Understanding “Suffering,” Yet Misconstruing Intentionality: U.S. Compliance and Non-Compliance with the Convention against Torture

by Deborah E. Anker

Clinical Professor of Law, Founder and Director, Harvard Immigration and Refugee Clinical Program.

 

I.    Introduction

International human rights law has long prohibited torture.[1] Torture is considered a peremptory norm, binding on states irrespective of treaty obligations, and allowing no derogation even in times of war or national emergency.[2] In 1984 the United Nations adopted the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT” or “Torture Convention”),[3] with the purpose of strengthening the existing prohibition with “supportive measures” and protection through an international instrument specifically aimed at eradicating torture. [4] Article 3 of the CAT absolutely prohibits states parties from returning individuals to another state when there are substantial reasons for believing that person would be at risk of torture.[5]

The United States has ratified the CAT, and incorporated some of its provisions, including Article 3’s non-refoulement protection—the prohibition of return to conditions that amount to torture – into domestic law.[6] This obligation of non-return creates an alternative basis for protection claims[7] to the U.N. Refugee Convention (“Refugee Convention)”[8] implemented in U.S. law with the Refugee Act of 1980.[9] The Refugee Act provides the more complete protection of asylum status with attendant rights to family reunification, permanent residency and a path to citizenship. However, the Refugee Act’s asylum and non-refoulement protection excludes persons convicted of a large and expanding number of crimes, a trend especially notable in recent years.[10] In contrast, the CAT’s non-refoulement protection allows of no exceptions.[11]

This article briefly considers U.S. interpretation of two key elements of the CAT’s Article 1 definition of the torture: (1) the level of harm (in the CAT, “severe pain or suffering, physical or mental”), and (2) the requirement of intentionality. The article will reference examples of interpretation of these terms by some international and regional human rights bodies, including bodies specifically charged with interpretation of the CAT and others that consider the meaning of torture under international law.

As discussed below, U.S. interpretation of “severe pain or suffering,” is generally consistent with international law (although referencing to international law is at best infrequent). However with respect to the intentionality requirement (and others, not addressed here), the U.S interpretation differs – even differs sharply – with that of international bodies charged with implementation and norm-setting, putting the U.S. at odds with its international treaty obligations.[12]

II.    Definition of Torture 

Article 1 of the CAT provides:

For the purposes of this Convention, the term “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. (emphasis added).[13]

The definition of torture contained in the U.S. implementing regulations is similar to the CAT requirements for Article 1. Most U.S. cases summarize the regulatory definition as comprised by the following five elements: (1) the act of torture must cause severe physical or mental pain or suffering; (2) the act must be intentionally inflicted; (3) the act must be inflicted for a proscribed purpose; (4) the act must be inflicted by or at the instigation of or with the consent or acquiescence of a public official who has custody or physical control of the victim; and (5) the act cannot arise from lawful sanctions.[14] 

 III.       Severe physical or mental pain or suffering

 a.    Severe physical pain or suffering

In order to constitute torture, an act must cause “severe” pain beyond what would be considered “inhuman” treatment.[15] The European Court of Human Rights has commented that “a special stigma” is attached to torture, describing it as “deliberate inhuman treatment causing very serious and cruel suffering” or “aggravated” inhuman treatment.[16] It is possible for a single act to constitute torture; the suffering inflicted need not be “extremely severe,” but it must be very serious.”[17] The particular context may be significant in making the severity determination.[18]

The U.N. Special Rapporteur on Torture, in his first report issued in 1986, gave  examples of severe physical torture, inter alia: “[b]eatings” (including blows to the feet, lashing, etc.), b]urns (from cigarettes, electricity, burning coal, etc.), [e]lectric shocks, [s]uspension, [s]uffocation, [e]xposure to excessive light or noise, [s]exual aggression, [a]dministration of drugs, in detention or psychiatric institutions, and [p]rolonged denial of sleep . . . food . . . hygiene . . . [or] medical assistance.[19]

These practices are widely understood to constitute physical torture, and U.S. case law largely mirrors international standards in this regard. For example, in its 2002 decision in

