Simcha Walfish
BCL/LLB III, Faculty of Law, McGill University
15 September 2019
The 1984 United Nations Convention Against Torture has 165 parties. As Jamal Barnes writes in his recent book, A Genealogy of the Torture Taboo, “Torture is one of the most condemned practices in world politics and is absolutely prohibited in international society. No country would dare openly torture.” Yet torture persists. Rather than withdrawing from the Convention or otherwise advocating torture, the recent legal history of torture has not been about the validity of the prohibition but a battle about its interpretation. The great triumph of reaching a global consensus about the impermissibility of torture belies the fact that the definition has been consistently abused. As Michael W. Lewis argues, “the broad agreement on the words used to define torture actually may do more harm than good.”
Article 1 of the Convention defines torture as
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.
On a first reading, this definition seems clear. To put it more concisely, torture is the
- intentional
- infliction of severe pain
- by public officials
Yet, the short history of this definition shows just how open it is to undermining. For legal scholar Jeremy Waldron, “Since pain can be more or less severe, evidently the word ‘severe’ is going to be a site for contestation between those who think of torture in very broad terms and those who think of it in very narrow terms.” The concept of “severe pain” is so malleable that, as Lewis writes, “Some proposed definitions are so broad that practically any form of interrogation would be illegal, others so narrow as to allow for a wide variety of shockingly brutal techniques.”
For Lewis, the subjectivity of “severe pain” is a “fatal flaw.” Since the prohibition is mostly left up to self-enforcement by states, a definition that relies on the subjectivity of the victim allows states to permit interrogation and detention techniques that seem quite a lot like torture. The solution to the abuses of the definition can be solved by an objective definition.
Searching for an objective definition
Lewis proposes a rebuttable presumption that “any stressor or form of physical treatment that a nation uses in a nonpunitive manner on its own trainees presumptively would not be considered torture when used on a detainee.” Since a state would, presumably, not torture its own trainees, this would provide clarity about what that state can do to detainees.
One obvious deficiency with this definition is that it would not, in fact, provide a universal objective definition. A country that treats its own trainees more cruelly could do the same to detainees. As Milan Markovic notes, it “would allow different nations to treat detainees differently – essentially defeating the entire purpose” of the Convention. Further, as Sarah St.Vincent notes, the equation of the context of training and counter-terrorist detention makes little sense. Because “military training is undertaken voluntarily, trainees know that the forms of treatment to which they are subjected during training will not continue indefinitely, and trainees may be confident that the military authorities overseeing the training, however harsh, have a long-term interest in their well-being.” The severity of the pain in torture is not just in the sensation of the act but in its psychological context.
David Luban argues that, although the definition of torture centres on pain and suffering, “the evil of torture cannot be reduced to sensations alone.” Rather, the true evil of physical torture is in the “linkage between suffering and its context” where pain is linked “with fear, uncertainty and the horror of being wholly in the power of a maleficent enemy.” Equating the training context with that of custodial interrogation treats torture like it is simply a matter of sensation.
To overcome the problem of different states treating their trainees differently, Lewis would supplement this standard with “a short list of bright line rules to close potential loopholes by forbidding certain conduct that, however unlikely, might be practiced by a state on its own trainees. These bright line prohibitions include medical experimentation, exposure to chemical/biological agents, murder, rape, mock executions, and mutilation.” As Markovic notes, these bright-line rules would provide little clarity. Lewis fails to explain “how the distinction between medical experimentation and legitimate medical study (for example) is less controversial than the distinction between torture and cruel or degrading treatment.”
Torture Memos
No discussion of the torture definition can avoid its most infamous manipulation: The Torture Memos produced by the United States Department of Justice in the early years of the War on Terror. Re-examining the memos shows both the attractiveness and the ultimate inadequacy of seeking an objective definition.
On August 1, 2002, Assistant U.S. Attorney General and head of the Office of Legal Counsel Jay Bybee, addressed a memo to Alberto Gonzales, then Counsel to the President titled “Standards for Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A”. The memo concludes that Section 2340A of the United States Code, which largely mirrors the language of the Convention, “proscribes acts inflicting, and that are specifically intended to inflict, severe pain or suffering, whether mental or physical.” The memo zeroes in on the word “severe” in order to raise the threshold for what constitutes torture. It is not enough that an act but be “cruel, inhuman, or degrading,” if it does “not produce pain and suffering of the requisite intensity.”
Looking to other areas of domestic law that treat severe pain, the memo argues that torture is something exceptional. It is “not the mere infliction of pain or suffering on another, but is instead a step well removed. The victim must experience intense pain or suffering of the kind that is equivalent to the pain that would be associated with serious physical injury so severe that death, organ failure, or permanent damage resulting in a loss of significant body function will likely result.” Torture is not something that can arise in the ordinary course of – even coercive – interrogation: “it is plain that the term encompasses only extreme acts.”
