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Torture

TORTURE

TORTURE. Torture (in Latin: quaestio; in German: peinliche Frage, Folter, or Marter; in French: la question, gehene, gene ) was an integral part of medieval and early modern criminal procedure. Because a voluminous body of law covered every stage of torture, the system is called judicial torture. During the early modern period torture gradually lost its importance, and it was finally abolished at the end of the period.

THE BACKGROUND OF JUDICIAL TORTURE

Judicial torture was no medieval or early modern invention. The Roman third-century lawyer Ulpian defined torture as "the torment and suffering of the body in order to elicit the truth." The actual jurisprudence of torture, however, only developed in connection with the twelfth-century "legal revolution," as the revival of Roman law at the newly founded universities of Northern Italy is often called. Before this, crimes were mostly prosecuted privately, with no public officials taking an active role in criminal investigations. The predominance of private prosecution came under threat as popes, kings, and princes increasingly centralized their political authority in the twelfth century. The process began in Northern Italy in the twelfth century and gradually spread to most other parts of Europe in the remaining centuries of the Middle Ages.

The inquisitorial procedure (inquisitio), as against the older accusatorial procedure (accusatio), was introduced to papal legislation as a means of controlling errant churchmen in the late twelfth century. In the inquisitorial procedure, the initiation of an action was entrusted to the court official, and the judge was actively involved in the investigation of the case. Inquisitorial procedure had been used in ancient Rome, and Charlemagne had also made use of it, but this type of procedure had fallen into disuse since the ninth century. In the thirteenth century, inquisitorial procedure was soon extended to the crime of heresy and other serious canon law crimes and soon spread to secular crimes as well. A parallel development (although not as yet thoroughly researched) was that serious crimes were categorized as exceptional (crimen exceptum), to which the normal rules of procedure did not apply.

The early medieval law of proof had left difficult cases to be decided by ordeal, oath, and judicial combat. Behind these archaic, "irrational" modes of proof lay the belief that God continuously intervened in the lives of the people and would let truth prevail in court as well. Leaving judicial problems for God to decide, however, ill suited the emerging conception of a rational, hierarchically organized judicial system. The result of the ordeal could not be challenged, nor could it be changed by the higher courts. The centralization of political power undermined the old European judicial systems, replacing lay judges with professional jurists. These professional judges were learned in Roman and canon law, distinct and alien from the system of proof based on ordeals, oaths, and combat. Many judges were probably familiar with formal logic and saw it as a basis for all legal decision making and law drafting. One of the most widespread forms of medieval legal scholarship became the so-called ordines iudiciarii, manuals of procedural law, in which both civil and criminal procedure, including the law of proof, were laid out in the minutest detail. The new procedure was based on learned law and written documents.

TORTURE AS PART OF THE STATUTORY THEORY OF PROOF

A new law of proof emerged, then, as part and parcel of these developments. The Roman canon law of proof drew its elements, like medieval Roman law in general, from the materials of Emperor Justinian's Corpus Juris Civilis (Corpus of Civil Law; also spelled Corpus Iuris Civilis), which had originated in the sixth century. In canon law, ordeals were expressly prohibited at the Fourth Lateran Council in 1215. The building blocks of Roman law were combined with those produced by the emerging canon law to build what has been called Romancanon law of proof, or the statutory or legal theory of proof. The theory then came to circulate as part of the European ius commune, ' common law', in the procedural law treatises of writers such as Albertus Gandinus (d. c. 1310) and William Durandus (c. 12371296). In contrast to the archaic system of oaths, ordeals, and combat, the new system assigned the decisions on evidence to human judges, not God, thus placing decisive emphasis on judicial torture. However, the change from one painful stage of criminal procedure to anotherfrom ordeal to torturemay not have seemed as significant to ordinary people as it was to the theoretician.

Because the statutory theory of proof reached its maturity in the thirteenth century and remained virtually unchanged until the early modern period, it is convenient to describe the theory as it appears in sixteenth-century jurisprudence and legislation. Among the many influential writers on criminal evidence embracing the statutory theory were the Italian Prosperus Farinaccius (15441618), the Dutchman Joost van Damhouder (15071581), and the German Benedict Carpzov (15951666). All these writers further elaborated and refined the theory of torture. The last important doctrinal defense of judicial torture was written by a Frenchman, Pierre François Muyart de Vouglans (17131791), in 1780.

Statutory theory of proof, as it was received from medieval literature in the works of Farinacius, Damhouder, Carpzov, and their colleagues, was based on the notions of full proof, half proof, and circumstantial evidence (indicia). Full proof could consist only of the statements of two eyewitnesses or the defendant's confession. Circumstantial evidence, no matter how plentiful, could only amount to partial proof, and combination of one eyewitness and circumstantial evidence did not constitute full proof. Without full proof, however, the accused could not be convicted of a capital crime.

Sacramental confession had gained significance in the twelfth-century canon law and had been made an annual obligation on all Christians at the Fourth Lateran Council of 1215. Because of its increased cultural significance, it is no wonder that confession had become "the queen of proofs"(regina probationum) in criminal procedure as well. The problem, however, was how to obtain full proof if no eyewitnesses were available. This is where judicial torture offered a solution. Judicial torture was never evidence in itself, but was a means of acquiring evidence in the form of confession.

THE THEORY OF JUDICIAL TORTURE

At the beginning of the early modern period, the ius commune theory of torture was basically the same as it had been in the works of Gandinus and Durandus. The basic rules were similar across Europe. The use of torture was confined to capital crimes, for which the death penalty or mutilation could apply. Torture was intended as the last resort in situations in which no other means of gathering evidence was available. If there was already full proof in the form of two eyewitnesses or voluntary confession, torture was not necessary. The accused was to be threatened with torture before it was actually applied, for instance, by showing him the instruments of torture. The investigating judge was to follow the accused to the torture chambers and interrogate him as he was being tortured, while a notary recorded the findings. Sometimes a doctor's presence was also required; no advocate, however, was allowed for the accused.

Torture was meant to establish whether the accused had committed the crime, the commission of which (corpus delicti) had already been established by other means. This legal safeguard did not, however, apply to witchcraft cases. They were regarded as crimina excepta, 'exceptional crimes', in that their "traces disappeared with the act" (facti transeuntis). The law excluded certain classes of people from liability to judicial torture. Pregnant women, children below the age of twelve or fourteen, and old people (if torture might put their lives at risk) could not be tortured. Noble persons, public officials of a certain standing, clergy, physicians, and doctors of law were exempt from torture in some parts of Europe. Torture could not take place on Sunday or other legal holidays.

The most important legal safeguard in restricting the use of torture had to do with the amount of circumstantial evidence required to initiate it. According to the law, half proof in the form of the testimony of one eyewitness or a sufficient amount of circumstantial evidence was necessary to initiate torture. Both in theory and in practice it was, however, largely left to the judge's discretion to determine when there was enough circumstantial evidence, although literature provided examples and guidelines. Compared to modern standards of proof necessary for conviction, the standard of evidence required for torture was often higher.

Other safeguards were provided to help material truth prevail as well. Contemporaries were well aware of the dangers that torture entailed from the point of view of finding out what had actually happened. Leading questioning was thus prohibited, and the confession extracted under torture was to be repeated in court within a certain time limit. Only the voluntary confession given thereafter, within twenty-four hours or so, served as proof, and not the confession given under torture. The practical significance of this safeguard was seriously undermined by the fact that the accused could be taken back to the torture chamber should he or she decide to recant the confession. Much of the literature recommended the practice of verifying the information obtained through torture, but many legal experts complained that courts paid too little attention to verification in practice. If the accused, nevertheless, managed to resist torture and did not confess, he or she had to be acquitted, at least until new incriminating evidence appeared.

The statutory theory of proof, together with judicial torture, was not only limited to legal literature but was incorporated into some of the major European legislative pieces of the early modern period, for example, the Constitutio Criminalis Carolina of imperial Germany (1532), the French Ordonnance Royale (1539) and Grande Ordonnance Criminelle (1670), and the Nueva Recopilación of Spain (1567). In some parts of Europe torture was used not only on the accused, but also on those against whom full eyewitness proof had already been produced. The idea was to secure confession, considered necessary for salvation, or to obtain evidence about possible accessories.

The legal literature was not greatly concerned with the form that judicial torture could take; this was largely a matter of local custom. In each case, the individual judge selected the method of torture, supposedly taking into consideration the seriousness of the charge. The most widespread torture device was the strappado (corda, cola), "the queen of torments," in which the accused's hands were tied behind the back, and he or she was lifted up with a rope, sometimes with weights attached to the ankles. Or metallic devices, such as leg-braces, legscrews, and thumbscrews, were used to press the accused's limbs or fingers and to crush them. Other widely used methods included keeping the accused awake; being stretched on the rack; and inducing the sensation of drowning by wetting a rag stuffed into the accused's throat.

THE DECLINE OF TORTURE

In the seventeenth century, the system of judicial torture began to lose its practical significance, although it formally remained part of the law in most European countries until the late eighteenth and early nineteenth centuries. An important reason for its gradual disappearance was the erosion of its theoretical basis, the statutory theory of proof. In the sixteenth and seventeenth centuries, new forms of punishment were introduced as alternatives to death to cope with serious criminality, the most important being the galley, the workhouse, and the practice of exile and transportation. The new punishments called for more discretion in choice of punishment and sentencing. When the increased range of punishments and sentencing was combined with the different amounts of evidence available in practice, a revolution in the law of proof occurred. As John Langbein has shown, the "punishment upon suspicion" or "punishment for lying" (Verdachtstrafe, Lügenstrafe ) developed as a result of this. For lesser evidence, a lesser punishment now followed. Although the death penalty still required full proof, both executions and incidents of judicial torture decreased from the sixteenth and seventeenth centuries in many European regions.

