UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF FLORIDA
EVANS PAUL, et al.,
Case No. 91-0399
Plaintiffs, (Nesbitt)
-against-
PROSPER AVRIL,
Defendant.
1. Anne-Marie Burley is Assistant Professor of Law at the University of Chicago, where she teaches, among other things, a course on international litigation and arbitration. She has received a M.Phil from Oxford University, a J.D. from Harvard Law School, and will be awarded a D.Phil in International Relations from Oxford University this year. Professor Burley serves as a member of the Executive Council of the American Society of International Law. She is also a member of the International Law Association and has worked, as an assistant to Professor Abram Chayes, on a variety of international cases.
Professor Burley's articles include: The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, 83 Am. J. Intl.. L. 461 (1989): Revolution of the Spirit, 3 Harv. Hum. Rts. J. 1 (1990); and Panel Discussion: Options for a Law-Abiding Policy in Central America, 10 B.C. Third World L.J. 215 (1990). Her article, The Alien Tort Statute and the Judiciary Act of 1789: A Badge of Honor, was awarded the Francis Deak Prize by the American Journal of international Law.
2. Anthony D'Amato is Judd The Theory of Customary International Law, 1988 Proc. Am.Soc. Intl. L. 242; and The Concept of Human Rights in International Law, 82 Colum. L.R. 1110 (1982). His books include: New Entitlements in International Law (forthcoming); International Law: Process and Prospect (1987); International Law and World Order: A Problem Oriented Casebook (with Burns H.Weston and Richard A. Falk) (2d ed. 1990); and The Concept of Custom in International Law (1971).
3. Richard A. Falk is Albert G. Milbank Professor of International Law and Practice at Princeton University. He has received a LL.B. from Yale Law School and a J.S.D. from Harvard Law School. Professor Falk serves or has served on the boards of over 40 international law and international relations organizations and as Vice President of the American Society of International Law. He also serves on the editorial boards of several magazines such as, Foreign Policy Magazine, American Journal of International Law, The Nation, and World Policy Journal. Professor Falk has provided expert testimony in over a dozen cases and in various legislative and administrative hearings.
Professor Falk has written chapters to over 100 books and over 350 articles covering a wide range of subjects, including international law and human rights. In addition, some of his over 30 books include: Revitalizing International Law (1989); Reviving the World Court (1986); Human Rights and State Sovereignty (1981); The Vietnam War and International Law. Vol.I-IV, Richard A. Falk, ed. (1968, 1969, 1972, 1976): Legal Order in a Violent World (1968); and The Role of Domestic Courts in the International Legal Order (1964).
4. Tom J. Farer is Professor of International Relations and Director of the Joint-Degree Program in Law and International Relations at American University. He has received a J.D. from the Harvard Law School. Professor Farer serves or has served as member of the Advisory Council of the United States Institute of Human Rights, Executive Board of the Inter-American Institute for Human Rights, Board of the International League for Human Rights, Board of the International Human Rights Law Group, and Editorial Review Board of the Human Rights Quarterly.
Professor Farer's books include: The Grand Strategy of the United States in Latin America (1988); Toward A Humanitarian Foreign Policy: A Primer for Policy, Tom J. Farer, ed. (1980); The Future of the Inter-American System, Tom J. Farer, ed. (1979). Professor Farer has written over 40 articles and chapters including: Human Rights in Law's Empire: The Jurisprudence War, 85 Am. J. Intl. L. 117 (1991); Human Rights Investment in Hispanic South America: Retrospect and Prospect, 13 Hum. Rts. Q. 99 (1991); The United States and Human Rights in Latin America: On the Eve of the Next Phase, Intl. J., Summer 1988. at 473; The OAS at the Crossroads: Human Rights?, 72 Iowa L. Rev. 401 (1987); and Human Rights and Human Welfare in Latin America, Daedalus, Fall 1983.
5. Thomas M. Franck is Murry Human Rights in Happened to the U.N. Dream and What the U.S. Can Do About It (1985); and Judging the World Court (1986). He received Certificates of Merit from the American Society of International Law for Nation Against Nation and United States Foreign-Relations Law.
