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This book examines the historical genealogy of the torture taboo. The dissonance between the absolute prohibition agains

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A Genealogy Of The Torture Taboo
 1138285382,  9781138285385,  9781315269009

Table of contents :
Cover......Page 1
Half Title......Page 2
Title Page......Page 4
Copyright Page......Page 5
Table of Contents......Page 6
Acknowledgements......Page 7
Introduction......Page 8
1 Abolishing torture......Page 33
2 The taboo and the fear of regression......Page 53
3 The Nuremburg Trials and the Universal Declaration......Page 77
4 Decolonisation and the UN Convention Against Torture......Page 101
5 The politics of the definition of torture......Page 127
6 Torture and the ‘war on terror’......Page 156
Conclusion......Page 189
Index......Page 199

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Downloaded by [University of California, San Diego] at 16:10 19 May 2017

A Genealogy of the Torture Taboo

This book examines the historical genealogy of the torture taboo. The dissonance between the absolute prohibition against torture and its widespread violation raises important questions about the torture taboo in world politics. Does the torture taboo matter? Or are political realists correct in arguing that power politics rules? Barnes argues that despite the torture taboo’s violation, it still matters, and paradoxically, its strength can be seen by studying its violation. States hide, deny, re-define and outsource their torture, as well as torture without leaving marks to avoid being stigmatised as a norm violating state. Tracing a genealogy of the torture taboo from the eighteenth to the twenty-first century Barnes shows how the taboo has developed over time, and how violations have played an important role in that development. Through six historical and contemporary case studies, it is argued that the taboo’s humanitarian pressures do not cease when states violate the norm, but continue to shape actors in unexpected ways. Building upon the constructivist norm literature that has shown how norms shape state actions and interests, the book also widens our understanding of the complex role norm violations play in international society. Making a contribution to existing public debates on the use of torture in counter-terrorism policy, it will be of great use to scholars, postgraduates and practitioners in the fields of human rights, international relations theory (in particular constructivism), security studies and international law. Jamal Barnes is a Post-Doctoral Research Fellow in the School of Arts and Humanities, Edith Cowan University, Australia.

Routledge Studies in Human Rights Series Editors: Mark Gibney UNC Asheville, USA

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Thomas Gammeltoft-Hansen The Danish Institute for Human Rights, Denmark

and Bonny Ibhawoh McMaster University, Canada www.routledge.com/series/RSIHR The Routledge Studies in Human Rights series publishes high quality and crossdisciplinary scholarship on topics of key importance in human rights today. In a world where human rights are both celebrated and contested, this series is committed to create stronger links between disciplines and explore new methodological and theoretical approaches in human rights research. Aimed towards both scholars and human rights professionals, the series strives to provide both critical analysis and policy-oriented research in an accessible form. The series welcomes work on specific human rights issues as well as on cross-cutting themes and institutional perspectives. 1

Human Rights and the Dark Side of Globalisation Transnational Law Enforcement and Migration Control Edited by Thomas Gammeltoft-Hansen and Jens Vedsted-Hansen

2

A Genealogy of the Torture Taboo Jamal Barnes

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A Genealogy of the Torture Taboo

Jamal Barnes

First published 2017 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN and by Routledge 711 Third Avenue, New York, NY 10017

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Routledge is an imprint of the Taylor & Francis Group, an informa business © 2017 Jamal Barnes The right of Jamal Barnes to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library. Library of Congress Cataloging in Publication Data A catalog record for this book has been requested. ISBN: 978-1-138-28538-5 (hbk) ISBN: 978-1-315-26900-9 (ebk) Typeset in Times New Roman by Wearset Ltd, Boldon, Tyne and Wear

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Contents

Acknowledgements

vi

Introduction

1

1

Abolishing torture

26

2

The taboo and the fear of regression

46

3

The Nuremburg Trials and the Universal Declaration

70

4

Decolonisation and the UN Convention Against Torture

94

5

The politics of the definition of torture

120

6

Torture and the ‘war on terror’

149

Conclusion

182

Index

192

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Acknowledgements

There are many people I would like to thank that helped make this book possible. Dr Rajat Ganguly and Professor Samuel Makinda from Murdoch University, where this project began, played a crucial role in the development of this project. Both Rajat and Sam provided me with the inspiration, support and guidance needed to see this project to its completion. I would also like to thank my colleagues at Edith Cowan University in the School of Arts and Humanities. They have not only been generous enough in providing me with the time needed to finalise this book, but they have also provided a collegial and supportive working environment that has made my PostDoctoral Research Fellowship all the more enjoyable. The editorial team at Routledge have provided much support and advice in preparation of this book, in particular, Lydia de Cruz, Nicola Parkin and Emily Ross. A thank you also goes to the editors of the Routledge Studies in Human Rights series and to three anonymous reviewers whose feedback and constructive criticism helped to strengthen the overall argument in this book. Special thanks go to my family, who have provided me with the encouragement and support that has helped me get where I am today. Thank you to my in-laws, and finally, thank you Felicity, whose love and patience has meant more to me than you can imagine. Parts of this book have been previously published. I thank the publishers in providing me with permission to use material from: Jamal Barnes (2016) ‘The “war on terror” and the Battle for the Definition of Torture’, International Relations, 30(1): 102–124 and Jamal Barnes (2016) ‘Black Sites, “Extraordinary Renditions” and the Legitimacy of the Torture Taboo’, International Politics, 53(2): 198–219.

