CAT/C/USA/CO/2
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C. Subjects of concern and recommendations
13.
Notwithstanding the statement by the State party that “every act of torture within the
meaning of the Convention is illegal under existing federal and/or state law”, the Committee
reiterates the concern expressed in its previous conclusions and recommendations with regard to
the absence of a federal crime of torture, consistent with article 1 of the Convention, given that
sections 2340 and 2340 A of the United States Code limit federal criminal jurisdiction over acts
of torture to extraterritorial cases. The Committee also regrets that, despite the occurrence of
cases of extraterritorial torture of detainees, no prosecutions have been initiated under the
extraterritorial criminal torture statute (arts. 1, 2, 4 and 5).
The Committee reiterates its previous recommendation that the State party should
enact a federal crime of torture consistent with article 1 of the Convention, which
should include appropriate penalties, in order to fulfil its obligations under the
Convention to prevent and eliminate acts of torture causing severe pain or suffering,
whether physical or mental, in all its forms.
The State party should ensure that acts of psychological torture, prohibited by the
Convention, are not limited to “prolonged mental harm” as set out in the State
party’s understandings lodged at the time of ratification of the Convention, but
constitute a wider category of acts, which cause severe mental suffering, irrespective
of their prolongation or its duration.
The State party should investigate, prosecute and punish perpetrators under the
federal extraterritorial criminal torture statute.
14.
The Committee regrets the State party’s opinion that the Convention is not applicable in
times and in the context of armed conflict, on the basis of the argument that the “law of armed
conflict” is the exclusive lex specialis applicable, and that the Convention’s application “would
result in an overlap of the different treaties which would undermine the objective of eradicating
torture” (arts. 1 and 16).
The State party should recognize and ensure that the Convention applies at all
times, whether in peace, war or armed conflict, in any territory under its
jurisdiction and that the application of the Convention’s provisions are without
prejudice to the provisions of any other international instrument, pursuant to
paragraph 2 of its articles 1 and 16.
15.
The Committee notes that a number of the Convention’s provisions are expressed as
applying to “territory under [the State party’s] jurisdiction” (arts. 2, 5, 13, 16). The Committee
reiterates its previously expressed view that this includes all areas under the de facto effective
control of the State party, by whichever military or civil authorities such control is exercised.
The Committee considers that the State party’s view that those provisions are geographically
limited to its own de jure territory to be regrettable.