Matter of G-A-, the Board of Immigration Appeals (“BIA” or “Board”), the administrative appellate body, described a number of similar actions as amounting to torture, including “suspension for long periods in contorted positions, burning with cigarettes, sleep deprivation, and . . . severe and repeated beatings with cables or other instruments on the back and on the soles of the feet … beatings about the ears, resulting in partial or complete deafness, and punching in the eyes, leading to partial or complete blindness.”[20] Several U.S. federal courts have recognized that beatings with various implements constitute sufficiently severe harm to amount to torture.[21]

Various sources discuss more specific examples of such severe physical pain or suffering, e.g., in the context of detention or imprisonment, and rape and other gender-based violence.[22]

 b.    Severe mental pain or suffering

The CAT’s definition of torture includes severe mental harm or trauma. As commentators have noted, it is frequently difficult to separate the mental and physical elements of torture.[23] The U.N. Special Rapporteur on Torture has commented that the following practices constitute mental torture: “[t]otal isolation and sensory deprivation … [b]eing kept in total uncertainty, in terms of space or time[,] [t]hreats to kill or torture relatives, being forced to help torture relatives[,] . . . [t]otal abandonment[,] [s]imulated executions [and] [d]isappearances of relatives.”[24] International and U.S. authorities recognize that threats of imminent death to oneself or severe pain or suffering to another can qualify as torture. [25]

U.S. regulations implementing the Torture Convention explain:

In order to constitute torture, mental pain or suffering must be prolonged mental harm caused by or resulting from:

(i) The intentional infliction or threatened infliction of severe physical pain or suffering;

(ii) The administration or application, or threatened administration or application, of mind altering substances or other procedures calculated to disrupt profoundly the senses or the personality;

(iii) The threat of imminent death; or

(iv) The threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind altering substances or other.[26]

Although U.S. cases frequently cite the regulations defining mental suffering as torture, only a few of these decisions address mental harms directly. The cases that do address mental pain usually concern sexual violence, or threats of torture or death.[27] Threats of extrajudicial killing and assassination are also accepted as torture by U.S. courts. The position that such threats constitute torture is perhaps best articulated by the Federal Court for the Seventh Circuit in Comollari v. Ashcroft,[28] where the court rejected the government’s contention that assassination is not torture because it can be painless, and by the Eighth Circuit in Habtemicael v. Ashcroft, in which the court held that “extrajudicial threat of imminent death” can be torture if the Torture Convention’s intent requirement is met. [29]

U.S. interpretation of the intent requirement is discussed below.

IV.    Intentional Acts

Article 1 of the CAT refers to “acts,” yet commentators have noted that, in certain circumstances, omissions, such as not providing a prisoner with sufficient food or drink, constitute torture.[30] Nevertheless, the requirement of intentionality ensures that an accidental or negligent act cannot constitute torture and excludes as a torturer those who might unknowingly cause suffering.[31]

a.    Criminal Law’s Understanding of specific intent versus general intent

The required intentionality under the United Nations Convention Against Torture is a general intent to commit an act that causes severe pain and suffering.[32] The great majority of commenters agree.[33]

As described infra, however, the BIA and some U.S. federal courts, in implementing the Torture Convention regulations, have interpreted the definition of torture in Article 1 to require a “specific intent,” as understood in U.S. criminal law, and, in doing so, have improperly placed a greater burden on claimants than is permissible under the Torture Convention.[34]

This U.S. interpretation conflicts with the Torture Convention’s drafters, who rejected a definition requiring that torture be systematic or “deliberately and maliciously inflicted.”[35]  Torture does not require subjective malevolence.[36]  Decisions of the European Court of Human Rights generally do not address the issue of intentionality, deciding the issue of torture on the basis of the severity of the conduct alone.[37]