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Introduction

Torture is one of the most condemned practices in world politics and is absolutely prohibited in international society. No country would dare openly torture. Nor would a country dare have a policy advocating torture. ‘No society on earth’, says Hajjar (2008, 235), ‘advances the claim that torture, as legally defined, is a valued or integral part of its cultural heritage or political culture.’ The former UN High Commissioner for Human Rights, Navi Pillay, stated in 2009, ‘Torture is a barbaric act. I believe no state whose regime conducts or condones torture can consider itself civilized’ (Human Rights Watch 2010, 1). This condemnation stands in stark contrast to the widespread violation of the torture taboo. In an Amnesty International (2014a) report released in 2014, it found that 141 countries engaged in torture or ill-treatment. The above paragraph raises three heavily intertwined issues. The first is the concern to abolish unnecessary harm and violence in world politics. The second concerns the progress that has been made in achieving those goals. And the third concerns how we have come to understand ourselves as ‘civilised’ human beings. All three issues relate to how the torture taboo has shaped our behaviour, the types of obligations we have toward one another, and the limits imposed upon states to hurt individuals. The attempt to ameliorate harm and restrict what Linklater (2011, 258) has called the state’s ‘power to hurt’ has been a prominent theme in international relations theory. However, even though the torture taboo is deemed so important it is also widely violated. This raises some important questions. What role does the torture taboo play in world politics? Given its widespread violation, does the torture taboo matter? Have we kept pace with the state’s power to hurt? (Linklater 2011, 258). To suggest that a cosmopolitan norm, such as the torture taboo, matters in world politics would be treated with scepticism by some. The realist would respond by telling us to stop being so naïve. Can’t you see that violence has characterised international politics for centuries! To succumb to idealism is dangerous and ignores the fact that one cannot engage in politics without getting their hands dirty! States are in intense competition with one another and the primary concern of the state is its security and survival. Concerns about transgressing universal moral principles are overshadowed by the realities of the logic of anarchy and the hegemonic influence of material interests.

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Introduction

Such a position represents a form of pessimism that I challenge in this book. I show that despite widespread violations of the taboo in international society, states hide, deny, redefine and outsource their torture. Just because states may at times violate the taboo does not mean the taboo ceases to matter. Humanitarian pressures continue to operate on states even during times of necessity. This can provide hope of escaping the realist logic of power politics by capturing these humanitarian norms to bring about normative change in world politics. Violations do not demonstrate the weakness of the taboo, as realism would suggest, but, paradoxically, offer a valuable site in which to examine its strength. This book builds upon existing work on torture in international relations (Blakley 2007; Clark 2001; Lutz and Sikkink 2000; Sikkink 2008, 2013; Simmons 2009) and explores how torture came to have the meanings it does, and how these historically contingent meanings have influenced identities, interests and actions in world politics. Why is torture ‘taboo’? What factors have resulted in this prohibition? And do our understandings of the torture taboo continue to change over time? Despite an absolute prohibition on torture, other forms of violence and harm do not receive the same level of prohibition. We continue to go to war with one another, leave open the opportunity to use nuclear weapons in stringent circumstances (see Tannenwald 2007), and allow exceptions to the prohibition against murder in the name of self-defence. What separates torture apart from these other forms of violence that can inflict the same, if not more, physical harm on the human body? Recent studies on torture have focused on the use of torture in the ‘war on terror’ (Dunne 2007; Foot 2006; Roberts 2007) whether torture should be used against ‘ticking-bomb’ terrorists (Allhoff 2003; Bagaric and Clarke 2005; Bellamy 2006; Dershowitz 2002; Ignatieff 2005; Levinson 2004; Shue 2006), the characteristics that make torture immoral (Scarry 1985, 139–157; Shue 1978; Sussman 2005), and how new forms of torture techniques have emerged (McCoy 2007; Rejali 2007). However, a study that examines how we have come to understand torture the way we do, and what influence the torture taboo has in world politics has been sorely neglected. Using a social constructivist approach (Adler 1997), I examine the origins and development of the torture taboo from the eighteenth to the twenty-first century to understand how we have come to understand torture and the possibilities immanent in the present that can help abolish torture in international society. Drawing upon the work of Asad (2003, 101), what I show is that a history of the torture taboo is both a story of prohibiting unnecessary harm and understanding what it means to be human.

