[Federal Register Volume 64, Number 38 (Friday, February 26, 1999)]
[Rules and Regulations]
[Pages 9435-9437]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-4560]
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DEPARTMENT OF STATE
22 CFR Part 95
[Public Notice 2991]
Office of the Secretary; Implementation of Torture Convention in
Extradition Cases
AGENCY: Department of State.
ACTION: Final rule.
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SUMMARY: The Department of State issues these regulations implementing
the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, as required by section 2242 of the Foreign
Affairs Reform and Restructuring Act of 1998, Public Law 105-277.
Article 3 of the Torture Convention prohibits, among other things,
the extradition of a person to a State if there are ``substantial
grounds for believing'' that the individual ``would be in danger of
being subjected to torture'' in that State. In its instrument of
ratification to the Torture Convention, the United States included an
understanding that the Article 3 standard means that the person would
be ``more likely than not'' to be tortured if extradited to that
requesting State. This rule records procedures currently in place for
considering the question of torture in appropriate cases when the
Secretary of State determines whether to sign a warrant surrendering a
fugitive for extradition.
DATES: Effective date: February 26, 1999.
[[Page 9436]]
FOR FURTHER INFORMATION CONTACT: Samuel L. Witten, Assistant Legal
Officer, Office of Law Enforcement and Intelligence, Office of the
Legal Adviser, Department of State, 202-647-7324.
SUPPLEMENTARY INFORMATION: This rule implements certain obligations in
the context of extradition undertaken by the United States as party to
the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment (``Torture Convention''). Article 3 of the
Torture Convention provides that no State party ``shall expel, return
(`refouler') or extradite a person to another State where there are
substantial grounds for believing that he would be in danger of being
subjected to torture.'' Promulgation of the rule is required by section
2242 of the Foreign Affairs Reform and Restructuring Act of 1998, P.L.
105-277, which provides that, not later than 120 days after the date of
enactment of that Act, ``the heads of the appropriate agencies shall
prescribe regulations to implement the obligations of the United States
under Article 3 of the [Torture Convention], subject to any
reservations, understandings, declarations, and provisos contained in
the United States Senate resolution of ratification of the
Convention.''
Pursuant to sections 3184 and 3186 of Title 18 of the United States
Criminal Code, the Secretary of State is the U.S. official responsible
for determining whether to surrender a fugitive to a foreign country by
means of extradition. In order to implement the obligation assumed by
the United States pursuant to Article 3 of the Convention when making
this determination, the Department considers, when appropriate, the
question of whether a person facing extradition from the U.S. ``is more
likely than not'' to be tortured in the State requesting extradition.
These regulations record the already existing procedures followed in
this consideration.
Section 95.1 provides definitions for key terms. Subsection (b)
defines ``torture,'' incorporating the definition from the Torture
Convention and the understandings included in the Instrument of
Ratification.
The definition set forth in subparagraph (b)(1) provides that
torture includes the intentional infliction of severe pain or suffering
on a person, whether physical or mental, for purposes such as obtaining
from that person or a third person information or a confession;
punishing that person for an act he or a third person has committed or
is suspected of having committed; or intimidating or coercing that
person or a third person; or for any reason based on discrimination of
any kind.
The definition also limits torture to situations where the
treatment 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. Subparagraph (4) further provides in this respect
that torture applies only to acts directed against persons in the
offender's custody or physical control; the term ``acquiescence'' is
further defined in subparagraph (5) to mean that the public official,
prior to the treatment at issue, must be aware of the activity and
thereafter breach his or her legal responsibility to intervene to
prevent such activity.
The final sentence in subparagraph (1) provides that torture does
not include pain or suffering arising only from, inherent in or
incidental to lawful sanctions. The term ``lawful sanctions'' is
further defined in subparagraph (6) which provides that it includes
judicially imposed sanctions and other enforcement actions authorized
by law, provided that such sanctions or actions were not adopted in
order to defeat the object and purpose of the Convention to prohibit
torture.
Subparagraph (b)(2) requires that the act be specifically intended
to inflict severe physical or mental pain or suffering and provides
that mental pain or suffering refers to prolonged mental harm caused by
or resulting from certain enumerated actions. Subparagraph (3) provides
that noncompliance with applicable legal procedural standards does not
per se constitute torture.
Subparagraph (7) makes clear that the term ``torture'' refers to an
extreme form of cruel and inhuman treatment. As reflected in the title
to the Convention, torture does not include lesser forms of cruel,
inhuman or degrading treatment or punishment.
On the standard established in Article 3 of the Torture Convention,
paragraph (c) records the U.S. understanding from the Instrument of
Ratification that ``[w]here there are substantial grounds for believing
that [a fugitive] would be in danger of being subjected to torture''
means ``if it is more likely than not that the fugitive would be
tortured.''
Paragraph (d) reflects the fact that all decisions on extradition
are made by the Secretary (including an Acting Secretary in the
Secretary's absence) or the Deputy Secretary, by delegation. For ease
of reference, the term Secretary as used in the rule includes the
Deputy Secretary.
Subsection 95.2 entitled ``Application'' sets forth the relevant
provisions of the Convention and describes the Secretary's authority
under 18 U.S.C. 3184 and 3186 to determine whether to surrender a
fugitive for extradition to a foreign country. It also explains that it
is in the context of making this decision that the Department considers
the question of likelihood that a given individual will be tortured.
Subsection 95.3 reflects the statutory framework in which decisions
on extradition are presented to the Secretary only after a fugitive has
been found extraditable by a United States judicial officer. This
subsection explains that appropriate policy and legal offices in the
Department review and analyze relevant information in cases where
allegations relating to torture are made or the issue is otherwise
brought to the Department's attention in preparing a recommendation to
the Secretary as to whether or not to sign the surrender warrant. Once
this analysis is complete, the Secretary may decide to surrender the
fugitive to the requesting State, to deny surrender of the fugitive, or
to surrender the fugitive subject to conditions.