Thus, Sweden, where the statutory theory of proof was only adopted in the seventeenth century, and in its already changed form, could always boast of not having accepted judicial torture. In practice, however, torture was not completely unknown there. The same can be said of Aragón, another state that did not formally allow the use of torture. The English experience demonstrates particularly clearly the close connection between torture and the law of proof. The English jury system began to develop before the reception of Roman law in Europe. It was thus the jury, not the Roman canon law of proof, that replaced the archaic modes of evidence in the Middle Ages in England. The jury developed considerable freedom in evaluating evidence and condemning on circumstantial evidence, making torture to extort confessions unnecessary. A regularized system of judicial torture thus never developed, and its use was limited to political cases. Another reason for England's rejection of torture was that, unlike the Continent, England's judicial system developed on the basis of unpaid lay judges, to whom it would have been dangerous to entrust a system of torture.

THE ABOLITION OF TORTURE

When Muyart de Vouglans wrote his treatise on criminal procedure in 1780, the medieval law of proof that had formed the basis of judicial torture had been eroded, and the philosophical and legislative attack on torture was already well under way. The best known critique of torture is Cesare Beccaria's (17381794) On Crimes and Punishments (1764), to which Muyart de Vouglans' work was in fact a response. Voltaire (16941778) joined Beccaria in fiercely condemning torture in some of his essays. According to the philosophes, torture could not secure correct judgments, since so much depended upon the ability of the accused to resist the physical pain involved. Torture was also wrong because it inflicted pain on people who had not been shown to deserve it. However, as Piero Fiorelli has demonstrated, these arguments were not the discoveries of the eighteenth-century philosophers, having been voiced by individual critics since the Middle Ages. Recent scholarship, especially the works of Fiorelli, Langbein, and Peters, has indeed shown that the historian of torture must look beyond the writings of the Enlightenment philosophers to understand why judicial torture was abolished.

European states abolished torture from their statutory law in the late eighteenth and early nineteenth centuries. Prussia was the first to abolish it in 1754; Denmark abolished it in 1770, Austria in 1776, France in 1780, and the Netherlands in 1798. Bavaria followed the trend in 1806 and Württemburg in 1809. In Spain the Napoleonic conquest put an end to the practice in 1808. Norway abolished it in 1819 and Portugal in 1826. The Swiss cantons abolished torture in the first half of the nineteenth century. By the mid-nineteenth century, European legislators had thus harvested the fruits that the early modern revolution of proof, followed by Enlightenment philosophy, had produced. As Langbein and Peters observe, the final abolition of torture occurred gradually and in close connection with a general revision of criminal law. Legislative reforms took place partly simultaneously with, but in general slightly after, the Enlightenment philosophers' attack on judicial torture.

See also Crime and Punishment ; Inquisition ; Law ; Star Chamber .

BIBLIOGRAPHY

Primary Source

Beccaria, Cesare. On Crimes and Punishments and Other Writings. Edited by Richard Bellamy. Translated by Richard Davies. Includes the translation of "Dei delitti e delle pene" (1764). Cambridge, U.K., 1995.

Secondary Sources

Bartlett, Robert. Trial by Fire and Water: The Medieval Judicial Ordeal. Oxford, 1988.

Fiorelli, Piero. La tortura giudiziaria nel diritto commune III. Milan, 19531954.

Langbein, John H. Prosecuting Crime in the Renaissance: England, Germany, France. Cambridge, Mass., 1974.

. Torture and the Law of Proof: Europe and England in the Ancien Régime. Chicago, 1977.

Peters, Edward. Torture/Edward Peters. New York, 1985.

Heikki PihlajamÄki

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Torture

Torture

DEFINITIONS OF TORTURE

TYPES AND PURPOSE OF TORTURE

PSYCHOLOGICAL AND PHYSICAL EFFECTS OF TORTURE

TREATMENT FOR VICTIMS OF TORTURE

RECOVERY FOR SURVIVORS OF TORTURE

BIBLIOGRAPHY

As media accounts and images of torture, trauma, disaster, and rape permeate our daily lives, it is difficult to ignore the impact such destruction wields on the social fabric in which we live. Individuals directly affected by this devastation, such as refugees, asylum seekers, IDPs (internally displaced people), and illegal immigrants, struggle to piece their lives back together after enduring unimaginable cruelty and violence. The cruel and violent acts witnessed and experienced by these individuals come in many forms, one of the most common being torture. Though the word torture is commonly used without restraint in everyday language, its use should be clearly differentiated from words for inhumane and degrading actions that may fail to match the true definition of torture.

DEFINITIONS OF TORTURE

The two most frequently cited definitions of torture are the World Medical Associations (WMA) 1975 Declaration of Tokyo and the definition given by the 1984 United Nations Convention Against Torture.

The 1975 WMA Declaration defines torture as: The deliberate, systematic, or wanton infliction of physical or mental suffering by one or more persons acting alone or on the orders of any authority, to force another person to yield information, to make a confession, or for any other reason. The 1984 United Nations Convention Against Torture expands upon this definition, distinguishing the legal and political components typically associated with torture:

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.

Currently accepted definitions of torture have two essential elements: (1) Individuals are placed in captivity and subjected to extreme mental and physical suffering; and (2) the captors have a political goal or agenda. In this way, torture as a legal definition can be distinguished from criminal acts of violence.

TYPES AND PURPOSE OF TORTURE

The most common types of torture are summarized in Table 1. Torturers use these techniques to achieve several main goals. The most obvious intention of torture is breaking down an individual both physically and mentally (frequently for military or political purposes). Secondly, torturers seek to spread collective fear throughout a particular community or culture in which the victim lives. Finally, the torturer seeks to deeply humiliate the victims society and community. The goal of torture is essentially to render the victim nonhuman.

Table 1. Most Common Forms of Torture.
Beating, kicking, striking with objects
Beating to the head
Threats, humiliation
Being chained or tied to others
Exposure to heat, sun, strong light
Exposure to rain, body immersion, cold
Being placed in a sack, box, or very small space
Drowning, submersion of head in water
Suffocation
Overexertion, hard labor
Exposure to unhygienic conditions conducive to infections and other diseases
Blindfolding
Isolation, solitary confinement
Mock execution
Being made to witness others being tortured
Starvation
Sleep deprivation
Suspension from a rod by hands and/or feet
Rape, mutilation of genitalia
Sexual humiliation
Burning
Beating to the soles of feet with rods
Blows to the ears
Forced standing
Having urine or feces thrown at one or being made to throw urine or feces at other prisoners
(Nontherapeutic) administration of medicine
Insertion of needles under toenails and fingernails
Being forced to write confessions numerous times
Being shocked repeatedly by electrical instrument

One important act of torture, for example, that has only recently been recognized as such is rape, a frequently used torture practice during periods of conflict and genocide. A group with a particular agenda often executes systematic or wanton rape and sexual violence knowing that the long-term effects of this experience will be devastating to both the individual and his or her community. However, rape was only recognized globally as an act of torture after the international appraisal of violence that occurred in Bosnia-Herzegovina and Rwanda.

PSYCHOLOGICAL AND PHYSICAL EFFECTS OF TORTURE

Knowledge of the types of torture described in Table 1 enables medical doctors, mental health professionals, and other health-care workers to assess the medical and psychological impact of torture and determine appropriate treatment. Until very recently, the psychological effects of torture have remained largely invisible. This is because of the combined effects of the difficulty of assessing mental symptoms in culturally diverse populations, the unsuccessful search by human-rights organizations for a unique torture syndrome, and the popular belief in some medical circles that extreme violence leads to the psychiatric diagnosis of post-traumatic stress disorder (PTSD). PTSD may be an appropriate diagnosis. However, this emphasis on PTSD has obscured the reality that the most common mental illness diagnosed in torture survivors is depressionoften a serious and socially debilitating condition associated with serious medical consequences. While physical complaints in torture survivors are very common, usually these bodily complaints are the way people from various cultures express their pain and suffering.

Head injuries caused by beatings to the head with fists, clubs, or gun butts represent one of the most common physical effects of torture, leading to neuropsychological deficits that are rarely identified. Studies have shown that victims of all types of torture often experience persistent and pervasive sensory and memory deficits, cognitive impairment, chronic pain, and certain forms of motor impairment (as serious as paraplegia) as a result of their torture experience. Other more specific physical symptoms commonly reported include headaches, impaired hearing, gastrointestinal distress, and joint pain. Scars on the skin and bone dislocations and fractures are also typically observed.

Since sexual violence is a common form of torture, its effects, including increased risk for cervical cancer, human immunodeficiency virus (HIV) infection and AIDS, and a range of sexual dysfunction including impotence, must be identified and treated by medical professionals.

TREATMENT FOR VICTIMS OF TORTURE

Physicians and health-care providers throughout the world are frequently confronted with the need to identify and treat the physical and psychological impact of extreme violence and torture. It is estimated, for example, that 60 percent of individuals who seek asylum in the United States have been tortured, as have many refugees and migrant workers. A history of torture is common in various groups that have resettled in the United States and other countries during recent decadesCambodians, Vietnamese boat people, and former Vietnamese prisoners of war (POW) who arrived in the 1980s; Central Americans who immigrated in the 1980s and 1990s; and recent arrivals from sub-Saharan Africa, the Middle East, and eastern Europe. Many newcomers enter the United States not only to find economic opportunities but also to escape violence and political instability at home.

Despite routine exposure to the suffering of victims of human brutality, many health-care professionals tend to be apprehensive about confronting this reality in their clinical work. Globally, clinicians often avoid addressing torture-related symptoms of illness, believing they will not have the tools or the time to help torture survivors once they have elicited their history. As a result of this resistance, survivors and clinicians may conspire to create a relationship founded on the avoidance of all discussion of trauma.

