19 Nov Forty Lashes and a Wedding
The wedding of Ghollam Nikbin was cause for joyous celebration. Nikbin was nervous about the religious police in Iran and therefore suggested that they marry in Cyprus. But his future wife’s family insisted that the ceremony take place in Iran. Consistent with Islamic rules, there were two separate sites for the men and women at the wedding. But then the wedding guests threw caution to the wind and did the unthinkable. They started dancing. And then they grabbed their mothers hands and danced together in celebration. The bridegroom Ghollam Nikbin joined in the festivities.
Bad move. The religious police arrested twenty-six wedding guests including Nikbin, for violating Islamic law. Their crime: dancing with the opposite sex. After a month in jail, Nikbin was sentenced to forty lashes. He was lashed from head to toe.
When he tried to flee Iran he was detained for over three years. During this detention he was forced to hang upside down by his right foot and was also shocked with electric cables on his feet. He again tried to flee to New York, and this time was successful. But just prior to boarding the plane he was tortured with a coke bottle repeatedly forced up a certain bodily orifice. Upon his arrival in New York and was hospitalized for seven months at Bellevue Hospital.
Nikbin brought a TVPA claim against Iran and various Iranian officials. The court in Nikbin v. Iran ruled as follows:
The Court now concludes that striking Nikbin repeatedly on the soles of his feet with an electrical cable, hanging Nikbin upside down from the ceiling during an interrogation session, and assaulting Nikbin with a coke bottle prior to his departure from Iran all bring the defendants within the so-called terrorism exception to sovereign immunity.
[But] this Court previously put Nikbin on notice that the allegations in his complaint were insufficient to demonstrate that his periods of detention were acts so unusually cruel or outrageous as to constitute torture. Nikbin failed to present any additional evidence of the conditions of his confinement at the hearing before this Court. Hence, … the Court concludes that Nikbin’s periods of detention do not constitute torture in and of themselves.
The Court also concludes that the sentence of forty lashes that Nikbin received for acts at his wedding celebration does not constitute torture under the FSIA. The stringent definition of torture explicitly excludes “pain or suffering arising only from or inherent in, or incidental to, lawful sanctions.” Nikbin describes the lashing as his punishment for acts at the wedding celebration that violated Iranian law…. The evidence presented at the hearing indicates that Nikbin’s pain and suffering from the forty lashes was “inherent in, or incidental to, lawful sanctions.” 28 U.S.C. § 1350 (note). Thus, the Court concludes that Nikbin’s claim regarding his punishment of forty lashes does not constitute torture…. [T]he Court does not condone such treatment, but merely concludes that under Iranian law … lashing represents a lawful sanction.
So according to the ruling in Nikbin only extrajudicial torture is subject to a claim under the TVPA. Forty lashes for dancing with your mother at a wedding is a proper sanction under Iranian law. Therefore, it cannot legally qualify as unlawful torture. Torture subject to judicial warrant is not torture, regardless of how cruel and unusual.
This seems to be a rather strange conclusion. The statute, which is virtually identical to Article 1 of the Convention Against Torture (CAT), prohibits ““[a]n individual who, under actual or apparent authority, or color of law, of any foreign nation . . . subjects an individual to torture.” It then goes on to define torture as “any act, directed against an individual in the offender’s custody … by which severe pain or suffering (other than pain or suffering arising only from or inherent in, or incidental to, lawful sanctions), whether physical or mental, is intentionally inflicted on that individual.”
So on the one hand the statute prohibits torture even if it is done under actual or apparent authority. On the other hand, it defines torture as something other than punishment meted out under lawful sanction. Isn’t this circular? Torture is punishable even if done under actual or apparent authority, unless that authority is judicial, in which case it is not torture. So this is a “non-derogable obligation” and, under Article 2(3) of CAT, “an order from a superior officer or a public authority may not be invoked as a justification of torture.” Unless, of course, that authority is a judicial officer.
The only way I can reconcile this conclusion is to find that severe punishment imposed by lawful judicial sanction may in some circumstances be cruel and unusual punishment, but not torture. And because the former is not cognizable under the TVPA, Nikbin was without a remedy for the forty lashes, even if his treatment was unlawful.
