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Thursday, April 02, 2009

Introduction and a Question: What's Actually Wrong with Torture?

Posted by Fatima Kola at 12:18 PM |

My name is Fatima Kola and I’m a new blogger here at American Torture, thanks to Mike. A short introduction is necessary before I get to the point of my post: I’m currently a doctoral candidate at the University College London Faculty of Laws, where I’m researching the international prohibition on torture and asking what flaws the law may have (especially when it comes into contact with terrorism) that allow governments to allegedly practice torture despite their international legal obligations not to do so. I’m using the US, the UK and Israel as case studies, and I’m particularly looking at structural flaws in the law (e.g., a weak definition, the ability for states to create exceptions, etc.), as well as deeper philosophical questions (e.g., is it really true that torture is never justified as a response to terrorism?). So I’m really happy to be contributing to this blog, and you can expect, I hope, quite a lot of posts from me on various aspects of torture – particularly its moral and philosophical dimensions and also on more explicitly legal issues, especially in regards to what governments and states legally may do to make space for torture, ‘coercive interrogation’, inhuman & degrading treatment, and so on.

But what I really want to write about today, and ask this blog's readers about, is a very basic question that I think is frequently overlooked in the current security versus rights debate on torture, and one that I am in the difficult process of trying to answer for myself. That is: what’s actually wrong with torture? What are its moral dimensions? Why should it earn the status as a crime against humanity; a war crime in some instances; and alongside genocide and slavery, an act that may never be committed under any circumstances? Why are we (and by ‘we’ I mean those who believe that torture is generally wrong, and I think that even includes its apologists) so troubled by it – either acting in shock or repugnance when its uncovered or going to great lengths to try and cover it up or make elaborate arguments allowing it? Why, when we think of older and more unsophisticated political and legal systems, do we immediately associate these with torture – with the rack, and the iron maiden, and other such grisly instruments that immediately signify cruelty and barbarism? What is it about torture that has such moral power?

This is an important question, especially for defenders of human rights, because if we can’t actually put our finger on what torture’s specific, special moral wrongness is, then it makes it very difficult to say exactly why it should not be practised, and when it should not be practised. An abstract argument of rights doesn’t quite cut it, I think, when faced with the often compelling (at least on the surface) security-based arguments that those who think torture is a necessary moral act bring up (e.g. the infamous ticking bomb scenario, which I hope to discuss in another post). We really need to understand the moral contours of torture if we can hope to convince anyone, and ourselves, that it’s the type of wrong that should never be committed.

At first the answer to what’s wrong with torture seem fairly obvious, but I think that actually there’s very little consensus on the issue. Most attempts to answer this question – particularly David Sussman’s recent and very valuable paper (aptly entitled ‘What’s Wrong With Torture?’) as well as various courts and international tribunals - have primarily focused on the pain that torture inflicts. Elaine Scarry wrote beautifully about this in The Body in Pain. She argued that torture is wrong because it inflicts such great pain that it is world-destroying: it destroys language, memory, thought, and that through pain ‘the torturer uses the prisoner’s sentience to obliterate the objects of the prisoner’s sentience… the torturer uses the prisoner’s aliveness to crush the things that he lives for.’ Courts such as the European Court of Human Rights have similarly focused on the severity of pain involved in acts alleged to be torture, and we all know of the attempt by the Bush administration to argue that torture that does not happen until the ‘pain inflicted… rises to the level of death, organ failure, or the permanent impairment of a significant bodily function.’

I think that Scarry and Sussman’s accounts of what’s wrong with torture are generally correct, but I suspect that too much emphasis is put on the role of pain. It seems to me that pain is a useful method of achieving torture’s real purpose, and what’s really wrong with it. That is the annihilation of individual agency and autonomy (both difficult terms to define, I know, but what I mean here is simply the ability to act for one’s self, to meaningfully control one’s actions) and the destruction of human dignity. The torturer, in interrogating his or her victim, brings the tortured to the point where he or she ‘breaks’, where he or she can’t do anything but comply with the torturer’s wishes. The victim has no choice in the matter because he or she is acting out of reflexive desire to survive, to put an end to the torment inflicted – and at this point, the victim has no agency or autonomy – they are merely an entity that is aware of nothing but torment and the desire to be released from it. The pain inflicted is really just the most effective and quickest method of achieving this state, but it’s that destruction of the self that constitutes torture's deep moral wrongness.

It may seem a subtle shift, but I think if emphasis is put on dignity, to which pain is really secondary and which is the most useful mechanism by which to destroy dignity – we are getting closer to what is really wrong here, and what really repels us. It may also mean that we have to change our ideas about how to legally define when an act is torture – rather than how much pain is involved or its severity, we may need to focus instead of the loss of control in the victim, and their individual and subjective response to what was inflicted upon them. After all, if someone is deprived of sleep, hooded and beaten, and it drives them out of their mind and they falsely confess – why should this not be torture? Hasn’t it had the same affect as say, waterboarding them might? If we force someone to take a drug that acts painlessly but compels them to comply with whatever the interrogator would like against their own interests and wishes – hasn’t this destroyed their dignity and their agency meaningfully? Surely the destruction of dignity and agency in torture can’t be secondary to pain. After all, human dignity is the seat of our humanity and the place around which our human rights are centred, and what they seek to respect – so there can be no greater crime than to destroy individual dignity. There are any number of acts quite capable of doing this which may not employ objectively severe levels of pain – if it’s even possible to assess that.

I’m aware that there are great difficulties here philosophically. There are, clearly, examples of acts that destroy agency (e.g. lawful killing in self defence) that we do not think of as torture, it brings up issues of intention, and it would also be difficult to say the least to construct a meaningful legal definition around the destruction of human dignity, agency and autonomy. Pain is also clearly important, and it shouldn’t be dismissed. But while the difference between a conception of torture’s moral wrongness that places its emphasis in the destruction of dignity and agency with pain as secondary, and one that places it emphasis on the infliction of pain with the destruction of dignity and agency as the result of it might be a subtle one, I think this is an important question to answer. When we write about torture, or catalogue its practice, or inspect a government’s attempts to secretly use it, it’s often easy to forget the real nature of the act itself or to become detached from it, and a question like this is important if we want to understand what it actually is that we’re concerned with.

As I said, I haven’t come to any definite conclusions on this yet, so I’d be interested to see what readers think – and so I’d love to hear any thoughts that you may have. (Admittedly, there is much thought and detail that's been left out of what I've written here, but this is the general idea, and if a discussion does begin and people are interested, perhaps we can look at certain elements more closely.)

Update: Edwin, thanks for your comment. Your point about justice is a good one - I was extremely negligent and failed to say that I was writing about torture's wrongness just in terms of the act itself - so the elements of the act alone and not any states of affairs it might bring about - but of course when we look at the whole picture, including what torture is used for, the injustice of it becomes a primary concern. In terms of human rights, torture may often actually result in a double violation of human rights - firstly the torture itself, but secondly the tortured evidence/confession being used to deny someone a fair trial or resulting in some other deep miscarriage of justice. And Joni, thanks for reading!

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