6. David Kennedy is Professor of Law and John Harvey Gregory Lecturer on World Organization at Harvard Law School. He has received a J.D. from Harvard Law School and a M.A.L.D. and Ph.D. in International Law from the Fletcher School of Law and Diplomacy. Professor Kennedy has been a Fulbright Fellow in Belgium, an Alexander von Humboldt Stiftung and Sheldon Fellow in Germany, and a joint fellow at the Institute for International Law, Kiel University and the Institute for International Affairs, Hamburg University.
Professor Kennedy's articles include: A New Stream of International Legal Scholarship, 7 Wis. Intl. L.J. 1 (1988); International Legal Structures, Nomos, 1987; The Sources of International Law, 2 Am. U.J. Intl. L. International Refugee Protection, 8 Hum. Rts. Q. 1 (1986); International Legal Education, 26 Harv. Intl. L.J. 361 (1985); Theses About International Legal Discourse, 23 German Yearbook of International Law 353 (1980).
7. Richard B. Lillich is Howard M. Smith Professor of Law at the University of Virginia. He has received a LL.B from Cornell Law School and a LL.M. and J.S.D. from New York University School of Law. Professor Lillich has served as a member of the Executive Council of the American Society of International Law, founder and member of the Advisory Board of the International Human Rights Law Group, member of the Advisory Council of the United States Institute on Human Rights, and member of the Advisory Board of the Urban Morgan Institute of Human Rights. He has also previously served as legal consultant to the Department of Justice and the United States Naval War College and is currently a legal consultant to the Department of State. Professor Lillich has written a vast number of articles on international law topics. He has also written over twenty books including: International Human Rights: Problems of Law. Policy and Practice (2d ed. 1991); The Human Rights of Aliens in Contemporary International Law (1984); International Human Rights Instruments, Richard B. Lillich, ed. (2d ed. 1983); U.S Ratification of the Human Rights Treaties: With or Without Reservations?, Richard B. Lillich, ed. (1981); and Humanitarian Intervention and the United Nations, Richard B. Lillich, ed.(1973).
8. Frank C. Newman is a California Supreme Court Justice (retired) and Jackson H. Ralston Professor of International Law,(emeritus) at University of California School of Law, (Boalt Hall). He was also Dean there from 1961-66. He received an LL.B. from Boalt Hall and the LL.M. and J.S.D. from Columbia University. He has served as counsel or co-counsel in innumerable proceedings that utilize United Nations and other international norms for handling human rights violations and led the first Amnesty International mission to Chile in 1973. He is author or co-author of numerous articles and other writings on law and human rights. His books include: International Human Rights: Law. Policy. International Human Rights: Problems of Law Powers of the Congress and the President in International Relations: Revisited, 75 Cal. L. Rev. 405 (1987): Sovereign Immunity in Perspective, 19 Vand. J. Transnat'1 L. 1 (1986).
10. Philippe J. Sands is a Visiting Professor of Law at New York University and a consultant to Milbank, Tweed, Hadley Decisions of International Tribunals: The Year in Review, 1 Yearbook Int'l Env. L. (1991): Environment. Community and International Law, 30 Harv. Intl. L.J. 393 (1989); and Jus Cogens and International Law 1988 Conn. J. Intl. L. 364 (with M.E. Turpel).
11. David Weissbrodt is Briggs he continues to sit on its board of directors as co-chair.
He has written over 70 books and articles, many of which relate to human rights, including: United States Ratification of the Human Rights Covenants, 63 Minn. L. Rev. 35 (1978); The 1980 U.N. Commission on Human Rights and the Disappeared, 1 Human Rights Q. 18 (1981); Strategies for the Selection and Pursuit of International Human Rights Objectives, 8 Yale J. World Public Order 62 (1981); International Mechanisms Against Arbitrary Killings by Governments, 77 Proc. Am. Soc. Intl. L. 378 (1983); and The Three "Theme" Rapporteurs of the U.N Commission on Human Rights, 80 AJIL 685 (l986); The U.N. Commission on Human Rights (1988) (coauthored with Penny Parker); Professor Weissbrodt is also co-author of a leading casebook on international human rights, F. Newman .U.S. Ratification of the International Covenant on Economic. Social and Cultural Rights: With or Without Qualification? in U.S: Ratification of Human Rights Treaties, R. Lillich, ed. (1981); Human Rights, 20 Encyclopedia Britannica 713 (15th ed. 1986); Regional Human Rights Regimes: A Comparison and Appraisal, 20 Vand. J. Trananat'1 L. (1987); and Human Rights in the World Community: Issues and Action, R. Claude L B. Weston, eds. (1989).