The most effective care for torture survivors must begin with awareness. Persons who have been tortured generally do not want to be treated simply as torture survivors. Rather, they prefer a holistic approach that addresses their current reality in a culturally sensitive way. Many characteristics of the patients background provide clues that torture may have occurred. As health-care practitioners become more empowered to ask questions such as, Have you experienced extreme violence or torture?, it becomes easier to identify and treat the pathological symptoms of such trauma.

Torture survivors often do not recognize any relationship between the torture and current medical problems they may be experiencing. When asked about specific events, patients are usually grateful that the clinician is aware of what they have suffered, is interested in their history, and is encouraging them to talk about their story. Though clinicians often fear a patients reaction to questions about torture, patients rarely become emotionally overwhelmed or lose control when such questions are asked. Some torture survivors, especially victims of sexual violence, may have been hiding their history out of feelings of shame or fear of stigmatization, and thus be grateful to talk to someone who cares. Others may come from cultures in which physicians are not expected to be interested in patients personal history.

RECOVERY FOR SURVIVORS OF TORTURE

Many torture survivors recover from torture with the help of spiritual and religious practices, work, and altruistic activities that benefit themselves, their families, and their communities. These self-healing efforts need to be strongly supported by society and its health-care and mental healthcare institutions. Human beings are incredibly resistant to even the most horrifying acts of human cruelty. While the majority of torture survivors recover without professional help, some do not. It has been shown that these individuals can greatly profit from proper medical and mental health care that will facilitate their return to a normal life.

A broad range of individual treatments exist that include primary health care, physical rehabilitation of torture-related disabilities, and psychological interventions aimed at eliminating traumatic memories, nightmares and chronic depression. Healing of torture survivors is also maximized when governments and the international community acknowledge the injustice they have suffered (e.g., the Truth and Reconciliation Commission in South Africa).

SEE ALSO Guantánamo Bay; Interrogation; Justice; Post-Traumatic Stress; Refugees; Reparations; Resiliency; Restitution Principle; Sexual Harassment; Terrorism; Trauma; Traumatic Bonding; Violence; Vulnerability; War

BIBLIOGRAPHY

Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 2002. Geneva, Switzerland: Office of the United Nations High Commissioner for Human Rights. http://www.unhchr.ch/html/menu2/6/cat/treaties/opcat.htm

Goldfield, Anne E., Richard F. Mollica, Barbara H. Pesavento, et al. 1988. The Physical and Psychological Sequelae of Torture: Symptomatology and Diagnosis. Journal of the American Medical Association 259: 27252729.

Krug, Etienne G., James A. Mercy, Linda L. Dahlberg, and Anthony B Zwi, eds. 2002. World Report on Violence and Health. Geneva, Switzerland: World Health Organization. http://www.who.int/violence_injury_prevention/violence/world_report/en/introduction.pdf

Mollica, Richard F. 2000. Invisible Wounds: Waging a New Kind of War. Scientific American 282: 5457.

Mollica, Richard F. 2004. Surviving Torture. New England Journal of Medicine 351: 57.

Mollica, Richard F. 2006. Healing Invisible Wounds: Paths to Hope and Recovery in a Violent World. Orlando, FL: Harcourt.

Quiroga, Jose, and James M. Jaranson. 2005. Politically-Motivated Torture and Its Survivors: A Desk Study Review of the Literature. Torture 15 (23): 1111.

Richard F. Mollica

Daniel Hovelson

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torture

torture In a broad sense, torture might be regarded as any instance in which pain is inflicted by one human being on another, either for personal gratification or to demonstrate power. But historically torture has most often been defined more narrowly, as an aspect of legal systems or of state repression. The third century Roman jurist, Ulpian, noted that by torture ‘we are to understand the torment and suffering of the body in order to elicit the truth’, and much the same definition was offered by Article 1 of the Declaration against Torture adopted by the General Assembly of the United Nations in December 1975: ‘torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes of obtaining from him or a third person information or confession, punishing him for an act he committed, or intimidating him or other persons.’

Viewed in this way, torture has a long history. It was part of the judicial practice in a number of ancient cultures, notably among the Egyptians, Persians, Greeks, and Romans. Among the Romans it was reserved mainly for the investigation of treason or of criminal acts perpetrated by slaves or other persons of low status. What has been termed judicial torture probably fell into at least partial disuse after the fall of the Roman Empire, but it returned in Western and Central Europe when interest in Roman Law revived during the ‘judicial revolution’ of the twelfth century. More specifically, a papal ruling of 1215 which denied the validity of the ordeal as a means of establishing proof in criminal trials left those running Europe's legal systems with the problem of how to prove that suspects were guilty. Most states adopted the notion that a confession was the best form of proof, and adopted torture as a means of gaining confessions as well as information which might implicate other persons. Torture also became part of the judicial repertoire of the Inquisition. In theory, and frequently in practice, the application of torture was subjected to set rules aimed at avoiding the infliction of excessive suffering. More specifically, torture was only to be used against persons against whom there were already strong presumptions of guilt; it was not to be used against children, pregnant women, or the aged and infirm; examining judges were not meant to shape confessions through leading questions; and, of course, in the Christian West torturing was did not take place on Sundays. Preferred forms of judicial torture were the rack, the strappado (which involved binding the arms together behind the suspect's back, and then lifting him by a rope secured to his hands and slung over a beam), thumbscrews, and irons designed to crush the legs.

Cross-cultural studies reveal that torture was used in a number of extra-European states. In Japan, for example, torture was used from a very early date to extract confessions, and from the beginning of the Tokugawa period in the seventeenth century the Japanese seem to have used something very like the strappado. Some legal systems were opposed to judicial torture. Islamic law rejected the use of coercion to gain confession, although the authorities in the Ottoman Empire frequently ignored this.

The abolition of torture as a part of criminal trial process occurred over most of Europe in the second half of the eighteenth century, and has usually been regarded as a symbol of the arrival of Enlightenment values. More recent scholarship has suggested that the emergence of forms of secondary punishment which made the former stress on the confession redundant may also have been at play, along with other changes in criminal process. Yet it is certainly true that nineteenth-century liberals regarded the abolition of torture as one of the major achievements of European culture, something which distinguished their rational and progressive world from the brutal past. Thus the entry on torture in the famous eleventh edition of the Encyclopaedia Britannica, published in 1911, could congratulate itself that ‘the whole subject is now one of only historical interest as far as Europe is concerned’.

Sadly, twentieth-century developments shattered such complacency. Both Stalin's Russia and Hitler's Germany experienced a massive upsurge in torture, with the greater morality of the need to defend the Revolution or the State relegating other forms of morality to a secondary position. Since 1945 torture has been widely used in many parts of the world, notably in such South American States as Uruguay, Brazil, Argentina, and, under General Pinochet, in Chile, along with South Africa and Turkey. In such areas, torture has become one of the standard methods by which regimes have supported themselves, usually with a lack of control or supervision which would have been unthinkable in medieval Europe. The rack and the strappado have been rendered obsolete by electric shocks to the genitals, the use of electric cattle prods, regular beatings, cigarette burns, the insertion of police truncheons and similar objects in the anus or vulva, threat of rape or rape itself, and sophisticated psychological torments, applied to persons suspected of political deviance in a large number of states. Amnesty International has estimated that a third of the political regimes currently in existence use torture on a regular basis. The preface of that organization's 1973 Report on Torture commented that ‘torture has virtually become a worldwide phenomenon and that the torturing of citizens regardless of sex, age, or state of health in an effort to retain political power is a practice encouraged by some governments and tolerated by others in an increasingly large number of countries.’

As an historical phenomenon, torture, apart from those occasions when it has simply been treated as a symbol of past brutality, has been most studied in its legal aspects, and there has been little attempt to integrate it into the history of the body. Obviously, however, it does raise questions about how physical pain and suffering were regarded, and hence how one human being might regard the body of another. At least initially, medieval codes regulating torture held that persons who refused to confess under torture had removed the presumptions of guilt against them, and long before the eighteenth century European critics of judicial torture were arguing that torture was more likely to reveal individual tolerance of pain rather than encourage accurate confessions. Thus the English legal writer Sir John Fortescue, in De Laudibus Legum Anglie, a treatise probably composed around 1470, asked ‘who is so hardy that, having once passed through this atrocious torment, would not rather, though innocent, confess to every kind of crime, than submit again to the agony of torture?’ (The English common law, which Fortescue was praising, did not use torture as a part of normal criminal process.)

This theme was taken up in the mid eighteenth century, with the arrival of the Enlightenment. The most noted Enlightenment writer on crime and punishment was the Italian Cesare Beccaria, who published his influential Dei Delitti e delle Pene (On Crimes and Punishments) in 1764. Beccaria discussed torture at length, giving a number of reasons why it should be abolished, some humanitarian, others returning to a discussion of what torture was actually testing. Using contemporary notions about sensitivity to pain, Beccaria argued that ‘the impression of pain may become so great that, filling the entire sensory capacity of the tortured person, it leaves him free only to choose what for the moment is the shortest way to escape from pain … the sensitive innocent man will then confess himself guilty when he believes that, by so doing, he can put an end to his torment.’ Conversely, argued Beccaria, ‘robust scoundrels’, although guilty, would not crack under torture. This line of argument became axiomatic in Enlightenment critiques of judicial torture.

There is currently a growing corpus of studies of the effects of torture, both physical and psychological, upon those who have suffered it in the modern world, and such studies might offer perspectives on how a wider history of torture might be written. What is perhaps most needed, however, is some sort of insight into how torturers regarded those upon whom they were inflicting pain. It seems likely that in many cases the torturer would regard torture as a necessary evil, vital in either defending a regime or expediting a criminal process, or might regard the person being tortured as a creature so deviant as not to merit consideration as a fellow human. Yet it remains clear that the practice of torture does hold some clues, as yet largely uninvestigated, to past attitudes towards the human body.