Roger,
This circular interpretation of UNCAT Art. 1 that judicially imposed corporal punishment can never amount to torture has been advanced for years by such human rights paragons as Saudi Arabia and Iran. On the other hand, this interpretation has been widely rejected by both by academics and by UN human rights monitoring bodies, which have consistently held that (1) the clause which speaks of suffering ‘incidental to lawful sanctions’ was meant to chiefly cover custodial situations, i.e. suffering incidental from the fact of imprisonment itself, and (2) that the test of whether a sanction is ‘lawful’ or not is not simply to be found in domestic law, but in international law as well. In other words, even a sanction which would amount to inhuman or degrading treatment could never be considered ‘lawful’ within the meaning of Art. 1 UNCAT, as it would be in violation of international, if not domestic law.
Indeed, in a well-known 1997 report, the UN Special Rapporteur on Torture (at the time Sir Nigel Rodley), had this to say (para. 8)
Roger,
Thanks for this interesting post and for your many insightful past discussions of international litigation in US courts.
The circular interpretation of the TVPA adopted by the district court in this case is the result of an ambiguity in Article 1 of the CAT. This ambiguity has lead treaty interpreters to look outside the text of the treaty to reach the common sense conclusion that Marko describes. The practice of some states parties also supports this conclusion. For example, the Netherlands filed the following “interpretative declaration” with respect to Article 1 when it ratified the Convention:
“It is the understanding of the Government of the Kingdom of the Netherlands that the term “lawful sanctions” in article 1, paragraph 1, must be understood as referring to those sanctions which are lawful not only under national law but also under international law.”
Although the definition of torture in the TVPA closely tracks the definition in Article 1, this seems to me a case in which US courts should consider the analysis of expert bodies and other sources external to CAT to avoid an interpretation that is inconsistent with the treaty’s object and purpose.
Best,
Larry
The judgment goes against 8 C.F.R. § 208.18, “Implementation of the Convention Against Torture,” which states that lawful sanctions include “enforcement actions authorized by law . . . but do not include sanctions that defeat the object and purpose of the Convention Against Torture” :
This interpretation is in keeping with how the “lawful sanctions” clause has been interpreted by the UN treaty body charged with monitoring application of the Convention against Torture. For example, after expressing concern about “[t]he nature of some criminal sanctions, in particular flogging and amputation” in reviewing the periodic report of Yemen in 2003, the Committee against Torture urged the state to “[t]ake all appropriate measures to ensure that criminal sanctions are in full conformity with the Convention.” Similarly, the jurisprudence of the Committee against Torture (CAT) under its individual complaint procedure shows that the CAT has treated flogging – even when the sanction is provided for in law – as torture for purposes of the non-refoulement provision of Article 3.
Regarding the conclusion of the court in Nikbin v. Iran: To be consistent, the court would also have to conclude, if the petitioner faced a risk of amputation or of being stoned to death, that neither of those acts constitute torture, either, as they are “lawful sanctions” in Iran. Note that Article 104 of the Iranian penal code provides that the stones to be used in stoning someone to death should “not be large enough to kill the person by one or two strikes; nor should they should they be so small that they could not be defined as stones.” In short, severe pain and suffering would be deliberately inflicted prior to death.
There’s a long tradition of this sort of poorly thought out analysis in the context of asylum law, &I wonder if it’s drifting into other areas: one court’s defensible holding that something isn’t SUFFICIENT to establish asylum eligibility shades into holdings that it CAN’T establish eligibility for asylum. There’s a widely quoted court case holding that “prosecution isn’t persecution”, which is sometimes taken to mean that if your treatment is lawful under the laws of your country than you can’t have been persecuted. Similarly, holdings to the effect that being a victim of non-targeted violence in a civil war isn’t “persecution”, have been extended to say things like: well, sure you’re in danger of being murdered &tortured by death squads who target you on the basis of your ethnicity/religion, but hey: that’s just the civil war, it’s not a basis for asylum. This seems to be the same sort of logic.
This goes again to the American question of the quality of the training of our judges and advocates in international law.
Best,
Ben
This goes again to the American question of the quality of the training of our judges and advocates in international law.
Perhaps, although I think it has more to do with the concessions made to the treaty language to get such states on board.
As usual, everyone only signs on the treaty after they’re sure they can continue their current behavior.