1. Acts of torture; cruel, inhuman, or degrading treatment; and arbitrary detention violate universal, obligatory, and definable norms of international law. These acts are both condemned in and defined by international agreements and state pronouncements. No state claims the right to cause, encourage, or condone torture; cruel, inhuman, or degrading treatment; or arbitrary detention. There is an international consensus that certain acts constitute torture: cruel, inhuman, or degrading treatment; or arbitrary detention.
2. The international law prohibition against torture is universal.
A. Numerous international instruments prohibit torture.
B. The constitutions of over fifty-five nations prohibit torture either explicitly or implicitly. No nation today asserts a right to torture its own or another nation's citizens. That the prohibition against torture is sometimes honored in the breach does not diminish its binding status as a norm of international law.
C. All branches of the United States Government recognize and respect the international law norm prohibiting torture. Only recently (October 27, 1990), the United States Senate gave its advice and consent to ratification of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The State Department's Legal Adviser has stated that one "essential purpose" of the Convention is "to codify international law regarding the crime of torture." See Hearing Before the Senate Comm. on Foreign Relations, 101st Cong., 2d Sess(statement of Abraham Sofaer, Legal Adviser, Department of State). The federal courts have consistently held that torture is one of the torts in violation of the law of nations over which federal district courts have jurisdiction.
3. The prohibition against torture is non-derogable and therefore obligatory under international law. See e.g., International Covenant on Civil and Political Rights, article 4, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966) (derogation from right to be free of torture not permitted even in time of public emergency): Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 6, G.A. Res. 43/173, 43 U.N. GAOR Supp.(No. 49), U.N. Doc. A/43/49, at 297 (1988) ("No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment."). 4. The prohibition against torture is definable. An act constitutes torture if it (1) inflicts severe pain and suffering, either physical or mental; (2) is inflicted by or at the instigation of a public official; and (3) is inflicted for a purpose such as obtaining information or a confession from the victim, punishing the victim, or intimidating the victim or a third person. See Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article l. adopted Dec. 10, 1984, entered into force June 26, 1987, G.A. Res. 39/46,39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 1, adopted Dec. 9, 1975, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34), at 91, U.N. Doc. A/1034 (1975).]
5. The Torture Convention provides criteria by which to determine whether a particular act constitutes torture. A consensus has developed among international law publicists that the following acts constitute torture, though the list is by no means exhaustive:
A. Sustained, systematic beating. Beating will particularly constitute torture if it is performed with truncheons or other instruments, or if it is performed while the victim is bound or otherwise forced into a position that will increase the pain of the beating. Beating will also constitute torture if it is directed at certain parts of the body, such as the genitals or the soles of the feet. Beating alone is sufficient to constitute torture if it is sustained and systematic.
B. Electric shocks, infliction of burns, exposure to extreme heat or cold. C. Binding or otherwise forcing the victim into positions that cause pain. D. Denying food, water, or medical attention when that denial will cause the victim to suffer, or will cause the victim to continue to suffer, severe physical or mental pain and suffering.
6. The norm against cruel, inhuman, or degrading treatment is universally recognized under international law. The Universal Declaration of Human Rights. article 5, adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at ?1 (1948) provides: "No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment" (emphasis added). The universal norm prohibiting cruel, inhuman, or degrading treatment is treated with equal dignity as the prohibition against torture by all of the major international instruments. Moreover, the prohibition against cruel, inhuman, or degrading treatment has been received into customary international law.
7. The norm against cruel, inhuman, or degrading treatment is obligatory under all conditions and circumstances. See. ,e.g., International Covenant on Civil and Political Rights, article 4,adopted Dec. 16, 1966. entered into force Mar. 23, 1976, G.A.Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 (derogation from right to be free of cruel, inhuman, or degrading treatment not permitted even in time of public emergency); Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 6, G.A. Res. 43/173, 43 U.N. GAOR Supp. (No. 49), U.N.Doc. A/43/49, at 297 (1988) (.No circumstance whatever may be invoked as a justification for torture or other cruel, inhuman or degrading treatment or punishment."). No state claims the right to cause, encourage, or condone cruel, inhuman, or degrading treatment.