J. A. Sharpe

Bibliography

Peters, E. (1985). Torture. Blackwell, Oxford and New York.


See also martyrdom; violence; war and the body.

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torture

torture, the intentional infliction of severe physical or mental pain or suffering in order to intimidate, coerce, obtain information or a confession, or punish. In international law, the term is usually further restricted to actions committed by persons acting in an official capacity.

The UN Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, which came into force in 1987 and to which more than two thirds of the world's nations are parties, bans torture and other abusive treatment of any person, as well as forcibly transferring a person to a nation when there is reason to believe that the person will be tortured. Parties to the treaty must periodically report and answer questions on their compliance before the Committee against Torture in Geneva. The convention restates much of an earlier General Assembly declaration (1975), and the earlier Universal Declaration of Human Rights (1948) and International Covenant on Civil and Political Rights (1966; in force, 1976) also banned torture. In addition, agreements sponsored by regional international organizations also forbid the practice, as do the Geneva Conventions. Despite these international agreements, Amnesty International indicated (2007) that there were reports of the use of torture or other forms of abuse by security or police forces in 102 nations in 2006.

The utility of torture in obtaining useful information from individuals is a matter of debate, and the arguments on both sides rely on anecdotal evidence. Torture is most often justified, even by those who oppose its use generally, in situations where interrogators seek to obtain information from a suspect who has knowledge of an imminent and devastating attack. Whether a terror suspect who had knowledge of a "ticking timebomb" would divulge any useful information under torture likely depends on the psychology of the suspect. That tortured individuals divulge false information is known to be true, and an instance of this was reported to have contributed to the Bush administration's belief that Iraq had helped train militant Islamic terrorists. Studies also have shown that extreme stress can detrimentally affect memory, suggesting that torture, especially if prolonged, might in fact impair recall.

The United States, which regularly denounces the use of torture and abuse internationally in the State Dept.'s well-regarded Human Rights Reports, found itself the object of international criticism when, in the aftermath of the Sept. 11, 2001, terror attacks, Justice Dept. and other administration legal officials construed international strictures against torture narrowly so as to expand the harsh "enhanced interrogation" techniques that could be used, especially by the Central Intelligence Agency (CIA), when questioning suspected terrorists. Defense Dept. officials asserted (2003) that, as commander in chief, the president was not bound by the international commitments the United States had made concerning the use of torture and could approve any technique that would protect national security. U.S. government officials also argued that harsh treatment was not torture if an interrogator did not intend to torture a prisoner. Some have contended that such arguments directly contributed to reported abuses of terror suspects held at the Guantánamo Bay naval base and to notorious abuses of Iraqis at the Abu Ghraib prison. The United States also has transferred lesser terror suspects for detention and interrogation to countries where those suspects were citizens even when those countries were listed in State Dept. reports as using torture, although U.S. officials ostensibly have obtained guarantees against the use of torture in such cases.

U.S. officials subsequently (2004) issued guidelines that called torture abhorrent and retreated on many points from earlier memorandums, but it remained unclear to what degree Bush administration considered the CIA to be bound by U.S. law and international agreements. Revelations concerning Bush administration memorandums and practices led Senator John McCain, who had himself been tortured while a prisoner of war during the Vietnam War, to seek (2005) legislation banning cruel, inhuman, or degrading treatment of terror suspects in U.S. custody, no matter where they are held. It was reported in 2007 that in 2005 the Justice Dept. secretly approved the use of harsh interrogation tactics, including simulated drowning ( "waterboarding" ), by the CIA. In 2009 it was reported that that the treatment of at least one person held at Guantánamo Bay had met the legal definition of torture and that a secret 2007 International Committee of the Red Cross report had concluded that CIA treatment of some detainees constituted torture. In 2008 President Bush vetoed legislation that would have required the CIA to adhere to U.S. army interrogation standards, but in 2009 President Obama banned any methods that could be considered torture. A Senate Intelligence Committee report whose conclusions were publicly released in 2014 provided details on the use of torture by the CIA in the aftermath of the 2001 terrorist attacks, relying on the CIA's own documents, and asserted that the CIA's claims of the usefulness of brutal interrogation were contradicted by its own documents. The Senate report largely echoed a nonpartisan review of interrogation and detention practices after 2001 that was released in 2013.

See K. J. Greenberg and J. L. Dratel, ed., The Torture Papers: The Road to Abu Ghraib (2005); D. Rejali, Torture and Democracy (2007); J. Jaffer and A. Singh, Administration of Torture: A Documentary Record from Washington to Abu Ghraib and Beyond (2007); A. M. Dershowitz, Is There a Right To Remain Silent?: Coercive Interrogation and the Fifth Amendment After 9/11 (2008); M. Cohn, ed., The United States and Torture (2011); R. M. Palitto, ed., Torture and State Violence in the United States (2011).

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torture

torture. In his important work De laudibus legum Angliae, Chief Justice Fortescue (c.1385–1477/9) describes torture as being foreign to English law, which he praised in comparison with the civil law of the European continent. Certainly torture was a feature of the civil law system and was used to discover truth where an inquisitorial form of trial was used. However, although not used by the common law courts, it was used by the council when investigating offences and, particularly in the reign of Henry VIII and Elizabeth I, the use of torture, notably the use of the rack, was common. Torture was also occasionally used by the Court of Star Chamber. Although the common law itself did not use torture as a means of obtaining evidence, it did in practice torture those who refused to accept trial by jury under the peine forte et dure. Torture was permitted under Scottish law, but was abolished immediately after the Union by 7 Anne c. 21 s. 5 (1708).

Maureen Mulholland

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torture

tor·ture / ˈtôrchər/ • n. the action or practice of inflicting severe pain on someone as a punishment or to force them to do or say something, or for the pleasure of the person inflicting the pain. ∎  great physical or mental suffering or anxiety: the torture I've gone through because of loving you so. ∎  a cause of such suffering or anxiety: dances were absolute torture because I was so small. • v. [tr.] inflict severe pain on: most of the victims had been brutally tortured. ∎  cause great mental suffering or anxiety to: he was tortured by grief. DERIVATIVES: tor·tur·er n.

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torture

torture Infliction of pain on a person to extract information, a confession or to indulge sadistic inclinations. It has been practised in many cultures. Until the 18th century in Europe, it was considered a legitimate means of extracting a legal confession to a crime. The 1949 Geneva Convention included a clause against torture. Despite this, the use of torture has continued. There has been increasing recognition of “psychological torture”, in which disorientation, fear and loss of sleep and self-respect are used instead of or in addition to the simple application of physical pain.

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Torture

646. Torture

  1. Marsyas flute player who challenges Apollo, loses, and is flayed alive for his presumption. [Gk. Myth.: Brewer Dictionary, 588]
  2. St. Bartholomew martyr flayed alive before being crucified. [Hagiog.: Colliers, III, 77]

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torture

torture sb. XVI. — (O)F. torture or late L. tortūra twisting, writhing, torment, f. tort-; see prec.,
-URE. Hence vb. XVI.

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torture

torturebotcher, gotcha, top-notcher, watcher, wotcha •imposture, posture •firewatcher • birdwatcher •debaucher, scorcher, torture •Boucher, voucher •cloture, encroacher, poacher, reproacher •jointure • moisture •cachucha, future, moocher, smoocher, suture •butcher •kuccha, scutcher, toucher •structure •culture, vulture •conjuncture, juncture, puncture •rupture • sculpture • viniculture •agriculture • sericulture •arboriculture • pisciculture •horticulture • silviculture •subculture • counterculture •aquaculture • acupuncture •substructure • infrastructure •candidature • ligature • judicature •implicature •entablature, tablature •prelature • nomenclature • filature •legislature • musculature •premature • signature • aperture •curvature •lurcher, nurture, percher, searcher

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Torture

TORTURE

This article is concerned only with the use of torture as a means of obtaining a confession or other testimony in a judicial inquiry. Torture in the punishment of crime is dealt with elsewhere (see punishment).

History. Torture, although in use among many peoples from antiquity, was not employed by the Jews, and there is no mention of it in the Old Testament. The Greeks subjected slaves to torture, but exempted freemen, except in cases of conspiracy and murder. Roman law sanctioned its use, although there were attempts ineffective for the most partto restrict its application. With the barbaric invasions, resort to torture in the investigation of crime declined. It is questionable whether the barbarians made any use of it before their contact with the Roman world, but in any case they favored the or-deal in their judicial processes. Then, under the influence of Germanic customs and concepts, torture was little used from the nineth to the 12th centuries, but with the revival of Roman law, the practice was reestablished in the 12th century. The English common law did not recognize the legality of torture except for the peine forte et dure, which was a torture by pressure of weights that could be inflicted upon a prisoner who, out of malice, refused to plead. There were few instances in which torture was inflicted by order of a common-law judge, but its use by order of crown or council or extraordinary tribunal was common in the 16th century. The use of torture was abandoned in England by the middle of the 17th century.

Torture and the Church. In the early Church voices were raised against the practice (see Tertullian, De corona 11; De idololatria 17; St. Augustine, Civ. 19.6). It was proscribed for the Bulgarians in 866 by Nicholas I (d. 648). With the revival of its practice in Europe under the influence of Roman law, canonists and moralists appeared to regard it as too integral a part of the juridical system to be abolished without endangering the whole structure. In 1252 Innocent IV sanctioned the infliction of torture by the civil authorities upon heretics, and torture later came to have a recognized place in the procedure of the inquisitorial courts. According to the Church's existing legislation, force is not used to secure a confession from an accused person, and it is expressly stated that a person is not required to reveal the truth when interrogated judicially about a crime committed by himself. (1917 Codex iuris canonics c.1743.1).

