There’s been talk recently of George W. Bush’s admission in his new memoir that he personally approved the waterboarding of Khalid Sheikh Mohammed, and whether the U.N. Convention Against Torture (UNCAT) obligates the U.S. government to prosecute him for the crime of torture.
Decide for yourself: read the Q & A below and let us know what YOU think in the comment section.
1. What is the UN Convention Against Torture (UNCAT)?
The acronym UNCAT is a shortened version of The United Nations Convention against Torture, and Other Cruel, Inhuman or Degrading Treatment or Punishment. The UNCAT is an international human rights instrument which mandates a global prohibition on torture and creates an instrument to monitor governments and hold them to account.
2. So, what does the UNCAT actually do?
The UNCAT defines what is meant by torture, bans the use of torture, cruel and degrading treatment, bans refoulement (the extradition of individuals at risk to countries where they may face torture), requires governments to actively prevent torture, requires governments to investigate torture allegations, requires governments to provide remedy to torture victims and establishes an appropriate UN committee to deal with issues of redress, monitoring and investigation.
3. What is meant by torture?
The UNCAT 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.”
4. What does it require governments to do?
The UNCAT requires governments to take effective and meaningful measures to prevent torture in each state’s jurisdiction. Specifically, it requires that states criminalize torture in domestic law, establish jurisdiction over acts of torture that occur within the state, make torture an extraditable offense, investigate any allegations of torture within the state and provide effective and enforceable remedy to torture victims.
5. Does it apply to the United States?
Yes, though conditionally. The United States signed onto the treaty on April 18, 1988 and ratified the treaty on October 21, 1994. The United States made reservations to Article 16 and Article 30 (1) of the treaty. With respect to Article 16, the US narrowed the definition of torture by stating that it would only seek to prevent cruel, inhuman and degrading treatment or punishment as these terms’ definitions were understood in the context of the 5th, 8th and 14th amendments of the US Constitution. The US also made a reservation to Article 30 (1)’s arbitration clause. The US additionally announced interpretative understandings and issued a declaration. Regardless of these measures, the crux of the UNCAT’s meaning applies to and is binding on the US government and the United States government still has a responsibility to prohibit use of torture.
6. How does it relate to the Constitution?
The UNCAT relates to the 5th amendment, 8th amendment and 14th amendment of the United States Constitution. These amendments respectively ensure due process and fairness in criminal proceedings, prohibit cruel and unusual punishment and protect rights against state infringement by requiring due process and equal protection under the law for all persons.
7. What other laws, domestic or international, relate to US adherence to UNCAT?
In addition to the United States Constitution, torture violates domestic law Title 18 of the US Code, § 2340. Internationally, torture is banned by the Universal Declaration of Human Rights, the American Convention on Human Rights and the International Covenant on Civil and Political rights, all of which the United States is party to. Within the context of an armed conflict, torture is considered a war crime under international criminal law (depending on the context, a grave breach of the Geneva Conventions, a violation of the laws and customs of war or, when carried out in a widespread or systematic manner, a crime against humanity) and the US Uniform Code of Military Justice (UCMJ).
8. How many countries have ratified the UNCAT?
As of April 2010, there were 77 signatories to and 147 ratifications by states parties to the UNCAT.
9. When did the UNCAT “enter into force”?
The UNCAT “entered into force” (a.k.a. acquired legal effect) for the initial twenty signatories as of June 26, 1987, thirty days after the 20th country deposited the instrument of their ratification or accession to the Secretary General of the UN in accordance with Article 27 (1). For parties which ratify the treaty after this date, the UNCAT theoretically enters into force thirty days after similar proceedings. However, UNCAT is now widely considered to have attained the status of customary international law and thus is binding on all states whether they are signatories of the treaty or not.
10. What bodies does the UNCAT create?
The UNCAT creates the independent Committee Against Torture (CAT). This committee is tasked with monitoring treaty implementation, promoting treaty implementation and investigating torture allegations. All parties to the UNCAT are required to submit periodic reviews to this body for examination and recommendation.
11. (Bonus Question) What Can I Do to Ensure Accountability for U.S. Torture?
Take action here.
Alex Severson contributed to this post