Torture Research

Definitions

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Many definitions of torture exist. This section distinguishes between the current legal definition of torture, historical legal definitions, and scholarly definitions. For a list of types of torture, see the section on methods of torture.

Current Legal Definition

The contemporary legal definition of torture, contained in the “United Nations Convention Against Torture and Other Cruel, Inhuman, and Degrading Treatment and Punishment,” is:

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

This definition has a number of problems, discussed in Miller (2005), but the biggest problem is that it is unclear how “severe” pain and suffering must be to qualify as torture.

The best resource for the legal definition of torture is Miller (2005). She addresses problematic issues such as severity of pain and suffering, the difficulties in ascertaining motive, and distinguishing torture from lesser forms of harm such as persecution or cruel, inhuman and degrading treatment. Nowak (2006) is also an important source, and he focuses on issues of intent and distinguishing torture from “cruel, inhuman, and degrading” punishment.

Miller, Gail. 2005. Defining Torture. New York: Benjamin N. Cardozo School of Law.

Nowak, Manfred. 2006. “What Practices Constitute Torture?: US and UN Standards.” Human Rights Quarterly 28, 809-841.

Interpreting the legal definition:

In addition to the sources listed above, several authors have evaluated current court interpretations of the definition of torture, or suggested ways to clarify the definition.

Lewis, Michael W. 2010. “A Dark Descent into Reality: Making the Case for an Objective Definition of Torture.” Washington and Lee Law Review 67: 77-136.

Argues that the definition of torture is unclear, and that state officials will always be tempted to make the definition as limited as possible when the state is threatened. To fix this, there needs to be a clear, objective definition of torture, not as subject to interpretation as the current one, which relies on the vague phrase “severe harm.” As an objective standard, he supports only using those techniques against prisoners that are used as part of normal training for the state’s own military forces.

Zahar, Alexander.2009. “Torture.” Pages 537-8 in Antonio Cassesse, ed., The Oxford Companion to International Criminal Justice. Oxford: Oxford University Press.

Analyzes the case law on definitions of torture from the International Criminal Tribunal on the former Yugoslavia. These cases have found that rape and sexual assault are torture. Kunarac argued that the state actor requirement written into the UN CAT wasn’t necessarily limiting, and that from customary international law we can conclude that torture is an act so “reprehensible” that it should be punished regardless of the perpetrator. Kunarac case. In Mrksic and others, a ICTY claimed that the list of purposes in UNCAT was only one part of a broader unstated list of prohibited purposes. The article concludes that “the ad hoc international criminal tribunals have come to define torture so broadly that it is now semantically equivalent to the very general notion of cruel treatment.”

Historical legal definitions of torture:

Peters (1996:1-2) cites definitions of torture by a number of legal scholars from the third century onward:

Ulpian, a 3rd century legal scholar: “the torment and suffering of the body in order to elicit the truth.”

Azo, a 13th century Roman lawyer: “the inquiry after truth by means of torment.”

Bocer, a 17th century lawyer: “interrogation by torment of the body, concerning a crime known to have occurred, legitimately ordered by a judge for the purpose of eliciting the truth about said crime.”

John Langbein, 20th century legal historian: “judicial torture” is “the use of physical coercion by officers of the state in order to gather evidence for judicial proceedings… In matters of state, torture was also used to extract information in circumstances not directly related to judicial proceedings.”

John Heath, 20th century legal historian: “the infliction of physically founded suffering or the threat immediately to inflict it, where such infliction or threat is intended to elicit, or such infliction is incidental to means adopted to elicit, matter of intelligence or forensic proof and the motive is one of military, civil, or ecclesiastical interest.”

Peters argues that torture has been defined too broadly in recent writing, and he limits his study to “judicial” torture, which he considers the only kind of torture using a properly narrow definition. While he does not explicitly define torture on his own, it is clear that he uses the legal definitions above in his study.

Peters, Edward.  Torture: Expanded Edition (Philadelphia: University of Pennsylvania Press, 1996).

Scholarly definitions of torture:

Scarry (1985): “First, pain is inflicted on a person in ever-intensifying ways.  Second, the pain, continually amplified within the person’s body, is also amplified in the sense that it is objectified, made visible to those outside the person’s body.  Third, the objectified pain is denied as pain and read as power, a translation made possible by the obsessive mediation of agency.”
Scarry, Elaine.  The Body in Pain: The Making and Unmaking of the World (New York: Oxford University Press, 1985).