8. All branches of the United States Government recognize and respect the universal and obligatory international law norm against cruel, inhuman, or degrading treatment. In giving its advice and consent to the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, supra, the United States Senate has recently reaffirmed this position. In the Hostages Case (U.S. v. Iran), 1980 I.C.J. 3, the Executive Branch invoked provisions of international human rights instruments proscribing cruel, inhuman, or degrading treatment in its case against Iran seeking redress for the taking of U.S. citizens as hostages. Judge Edwards in Tel-Oren v. Libyan Arab Republic, 726 F.2d 774 (D.C. Cir. 1984) cert denied, 470 U.S. 1003 (1985), identified cruel, inhuman, or degrading treatment as among a "handful of heinous actions--each of which violates definable, universal, and obligatory norms" of international law. Id. at 781.
9. The prohibition against cruel, inhuman, or degrading treatment is definable. Article 16 of the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, adopted Dec. 10, 1984, entered into force June 26, 1987, G.A. Res. 39/46, 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984), defines state obligations specifically with regard to "other acts of cruel, inhuman, or degrading treatment or punishment which do not amount to torture as defined in article 1 [defining torture], when such acts are committed at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity."
A. Cruel, inhuman, or degrading treatment consists of acts committed against a person deprived of his or her liberty which cause severe mental or physical suffering that is unjustifiable. While there does exist an overlap between torture and cruel, inhuman or degrading treatment, it is possible and practicable for a court to distinguish acts constituting cruel, inhuman or degrading treatment and to identify acts that fall within its scope. B. The distinction between cruel, inhuman, or degrading treatment on the one hand, and torture on the other, rests on the special stigma to be attached to those who commit torture. Torture is aggravated and deliberate cruel, inhuman, or degrading treatment, causing very serious and cruel suffering. S. Exec. Rep. (Sen.) 101-30 101st Cong., 2d Sess., Convention Against Torture and Other Cruel, Inhuman, Degrading Treatment or Punishment 13 (1990) ("[Torture is at the extreme end of cruel, inhuman and degrading treatment."). Cruel, inhuman, or degrading treatment constitutes a non-deliberate--or deliberate, but less severe--infliction of suffering. C. The unjustified physical and mental suffering caused by cruel, inhuman or degrading treatment includes the creation of "a state of anguish and stress by means other than bodily assault."
D. Degrading treatment is that which grossly humiliates a person before others or forces the person to act against his/her will or conscience, or incites fear, anguish, or inferiority capable of humiliating and debasing a person and attempting to break his/her moral resistance.
E. Whether treatment is cruel, inhuman, or degrading depends upon an assessment of all the particularities of a concrete case, including the specific conditions at issue, duration of the measures imposed, the objectives pursued by the perpetrators, and the effects on the person(s) involved.
10. There is a consensus among international law publicists that the following acts constitute cruel, inhuman, or degrading treatment, though the list is by no means exhaustive. A. Forcing detainees to stand for long periods of time, subjecting detainees to sights and sounds that have the effect or intent of breaking down their resistance and will, or inflicting severe mental or physical stress on detainees in order to obtain information or confession.
B. Deportation or expulsion from, or refusal of admission to, one's own country without due process or under exceptional circumstances such as discriminatory application of law or the intentional infliction of physical or mental suffering. C. Failure or refusal to satisfy certain basic needs of the person, such as the needs for food, water, or sleep, if the pain or suffering inflicted is not severe enough to constitute torture. D. Deliberate indifference to a detainee's medical needs and deprivation of the basic elements of adequate medical treatment.
11. The prohibition against arbitrary detention is universal.
A. Numerous international agreements prohibit arbitrary detention. Moreover, international Judicial decisions and
unequivocal statements endorsed by nearly all of the states in the international community accept the norm of customary international law condemning arbitrary detention.
B. All branches of the United States Government recognize and respect the international law norm prohibiting arbitrary detention. Members of the executive branch and Congress agree that arbitrary detention violates international law. The federal courts have declared that "[no principle of international law is more fundamental than the concept that human beings should be free from arbitrary imprisonment." Rodriguez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (lOth Cir. 1981).
