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HISTORY & DOCUMENTS
UNITED STATES LAWS
THAT ADDRESS TORTURE
REFUGEES, OR ASYLUM SEEKERS
- Alien Tort Statute, 1789
- Refugee Act, 1980
- Torture Victim Protection Act, 1991
- Torture Victims Relief Act, 1998
Alien Tort Statute, 1789 — Also known as the Alien Tort Claims Act, this law allows non-U.S. citizens to bring civil suits in U.S. federal court against those who violate “the law of nations or a treaty of the United States.” In 1980 courts began to accept that the “law of nations” applied to human rights abuses and have since permitted suits against foreign nationals based on claims of torture, prolonged arbitrary detention, war crimes, crimes against humanity, genocide and other abuses. In 2004 the U.S. Supreme Court, in its ruling on the case of Sosa v. Alvarez-Machain, affirmed the application of the ATS in prosecuting human rights abusers.
Refugee Act, 1980 — This law established programs to provide for the effective resettlement of refugees and to assist them in making the transition to life in the United States and achieving economic self-sufficiency as quickly as possible. Program services include employment and English-language training.
Torture Victim Protection Act, 1991 — This law allows U.S. citizens and non-citizens alike to file civil suits for claims of torture and extrajudicial killing. Unlike the Alien Tort Statute, it is limited to these two claims, and it requires that cases be brought within 10 years of the time the abuses occurred. However, it does not limit the scope of the ATS, which is still available for other violations of the “law of nations,” and non-citizen plaintiffs often present claims under both statutes.
Torture Victims Relief Act, 1998 — This law authorizes the U.S. government to provide grants to U.S. programs to cover the cost of services for the physical and psychological rehabilitation of torture victims, along with social and legal services, and to cover research and training for health care providers outside of treatment centers. It also authorizes the provision of grants for centers and programs in foreign countries for the treatment of victims of torture.
INTERNATIONAL LAWS, TREATIES, AND
TORTURE, TORTURE SURVIVORS,
REFUGEES, OR ASYLUM SEEKERS
Ever since the establishment of the League of Nations following World War I, countries have worked together to protect the human, civil and political rights of people around the world. Below are descriptions of someof the key international agreements and instruments. The index (bulleted list) lists the documents in alphabetical order, while the descriptive paragraphs that follow are in chronological order by date of adoption, to illustrate how human rights law has developed.
International treaties and agreements include several categories of human rights instruments that serve political or legal purposes among states or members of international organizations. Declarations are statements of political positions adopted by national or international bodies such as the United Nations General Assembly. Because declarations are not signed by individual countries, they are not legally enforceable, but they do provide member states with standards of conduct for which they are politically accountable. Conventions do require state signatories and are enforceable under international law. Many conventions establish oversight bodies or mechanisms to hold signatories accountable to the agreement terms. Statutes are annexed or subsidiary to an agreement or treaty and may establish an international body to oversee a particular agreement or specific interest of the international community. Other tools provide practical guidelines or standards of conduct for states’ military and governing bodies. In most cases, international bodies may only advocate the use of these tools and enforce their use by political means, however if a convention or resolution requires the use of these guidelines they may be legally binding.
American Declaration of the Rights and Duties of Man, 1948 — The Ninth International Conference of American States, held in Bogotá, Columbia in 1948, created the Organization of American States and adopted the first official international human rights instrument, the American Declaration of the Rights and Duties of Man.The declaration preceded the United Nations' Universal Declaration of Human Rights by nearly seven months.
The declaration is unique in that it outlines not only the rights afforded to citizens of the Americas but also the duties of those citizens.Chapter one of the declaration lists civil and political as well as economic, social and cultural rights, and chapter two outlines the corresponding duties of those rights, including the duty to vote and pay taxes.
The American Declaration laid the foundation for the Inter-American Human Rights system.Although the subsequent American Convention on Human Rights is more comprehensive, the system’s two supervisory bodies — the Inter-American Court of Human Rights and the Inter-American Commission on Human Rights — continue to enforce the declaration’s provisions, especially in regard to states that have yet to ratify the convention.
