Applying Ideas of Dignity -- Torture

ER11, Govt E-1040, Spring 2012

Illustration of power of Kantian approach: absolute rights

A right might be

– Satisfied

– Infringed (when not satisfied)

– Overridden (when justifiably infringed)

– Absolute when it cannot be overridden

Is there an absolute right not to be tortured?

• Drawing on Kant, can argue: yes, there is

• Sussman article

Historical Types of Torture

• Torture as intimidation -- in weak and unsophisticated states

• Torture as punishment – there are things that are much worse than death

• Torture as trial (e.g., “ducking”)

• Torture to extract information

Understanding Torture

Understanding Torture• “Indeed, there is perhaps nothing

more fearful and more terrible in the entire prehistory of human beings than the technique for developing his memory. “We burn something in so that it remains in the memory. Only something which never ceases to cause pain remains in the memory”—that is a leading principle of the most ancient (unfortunately also the longest) psychology on earth.”

Understanding Torture

• [Europeans]…have used terrible means to make themselves a memory in order to attain mastery over their vulgar basic instincts and their brutal crudity: think of the old German punishments, for example, stoning (…), breaking on the wheel (…), impaling on a stake, ripping people apart or stamping them to death with horses (“quartering”), boiling the criminal in oil or wine (still done in the fourteenth and fifteenth centuries), the well-loved practice of flaying (“cutting flesh off in strips”), carving flesh out of the chest, and probably covering the offender with honey and leaving him to the flies in the burning sun. With the help of such images and procedures people finally retained five or six “I will not’s” in the memory (…)

Modern Conventions Against Torture

Universal Declaration of Human Rights (1948)

Article 5No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

European Convention on Human Rights (1950)

Article 3No one shall be subjected to torture or to

inhuman or degrading treatment or punishment.

European Convention, Article 15

“In time of war or other possible emergency threatening the life of the nation any [countries] may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation. … No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [right against torture and degrading treatment], 4.1 [slavery and servitude] and 7 [ex post facto laws] shall be made under this provision.”

Convention Against Torture (CAT, 1984)

Article 21. Each State Party shall take effective legislative,

administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

The Six Core Human Rights Treaties (Each + Treaty Body)

• The International Covenant on Civil and Political Rights, adopted in 1966 and which entered into force 23 March 1976

• The International Covenant on Economic, Social and Cultural Rights, adopted in 1966, entered into force 3 January 1976

• The International Convention on the Elimination of All Forms of Racial Discrimination, adopted in 1965, entered into force 4 January 4 1969

• The Convention on the Elimination of All Forms of Discrimination Against Women, adopted in 1979, entered into force 3 September 1981

• The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984, entered into force 26 June 1987

• The Convention on the Rights of the Child, adopted in 1989, entered into force 2 September 1990

Background to Post-War Conventions

• National Socialism, always

• generally: major goal of human rights treaties is to protect individuals from abusive state power, and make such protection a matter of general concern

• possibility of being subject to torture is one of the major concerns here

Encountering Torture: Northern Ireland

Encountering Torture: Jacobo Timerman

Encountering Torture: Jacobo Timerman

“In the long months of confinement, I often thought about how to convey the pain that a tortured person undergoes. And always I concluded that it was impossible. It is a pain without points of reference, without revelatory symbols or clues to serve as indicators.”

Encountering Torture: Berlin

Hohenschoenhausen

Encountering Torturers • John Conroy,

Unspeakable Acts, Ordinary People, Chapter on “Torturers”

• Last sentence: “Finding these men was not easy, convincing them to talk to me was hard work, but invariably our meetings went well. I never met the monster I anticipated.” (p 122)

Encountering Torture: Abu Ghraib

Recall

Encountering Torture

Nobel Lecture, Dec. 10, 2009[E]ven as we confront a vicious adversary that

abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America's commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor – we honor those ideals by upholding them not when it's easy, but when it is hard.

Defining Torture (CAT) • 1. (…) “[T]orture" means any act by which severe pain or

suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

What Counts as Torture?

In the UN Committee on Torture the following were discussed and classified as torture:

• Daily beatings • Detaining somebody in a small uncomfortable space

for two weeks• Forcing someone to sleep on the floor of a cell while

handcuffed following interrogation • Sleep deprivation in severe cases• the threat of torture

What is Cruel, Inhuman, Degrading?

• Depriving somebody of food/water

• In severe cases, binding in restraint chair

• Physical restraint that may cause unnecessary pain and humiliation

• Long periods of detention (two weeks and more) in sub-standard cells

David Sussman, What’s Wrong with Torture?

• “[T]he torture victim finds herself to be not only physically and morally defenseless, but exposed to a will that appears largely if not completely arbitrary. The victim’s greatest interests are completely subject to the caprice of her torturers (….) Insofar as she is able to form any estimates of their motives and intentions, the victim must trust in the sincerity of people who have already shown that they have no scruples about how they treat her.” (p 7f)

Sussman Cont. • “[T]orture fails to respect the dignity of its victim as a

rationally self-governing agent. (…)[T]orture (…) involves a deliberate perversion of that very value, turning our dignity against itself (…) It is perhaps not accidental that many of the most common forms of torture involve somehow pitting the victim against himself, making him an active participant in his own abuse. In Abu Ghraib, captives were made to masturbate in front of jeering captors. Here the captive was forced into the position of having to put his most intimate desires, memories, and fantasies into the service of his torturers, in a desperate attempt to arouse himself for their amusement. The US soldiers could beat and killer their prisoners, but only the prisoner himself could offer up his own erotic life to be used against himself in this way.” (p 19-22).

Yet more Sussman • “The torture victim finds within herself a surrogate of

the torturer, a surrogate who does not merely advance a particular demand for information, denunciation, or confession. Rather, the victim’s whole perspective is given over to that surrogate, to the extent that the only thing that matters to her is pleasing this other person who appears infinitely distant, important, inscrutable, and free. (…) Like love or religious devotion, such an attitude can develop an emotional hold that persists beyond the circumstances that initially created it, as the phenomenon of “traumatic bonding” or “’Stockholm syndrome” attests.” (p 25f)