Subsection 95.4 sets forth the fact that decisions of the Secretary
concerning surrender of fugitives for extradition are matters of
executive discretion not subject to judicial review. The statute
requiring publication of this rule also provides that, notwithstanding
any other provision of law, no court shall have jurisdiction to review
these regulations, and nothing in that statute shall be construed as
providing any court jurisdiction to consider or review claims raised
under the Torture Convention or that statute, or any other
determination made with respect to the application of the policy set
forth in that statute. The statute provides for two exceptions to this
lack of jurisdiction, neither of which is relevant here. The first is
for review of a final order of removal pursuant to section 22 of the
Immigration and Nationality Act, which is not applicable to
extradition. The second allows for the possibility that the regulations
themselves might provide for review; this rule does not do so.
This rule involves a foreign affairs function of the United States
and thus is excluded from the procedures of Executive Order 12866 (58
FR 51735) and 5 U.S.C. 553 and 554, but has been reviewed internally by
the Department to ensure consistency with the purposes thereof.
List of Subjects in 22 CFR Part 95
Extradition, Torture Treaties
[[Page 9437]]
For the reasons set out in the preamble, 22 CFR part 95 is added to
subchapter J as follows:
PART 95--IMPLEMENTATION OF TORTURE CONVENTION IN EXTRADITION CASES
Sec.
95.1 Definitions.
95.2 Application.
95.3 Procedures.
95.4 Review and construction.
Authority: 18 U.S.C. 3181 et seq.; Convention Against Torture
and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Sec. 95.1. Definitions.
(a) Convention means the United Nations Convention Against Torture
and Other Forms of Cruel, Inhuman or Degrading Treatment or Punishment,
done at New York on December 10, 1984, entered into force for the
United States on November 10, 1994. Definitions provided below in
paragraphs (b) and (c) of this section reflect the language of the
Convention and understandings set forth in the United States instrument
of ratification to the Convention.
(b) Torture means:
(1) 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.
(2) In order to constitute torture, an act must be specifically
intended to inflict severe physical or mental pain or suffering and
that mental pain or suffering refers to 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 procedures calculated
to disrupt profoundly the senses or personality.
(3) Noncompliance with applicable legal procedural standards does
not per se constitute torture.
(4) This definition of torture applies only to acts directed
against persons in the offender's custody or physical control.
(5) The term ``acquiescence'' as used in this definition requires
that the public official, prior to the activity constituting torture,
have awareness of such activity and thereafter breach his or her legal
responsibility to intervene to prevent such activity.
(6) The term ``lawful sanctions'' as used in this definition
includes judicially imposed sanctions and other enforcement actions
authorized by law, provided that such sanctions or actions were not
adopted in order to defeat the object and purpose of the Convention to
prohibit torture.
(7) Torture is an extreme form of cruel and inhuman treatment and
does not include lesser forms of cruel, inhuman or degrading treatment
or punishment.
(c) Where there are substantial grounds for believing that [a
fugitive] would be in danger of being subjected to torture means if it
is more likely than not that the fugitive would be tortured.
(d) Secretary means Secretary of State and includes, for purposes
of this rule, the Deputy Secretary of State, by delegation.
Sec. 95.2 Application.
(a) Article 3 of the Convention imposes on the parties certain
obligations with respect to extradition. That Article provides as
follows:
(1) No State party shall expel, return (``refouler'') or extradite
a person to another State where there are substantial grounds for
believing that he would be in danger of being subjected to torture.
(2) For the purpose of determining whether there are such grounds,
the competent authorities shall take into account all relevant
considerations including, where applicable, the existence in the State
concerned of a consistent pattern of gross, flagrant or mass violations
of human rights.
(b) Pursuant to sections 3184 and 3186 of Title 18 of the United
States Criminal Code, the Secretary is the U.S. official responsible
for determining whether to surrender a fugitive to a foreign country by
means of extradition. In order to implement the obligation assumed by
the United States pursuant to Article 3 of the Convention, the
Department considers the question of whether a person facing
extradition from the U.S. ``is more likely than not'' to be tortured in
the State requesting extradition when appropriate in making this
determination.
Sec. 95.3. Procedures.
(a) Decisions on extradition are presented to the Secretary only
after a fugitive has been found extraditable by a United States
judicial officer. In each case where allegations relating to torture
are made or the issue is otherwise brought to the Department's
attention, appropriate policy and legal offices review and analyze
information relevant to the case in preparing a recommendation to the
Secretary as to whether or not to sign the surrender warrant.
(b) Based on the resulting analysis of relevant information, the
Secretary may decide to surrender the fugitive to the requesting State,
to deny surrender of the fugitive, or to surrender the fugitive subject
to conditions.
Sec. 95.4 Review and construction.
Decisions of the Secretary concerning surrender of fugitives for
extradition are matters of executive discretion not subject to judicial
review. Furthermore, pursuant to section 2242(d) of the Foreign Affairs
Reform and Restructuring Act of 1998, P.L. 105-277, notwithstanding any
other provision of law, no court shall have jurisdiction to review
these regulations, and nothing in section 2242 shall be construed as
providing any court jurisdiction to consider or review claims raised
under the Convention or section 2242, or any other determination made
with respect to the application of the policy set forth in section
2242(a), except as part of the review of a final order of removal
pursuant to section 242 of the Immigration and Nationality Act (8
U.S.C. 1252), which is not applicable to extradition proceedings.
Dated: February 18, 1999.
Strobe Talbott,
Deputy Secretary of State.
[FR Doc. 99-4560 Filed 2-25-99; 8:45 am]
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