12. The prohibition against arbitrary detention is obligatory under international law. lee. e.g., International Covenant on Civil and Political Rights, article 4, adopted Dec.16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966)(derogation from right to be free of arbitrary detention permitted only in time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed).
13. The prohibition against arbitrary detention is definable. Detention is arbitrary when it is illegal and unjust. As the Restatement (Third) of Foreign Relations Law explains: "Detention is arbitrary if it is not pursuant to law; it may be arbitrary also if 'it is incompatible with the principles of justice or with the dignity of the human person.'" 702, comment h (1987) (quoting Statement of U.S. Delegation, 13 GAOR, U.N.Doc. A/C.3/SR.863, at 137 (1958)).
14. There is a consensus among international law publicists that arbitrary detention occurs when a person is detained without warrant, probable cause, articulable suspicion or notice of charges and is not brought to trial.
The International Covenant on Civil and Political Rights, article 9, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 states:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. . .
. . .
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, article 5, signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 222, States:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: a. The lawful detention of a person after conviction by a competent court; b. The lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law; c. The lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. . . . 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release pending trial. . . . . . . . 5.Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforced right to compensation.
15. The international law prohibitions against torture; cruel, inhuman or degrading treatment; and arbitrary detention are universal, obligatory, and definable. For that reason. an alien who has suffered from violations of any or all of those norms may seek redress from "torts committed in violation of the law of nations" under 28 U.S.C. 1350.
Respectfully; submitted, Anne-Marie Burley Anthony D'Amato Richard A. Falk Tom J. Farer Thomas Franck David Kennedy Richard B. Lillich Frank C. Newman Srefan A. Riesenfeld Philippe J. Sands David Weissbrodt Burns H. Weston
s./Richard A. Falk Professor Falk has agreed to the content of the affidavit. His signature will be submitted to the Court when received s/ Tom J.Farer Professor Farer has agreed to the content of the affidavit. His signature will be submitted to the Court when received
s/Richard B. Lillich Professor Lillich has agreed to the content of the affidavit. His signature will be submitted to the Court when received
1. See,e.g., Universal Declaration of Human Rights, article 5,adopted Dec. 10, 1948, G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); International Covenant on Civil and Political Rights,article 7, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717; American Convention on Human Rights,article 5(2), signed Nov. 22, 1969, entered into force July 18,1978, O.A.S. T.S. No. 36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50,doe. 6 at 27 (1980); European Convention for the Protection of Human Rights and Fundamental Freedoms, article 3, signed Nov. 4,1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 222; African Charter on Human and Peoples' Rights, article 5, adopted June 27,1981, entered into force Oct. 21, 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982); Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 2, adopted Dec. 9,1975, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34), at 91, U.N. Doc. A/1034 (1975); and Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 2, adopted Dec. 10, 1984, entered into force June 26, 1987, G.A. Res. 46, 39 U.N. GAOR Supp. (No. 51), at 197, U.N. Doc. A/39/51 (1984).
2. Filartiga v. Pena-Irala, 630 F.2d 876, 884 (2d Cir. 1980)
3. J. Brierly, The Outlook for International Law 4-5 (1944) (.States often violate international law, just as individuals violate municipal law; but no more than individuals do States defend their violations by claiming that they are above the law.").
4. Accord Restatement (Third) of Foreign Relations Law 702, comment (a) (generally agreed that torture violates customary international law).
5. E.g., Filartiga v. Pena-Irala, 630 F.2d 876, 878 (2d Cir. 1980); Forti v. Suarez-Mason, 672 F. Supp. 1531, 1541 (N.D. Cal. 1987). Cf. Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 777(D.C. Cir. 1984) (Edwards J., concurring).
6. See J. H. Burgers the American Convention on Human Rights, article 5, signed Nov. 22, 1969, entered into force July 18, 1978, O.A.S. T.S. No. 36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50, doe. 6 at 27 (1980); the International Covenant on Civil and Political Rights, article 7, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, V.N. Doc. A/6316 (1966), 999 U.N.T.S. 717; African Charter on Human and Peoples' Rights, article 5, adopted June 27, 1981, entered into force Oct. 21, 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982). See also Declaration on the Protection of All Persons From Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, article 2, "adopted Dec. 9, 1975, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34), at 91, U.N. Doc. A/1034 (1975).