Theory. After the revival of the use of torture in the 12th century, no attack of note upon the theoretical basis of the practice was made until the 16th century, when various influencesnotably, among others, the harshening of penal law under the absolutist governments of the time and the extravagances of the witch hunts and trials caused thoughtful men to seek a fresh view of the barbarous practice; it was not until the 18th century, however, that the budding protests bore fruit.

The use of torture as a means of uncovering the truth appears so futile, so unjust, and so revolting, that it is difficult for the modern mind to understand how it could have been tolerated by a civilized people. The barbarity cannot be objectively justified, and it is only when it is seen against the background of the times that it is possible to understand why people did in fact accept it. Nothing contributed more to its toleration than the fact that it was a part of the heritage of Roman law, which was held in great veneration. Again, it must be remembered that a different concept prevailed with regard to the position of the accused. He was not, as now in Anglo-American law, presumed innocent until convicted. Under Roman law, on the contrary, a credible accusation established a presumption of guilt, and this made it possible to view the suffering of an accused person under torture as being in some sense a punishment for his crime. Moreover, the accused was not exempt from an obligation to make self-incriminating statements. When questioned by a magistrate, even about his own guilt, he was bound to respond truthfully (see St. Thomas Aquinas, Summa theologiae 2a2ae, 69.1). Finally, it must also be remembered that during the centuries when the use of torture was an accepted judicial procedure, there was little squeamishness about resorting to cruelty in the interests of justice, as is evident in the savage penalties inflicted upon convicted criminals.

While not denying the right of an individual to immunity from violence, those who wrote in defense of the use of torture saw the right of immunity as yielding before the greater right of the state to discover guilty secrets that menaced its welfare or existence. If the state were not empowered to use torture to get at the truth, greater harm would result than would come by violating the liberty and persons of individuals (see Juan de Lugo, De iustitia et iure 37.13). Although the practice was thus defended by some, they laid stress upon the safeguards and limits that had to be observed if the use of torture was to be accounted licit (see St. Alphonsus Liguori, Theologia moralis 4.3.3). However, to the modern mind the defense is insufficient, because it weighs the damage done to the common good by an individual's obdurate silence only against the injury done to that individual when he is subjected to torture, whereas much damage is done to other individuals and to the common good itself when there is resort to torture. The use of torture has always been attended by grave abuses, against which protest and other forms of legal and moral counteraction have invariably proved ineffective. It lessens the majesty of law and weakens the security of all men who must see themselves as potential victims of similar mistreatment.

Bibliography: r. naz, Dictionnaire de droit canonique, ed. r. naz (Paris 193565) 5:141826. e. vacandard, Dictionnaire de théologie catholique, ed. a. vacant et al., (Paris 190350) 7.2:201668, g. neilson, Encyclopedia of Religion and Ethics, ed. j. hastings (Edinburgh 190827) 12:391393. f. helbing, Die Tortur (Berlin 1926). a. mellor, La Torture (Paris 1949).

[p. k. meagher]

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Torture

TORTURE

Waterboarding and Other Tactics

In 1988, the United States, along with several other nations, signed the declaration of the United Nations Convention Against Torture (reaffirmed in 1994), which defined 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 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.”

Twenty years later, in 2008, President George Bush vetoed a Congressional bill that banned “water boarding” and other allegedly cruel tactics contemplated for possible use on foreign detainees held outside the United States. President Bush explained his veto, stating that the ban “would take away one of the most valuable tools in the war on terror.” The Bush Administration had consistently held that such tactics were neither torture nor illegal. As support, the Administration had consistently pointed to guidance received from the U.S. Department of Justice (DOJ) over the years.

Those “valuable tools” allegedly included, in addition to water boarding, extreme temperatures, head-slapping, and a number of combinations of the above. Water boarding is a technique involving the simulation of drowning. It involves binding a person to an inclined board, covering his or her head with cloth or cellophane, and pouring water repeatedly over the face and head. In some cases water actually enters the nose and mouth, but mostly, the sensation of water hitting the face (cloth or cellophane) causes a psychological reaction during which the brain processes information of drowning. This causes a gag reflex similar to choking.

The technique was brought to public attention in 2007, when certain internal memoranda of DOJ's Office of Legal Counsel (OLC) implied that military officials interrogating foreign detainees outside the United States answered to a different set of standards and definitions, especially those that explained what constituted prohibited “torture.” The memoranda were prepared in response to a request for legal advice and guidance from the Department of Defense (DOD). Specifically, they werer intended to give legal guidance to DOD lawyers wrestling with a list of interrogation methods for prisoners at the military prison at Guantanamo Bay in Cuba.

In simpler terms, the memoranda gave the military broad latitude and discretion to use relatively harsh interrogation methods without fear of prosecution or violation of constitutional restraints. The legal logic contained within the memoranda conveyed that federal laws prohibiting assault were not applicable to military interrogators dealing with members of Al Qaeda because of Presidential powers during wartime. The memos also opined that many American and international laws would not apply to the treatment of detainees overseas.

According to the 2003 internal DOJ memoranda (not de-classified and released until 2008), a more narrow definition of torture applied to military interrogators. Similar to the memorandum written for the Central Intelligence Agency (CIA) in 2002, the 2003 memo offered the following definition of what constituted torture:

“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 functions will likely result….”

The 2003 memorandum, authored by then-deputy counsel in the OLC, John Yoo, and finally released in April 2008, further advised, “If a government defendant were to harm an enemy combatant during an interrogation … he would be doing so in order to prevent further attacks on the United States by the al Qaeda terrorist network….”

Despite the wide latitude provided to interrogators under the memo's guidance, the OLC officially rejected the memos as containing “flawed reasoning,” and DOJ and Pentagon officials never authorized some of the more harsh interrogation methods used by the CIA. Moreover, no Pentagon officials had since found any senior Bush Administration officials as having been complicit in any of the abuse at Abu Ghraib prison in Iraq. (Inhumane treatment by U.S. military personnel of prisoners at Abu Ghraib in 2004 was first revealed to the world through Internet photographs showing prisoners made to strip, wear leashes and hoods, chains, and be threatened by menacing attack dogs.) However, their investigations did find that for several years following the September 11, 2001 attacks, the Pentagon admittedly failed to set uniform standards for military interrogations worldwide. The Bush administration maintained that the CIA's water boarding against three top al Qaida detainees, Khalid Sheikh Mohammed, Abu Zubaydah and Abd al-Rahim al-Nashiri was legal. The practice was halted in 2006.

Following this and other internal guidance and the debate it caused at the time, Congress passed the Detainee Treatment Act in 2005, requiring the DOD to restrict interrogation methods to those set out in the Army Field Manual, which banned coercive interrogations. In 2007, President Bush issued an executive order narrowing the list of approved techniques for the CIA. Although that list of authorized techniques remained classified, intelligence officials did state that water boarding was not on the list of approved techniques, but that President Bush could authorize it during an emergency.

Amid a new flurry of concern, White House Press Secretary Dana Perino responded to The Times report on October 4, 2007. Perino advised, “I am not going to comment on any specific alleged techniques. It is not appropriate for me to do so. And to do so would provide the enemy with more information on how to train against these techniques … but I will reiterate to you once again that we do not torture….”

In December 2007, amid congressional inquiry, the CIA declared that it had destroyed video tapes of the interrogations of some key Iraqi detainees. This was met with much skepticism and criticism by Congress. In early 2008, the House Judiciary Committee conducted its fifth hearing into the meaning and parameters of “torture,” particularly as applied to detainees held outside the United States. Called to testify, John Yoo declared executive privilege. David Addington, prior chief of staff to Dick Cheney, could not “recollect” matters of substance or interest. Former CIA Director George Tenet testified that the value of water boarding and other “enhanced” methods of interrogation “far exceeded” any other method(s). Former Attorney General John Ashcroft also testified in 2008 that water boarding was not torture, and had been approved by DOJ officials before being employed. All administration officials denied that any illegal “torture” was involved in military interrogations.

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Torture

Torture

Torture—the infliction of severe physical or mental suffering—is frequently a component of systematic policies and attacks against individuals or groups, in peacetime or in time of war. Torture is used variously as a weapon of war, as a means of soliciting information or confession, as a technique to humiliate or punish, as a tool of repression or intimidation, and as a form of sexual violence. Its typical victims include political opponents; particular national, racial, ethnic, religious or other groups; women; prisoners of war; detainees; and ordinary criminal suspects.

In response, international law has prohibited torture and other cruel, inhuman or degrading treatment in absolute terms. The prohibition of torture and other forms of ill treatment ranks among the most firmly entrenched principles of international law regarding human rights and of international humanitarian law. The right not to be tortured is based on the principles of human dignity and integrity of the person that underlie these bodies of law.

Torture is also considered a crime under international law. It is one of a small number of acts considered so heinous that all countries must play their part in pursuing the perpetrators. As a U.S. court ruled in the landmark case of Filartiga v. Peña-Irala, "the torturer has become—like the pirate and slave trader before him—hostis humani generic, an enemy of all mankind."

International and National Norms Prohibiting Torture and Other Ill-Treatment

International legal norms prohibiting torture and other forms of ill-treatment have developed, largely since 1945, as central components of the international law of human rights, international humanitarian law, and international criminal law. The Universal Declaration on Human Rights (UDHR) of 1948 includes freedom from torture as one of the fundamental rights belonging to all human beings. Article 5 of the declaration provides that "No one shall be subjected to torture or to cruel, inhuman, or degrading treatment or punishment." Subsequently, identical or similarly worded prohibitions were included in human rights treaties adopted at international and regional levels, and these set legal standards for individual governments to follow. These include Article 7 of the International Covenant on Civil and Political Rights (ICCPR) of 1966, Article 3 of the European Convention on Human Rights of 1950, Article 5 of the American Convention on Human Rights of 1969, and Article 5 of the African Charter on Human and Peoples' Rights of 1981.