As the Immigrant and Refugee Board of Canada (IRB) has emphasized, the Torture Convention’s definition of torture does not require malevolent intent, explaining that “[s]evere pain or suffering is considered to be intentionally inflicted if it is a desired consequence or it is known to be a likely consequence. If severe pain or suffering is the result only of an accident or negligence, it is not intentional. However, where the perpetrator commits an act which is objectively harmful, the tribunal may presume that pain or suffering was intended.”[38]

International war crimes tribunals[39] have also interpreted the phrase “intentionally inflicted” in a similar manner, construing it to require an act or omission which is deliberate, not accidental.[40] In addition, the tribunals have found that severe pain and suffering must be caused by an “intentional act or omission” that is “deliberate and not accidental.”[41] The lack of a subjective desire to cause severe pain or suffering however, does not constitute a valid defense.[42] Rather, knowledge that prohibited consequences would result from intentional acts satisfies the intentionality requirement.[43]

U.S. regulations codifying the Torture Convention state that, “[i]n order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. An act that results in unanticipated or unintended severity of pain and suffering is not torture.”[44] The U.S. included this “specifically intended” language in an understanding submitted as part of its consent to ratification of the treaty. [45] Understandings, unlike reservations, do not modify the terms of a treaty; rather they reflect the Senate’s interpretation of certain provisions.[46] Therefore, the “specifically intended” language should not be interpreted as an attempt to modify the Torture Convention’s requirement of intentionality.[47] Instead, the language should be considered consistent with the Torture Convention.[48]

However, U.S. administrative interpretation of the intentionality requirement is generally at odds with all of these international sources, including those interpreting the Torture Convention. The U.S federal courts have generally deferred to the administrative analysis that, “[i]n order to constitute torture, the act must be specifically intended to inflict severe pain or suffering,”[49] as understood in U.S. criminal law.

In Matter of J-E-, the BIA, sitting en banc, dismissed an appeal by a Haitian man who faced deportation on criminal grounds  (and under then-Haitian government policy would be detained in a Haitian prison), concluding that he was not eligible for protection under the Torture Convention.[50]  Acknowledging that he would be indefinitely detained and that the detention conditions were “inhumane,”[51] the BIA still rejected his argument that such detention constituted torture. The BIA explained that, “[a]lthough Haitian authorities are intentionally detaining criminal deportees knowing that the detention facilities are substandard, there is no evidence that they are intentionally and deliberately creating and maintaining such prison conditions in order to inflict torture.”[52]

The majority’s decision deeply divided the Board, and seven of the Board’s nineteen members dissented. Two dissenters argued that the regulations do not require “proof of the specific intent, as that term is used in American criminal prosecutions . . . . Rather, the plain language of the text of 8 C.F.R. § 208.18(a)(5) reflects only that something more than an accidental consequence is necessary to establish the probability of torture.” [53] Five other dissenting Board members similarly opined that torture is “outside the domain of a criminal justice system.”[54] They contended that “[t]his is not a case where the authorities merely are being negligent… [r]ather, it is an instance of a government deliberately continuing a policy that leads directly to torturous acts.”[55]

V.     Conclusion

U.S. jurisprudence interpreting the nature of the harm in Article 1 of the CAT is generally aligned with the treaty, rulings of international tribunals, interpretation by other states parties and the views of commentators, but its application of the intentionality requirement is at variance. This may be the result of historic U.S. resistance to international law, and also to the structure of decision-making: interpretation of the CAT is largely in the hands of administrative bodies, in particular the BIA, too often without meaningful input from the federal courts.

There are some promising signs of a more internationalist approach in U.S. jurisprudence generally.[56] For example, early on the Supreme Court grounded U.S. interpretation of the Refugee Convention in its international treaty obligations,[57] and in some cases the U.S. has recognized the relevance of interpretation by other states parties.[58]  U.S. authorities have certainly recognized the international law basis of CAT protection and, especially as American practitioners become more familiar with international authorities and sources of interpretation, a more explicitly internationalist approach may, in the future, be reflected in interpretation of the CAT.

Acknowledgements

Thanks to Guy Goodwin-Gill for useful comments and to Stephen Wiles and Lauren Shryne for help in locating sources.