If that was not enough, the memo then fixates on the requirement that torture must be done with “specific intent.” The memo reasons that “a defendant is guilty of torture only if he acts with the express purpose of inflicting severe pain or suffering on a person within his custody or physical control.” Merely acting “knowing that severe pain or suffering was reasonably likely to result from his actions, but no more” would only be “general intent” and therefore, not torture. Lastly, acting in good faith is a “complete defense” to the charge since “good faith would negate the specific intent.”
The memo purports to follow the “common” and “ordinary” meaning of the word. Against this violent rendering of the definition, in which a public official would almost never be found guilty, the attractiveness of an objective definition becomes obvious. Despite the issues with the specifics of Lewis’s proposal, an objective definition could preclude the gymnastics that powerful actors undergo to avoid the charge of torture. If everyone agreed on what was and was not torture, we could focus less on semantics and more on facts. Crucially, per Lewis, eliminating the subjective element of the definition would mean that the definition of torture would be the “same on September 12, 2001 as it was on September 10, 2001.”
The problem with precision
While the vagueness of “severe pain” has left the definition up to contestation, a more precise definition may not be the solution. For Waldron, the argument that the definition is not clear enough to guide conduct is misguided:
Against all this, we need to remember that the charge of torture is unlikely to be surprising or unanticipated by someone already engaged in the deliberate infliction of pain on prisoners: “I am shocked—shocked!—to find that ‘waterboarding’ or squeezing prisoners’ genitals or setting dogs on them is regarded as torture.” Remember we are talking about precision or imprecision in regard to a particular element in the definition of torture: the severity element. The potential defendant we have to consider is one who already knows that he is inflicting considerable pain; that is his intention. The question he faces is whether the pain is severe enough to constitute torture. It seems to me that the working definition of torture in the antitorture statute already gives him all the warning he needs that he is taking a huge risk in relying upon casuistry about “severity” as a defense against allegations of torture.
Lewis worried about setting up bright lines between “torture” and “not torture” in a continuum of pressure. Waldron asks why we ought to allow interrogation to take place within a continuum that includes brutality in the first place. Waldron uses the example of tax liability. A person has a legitimate interest in knowing the exact rules so that they can benefit from brushing right up against the limit. This logic should not be applied to torture: “There are some scales one really should not be on and with respect to which one really does not have a legitimate interest in knowing precisely how far along the scale one is permitted to go.” That states have taken advantage of the imprecision of the definition is not a failure of the definition. Precision is not always desirable.
Perhaps the problem is not that the definition is unclear but that it has been made unclear. As Colin Dayan writes in her book, The Law Is a White Dog: How Legal Rituals Make and Unmake Persons, in these debates, “what began as unquestionable becomes doubtful. One of the best ways to produce ambiguity is to clarify obsessively.” In the “increasingly rarefied rituals of definition,” words are qualified “out of existence.” The obvious is neutralized and abuse is trivialized: “even a word like ‘torture,’ once submitted to perplexing disputes, makes language signify either nothing at all or whatever the legal expositors please.”
For Dayan, the problem is not that the definition gives too much weight to the subjectivity of the subject of torture. It is that the subjectivity of the tortured has been denied in favour of an obsession with the subjectivity of the torturer:
Did he intend to harm? Did he act in good faith? The possibilities are endless. The results—the presence of a mutilated, blind, or dead body—get defined away by the vain search for intent, while the defendant who committed the act is vindicated. What becomes of the legal personality of the detainee, once tethered to these recognized acts of will or agency? Subjectivity emerges as the privilege of those in control, while something vicious is being done to the object of harm, now reduced to a mere body controlled by administrative power.
In the fixation on the subjectivity of the perpetrator, even the “objective conditions” of torture are erased by a deep concern with the inner life of the official. The question of whether there is a person that has experienced severe pain is hardly asked at all.
Following Lewis, the focus on subjectivity is, in fact, a barrier to a workable definition of torture. But it is not the subjectivity of the victim that is the problem. Rather, we should seek to restore that subjectivity to victims of torture, to acknowledge their pain, not paper over it by looking for innocence in the minds of government officials. As Dayan puts it, by transferring human responsibility to those who inflict damage, “the codes of law skirt attention to actual suffering inflicted.” While the prohibition against torture was meant to protect human dignity, it has been twisted to deny the interiority for those who would face it. In debates about torture, Dayan writes, “emptied of agency, the object is no longer even a victim but instead ‘a pile of blood, bone and meat that is unhappy.’”
- Further reading
Cruel and Unusual: The end of the Eighth Amendment by Colin Dayan
A Genealogy of the Torture Taboo by Jamal Barnes
Why Torture Doesn’t Work by Shane O’Mara
“Behind This Mortal Bone”: The (In)Effectiveness of Torture by Jeannine Bell
Updated and all links accessed on May 30, 2019
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