Rejali (2003): “Physical and often sanguinary systematic violence on individuals sanctioned by state authorities for state purposes.” By “sanguinary,” he means violence that leaves physical evidence on the victim’s body.
Rejali, Darius. 2003. “Modern Torture as a Civic Marker: Solving a Global Anxiety with a New Political Technology.” Journal of Human Rights 2(2), 153-171.

Miller (2008), in the Stanford Encyclopedia of Philosophy: “Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim’s will.”

Miller, Seumas, “Torture”, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = http://plato.stanford.edu/archives/fall2008/entries/torture/.

Einolf (2007): “An act in which severe physical pain is intentionally inflicted on a person by a public official while that person is under the custody of control of that official, where there has not been, or has not yet been, a formal finding of guilt.”
Einolf, Christopher J. 2007. “The Fall and Rise of Torture: A Comparative and Historical Analysis.” Sociological Theory 25(2), 101-121.

While this definition is my own, I consider it too narrow, as it excludes psychological torture. I used this narrow definition because this article made cross-cultural and historical comparisons, and it was impossible to collect data on psychological torture in pre-twentieth century cases. A more complete definition would be: “an act in which severe physical pain or psychological suffering is intentionally inflicted on a person by a public official while that person is under the custody of control of that official, where there has not been, or has not yet been, a formal finding of guilt.”

A number of other types of infliction of physical pain and psychological suffering were excluded from this definition:
– Pain inflicted by non-state authorities.
– Pain inflicted after a formal finding of guilt (this is corporal or capital punishment, not torture).
– Injuries accidentally suffered by a prisoner while in custody.
– Interrogation without violence, pain, or threats to torture the detainee or others.
– Pain voluntarily suffered, such as that associated with a religious penance or sadomasochistic sexual practices.
– Medieval ordeals. While some ordeals involved pain, not all did, and any pain suffered was incidental to the true purpose of the procedure, which was to discover God’s judgment on the truth or innocence of the person undergoing the ordeal. For more on ordeals, see Bartlett 1986; Langbein 1997:76-7; and Nock 1993:75-108.

Bartlett, R. 1986. Trial by Fire and Water: The Medieval Ordeal. Oxford: Clarendon Press.
Langbein, John H. 1977. Torture and the Law of Proof: Europe and England in the Ancien Regime. Chicago: University of Chicago Press.
Nock, Steven L. 1993. The Costs of Privacy: Surveillance and Reputation in America. New York: Aline de Gruyter.

Methods of torture:

Common forms of physical torture include beatings, electric shock, rape and sexual assault, burns, painful stretching of the limbs, crushing the body, near-drowning, and being forced to maintain an uncomfortable position for a long period of time (Forrest 1996; Amnesty International 2000). Excessively harsh conditions of imprisonment can also be seen as torture, although what is considered “excessive” may vary from individual to individual and by societies. Common forms of psychological torture include threats to the prisoner and to family members, sleep deprivation, sensory deprivation and sensory overload (bright lights, loud noise), and sexual humiliation.
Amnesty International. 2000. Torture Worldwide: An Affront to Human Dignity. New York: Amnesty International.
Forrest, D. 1996. “The Methods of Torture and Its Effects.” Pp. 104–21 in A Glimpse of Hell: Reports on Torture Worldwide, edited by D. Forrest. New York: New York University Press.

One technological innovation in torture methods is the use of electric shock torture, which could not be used before the invention of electric power generation but has been widely used during the last century.
Several authors (Rejali 2003, 2007; Ron 1997) have chronicled the recent increase in the use of torture methods that leave no marks, what Rejali (2007) calls “stealth torture.” These include electric shock, stress positions, near-drowning, and psychological torture. When democratic governments use torture, they are more likely to use stealth methods, as democratic governments are more sensitive to the bad effects on public opinion of torture becoming evident and documented. With the rise of human rights monitoring, non-democratic states have begun using these types of torture methods more often as well. Even if regimes care little about public opinion within their own countries, they are conscious of negative public opinion from the international community.

Rejali, Darius. 2003. “Modern Torture as a Civic Marker: Solving a Global Anxiety with a New Political Technology.” Journal of Human Rights 2(2), 153-171.
Rejali, Darius. 2007. Torture and Democracy. Princeton, New Jersey: Princeton University Press.
Ron, James. 1997. “Varying Methods of State Violence.” International Organization, 51(2):275–300.

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Written by tortureresearch

January 27, 2010 at 6:33 pm

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