Notes

[1] Deborah E. Anker, Law of Asylum in the United States §7:3 (2017). See Manfred Nowak & Elizabeth McArthur, The United Nations Convention Against Torture: A Commentary vi-vii (2008) (describing the genesis of the prohibition of torture in international treaty law, international humanitarian law, international criminal law, and customary international law). For a history of torture, see Edward Peters, Torture (1996); J. Hermann Burgers & Hans Danelius, The United Nations Convention Against Torture: A Handbook on the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1 (1988); Guy S. Goodwin-Gill & Jane McAdams, The Refugee in International Law 345-54 (3d ed. 2007). For a comprehensive treatment of U.S. interpretation of Art. 3 of the CAT compared to international law, see Anker, supra note 1, at § 7.

[2] Burgers & Danelius, supra note 1, at 1; Kees Wouters, International Legal Standards for the Protection From Refoulement 563 (2009); Walter Suntinger, The Principle of Non-Refoulement: Looking Rather to Geneva than to Strasbourg?,49 Austrian J. Pub. Int’l L. 203, 205 (1995); Goodwin-Gill and McAdams, supra note 1, at 345-54.

[3] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Dec. 10, 1984, 1465 U.N.T.S. 85 [hereinafter U.N. Convention Against Torture]. The prohibition against torture can be found in other human rights treaties. See, e.g., American Convention on Human Rights art. 7, Nov. 21, 1969, 1144 U.N.T.S. 143; International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; Convention for the Protection of Human Rights and Fundamental Freedoms art. 3, Nov. 4, 1950, 213 U.N.T.S. 222, ETS No. 5 (recognizing the prohibition on torture and acknowledging states’ obligation to observe it); see also Nowak and McArthur, supra note 1, at vi, 2-3.

[4] Burgers & Danelius, supra note 1, at 1: Nowak & McArthur, supra note 1, at 23.

[5] Anker, supra note 1, at § 7.3.

[6] See Foreign Affairs Reform and Restructuring Act of 1998, Pub. L. No. 105-227, Div. G., Title XXII § 2242, 112 Stat. 2681, 2681-823 (codified as note to 8 U.S.C. § 1231); 8 C.F.R. §§ 208.16-208.18; 8 C.F.R. §§ 1208.16-1208.18; Regulations Concerning the Convention Against Torture, 64 Fed. Reg. 8478 (Feb. 19, 1999) (codified at 8 C.F.R. §§ 3, 103, 208, 235, 238, 240, 241, 253, 507). U.S. law creates two types of protection for those granted relief under the CAT: withholding of removal and deferral of removal. 8 C.F.R. §§ 208.16, 208.17. See generally Anker, supra note 1, at § 7.

[7] Jane McAdam, An Alternative Asylum Mechanism: The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, in Jane McAdam, Complementary Protection in International Refugee Law 128 (2007).

[8] United Nations Convention relating to the Status of Refugees, July 28, 1951, 19 U.S.T. 6259, 189 U.N.T.S. 150; United Nations Protocol relating to the Status of Refugees, Jan. 31, 1967, 19 U.S.T. 6223, 606 U.N.T.S. 267. Formally, the United States ratified the U.N. Protocol relating to the Status of Refugees, which incorporated the Convention except for certain temporal and geographic restrictions. See generally Anker, supra note 1, at § 1:2.

[9] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980) (codified as amended in scattered sections of 8 U.S.C.).

[10] See Philip L. Torrey, The Erosion of Judicial Discretion in Crime-Based Removal Proceedings, 14-02 Immigr. Briefings 1, 2-3 (2014).

[11] CAT, Art. 3.