The declaration was adopted by the OAS member countries, which include the United States.
Universal Declaration of Human Rights, 1948 — Drafted by the U.N. Commission on Human Rights and ratified by the General Assembly without dissent, the Universal Declaration of Human Rights joins the familiar rights to life, liberty, property, security of person, equality before the law, due process, and freedom of thought and expression with more polemic rights such as social security, education, just pay and an adequate standard of living. Most importantly, the declaration strengthens the position of the individual before the state.
Article 5 forbids torture and other cruel, inhuman or degrading treatment.Article 14provides that everyone has the right to seek and enjoy asylum. The Universal Declaration of Human Rights was the first document of a set known as the International Bill of Human Rights. Two more legally binding documents, the International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights, were not approved by the General Assembly until 1966.
This declaration was adopted by the U.N. general Assembly, which includes the United States.
Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — This U.N. convention, which grew out of the Nuremberg trials following World War II, covers certain actions “committed with the intent to destroy, in whole or in part, a national, ethnic, racial or religious group…” but excludes political and social groups.Thus, an event like the Cambodian massacres (now recognized as a de facto genocide), which targeted intellectuals and the middle class, would not be considered genocide according to the convention.
The acts covered in the convention, which entered into force in 1951, include not only the physical destruction of groups but also cultural destruction, such as prohibiting the use of a native language or the forced transfer of children, and biological destruction, such as forced pregnancy (rape) and forced sterilization.The convention also requires intent to destroy particular groups for acts to be considered genocide.Therefore, killing hundreds of thousands of civilians during wartime is not considered genocide because it does not involve a specific intent to destroy a particular group.
There are 135 states party to the Genocide Convention, including the United States.
The Geneva Conventions, 1949 — The Geneva Conventions are a set of international treaties governing conduct in warfare. The first convention, inspired by Red Cross founder Henri Dunant and signed in 1864 by 14 nations, was designed to protect the sick and wounded during wartime. Subsequent conventions were signed in 1906 and 1929. However, what is often referred to as the "Geneva Conventions" are the four conventions ratified by the United Nations in 1949 and two additional protocols of 1977. Today a total of 190 countries, including the United States are party to the Geneva Conventions of 1949.
The four 1949 Geneva Conventions set forth protections for members of the armed forces who become sick or wounded in the field, extend those protections to members of the naval forces, list rights for prisoners of war, and establish protections for civilian populations in times of war. This fourth convention specifies that civilian noncombatants, including detainees, should not be subjected to acts of violence — including murder, cruel treatment and torture; hostage taking; humiliating and degrading treatment; and extrajudicial killing.
The Geneva Conventions apply to all cases of declared war or other armed conflict among member countries, even if all do not recognize the state of war. The conventions also apply to all parties engaged in civil war within a member country and to cases of territorial occupation, even if that occupation meets with no armed resistance.
The 1977 protocols expand the application of the conventions to include victims of armed conflicts fighting "against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination,” and victims of internal conflicts in which armed opposition has sufficient control to carry out sustained military operations.
Statute of the Office of the United Nations High Commissioner for Refugees, 1950 — This statute establishes the position of the U.N. High Commissioner for Refugees, who, acting under the authority of the General Assembly, is responsible for providing international protection to refugees and seeking permanent solutions for refugees by assisting governments and private organizations to facilitate either the voluntary repatriation of refugees or their assimilation within new national communities.
Convention Relating to the Status of Refugees, 1951 — This U.N. convention, which entered into force in 1954, establishes the rights of refugees and the standards for their treatment in the countries that receive them. It defines “refugee” as “any person who … owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself to the protection of that country…” The convention also defines who does not qualify as a refugee (e.g., war criminals).
As of December 2007, there are 147 signatories to either or both the Convention and Protocol. The United States is party only to the Protocol, which it signed on November 1, 1968. View a complete list of parties to the convention.