These treaties oblige states to refrain from torture or other prohibited treatment, and establish mechanisms for making states accountable if their officials commit such abuses. The prohibition on torture is absolute, and allows for no exceptions. In human rights treaties, torture is invariably listed as a "non-derogable" right. States must never deviate from the prohibition on torture, even, according to Article 4 of the ICCPR, "in time of public emergency which threatens the life of the nation."

A major landmark was the 1984 conclusion of a treaty aimed specifically at stamping out torture: the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (otherwise known as the Torture Convention). By March 2004, this convention had 134 state signatories. The Torture Convention set out specific measures that governments must take to prevent and punish torture, and established its Committee Against Torture to monitor states' compliance and to receive individual complaints.

Regional torture-specific instruments followed. In 1985, the Inter-American Convention to Prevent and Punish Torture came into effect. The European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment passed into law in 1987, followed by the Robben Island Guidelines on the prevention of torture and ill treatment in Africa in 2002. Under UN auspices, sets of guidelines were developed that aimed at preventing torture. Among these were the UN Code of Conduct for Law Enforcement Officials of 1979 and the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment of 1988.

In parallel to these developments in the sphere of human rights, norms prohibiting torture and other illtreatment also developed in the spheres of international humanitarian law, and the laws of war. The four Geneva Conventions of 1949 list torture and inhuman treatment committed during international armed conflict that are considered grave breaches of the Geneva Conventions (war crimes). Article 3, common to all four of the Geneva Conventions, as well as the second Additional Protocol II to those conventions hold torture and cruel, humiliating. and degrading treatment as prohibited by the law applying to internal armed conflicts.

As the concept of crimes against humanity developed in the wake of World War II atrocities, torture was considered to be covered, although not listed explicitly, in early definitions. The Nuremberg and Tokyo Charters of 1945 and 1946, on which trials of German and Japanese World War II leaders were based, included within their definitions of prosecutable crimes against humanity "other inhumane acts committed against any civilian population." The Control Council Law No. 10 of 1945, used as the basis for prosecuting second-tier Nazis, specifically listed torture as one of the inhumane acts constituting a crime against humanity.

When the International Criminal Tribunal for Former Yugoslavia (ICTY) was established by the UN in 1993, its statute listed torture as among the crimes against humanity that the tribunal could prosecute. The 1994 statute of the International Criminal Tribunal for Rwanda (ICTR) followed suit. The Rome Statute for the International Criminal Court (ICC), which was concluded in 1998, codified crimes against humanity in greater detail. Article 7 of that statute includes the widespread or systematic practice of torture as a crime against humanity, when such practices are committed as part of an attack directed against a civilian population. Also listed are "[o]ther inhumane acts of a similar character internationally causing great suffering or serious injury to body or to mental or physical health."

Torture is also one of the acts that can constitute the crime of genocide. The definition adopted in the Genocide Convention of 1948 included, at Article II(b), "causing serious bodily or mental harm." This definition was intended to cover a range of acts of physical violence falling short of actual killing, as well as acts causing serious mental harm. The ICTR helped to clarify the meaning of this phrase in 1998 in the Akayesu case, finding that the definition of serious bodily or mental harm, includes acts of torture, be they bodily or mental, and inhumane or degrading treatment and persecution, and could include rape and other acts of sexual violence or death threats. The Rome Statute included a document that set out the physical and mental elements of each crime that needed to be proved in any given case brought before the ICC. This document, titled "Elements of Crimes" contains the following footnote to the crime of genocide by causing serious bodily or mental harm: "This conduct may include, but is not necessarily restricted to, acts of torture, rape, sexual violence or inhuman or degrading treatment."

The absolute prohibition on torture is has been generally accepted as a part of customary international law, and is therefore binding on all states, not only those that become party to treaties prohibiting torture. This view has been upheld by international courts and tribunals, as well as by national courts. The prohibition has also been recognized as a norm of jus cogens, which is an overriding or superior principle of international law.

Torture and other ill-treatment are also specifically prohibited in many national constitutions. Even where a prohibition on torture is not specifically included in the constitution, it has been made into other provisions. For instance, by giving a wide interpretation to the right to life and personal liberty, the Indian Supreme Court has incorporated freedom from torture among its schedule of constitutionally protected rights. Many states have made torture a specific criminal offence under their penal codes. Torture is also commonly criminalized in military codes and through legislation incorporating the war crimes provisions of the Geneva Conventions. After becoming party to the Rome Statute for the ICC, states have also incorporated torture as a crime against humanity, as genocide, and as a war crime in their domestic law.

The international norms in this array of treaties and customary international law impose a range of obligations on states. For instance, states must not only refrain from using torture, they must also take strong positive measures to prevent and punish torture. Article 2.1 of the Torture Convention obliges states to "take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction." Such measures include training law enforcement personnel and other public officials and reviewing rules and practices relating to the interrogation and custody of prisoners and detainees. States must also ensure that statements taken as a result of torture may not be used in court as evidence, except against a person accused of torture as evidence that the statement was made.

States also have an obligation to investigate and prosecute individuals responsible for torture. Under Article 4 of the Torture Convention, states are obliged to ensure that all acts of torture are criminal offences under domestic criminal law, and to impose penalties that reflect their grave nature. States are obliged to carry out a prompt and impartial investigation whenever torture or ill-treatment is alleged, to identify those responsible, and to impose an appropriate punishment, as illustrated in the case of Velasquez Rodriguez v. Honduras, tried before the Inter American Court of Human Rights in 1988.

The duty of states to ensure that torturers are brought to justice is not limited to policing what happens within their own borders, since torture is also a crime under international law. According to Articles 5.2 and 7 of the Torture Convention, when an alleged torturer is present within its jurisdiction, regardless of where the torture was committed, a state must either prosecute the person, or extradite them elsewhere to face trial. This exceptional jurisdiction—based only on the nature of the crime itself, regardless of where the crime was committed or by whom—is recognized in international law and is known as universal jurisdiction. The "extradite or prosecute" formula exists also in the Geneva Conventions in relation to grave breaches, thus applying to those who commit torture in the course of an international armed conflict. Even outside the scope of these treaties, states have the right, and may be obliged, under international law to prosecute torture on the basis of universal jurisdiction. There is increasing authority for the proposition that customary international law requires states to prosecute all crimes against humanity, genocide, and war crimes, and that this extends to war crimes committed in internal armed conflict, to individual acts of official torture, and possibly also to cruel or inhuman treatment.

The duty to prosecute torture, and its status as a crime under international law, has a number of important implications. There is increasing consensus that amnesties should not be granted for torture, nor should the normal rules on statutes of limitations or immunities be applied in cases of torture. For instance, the British House of Lords ruled in March 1999 that Augusto Pinochet was not entitled to head-of-state immunity for torture from the time that the Torture Convention applied.

According to Article 13 of the Torture Convention, states must provide access to adequate remedies for victims when torture occurs. Any individual who alleges they have been tortured must have the right to complain to competent authorities, and to have the allegation promptly and impartially examined. Further, victims have a right to reparation, including compensation, restitution, rehabilitation, "satisfaction" (which may include bringing to account those responsible and symbolic measures such as commemorations), and guarantees that torture will not recur. These victim's rights are laid out in a UN draft document regarding the basic principles and guidelines on the right to a remedy and reparation for victims of violations of international human rights law and violations of international humanitarian law, as revised October 2003. Finally, the duty to protect people from torture and other ill treatment extends to the duty not to hand them over to be tortured elsewhere. Article 3 of the Torture Convention prohibits states from expelling, returning, or extraditing a person to another state where there are substantial grounds for believing they could be subjected to torture or other prohibited treatment there.

Definitions of Torture

Torture is absolutely prohibited in all circumstances. But what is it? A common element that appears consistently in definitions is that torture is the intentional infliction of severe pain or suffering, whether physical or mental, on a person. Decisions of international human rights courts and monitoring bodies have been very influential in establishing the basic elements of the definition. International criminal tribunals have relied heavily on these decisions to interpret what constitutes torture when it is being prosecuted as a crime against humanity or as a genocidal act, although they have also departed from the international human rights law interpretations in significant aspects.

The severity or intensity of pain or suffering caused is one factor that will determine whether behavior amounts to torture. An act has to cause "very serious and cruel suffering" to constitute torture, as the European Court of Human Rights decided when called upon to consider whether certain techniques used by U.K. security forces while interrogating IRA suspects in Northern Ireland were lawful (Ireland v. U.K.). The court concluded, in its judgment of 1978, that the techniques (hooding; being made to stand against a wall for many hours; subjection to constant noise; and deprivation of sleep, food and drink) were not severe enough to constitute torture, but did constitute inhuman treatment, which is also prohibited under the Torture Convention. The ICTY also followed this approach, finding that the severity of pain or suffering is what sets torture apart from other crimes. Subjective as well as objective factors may be considered in assessing severity. The European Court of Human Rights takes into account all the circumstances, including the duration of the treatment; its physical and mental effects; and the sex, age, and state of health of the victim. The ICTY has also said that subjective as well as objective criteria may be relevant in assessing the gravity of the harm.

As for the definition of mental torture, once again international cases have helped to clarify how to assess whether mental suffering caused by a certain act is severe enough to amount to torture. In the case of Estrella v. Uruguay, in 1980, the Human Rights Committee found that mock amputation of the hands of a well-known guitarist was psychological torture.