[12]  “U.S. refugee law . . . directly enacts or incorporates, international treaty obligations.” Anker, supra note 1, at 1:5; Treaties should be “interpreted in good faith in accordance with the ordinary meaning to be given the terms of the treaty in their context and in light of its object and purpose.” Vienna Convention on the Law of Treaties, adopted May 23, 1969, entered into force Jan 27, 1980, 1155 UNTS 331, Art. 31.1 (hereinafter “Vienna Convention”); Goodwin-Gill and McAdams, supra note 1, at 7-8; See also Fatma E. Marouf, The Role of Foreign Authority in U.S. Asylum Adjudication, 45 NYU J. Int’l’ L. & Pol. 391 (2013) (Subsequent practice in the application of the treaty, specifically the interpretations of sister signatories, play an important role in treaty); See generally, James C. Hathaway and Michelle Foster, The Law of Refugee Status, 5-12 (2014). As discussed infra note 32, the interpretation of the intent requirement should be consonant the CAT’s purpose in Article 3 to provide victims with protection from return to torture, and not to place an impossible burden of proof upon in order to obtain such protection.

[13] U.N. Convention Against Torture art. 1 (emphasis added).

[14] “Torture is defined 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 her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her 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.” 8 C.F.R. §§ 208.18(a)(1), 1208.18(a)(1).

[15] Ahcene Boulesbaa, The U.N. Convention on Torture and the Prospects for Enforcement 16-17 (1999).

[16] Ireland v. United Kingdom, 25 Eur. Ct. H.R. (ser. A), at ¶ 167 (1978).

[17] Although several attempts were made to eliminate the word “severe” from the definition of “torture” under the U.N. Convention Against Torture, these efforts were unsuccessful. See Pnina Baruh Sharvit, The Definition of Torture in the United Nations Convention Against Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, 23 Israel Y.B. Hum. Rts. 147, 154 (1993).

[18]:See Michael K. Addo and Nicholas Grief, Is There a Policy Behind the Decisions and Judgments Relating to Article 3 of the European Convention on Human Rights, 20 Eur. L. Rev. 178, 189 (1995).

[19] U.N. Comm’n Hum. Rts., 42d Sess., Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Rep. of the Special Rapporteur, ¶ 35, U.N. Doc. E/CN.4/1986/15 (Feb. 19, 1986). The report notes that this list is non-exhaustive. Id. See also U.N. General Assembly, Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Interim Rep. of the Special Rapporteur, ¶¶ 52-69, U.N. Doc. A/63/175 (July 28, 2008) (recognizing the harmful physical and mental effects of prolonged solitary confinement and the physical, mental, and sexual violence facing people with disabilities); U.N. H.R.C., Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Rep. of the Special Rapporteur, ¶ 64 n.54, U.N. Doc. A/HRC/10/44 (Jan. 14, 2009) (noting that forcible testing for HIV or hepatitis C can cause both physical pain and mental suffering in violation of Article 3 and citing the European Court’s decision in Jalloh v. Germany, App. No. 54810/00, 2006 Eur. Ct. H.R. 721).

[20] Matter of G-A-, 23 I&N Dec. 366, 370 (BIA 2002).

[21] See, e.g., Chowdhury v. Worldtel Bangladesh Holding, Ltd., 746 F.3d 42, 51 (2d Cir. 2014) (noting that “not all conduct falling under the journalistic and political rubric of ‘police brutality,’ . . . cannot be described as ‘torture,’” but finding that electric shocks, if sufficiently severe, constitute torture); Amanfi v. Ashcroft, 328 F.3d 719 (3d Cir. 2003); Al-Saher v. INS, 268 F.3d 1143 (9th Cir. 2001). But see Cadet v. Bulger, 377 F.3d 1173, 1194-95 (11th Cir. 2004) (finding that beating of prison inmates in Haiti with sticks and belts, although physically serious, was not sufficiently severe to amount to torture). Although the context in which such beatings take place may add or detract from their severity, several courts have found that the essential differences between severe beatings that constitute torture and those that do not lie in other elements of the torture definition. See, e.g., Vitug v. Holder, 723 F.3d 1056, 1065 (9th Cir. 2013); Zubeda v. Ashcroft, 333 F.3d 463, 473 (3d Cir. 2003) (noting that, to find that rape or domestic violence constitutes torture, the court must also consider “the intent of the persecutor(s),” the reasons for the harm and “whether it will likely be inflicted with the knowledge or acquiescence of a public official with custody or control over the victim”) (internal citations omitted).