Organization of American States Convention on Territorial Asylum, 1954 — This OAS convention affirms the principle of freedom of movement and right to asylum. It states that no ratifying country is obligated to expel from its territory or surrender to another country persons persecuted for political reasons or offenses, and that the right of extradition is not applicable in connection with persons who are sought for political offenses, or for common offenses committed for political ends, or when extradition is solicited for predominantly political motives. It also generally forbids a country from dictating how another country may treat its refugees and political asylees.
The OAS convention is not ratified by the U.S., Canada or many other member states. Countries that signed with specific articulated reservations related to their existing national law include Guatemala, Dominican Republic, Mexico, Peru, Honduras and Argentina.
Organization of American States Convention on Diplomatic Asylum, 1954 — This OAS convention gives ratifying countries the right to grant asylum in any seat of a regular diplomatic mission, war vessels, military camps or aircraft to persons being sought for political reasons or political offenses. The OAS convention is not ratified by the U.S., Canada or many other member states. Countries that signed with specific articulated reservations related to their existing national law: Guatemala, Uruguay, Dominican Republic, Honduras
Standard Minimum Rules for the Treatment of Prisoners, 1955 — Adopted by the first U.N. Congress on the Prevention of Crime and the Treatment of Offenders, this set of rules lays out what is generally accepted as good principle and practice in the treatment of prisoners and the management of institutions. In regard to refugees, it stipulates that they should be allowed to communicate with the diplomatic representative of the state that takes charge of their interests or any national or international authority whose task it is to protect them. No ratification or signatories are required for this document.
International Convenant on Civil and Political Rights, 1966 — One of two principal human rights covenants adoptedby the United Nations subsequent to the Universal Declaration of Human Rights, the covenant emphasizes individual rights as opposed to collective or group rights.Countries who have signed the ICCPR, which entered into force in 1976, must guarantee certain fundamental human rights to all of their citizens.
Under the ICCPR, citizens are granted freedom of religion, thought and conscience, freedom of expression, the right to assemble peacefully, and the right to participate in the political life of their country.The covenant protects the right to life and physical integrity, including a prohibition on torture and other cruel, inhuman or degrading treatment. Detainees must be treated according to their inherent dignity, and any arbitrary deprivation of liberty is prohibited.Persons are guaranteed a fair and public hearing, equality before the law, and the right to compensation in the event of unlawful arrest.Refugees may not be returned to territories where their lives or freedom would be threatened.
There are two optional protocols to the ICCPR, adopted in 1966 and 1989, which countries may elect to sign. The first gives citizens of member states the right to appeal to the U.N. Human Rights Committee if they have exhausted all possible domestic solutions to a rights violation, and the second advocates the abolition of the death penalty.
The United States ratified the covenant in 1992, but did not ratify the optional protocols.
Declaration on Territorial Asylum, 1967 — This U.N. declaration, adopted by the General Assembly, stipulates that a state’s decision to grant asylum to an individual in accordance with the Universal Declaration of Human Rights shall be respected by all other states, and that if a state has difficulty in granting or continuing to grant asylum, other states should consider ways to provide assistance. It also protects asylees from expulsion or compulsory return to a country where they may be subjected to persecution, and allows exceptions “only for overriding reasons of national security or in order to safeguard the population, as in the case of a mass influx of persons.”No ratification or signatories are required.
American Convention on Human Rights, 1969 — Also known as the Pact of San Jose, Costa Rica, this OAS convention reiterates and expands the rights outlined in the earlier American Declaration of the Rights and Duties of Man.The convention, which went into effect in 1978, promotes the right to seek and be granted asylum. It also created the Inter-American Court of Human Rights, one of the two supervisory bodies of the Inter-American Human Rights system. The United States signed the convention on June 1, 1977.
Convention Governing the Specific Aspects of Refugee Problems in Africa, 1969 and Cartagena Declaration on Refugees, 1984 — These regional documents — adopted by the Organization for African Unity and the Colloquium on the International Protection of Refugees in Central America, Mexico and Panama, respectively — expanded the definition of refugees to more realistically account for contemporary root causes of flight, such as war, internal conflict, and massive human rights abuses.
Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 — This convention, which entered into force in 1987, bans torture under any circumstances and calls on governments to prevent and prohibit torture.It defines torture as any intentional act that causes mental or physical pain and suffering and is inflicted for purposes such as obtaining information, coercion, punishment or discrimination. This definition includes acts that are inflicted by a person acting in an official capacity, such as a police officer or military personnel. The convention also includes as victims persons who are forced to observe torture for purposes of intimidation. Under the convention, there is no justification whatsoever for torture, be it war, national emergencies or orders from a superior.
Each member state must provide training to military and law enforcement officials in addition to periodically reviewing its interrogation methods and investigating allegations of torture. Article 3 stipulates that states shall not “expel, return 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.” The convention also created the Committee Against Torture, to which any individual may lodge a complaint. As of December 2007, 142 nations are parties to the convention, with another nine (including the United States) having signed but not yet ratified. View a complete list of the parties to the convention.
Optional Protocol to Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 2002 — The protocol, which entered into force in 2006, establishes a subcommittee to the U.N. Committee Against Torture that serves as an expert international visiting body. This group is allowed to inspect detention areas of all state parties, without prior notice to that country. Such surprise visits are meant to act as a deterrent and means of prevention of torture. As of December 2007, the Optional Protocol has 51 signatories and 20 ratifications. The United States is not a party to the Optional Protocol.
Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 1988 — This set of 39 principles, adopted by U.N. General Assembly resolution, provides for “the protection of all persons under any form of detention or imprisonment.” It mandates humane treatment and respect for an individual’s “inherent dignity” in all circumstances, and unequivocally prohibits torture or other cruel, inhuman or degrading treatment. It provides detained or imprisoned refugees the right to communicate with the representative of a “competent international organization.”
Basic Principles for the Treatment of Prisoners, 1990 — This set of 11 principles, adopted by U.N. General Assembly resolution, provides for the protection of all persons under any form of detention or imprisonment. Among its stipulations are that all prisoners should be treated with respect due to their inherent dignity and value as human beings, that they should retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights, and that they should have access to the health services available in the country without discrimination on the grounds of their legal situation.
Handbook on Procedures and Criteria for Determining Refugee Status Under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, 1979 (reedited 1992) — Because determination of refugee status under the 1951 convention and the 1967 protocol is the responsibility of the state within whose territory the refugee applies for recognition, the U.N. Office of the High Commissioner for Refugees created this handbook as a practical guide to assist state governments in determining the status of refugees.
Guiding Principles on Internal Displacement, 1998 — These guidelines “identify rights and guarantees relevant to the protection of persons from forced displacement and to their protection and assistance during displacement as well as during return or resettlement and reintegration.” Based on international humanitarian and human rights law, they are meant to serve as a standard to guide governments, international organizations and others who provide assistance to internally displaced persons. The U.N. General Assembly and Commission on Human Rights, in unanimously adopted resolutions, have recognized and encouraged their use.
Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment regarding the situation of immigrants and asylum seekers, 1999 — Developed by the U.N. Commission on Human Rights Working Group on Arbitrary Detention, this set of principles provides criteria for determining whether a situation of administrative detention is arbitrary in nature. It indicates that detention of an asylum seeker may be considered arbitrary when it is not subject to judicial review or another appropriate review mechanism, or is for an excessive or unlimited period of time.
Manual on Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1999 — Commonly known as the Istanbul Protocol, this document is the first set of international guidelines for the documentation of torture and its consequences. The manual is intended to provide direction “for the assessment of persons who allege torture and ill-treatment, for investigating cases of alleged torture, and for reporting findings to the judiciary or any other investigative body governments.” Legal, health and human rights experts representing 40 organizations from 15 different countries collaborated on the manual, which was submitted to the U.N. High Commissioner for Human Rights in 1999. The U.N. General Assembly and Commission on Human Rights have issued resolutions advocating its use as a tool to combat torture.
View a complete list of United Nations international human rights law and instruments.
Download the United Nations’ complete Status of Ratifications of the Principal International Human Rights Treaties.
View a complete list of the Organization of American States’ treaties and agreements and the status of their ratification.