Another factor that distinguishes torture from other ill-treatment in the international law of human rights is the purpose for which the particular suffering is inflicted. In human rights law, exemplified in Article 1 of the Torture Convention, in order for conduct to amount to torture, it must be inflicted for specific purposes such as obtaining information or a confession, punishment, intimidation, coercion, or discrimination. The European Commission of Human Rights had already established the need for such a purpose in its 1969 decision in a case concerning the conduct of Greek security forces following the military coup. This legal decision, following what came to be known as the "Greek case," confirmed that without such a purpose, the same act would be classified as ill treatment but not torture. The European Court of Human Rights has continued to look for specific purposes before it will categorize an act as torture, for example, in the 1996 case of Aksoy v. Turkey. The Israeli Supreme Court, when considering methods used by Israeli security services in interrogating Palestinian suspects in 1999, distinguished between a situation in which sleep deprivation is a side effect inherent in interrogation, which would not be unlawful, and a situation where prolonged sleep deprivation is used as an end in itself, for the purpose of tiring or breaking the prisoner, in which case it would not be lawful.

In international criminal law, however, the requirement of a particular purpose appears to be losing ground. In cases concerning torture as a crime against humanity, although the ICTY and ICTR have held that the act or omission must aim at purposes such as those outlined in Article 1 of the Torture Convention, (e.g., the ICTR in the Akayesu case, 1998), they have also said that this is not to be viewed as an exhaustive list, and that the prohibited purpose need not be the predominating or sole purpose. In a further departure, in the Rome Statute's "Elements of Crimes," a footnote to the elements of the crime against humanity of torture states that: "It is understood that no specific purpose need be proved for this crime."

Another difference has opened up between human rights law and international criminal law as regards the state-actor requirement. The Torture Convention requires an act of torture to have been "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." The rule reflects the traditional purpose of human rights protection, which is to place limits on abuses by states rather than to regulate behavior between private individuals. This approach has shown signs of breaking down in some respects, however. For instance, states are increasingly required to regulate private individuals' behavior in order to protect vulnerable people from ill treatment. In the sphere of international criminal law, non-state actors can be held responsible for torture. The ICTY decided that the definition of torture in the context of crimes against humanity is not identical to the definition in the Torture Convention, and that outside the framework of the Torture Convention, customary international law does not impose a public official requirement in relation to criminal responsibility for torture.

Special elements are added to the crime of torture if it is prosecuted as a crime against humanity, an act of genocide, or a war crime. For example, as a crime against humanity under the Rome Statute, torture must be carried out as part of a widespread or systematic attack against a civilian population, accompanied by the knowledge or intention to further such an attack, and it must be inflicted upon a person in the custody or under the control of the accused. When prosecuted as an act of genocide, the serious bodily or mental harm must be caused to persons belonging to a particular national, ethnical, racial or religious group, and the perpetrator must have intended to destroy that group, in whole or in part. The conduct must either be part of a "manifest pattern of similar conduct" against such a group, or be itself capable of causing such destruction of the group.

The international criminal tribunals have been instrumental in expanding understandings of the definition of torture, for instance, by prosecuting rape and other forms of sexual violence under the heading of torture as a crime against humanity. The ICTY Appeals Chamber has said that, since sexual violence necessarily gives rise to severe pain or suffering, the crime of torture has been established once rape has been proved.

Definitions of Inhuman and Degrading Treatment or Punishment

Again, interpretations of these terms have developed in the law of human rights. Treatment causing less severe suffering, or not for one of the requisite purposes, may nonetheless constitute inhuman or degrading treatment. Solitary confinement, incommunicado detention, and poor prison conditions are examples of behavior that may amount to inhuman treatment, depending on the circumstances. For example, in Ôcalan v. Turkey, the European Court of Human Rights found in 2003 that complete sensory isolation, coupled with total social isolation, can destroy the personality and would constitute inhuman treatment. On the other hand, it held that merely prohibiting contact with other prisoners for legitimate reasons such as security does not in itself amount to a violation. In the Greek case, treatment was found to be degrading if it grossly humiliates a person before others, or if it drives a person to act against his or her will or conscience. International criminal tribunals have generally followed these interpretations. In the ICTY and ICTR, using persons as human shields is an example of behavior that has been found to constitute inhuman or cruel treatment.

The definitions of torture and other forms of prohibited treatment, and the boundaries between such various forms of treatment, tend to be somewhat fluid and to change over time. According to the European Court of Human Rights, in its findings in Ireland v. U.K., the distinction between torture and other forms of prohibited treatment was embodied in the Torture Convention in order to allow the special stigma of torture to attach only to deliberate inhuman treatment causing very serious and cruel suffering. The European Court has also consciously amended its standards over the years, classifying as torture acts which it had previously viewed as inhuman treatment in the past. An example of this shift in classification can be seen in the 1999 case of Selmouni v. France.

Sanctions

How does the prohibition on torture and other illtreatment affect what forms of punishment states may impose, given that the Torture Convention says that torture "does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions"? The same exclusion appears as part of the definition of torture as a crime against humanity applying in the ICTY, ICTR, and ICC. The main reason for the exclusion is to make clear that punishments such as imprisonment, which might otherwise be challenged on the basis they cause severe suffering, do not constitute torture. The question is to what extent this leaves open the door for other punishments that would otherwise fall foul of the definition but are permitted under national law. Some argue that the phrase rightly leaves what constitutes cruel, inhuman, or degrading treatment or punishment to be determined by the moral and legal standards in each society. Under Islamic shari'a law, theft is punishable by amputation of the right hand, and in certain countries, corporal punishments are administered by the courts. Some national courts have ruled that corporal punishments such as whipping and flogging violate the prohibition on torture or illtreatment. Examples are Botswana, Zimbabwe, Namibia, South Africa, and St. Vincent and the Grenadines. In Tyrer v. U.K., the European Court of Human Rights found that the punishment of birching (a type of flogging) ordered by a juvenile court was a degrading punishment. The UN Special Rapporteur on Torture reported to the Commission on Human Rights in 1997 that, in his view, corporal punishment violates the prohibition on torture or cruel, inhuman, or degrading treatment or punishment. Further, punishments are subject to scrutiny according to international standards. Subsequently, the commission adopted a Resolution 1997/38, which stated that corporal punishment can amount to cruel, inhuman, or degrading punishment or even to torture. Corporal punishment is prohibited in the Geneva Conventions in relation to prisoners of war or protected civilians in international armed conflict.

The courts of several countries, including Tanzania, Canada, Hungary, and South Africa, have held that the death penalty violates constitutional prohibitions on torture and other forms of ill-treatment. In the Ôcalan case, the European Court of Human Rights in 2003 declined to reach a firm conclusion on whether the death penalty was inhuman and degrading in all circumstances, but found that its imposition following an unfair trial did amount to inhuman treatment. The prohibition on torture also places limitations on how the death penalty is implemented. In 1994, the Judicial Committee of the Privy Council, the highest court of appeal for Jamaica, ruled that to carry out executions after 14 years of delay would violate the Jamaican constitution, and that after five years on death row, a prisoner would have suffered inhuman punishment (Pratt and Morgan v. Attorney General for Jamaica).

Psychological Impact of Torture

Both physical and mental torture can have lasting psychological effects. In serious cases, post-traumatic stress disorder (PTSD) can be diagnosed. Criteria for PTSD include re-experiencing aspects of a traumatic event in nightmares or flashbacks, avoidance of reminders of the event, sleep problems, memory and concentration problems, anger, and low mood. However, the concept of PTSD is somewhat controversial among mental health experts, and some (such as Derek Summerfield) do not accept that there is a psychiatric illness that is specific of trauma or torture. Such dissenting experts view the reframing of distress as a psychological disturbance to be a distortion, and prefer to look for solutions in a broader social recovery.

Because of the widespread use of torture and the particular needs of those who survive it, specialized torture rehabilitation centers have sprung up all around the world that provide physical and psychological treatment for survivors of torture. Some of these are in the countries where torture is taking place, and others cater primarily for refugee communities. The UN in 1981 established the UN Voluntary Fund for Victims of Torture to provide humanitarian assistance through medical, legal, and other forms of support to torture victims and their families.

International law has increasingly recognized that the psychological impact of torture calls for particular legal remedies. In international standards that are developing on the right to reparation, rehabilitation—including medical and psychological care as well as legal and social services—is specifically identified as one of the forms of reparation to which victims of violations will be entitled. This perspective is explicitly embodied in the UN Draft Basic Principles and Guidelines on the Right to a Remedy and Reparation.

Action of International Institutions and International Jurisdictions against Torture

Monitoring states' records on torture and holding them accountable is the function of international human rights treaty bodies. Among these bodies is the UN Committee Against Torture, established under the Torture Convention, which requires member states to submit regular reports on what they are doing to comply with the treaty, and issues observations and recommendations in response. Although the Committee Against Torture lacks enforcement powers and is frequently frustrated by states' late reporting, most states that are party to the Torture Convention do submit reports and appear before the committee to defend their records. The UN Commission on Human Rights has also taken steps specifically targeting torture. Its Special Rapporteur on Torture takes up cases of alleged torture with governments, carries out country visits, and reports annually to the Human Rights Commission. These mechanisms are designed to respond both to individual or isolated acts and to systematic torture.

Procedures have also been developed specifically to address situations where torture is committed as part of a widespread or systematic pattern of violations. Under Article 20 of the Torture Convention, there is established a confidential inquiry mechanism that allows the committee to look into information that torture is being systematically practiced in a member state. The UN Commission on Human Rights also has a confidential procedure (known as the 1503 Procedure) for considering information pointing toward a consistent pattern of gross and systematic violations. If, after examining the situation, a special working group believes further steps are needed, it can turn the matter over for more public consideration by the commission. This procedure was revised following a review in 2000, in response to the widely held view that it was ineffective.