[22] For fuller discussion, see Anker, supra note 1, at §§ 7:21-7:25.

[23] See, e.g., Rhonda Copelon, Recognizing the Egregious in the Everyday: Domestic Violence as Torture, 25 Colum. Hum. Rts. L. Rev. 291, 320-22 (1994).

[24] U.N. Comm’n Hum. Rts., 42d Sess., Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment: Rep. of the Special Rapporteur, ¶ 119 , U.N. Doc. E/CN.4/1986/15 (Feb. 19, 1986).

[25] See, e.g., Campbell and Cosans v. United Kingdom, App. Nos. 7511/76, 7743/76, 1982 Eur. Ct. H.R. (ser. A) at 26 (noting that threats of torture or inhuman treatment could, under some circumstances, constitute torture or inhuman treatment). See Sharvit, supra note 17, at 157; Burgers & Danelius, supra note 1, at 29-30.

[26] 18 U.S.C.§ 2340 (2017)

[27] See, e.g., Pierre v. Gonzales, 502 F.3d 109, 117-18 (2d Cir. 2007) (recognizing that a threat of torture can inflict mental pain, whether or not the threat is subsequently carried out); Nwaokolo v. INS, 314 F.3d 303, 309 (7th Cir. 2002) (citing the psychological effects of female genital mutilation). See also Jo v. Gonzales, 458 F.3d 104, 109 (2d Cir. 2006) (finding that “[t]he regulations’ definition of torture makes clear that for the infliction of mental pain to constitute torture, that pain must have its origin in the actual or threatened infliction of harm on a person” and thus deprivations of personal property cannot constitute torture).

[28]Comollari v. Ashcroft, 378 F.3d 694, 697 (7th Cir. 2004).

[29] Habtemicael v. Ashcroft, 370 F.3d 774, 782 (8th Cir. 2004).

[30] See, e.g., Wouters, supra note 2, at 443 (citing Burgers & Danelius, supra note 1, at 118). Cf. Nowak & McArthur, supra note 1, at 23 (“purpose need not be read into the requirement that pain or suffering be “intentionally inflicted” because it is explicitly provided for in the further requirement that the pain or suffering be inflicted for a prohibited purpose”). “[The] purposes listed imply that other purposes must have something in common with those explicitly listed . . . . [T]he purpose element should be understood to be the existence of some – even remote – connection with the interests or policies of the State and its organs, as the primary objective of the Convention is to eliminate torture committed by or under the responsibility of public officials for purposes connected with their public functions.” Wouters, supra note 2, at 444 (citing Burgers & Danelius, supra note 1, at 118-19).

[31] Burgers & Danelius, supra note 1, at 118 (“[W]here pain and suffering is the result of an accident or of mere negligence, the criteria for regarding the act as torture are not fulfilled.”).

[32] See U.N. Comm. Against Torture, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Gen. Cmt. No. 2, ¶ 9, U.N. Doc. CAT/C/GC/2 (Jan. 24, 2008) (“In particular . . . that elements of intent and purpose in Article 1 do not involve a subjective inquiry into the motivations of the perpetrators, but rather must be objective determinations under the circumstances.”); Wouters, supra note 2, at 443. See also Copelon, supra note 23, at 325 (“The intent required under the international torture conventions is simply the general intent to do that act which clearly or foreseeably causes terrible suffering.”). But cf. Oona Hathaway et al., Tortured Reasoning: The Intent to Torture Under International and Domestic Law, 52 Va. J. Int’l L. 791, 802 (2012) (“[P]urpose need not be read into the requirement that pain or suffering be ‘intentionally inflicted’ because it is explicitly provided for in the further requirement that the pain or suffering be inflicted for a prohibited ‘purpose.’”).