14. See. e.g., Declaration of Tehran, Final Act of the International Conference on Human Rights 3, at 4, pare. 2, 23 GAOR, U.N. Doc. A/CONF. 32/41 (1968) (noting status of Universal Declaration of Human Rights, including prohibition against cruel, inhuman or degrading treatment, as customary international law).
15. See also 22 U.S.C. S 262d(a)(1) (stating U.S. policy to withhold international assistance to those countries that violate internationally recognized human rights including cruel, inhuman, or degrading treatment); 22 U.S.C. 2304(d)(1) (defining internationally recognized human rights to include cruel, inhuman, or degrading treatment). The U.S. Department of State's Country Reports detail state acts that violate the international norm against torture as well as the norm against cruel, inhuman, or degradinq treatment. See. e.g., Country Reports on Human Rights Practices for 1981 at 329 (Argentina).
16. See also Restatement (Third) of Foreign Relations Law 702 td), which declares: "A state violates international law if, as a matter of state policy, it practices, encourages, or condones . . . torture or other cruel, inhuman, or degrading treatment or punishment.
17. Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principles 1 J. H. Burgers Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1, pare. 2, G.A. Res. 3452, 30 U.N. GAOR Supp. (No. 34) at 91, U.N. Doc. A/10034 (1976)("Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.").
19. See J.H. Burgers Fort: v. Suarez-Mason, 672 F. Supp. 1531 N.D. Cal. 1987), modified by 694 F. Supp. 707 (N.D. Cal. 1988). The duty of a federal judge in defining and applying the evolving international norm of cruel, inhuman, or degrading treatment is comparable to applying the flexible, evolving standard of cruel and unusual punishment under the Eighth Amendment of the United States Constitution. See. e.g.. Wells v. Franzen, 777 F.2d 1258 (7th Cir. 1985); Medcalf v. Kansas, 626 E. Supp. 1179 (D. Kan. 1986).
24. See. e.g., Tyrer Case, 26 Eur. Ct. Hum. Rts. tser. A) 15, at pare. 30 (1978) (distinctive element of degradation is degree of humiliation adjudged according to circumstances of individual case); Ireland v. United Kingdom, 25 Eur. Ct. Hum. Rts. (ser. A) 65-67, at pares. 166-68 (1978) (minimum level of severity required to determine violation depends on circumstances of particular case including duration of treatment and physical and mental effects). J.H. Burgern L H. Danelius, supra note 6, at 70, 122; P. van Dijk G. van Hoof, supra note 20, at 232.
25. See Ireland v. United Kingdom, 25 Eur. Ct. H.R. (eer. A) 65- 67, at pares. 166-68 (1978); Bouton v. Uruguay (37/1978), Report of the U.N. Hum. Rts. Comm. GAOR, 35th Sess., Suppl. No. 40 (1980), Annex XIV.
26. See East African Asians v. United Kingdom, 3 Eur. Hum. Rts. Rep. 76, at pares. 186-88 (Eur. Comm'n Hum. Rts. 1973): P. van Dijk L G. van Hoof, supra note 20, at 235-36.
27. J.H. Burgers L H. Danelius, supra note 6, at 118
28. With respect to detainees and prisoners, both the Eighth Amendment of the U.S. Constitution and the Standard Minimum Rules for the Treatment of Prisoners, adopted July 31, 1957, E.S.C. Res.663C, 24 U.N. ESCOR Supp. (No. 1) AT 11, U.N. Doc. E/3048 (1957),amended E.S.C. Res. 2076, 62 U.N. ESCOR Supp. (No. 1) at 35, U.N.Doc. E/5988 (1977) (adding article 95), provide U.S. courts with guidelines to assist in applying the principle of cruel, inhuman, or degrading treatment in a particular case. See, e g., Lareau v.Manson, 507 F. Supp. 1117 (D. Conn. 1980) modified on other grounds, 651 F.2d (2d Cir. 1981) (finding Standard Minimum Rules as significant expressions of obligations to prisoners under international law). See also Estelle v. Gamble, 429 U.S. 97, 10304 (1976) (by reason of deprivation of liberty, state has obligation and duty to provide adequate and humane care to confined persons): Kyle v. Allen, 732 F. Supp. 1157, 1158 (S.D. Fla. 1990)(recognition that prison conditions can deprive inmates of minimal civilized measure of life's necessities).
