JURIST Guest Columnist Albert Scherr of the University of New Hampshire School of Law, discusses the UN Commission on Crime Prevention and Criminal Justice’s new rules regarding torture…

For the past four and a half years, the UN Commission on Crime Prevention and Criminal Justice (the “Commission”) has been working on a revision of the Standard Minimum Rules for the Treatment of Prisoners (the “Rules”). The Rules have been in existence in some form since 1957. This most recent effort sought to revise the Rules adopted in 1977. The Commission has relied on a series of efforts by an intergovernmental expert group to develop a draft that considered developments in the area of prisons and other facilities holding individuals who had been convicted, charged or detained without charges. The Rules also exist in the context of other international norms set by the UN, such as the UN Basic Principles on the Use of Force and Firearms (BPUFF), which are applicable to all law enforcement officials.

On May 18, 2015, the Special Rapporteur on the question of torture and other cruel, inhuman or degrading treatment or punishment (the “Rapporteur”), Juan E. Méndez, addressed an “Open Letter” to the chair of the Commission, which was due to consider the final revised draft of the Rules (tentatively designated as the “Mandela Rules. The Rapporteur’s mandate operates within the office of the UN High Commissioner for Human Rights pursuant to Human Rights Council resolution 25:13. The Rapporteur has participated regularly in the process of revision. The letter reflects his mandate to ensure “an updated set of procedural standards and safeguards from the perspective of the prohibition of torture and other ill-treatment that should be applied, at a minimum, to all cases of deprivation of liberty.” (Open Letter at 2). Both the Rapporteur’s open letter and the revised Mandela Rules adopted by the Commission and forwarded to the UN General Assembly reflect an international consensus on norms that put the Mandela Rules in conflict with current US law and/or practice in three areas: torture; solitary confinement and the role of medical professionals.

In regards to Torture Rule 6 of the Mandela Rules [PDF] states: “All prisoners shall be treated with the respect due to their inherent dignity and value as human beings. No prisoner shall be subjected to, and all prisoners shall be protected from, torture and other cruel, inhuman or degrading treatment or punishment, for which no circumstances whatsoever may be invoked as a justification. The safety and security of prisoners, staff, service providers and visitors shall be ensured at all times.” The prohibition on torture tolerates no exception and has even less ambiguity than previous rules. The US Senate on June 18 2015 passed the “anti-torture” amendment would apply the Army Service Manual’s definition of prohibited interrogation conduct to all government agencies, not just the military. Previously, under the Bush administration, the Army Service Manual ban on torture had applied only to the military, excluding, most importantly, the CIA, the locus of allegations of torture by the US government. The famous Yoo memorandum [PDF] of 2003 made the argument that the President’s war authority trumped international law on the issue of torture.

In 2009, President Obama issued an Executive Order applying the Army Service Manual definition more broadly to the US government, including to the CIA. On June 18 the US Senate passed the “anti-torture amendment” effectively codifying the Army Services Manual as the law of the land for interrogations. Even so, current US law, including the uncertain and undisclosed breadth of the president’s war powers, does not reflect the “no exceptions” clarity. The Mandela Rules also call for investigations and prosecution of those who have engaged in violations of the norms as well as access to detainees. The Rapporteur very recently noted that his request to the US government to have access to Guantanamo detainees has, as yet, received no response. The Obama administration has also chosen not to prosecute those who are alleged to have engaged in torture during the early years of the war on terrorism.

The Rapporteur’s Open Letter notes that he has long called for a ban on prolonged or indefinite solitary confinement. The Mandela Rules prohibit the use of prolonged solitary confinement, defined as more than fifteen days. That approachhas not been the practice of the US or state governments. Most often, the Guantanamo detainees have been in solitary confinements.The US prison’s “super-max” facility in Colorado houses over 400 inmates in what is effectively solitary confinement permanently over the course of life sentences. Attention to the issue of solitary confinement in US prisons and jails has not gained much attention in the media and the evolution of reforms in that area has been, at best, slow. However, one member of the Supreme Court has taken up the issue aggressively. On June 18, 2015, Justice Anthony Kennedy spoke up forcefully about solitary confinement in a concurring opinion in Davis v. Ayala.