[33] See, e.g., Wouters, supra note 2, at 444. Cf. Burgers & Danelius, supra note 1, at 118; Copelon, supra note 23, at 325; Irene Scharf, Un-Torturing the Definition of Torture and Employing the Rule of Immigration Lenity, 66 Rutgers L. Rev. 1, 24-25 (2013); Aditi Bagchi, Intention, Torture and the Concept of State Crime, 114 Penn State L. Rev. 1, 44-47 (2009) (critique of use of specific intent as understood in criminal law, because prohibition of torture concerns state responsibility, not punishing individual for criminal act: purpose in aiding victims means that the requirement of intentionality more closely resembles tort law than criminal law; interpretation of intent in the CAT should not place impossible burden on victims to prove that a perpetrator in the future will have a specific intent to inflict severe pain or suffering). But see Hathaway et al., supra note 32, at 801 (arguing that U.S. requirement of specific intent is consonant with international law).

[34] Another example is the U.S’ often improper interpretation of the Article 1 requirement that torture be “with the consent or acquiescence of a public official acquiescence.” See Steven H. Schulman, Judge Posner’s Roadmap for Convention Against Torture Claims When Central American Governments Cannot protect Citizens Against Gang Violence, 19  St Mary’s L. Rev. 297, 306, http://www.scholarlawreview.org; Anker, supra note 1, at § 7.

[35] Nowak & McArthur, supra note 1, at 74; Burgers & Danelius, supra note 1, at 41. See also Copelon, supra note 23, at 325 (noting explicit rejection of proposals requiring deliberate, malicious, or systematic infliction of torture).

[36] Keith Highet et al., British Commonwealth Case Note; Jamaica—Death Penalty—Definition of Torture and Inhuman or Degrading Treatment or Punishment, 88 Am. J. Int’l L. 775, 780 (1994)

[37] Wouters, supra note 2, at 222-24 (citing Selmouni v. France, App. No. 25803/94, Eur. Ct. H.R. (1999); Ilascu et al. v. Moldova and Russia, App. No. 48787/99, Eur. Ct. H.R. (2004)).

[38] Canada Immigration and Refugee Board, Consolidated Grounds in the Immigration and Refugee Protection Act: Person in Need of Protection Danger of Torture, IRB Legal Serv. 39 (May 15, 2002).

[39] Some have questioned the relevance of the jurisprudence of the international criminal courts in this context. See Bagchi, supra note 33, at 8-9.

[40] Prosecutor v. Delalic, Case No. IT-96-21-T, Trial Chamber Judgment ¶ 345 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 1998).

[41] Prosecutor v. Kunarac, Case Nos. IT-96-23 and IT-96-23/1-A, Appeals Chamber Judgment ¶ 511, Int’l Crim. Trib. for the Former Yugoslavia June 12, 2002); see also Prosecutor v. Limaj, Case No. IT-03-66-T, Trial Chamber Judgment, ¶ 238 (Int’l Crim. Trib. for the Former Yugoslavia Nov. 16, 1993).

[42] See, e.g., Prosecutor v. Kunarac, supra note 41, at ¶ 153 (“[E]ven if the perpetrator’s motivation is entirely sexual, it does not follow that the perpetrator does not have the intent to commit an act of torture or that his conduct does not cause severe pain or suffering, whether physical or mental, since such pain or suffering is a likely and logical consequence of his conduct.”).

[43] See, e.g., Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Trial Chamber Judgment ¶ 520 (Int’l Crim. Trib. for Rwanda Sept. 2, 1998) (finding that the defendant had the specific intent to commit genocide where “he knew or should have known that the act committed would destroy, in whole or in part, a group”).

[44] 8 C.F.R. §§ 208.18(a)(5), 1208.18. See also Scharf, supra note 33, at 2 (“[T]he United States interpreted the definition of the torture differently from the more than 153 other signatories, by adding a requirement that torture be ‘specifically intended.’”).

[45] Torture Convention, supra note 3; see also S. Exec. Rep. 101-30, at 9, 36 (1990).