29. See American Convention on Human Rights, article 7(3), signed Nov. 22, 1969, entered into force July 18, 1979, O.A.S. T.S. No. 36, at 1, O.A.S. Doc. OEA/Ser. L/V/II.50, doe. 6 at 27 (1980); International Covenant on Civil and Political Rights, article 9, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res.2200, 21 V.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966),999 U. N. T. S. 717; European Convention for the Protection of Human Rights and Fundamental Freedoms, article 5, signed Nov. 4, 1950, entered into force Sept. 3, 1953, 213 U.N.T.S. 222; Universal Declaration of Human Rights, articles 3, 9, adopted Dec. 10, 1948,G.A. Res. 217A (III), U.N. Doc. A/810, at 71 (1948); African Charter on Human and Peoples' Rights, article 6, adopted June 27,1981, entered into force Oct. 21, 1986, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 21 I.L.M. 58 (1982). The United Nations Commission on Human Rights has very recently adopted a resolution establishing a working group on arbitrary detention. U.N. Doc. E/CN.4 1991/L.77, adopted without vote Mar. 1991.
30. See, e.g,. Hostsoes Case, 1980 I.C.J. 3, at pare. 91 ("Wrongfully to deprive human beings of their freedom and to subject them to physical constraint in conditions of hardship is in itself manifestly incompatible with the principles of the Charter of the United Nations, as well as with the fundamental principles enunciated in the Universal Declaration of Human Rights."); Winterwerp Case, 33 Eur. Ct. Hum. Rts., (ser. A), at pare. 39 (1979) (no detention that is arbitrary can ever be regarded as 'lawful."').
31. See. e.g., Derian, Human Rights in United States Foreign Policy--The Executive Perspective, in International Human Rights Law and Practice 183, 183 (J. Tuttle, ed. 1978) (Assistant Secretary of State for Human Rights and Humanitarian Affairs, Patricia M. Derian, describing U.S. human rights policy as seeking to ~greater observation of all governments of the rights of the person including freedom from torture and cruel end inhuman treatment, freedom from the fear of security forces breaking down doors and kidnaping citizens from their homes, and freedom from arbitrary detention"): Fraser, Human Rights and United States Foreign Policy--The Congressional Perspective, in International Human Rights Law and Practice 173, 176 (J. Tuttle, ed. 1978).
32. See also Forti v. Suarez-Mason, 672 F.Supp. 1531, 1541 (N. D.Cal. 1987) (there is case law finding sufficient consensus to evince a customary international human rights norm against arbitrary detention."); De Sanchez v. Banco Central De Nicaragua, 770 F.2d 1385, 1397 (5th Cir. 1985) ("[T]he standards of human rights that have been generally accepted--and hence incorporated into the law of nations--. . . encompass . . . such basic rights as the right not to be murdered, tortured, or otherwise subjected to cruel, inhuman or degrading punishment; . . . and the right not to be arbitrarily detained."); Soroa-Gonzales v. Civiletti, 515 F.Supp. 1049, 1061 n.l8 (N.D. Ga. 1981).
33. See. e.g., Forti v. Suarez-Mason, 672 F.Supp. 1531, 1542 (N. D. Cal. 1987) (norm against arbitrary detention is readily definable in terms of the arbitrary character of the detention").
34. See Hassan, The International Convenant on Civil and Political Rights: Background and Perspective on Article 9(1), 3 Den. J. Int'l L. L Pol'y 153, 181-83 (1973); Marcoux, protection From Arbitrary Arrest and Detention Under International Law, 5 B.C. Int'l L Comp. L.R. 345 (1982).
35. The International Covenant on Civil and Political Rights, article 9, adopted Dec. 16, 1966, entered into force Mar. 23, 1976, G.A. Res. 2200, 21 U.N. GAOR Supp. (No.16), at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 717 states:
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. . . .
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
The European Convention for the Protection of Human Rights and Fundamental Freedoms, article 5, signed Nov. 4, 1950, entered into Force Sept. 3, 1953, 213 U.N.T.S. 222, states:
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
a. the lawful detention of a person after conviction by a competent court;
b. the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfillment of any obligation prescribed by law;
c. the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so.
2. Everyone who Is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph l(c) of this Article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to a trial within a reasonable time or to release pending trial. . . .
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