Yet if his solitary confinement follows the usual pattern, it is likely respondent has been held for all or most of the past twenty years or more in a windowless cell no larger than a typical parking spot for twenty-three hours a day; and in the one hour when he leaves it, he likely is allowed little or no opportunity for conversation or interaction with anyone. It is estimated that 25,000 inmates in the United States are currently serving their sentence in whole or substantial part in solitary confinement, many regardless of their conduct in prison.

Justice Kennedy made it evident that he was quite troubled by current practices in the US to the extent of saying:

In a case that presented the issue, the judiciary may be required, within its proper jurisdiction and authority, to determine whether workable alternative systems for long-term confinement exist, and, if so, whether a correctional system should be required to adopt them.

He concluded by quoting Dostoyevsky, “The degree of civilization in a society can be judged by entering its prisons” and saying “There is truth to this in our own time.”

The US practices stand in contrast to the international norm articulated in the Mandela Rules. This is not to say that, by any stretch of the imagination, the United States is the sole offender. But, it incarcerates a dramatically larger percentage of its citizens than any other country in the world.

The Rapporteur also highlighted the issue of the developing independent role of medical professionals in the treatment of prisoners as reflected in the revisions in the Mandela Rules. He emphasized that the Mandela Rules supported “the independence of healthcare professionals, their duty to refrain from participating in torture or other ill-treatment, and their role in detecting such ill-treatment and reporting it…” In April 2015, a group of psychologists and members of the American Psychological Association (APA), published a report alleging that the APA was complicit “in the CIA torture program, by allowing psychologists to administer and calibrate permitted harm, undermines the fundamental ethical standards of the profession.” More specifically, the group alleges that the APA coordinated with officials from the CIA, White House, and the Department of Defense to create an APA ethics policy on national security interrogations that comported with legal guidance authorizing the CIA torture program. Along with allegations that the APA had numerous contacts with CIA contract psychologists related to interrogation techniques. However this particular dispute is resolved, the issue of medical professionals’ involvement in interrogations and, it appears, the development of torture techniques is relatively new in US public policy debates. The norm established by the Mandela Rules may contribute to a healthy debate amongst psychologists, military and prison professionals.

The perspective that these brief comparisons offer provokes two additional thoughts. The US is anything but alone in struggling with issues about torture, solitary confinement and the independence of medical professionals in the custodial/interrogation environment. And, the ongoing debate is increasingly a public one with at least a limited measure of disclosure of core information. However, the developing international norms call for much more. The Rapporteur receives little in terms of formal response from the US government. A significant portion of politicians and the American public are wedded to the image of American exceptionalism, unsupported by the facts in the areas described above – the idea that “we are better” and need not heed international norms. Too many figures in power in the US scorn the value and utility of international law, be it conventions, treaties or norms like the Mandela Rules (for example, see Jens David Ohlin, The Assault on International Law, Oxford University Press, 2015 documenting the current and historical skepticism in the US towards international law). The work of the Rapporteur and the drafters of the Mandela Rules as to torture, solitary confinement and the independence of medical professionals provides a thoughtful and significant reference point as the debate in America about full participation in the international community marches on.

Professor Scherr is Chair of the International Criminal Law & Justice Program at the University of New Hampshire School of Law and directs their online graduate programs. He has also directed a Rule-of-Law project in northern Russia and spoken internationally in Prague, Casablanca and Yerevan, Armenia.

Suggested Citation: Albert Scherr, Special Rapporteur on Torture , JURIST – Academic Commentary, June 28, 2015, http://jurist.org/academic/2015/albert-scherr-special-rapporteur.php.