[46] See Anker, supra note 1, at § 7:2; see also Staff of Senate Comm. on Foreign Relations, 95th Cong., 1st Sess., The Role of the Senate in Treaty Ratification 5, 8 (Comm. Print 1977); Louis B. Henkin, Foreign Affairs and the United States Constitution 180-81 (2d ed. 1996); Curtis A. Bradley and Jack L. Goldsmith, Treaties, Human Rights, and Conditional Consent, 149 U. Pa. L. Rev. 399, 401-02 (2000) (discussing the validity and enforceability of reservations, understandings, and declarations).

[47] See Auguste v. Ridge, 395 F.3d 123, 143 n.20 (3d Cir. 2005) (“We also believe it to be telling that both Presidents Reagan and Bush submitted the condition interpreting Article 1 with the ‘specifically intended’ language as an understanding, and not as a reservation or declaration. This suggests to us that the commonly understood meaning at the time of ratification was that, at least to the United States, the specific intent standard was consistent with a reasonable interpretation of the language in Article 1.”); see also Nowak & McArthur, supra note 1, at 74 (“The U.S. Government ratified the Convention with the explicit understanding that, in order to constitute torture, an act must be specifically intended to inflict severe physical or mental pain or suffering. This interpretation does, however, not seem to go beyond the requirement of intention as spelled out in the text of Article 1.”) (internal quotation marks omitted).

[48] See Vienna Convention, supra note 12, arts. 18-19; see also Wouters, supra note 2, at 6-13.

[49] Matter of J-E- 23 I&N Dec. 291, 299-300 (BIA 2002). Circuit court cases following J-E- include: Abdoulaye v. Holder, 721 F.3d 485, 490 (7th Cir. 2013); Y.V.Z. v. Att’y Gen., 492 Fed. App’x. 291, 294 (3d Cir. 2012); Pierre v. Att’y Gen., 528 F.3d 180, 186-88 (3d Cir. 2008); Pierre v. Gonzales, 502 F.3d 109, 116-17 (2d Cir. 2007); Cadet v. Bulger, 377 F.3d 1173, 1193 (11th Cir. 2004); Elien v. Ashcroft, 364 F.3d 392, 399 (1st Cir. 2004).

[50] Matter of J-E-, 23 I&N Dec. at 304.

[51] Id. at 293.

[52] Id. at 299-300; c.f. Matter of G-A-, 23 I&N Dec. 366, 2002 WL 968630 (BIA 2002) (en banc) (finding that torture in Iranian prisons is intentionally inflicted and granting Torture Convention protection to an Armenian Christian who would have faced almost certain detention and torture in Iran based on his identity as a non-Muslim minority).

[53] Matter of J-E-, 23 I&N Dec. at 316 (Rosenberg and Espenoza, dissenting) (“Nowhere does the regulation state that the respondent must prove that the prospective torture he may face will result from the torturer’s specific intent to torture him. Indeed, it would be difficult, if not impossible, to prove specific intent in a prospective context.”).

[54] Id. at 307 (Schmidt, Guendelsberger, Brennan, Espenoza and Osuna, dissenting) (“The majority errs by concluding that because the Haitian authorities do not have a specific intent to subject returnees to severe physical or mental pain or suffering, the treatment does not rise to the level of torture. These authorities have continued the policy of detaining returnees with the full knowledge, as documented by the State Department and international organizations, that returnees will be forced to endure horrific prison conditions as well as starvation, beatings, and other forms of physical abuse.”).

[55] Id.

[56] See, e.g, Attkins v. Virgina, 536 U.S. 304, 316 n.21 (2002) (noting in its determination that the use of the death penalty on the mentally ill constituted cruel and unusual punishment and that, “within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved”).; Olympic Airways v. Husain, 540 U.S. 644, 658 (2004) (Scalia, J., dissenting) (“When we interpret a treaty, we accord the judgments of our sister signatories ‘considerable weight’”).

[57] INS .v. Cardoza-Fonseca, 480 U.S.421 (1987).

[58] Negusie v. Holder, 555 U.S. 511, 537 (2009) (Stevens J., concurring in part) (noting that, “When we interpret treaties, we consider the interpretations of the courts of other nations . . . .”).

 

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