Individual complaint mechanisms established at regional and international levels have been important in revealing places where systematic torture is taking place, as well as in providing redress for individual victims. United Nations' treaty bodies, including the Committee Against Torture, receive complaints from individuals, but only against states that have agreed to such complaints being referred. The treaty bodies also issue non-binding decisions on whether a violation has taken place. Regional human rights courts, such as the European and Inter-American Courts of Human Rights, have played a leading role in defining torture and other forms of ill-treatment, and have issued many judgments declaring that a violation has occurred and ordering compensation to individual torture victims. However since the remedies they order are directed at the individuals whose cases are before them, these courts have not been able to deal directly with the underlying causes of widespread or systematic torture. Nevertheless, their findings can help to reveal the problem, and may help bring about international pressure for change.

International inspection mechanisms have been established that aim to prevent torture by addressing the conditions it which it occurs. The European Committee for the Protection of Torture and Inhuman or Degrading Treatment or Punishment (the ECPT) operates within Europe and is designed to bring about improvements in conditions in which prisoners and detainees are held. This committee conducts regular inspections of places of detention within its member states, and also makes ad hoc, unscheduled visits in response to specific concerns. After a visit, the committee reports its findings to the state in which the detentions are occurring, and gives that state an opportunity to respond. Normally, the state allows the report to be made public. In 2002, a new Optional Protocol to the UN Convention against Torture was adopted by the UN General Assembly, establishing a similar system of international inspection of places of detention for states that are party to the Convention and that have signed up for participation in the inspection program.

The international community has also taken collective action to hold individuals criminally accountable for torture, along with other crimes under international law. Since the Nuremberg trials, international law has recognized torture in its occurrence as a crime against humanity, but there have been relatively few prosecutions either at the international or national level until the establishment of the ICTY and the ICTR in the 1990s. Torture and ill treatment were prosecuted in some of the post–World War II trials. One example was the "High Command Case" brought by the U.S. against fourteen Nazi defendants in Germany in the 1940s. Torture was singled out by the international commissions of experts that convinced the UN Security Council to establish the ICTY, the ICTR, and, in 2000, the Special Panels in East Timor. It was also one of the violations that spurred the UN to agree to work together with the government of Sierra Leone to establish the Special Court there in 2002. Numerous indictments for torture have been handed down by these judicial institutions.

There are also examples of countries prosecuting torture as part of an attempt to deal with atrocities in their own past. Klaus Barbie, head of the Gestapo in Paris during the Nazi occupation of France in World War II, was tried in a French criminal court in 1987 for crimes against humanity committed in France during the war, in which acts of torture featured prominently. He was sentenced to life imprisonment. Truth-seeking mechanisms, such as national truth commissions, have also investigated widespread torture. In its report of 2003, the Peruvian Truth Commission concluded that during the period 1983 to 1997 there was a widespread practice of torture by state officials that amounted to crimes against humanity, and recommended that criminal charges be brought against those responsible.

The 1990s saw a significant increase in action by individual states to pursue alleged torturers for acts committed outside their territory, relying either on universal jurisdiction or other permissible bases of jurisdiction, such as the nationality of the victim. The number of states that had amended their law to provide a jurisdictional basis for their courts to prosecute torture committed elsewhere, and the number of actual prosecutions, steadily increased. In 1994 a Danish court convicted Refik Saric under the Geneva Conventions for torturing detainees in a Croat-run prison camp in Bosnia in 1993, and sentenced him to eight years imprisonment. A Spanish court charged former Chilean President Augusto Pinochet with committing torture in Chile, and sought his extradition from the U.K. in 1998. That process was stopped, not due to any jurisdictional impediment, but because Pinochet was found to be unfit to stand trial. Complaints including torture have also been pursued in the courts of several European countries, including Belgium, France, the Netherlands, and Senegal, involving alleged torture in Chad, Mauritania, Rwanda, Algeria, Tunisia, Suriname, Chile, and Argentina.

SEE ALSO Conventions Against Torture and Other Cruel, Inhuman, and Degrading Treatment; Prosecution; Psychology of Perpetrators; Psychology of Victims; Reparations

BIBLIOGRAPHY

Amnesty International (2003). Combating Torture: A Manual for Action. Amnesty International

Burgers, J. H., and H. Danelius (1988). The United Nations Convention against Torture. Dordrecht, Netherlands: Martinus Nijhoff Publishers.

Burnett, A. (2002). Guide to Health Workers Providing Care for Asylum Seekers and Refugees. London: Medical Foundation for the Care of Victims of Torture.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. GA res. 39/46, Annex, December 10, 1984.

Elements of Crimes of the Rome Statute, Official Record of the First Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, doc. ICCASP/1/3.

Evans, M., and R. Morgan (1998). Preventing Torture. Oxford: Oxford University Press.

Harris, D. J., M. O'Boyle, and C. Warbrick (1995). Law of the European Convention on Human Rights. London: Butterworths.

Rodley, Nigel S. (1999). The Treatment of Prisoners under International Law, 2nd edition. Oxford: Oxford University Press.

Schabas, Willaim A. (2000). Genocide in International Law. Cambridge: Cambridge University Press.

United Nations Commission on Human Rights (2003). Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of [Gross] Violations of International Human Rights Law and [Serious] Violations of International Humanitarian Law. Revised Draft of October 2003. UN Commission on Human Rights document E/CN.4/2004/57. New York: United Nations Commission on Human Rights.

Fiona McKay

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Torture

TORTURE

The Department of Justice's 'Torture Memo' is Criticized for being Contrary to U.S. and International Law

An August 1, 2002, memo from the Department of Justice about permissible interrogation tactics brought President George W. Bush's administration strong criticism after its release in mid 2004. The memo, written after the CIA requested legal advice following the September 11, 2001, terrorist attacks, addressed legally defensible methods of interrogation for al-Qaeda terrorist suspects. The memo stated that the torture of suspected al-Qaeda terrorists "may be justified" and that international laws against torture "may be unconstitutional if applied to interrogation" when used against suspected terrorists.

The memo was addressed to White House counsel Alberto R. Gonzales and was signed by Jay S. Bybee, the head of the Office of Legal Counsel ("OLC") within the Department of Justice. Gonzales is now the United States attorney general, and Bybee is now a federal appellate judge with the U.S. Court of Appeals for the Ninth Circuit, in San Francisco. The memo concluded that "certain acts may be cruel, inhuman, or degrading, but still not produce pain and suffering of the requisite intensity" to be classified as torture.

The memo examines various aspects of the Convention Against Torture, and Other Cruel, Inhuman, and Degrading Treatment or Punishment, as found in title 18, Sections 2340—2340A of the United States Code. The memo came about in response to questions that arose during the interrogation in early 2002 of al-Qaeda operations chief Abu Zubaida. The CIA was frustrated over its lack of progress with the interrogation, and wanted to know how far it could legally go without violating the law. Neither the Department of Defense nor the Department of State was consulted for assistance in preparation or review of the memo.

The memo stated that physical torture "must be equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death." In other words, torture means "pain that is difficult to endure."

According to the 2002 memo, in order for psychological methods of interrogation to rise to the level of torture, they must result in "significant psychological harm of a significant duration," meaning that the harm must last "months or even years." According to the memo, "a defendant must specifically intend to cause prolonged mental harm" in order for the act(s) to be considered torture; "specific intent only to commit the predicate acts that give rise to prolonged mental harm" would not constitute torture." Moreover, if an interrogator "has a good faith belief that his actions will not result in prolonged mental harm," he will have a valid defense against conviction for unlawful torture. Certain mind-altering drugs, which do not profoundly disrupt the senses or personality, would be permitted in interrogation, according to the memo.

One section of the memo examined whether the Convention Against Torture "may be unconstitutional if applied to interrogations of enemy combatants pursuant to the President's Commander-in-Chief powers." The memo concludes: "In the circumstances of the current war against al Qaeda and its allies, prosecution…may be barred because enforcement of the statute would represent an unconstitutional infringement of the President's authority to conduct war." In other words, interrogators who engaged in torture could be protected from criminal prosecution.

After the memo was made public, administration officials maintained that the president had consistently insisted that all methods of interrogation conform to U.S. and international laws and treaties. White House press secretary Scott McClellan stated that the memo had not been meant to provide any advice on specific methods of torture that might be acceptable. Critics disputed McClellan's assertion, noting that the length of the document (50 pages), and the fact that the head of OLC had signed it, indicated the significant weight that it was to be given.

Human rights observers blame the document for leading to abuses against prisoners at the Abu Ghraib prison in Iraq, in Afghanistan, and at Guantanamo Bay, Cuba, where suspected terrorists are detained. Complaints surfaced from human rights organizations in 2003 regarding mistreatment of Iraqi prisoners, but it was not until 2004 that the Army began an investigation, and graphic photographs began to find their way into the public view.

On December 30, 2004, a new memo from the OLC superseded, in its entirety, the August 2002 memo. According to the new memo, written by Daniel Levin, acting chief of the OLC, to Deputy Attorney General James Comey, "Torture is abhorrent both to American laws and values and to international norms." The new 17-page memo clearly backs away from any claims in the August 2002 memo that the president might be legally justified in departing from U.S. law on torture in times of war, and that there might exist some legally defensible ways around criminal charges for those who employ torture.

According to the December 30 memo, the August 2002 memo was inaccurate when it stated that only "excruciating and agonizing pain" constituted torture and when it stated that criminal prosecution would be limited to cases in which severe pain was imposed for its own sake, rather than to obtain information.

The new memo states that U.S. interrogators do not have a defense to allegations of torture by claiming that they were guided by national security concerns. Moreover, the memo also prohibits telling a detainee that he can avoid torture only by cooperating.

The December 30 memo also clearly backs down from the idea that torture is limited to physical suffering that involves severe physical pain or even death but says that it must be more than "mild and transitory" suffering. Mental suffering need not last months or years, as the original document claimed, and need not be permanent, but it "must continue for a prolonged period of time."

Gonzales succeeded John Ashcroft as U.S. attorney general in early 2005. The Department of Justice released the superseding memo shortly before Gonzales was to appear before the Senate Judiciary Committee for his confirmation hearings.

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