of children sentenced to life imprisonment in the State party
(art. 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 the question of 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 electroshock devices, which have caused several deaths. The
Committee is concerned that this practice raises serious issues of compatibility with article 16 of
the Convention.
The State party should carefully review the use of electroshock 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 (art. 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 (art. 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 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.
CAT/C/USA/CO/2
page 12
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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