The United Nations Convention Against Torture: a self-executing treaty that prevents the removal of persons ineligible for asylum and withholding of removal.

• Author: Rosati, Kristen B.

The crack of the whip, the clamp of the thumb screw, the crush of the iron maiden, and, in these more efficient modern times, the shock of the electric cattle prod are forms of torture that the international order will not tolerate. To subject a person to such horrors is to commit one of the most egregious violations of the personal security and dignity of a human being.(***)

Despite the horrors of persecution that many refugees face if returned to their home countries, United States (U.S.) immigration law has become increasingly restrictive in granting relief to these individuals. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA)(1), which amended the Immigration and Nationality Act (INA), is the latest salvo in the anti-immigration battle and has erected yet another set of barriers to relief for legitimate refugees through such methods as expedited removal, strict filing deadlines, and restrictions on eligibility for asylum and withholding of removal(2) for an increasing number of persons convicted of "aggravated" felonies.

In fact, even convictions for non-violent crimes such as theft, illegal gambling, fraud, forgery, and tax evasion are now classified as aggravated felonies and can result in the denial of asylum and withholding of removal for individuals who face severe persecution at home.(3) The following examples illustrate the harshness of these restrictions.

* An Amerasian refugee was convicted nine years ago of forging a check in the amount of $19.53. She was sentenced to six years in prison but served only six months. Despite the fact that this woman came to the U.S. when she was only four years old and her entire family (including three children) are U.S. citizens, she is ineligible for asylum or withholding because of her "aggravated" felony conviction.

* A teenager who threw a rock through a window of an abandoned building and merely reached into the window, but took nothing, was convicted of burglary and sentenced to five years. Although he served only nine months of his sentence, an immigration judge found him ineligible for asylum or withholding.

* A man, who had been severely tortured by Bulgarian security forces because of his political activities, entered the U.S. as a refugee in 1990. He was later convicted of a robbery involving $10 and possession of drug paraphernalia. He was sentenced to just over five years, served three years and four months, and later was found ineligible for asylum or withholding.

While some avenues of relief are thus closing to refugees, another may be opening for individuals, such as the Bulgarian national, who fear torture if returned to their home country. Claims based on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the Torture Convention)(4) may be a viable alternative for refugees ineligible for asylum and withholding of removal: Article 3 of the Torture Convention prohibits the U.S. from expelling, returning, or extraditing "a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."(5)

While there is currently no legislation or regulation implementing the obligations of the U.S. to prevent the removal or extradition of individuals who are likely to be tortured upon return to their countries of origin, there is an informal administrative procedure exists to grant temporary relief to them under the Torture Convention. If informal administrative relief is not granted, however, advocates can pursue direct enforcement of the Torture Convention in immigration or federal court by demonstrating that Article 3 of the Torture Convention is a "self-executing" treaty provision enforceable in U.S. courts.

This is an important issue for two reasons. First, with the increasing restrictions on relief to legitimate refugees under U.S. immigration law, the Torture Convention, if found self-executing, would provide relief for many individuals otherwise facing the most abhorrent persecution upon return to their country of origin. Whether Article 3 of the Torture Convention is a self-executing treaty provision is an issue of first impression that has neither been addressed by the Board of Immigration Appeals (the "BIA"), nor the federal courts.

Second, whether a treaty provision is self-executing causes extensive confusion in the courts, which have been struggling -- largely unsuccessfully -- to apply the self-execution concept since it was developed in the nineteenth century.(6) The question, of whether individuals directly may enforce the Torture Convention in court, promises to provide an excellent opportunity for the courts to clarify the self-execution doctrine.

Part I explores the relevant provisions of the Torture Convention, discussing the standards for relief from removal and international case law interpreting the Convention. The article then examines the present implementation of Article 3 in the U.S. Part II discusses the informal administrative procedure under which the Immigration & Naturalization Service (the "INS") is considering Torture Convention claims. This part also explores legislation pending in Congress which, if enacted, will mandate the promulgation of formal Torture Convention regulations, but which has the potential for creating exceptions to relief that are inconsistent with the treaty. Part III examines the limited relief granted to date by immigration trial courts to prevent the return of individuals to torture, even where relief under the domestic immigration laws is unavailable.

The article's final section examines whether Article 3 of the Torture Convention is a self-executing treaty provision which may be applied by U.S. courts to prevent the return of an individual to torture. The article discusses four distinct approaches to the self-execution issue that have developed in the federal courts, arguing that under each approach, Article 3 of the Torture Convention is enforceable in domestic courts at the behest of individuals. Moreover, the article advocates for the federal courts to use the Torture Convention to resolve the confusion regarding the self-execution doctrine and to return to the original understanding of the doctrine initially articulated by the Supreme Court.

1. THE TORTURE CONVENTION

   The Torture Convention is a multilateral United Nations (U.N.) treaty which has provisions designed to prevent torture, prosecute torturers, and to compensate victims of torture.(7) The U.S. signed the treaty on April 18, 1988, and the Senate adopted its resolution of advice and consent to ratification on October 27, 1990.(8) The U.S. did not become a full party to the treaty until November 1994, one month after President Clinton deposited the ratification with the United Nations Secretary General.(9)

   Article 3 of the Torture Convention prohibits the return of any person to a country where there are substantial grounds for believing that he or she would be in danger of being tortured:

   (1) No State Party shall expel, return ("refouler")(10) 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. A. "Substantial Grounds" for Believing a Person Would Be Tortured

   Article 3 prohibits the return of a person "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Under the Senate "understandings" to its resolution of advice and consent to ratification,(11) the Senate stated that "substantial grounds for believing" means that a person must demonstrate that it is "more likely than not that he would be tortured,"(12) equivalent to the standard for withholding of removal.

   The anticipation of "cruel, inhuman or degrading treatment or punishment" does not prevent a person's return. While Article 16 of the Torture Convention provides that "[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1," the Article 3 protection against refoulement applies only where an individual is likely to be tortured.

   2. The Definition of "Torture"

      Article 1 of the Torture Convention defines torture as: [A]ny 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. Accordingly, three elements are needed to establish "torture." First, it must be severe pain or suffering, either physical or mental. The inclusion of mental pain and suffering in the definition of torture is essential: many of the most barbaric and damaging tortures are psychological, such as mock executions or prolonged detention with sensory deprivation. In the understandings to its resolution of advice and consent to ratification, the Senate clarified the meaning of these terms:

      [M]ental pain or suffering refers to prolonged mental harm caused by or resulting from: (1) the intentional infliction or threatened infliction of severe physical pain or suffering...