The problem of torture in world politics How do I show that the torture taboo matters? The dissonance between the torture prohibition and its violation in practice raises fundamental questions about the nature of international politics and the ability of international norms, rules and institutions to prohibit unnecessary harm. The torture prohibition is embedded in major humanitarian and international human rights laws1 and is

Introduction 3 2

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considered a jus cogens international norm. The norm’s jus cogens status comes from the fact it is absolute and non-derogable in that no exceptions whatsoever justify the norm’s violation (see Rodley 2009, 81). As Rodley (2009, 65) states: Peremptory norms … both bind all states and cannot be overridden or made subject to exception by treaty. Indeed, any treaty that conflicts with a peremptory norm at the time of its conclusion is void. Any serious breach of such a norm also carries special consequences: other states come under an obligation to cooperate to bring the breach to an end; no state may recognise the situation as lawful; no state may render aid or assistance in maintaining the situation. The taboo’s peremptory status has been widely recognised by numerous actors, including the International Criminal Tribunal for the former Yugoslavia, the European Court of Human Rights, the Inter-American Court of Human Rights, the UN Special Rapporteur on Torture, the UN Human Rights Council, the UN General Assembly, the UN Committee against Torture, as well as non-state groups such as the International Committee of the Red Cross (Rodley 2009, 65–81). The widely accepted special status of the taboo alongside its widespread violation therefore raises the particular problem as to whether the taboo has any impact on actors in international society. The apparent disregard for the torture taboo initially lends support to the realist understanding that power and competition dominate the state system. Thucydides (1972, 402) in the Melian Dialogue demonstrated the consequences of the inequality of power amongst states whereby ‘the strong do what they have the power to do and the weak accept what they have to accept’. While, centuries later, Machiavelli (2003) had little time for the importance of morality, arguing the exercise of cruelty can help one hold on to political power. Although modern realists do not take such positions regarding the use of cruelty for political purposes, they do continue to offer a pessimistic view as to the role norms, such as the torture taboo, play in international politics (Gilpin 1984, 290; Krasner 1999; Mearsheimer 1994–1995, 10). For structural (neo) realists, the international anarchical system conditions states to preference their self-interest and survival ahead of moral principles. Because there is no global leviathan to prevent states hurting one another, the constant possibility of force means states exist ‘in the brooding shadow of violence’ (Waltz 1979, 102). The freedom of states generates insecurity and mistrust as the ‘self-help’ system leads to a constant struggle for power and domination among states (Mearsheimer 1994–1995, 10–12; Waltz 1979, 105, 112). Neo-realism tells us that the torture taboo has failed to effectively restrain states because the material conditions of anarchy force states to preference material and security interests over moral values (Mearsheimer 1994–1995, 10; Williams 2005, 109). Moral norms, if they are talked about at all, are cheap talk that are acknowledged in public but dismissed in private (Desch 2003, 417).

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Introduction

Classical realists, seen most prominently in the work of Morgenthau, provide more of a role for morality in world politics. Differing themselves from structural realism by focusing on the state’s will to power (Mearsheimer 1994–1995, 9 fn. 20), classical realism sees morality as acting as an exogenous restraint on state action (Morgenthau 1993, 224–249). Both Morgenthau (1993, 225) and Carr (2001, 92) argued that one must focus on both power and morality in world politics to see that states cannot actually do as much as they would like to do. A state, for example, does not use mass extermination to defeat its enemy’s population; not because it is strategically ineffective, but because it is wrong (Morgenthau 1993, 226–228). However, classical realists continue to remain doubtful as to the ability of morality to weaken the struggle for power. Human rights are not so much respected by states as they are used and abused to pursue selfinterests, weakening the strength of the human rights framework as a whole. As Morgenthau (1993, 100–101) argued, legal and ethical principles in international society are ‘pretexts and false fronts behind which the element of power, inherent in all politics, is concealed’. In addition, Morgenthau (1993, 247–249) argued that human rights cannot be followed consistently. During peacetime, morality has provided a constraint on the use of force and a realist may argue that the torture taboo has been effective here. However, it is when the taboo clashes with state interests and necessities that the ‘perennial forces’ (Morgenthau 1993, 12) inherent in politics make it difficult to be both politically successful and uphold the torture prohibition. Morgenthau (1945, 11–12) argued that we face an imperfect world that imposes conflicting moral and ethical demands upon us, both in relation to the self, and to others. This tension means that when we act in the world we cannot help but violate some moral principles in order to adhere to others (Morgenthau 1945, 11). By simply acting in the world, it corrupts our good intentions and destroys our integrity (Morgenthau 1945, 11). This tragedy is exacerbated in the political sphere. The human being is an animus dominandi that is either being dominated or seeking power to dominate others (Morgenthau 1945, 5, 13–14). This makes the art of political ethics a practice in doing evil. Morgenthau (1945, 14) argued, ‘To the degree in which the essence and aim of politics is power over man, politics is evil; for it is to this degree that it degrades man to a means for other men’. However, acting in an immoral world does not give the statesman free reign to do what one likes. To act morally in the political sphere one must act according to the political reality of the time and carry out the lesser evil of the acts available (Morgenthau 1945, 13; Murray 1996, 104–105). For the statesman, who has obligations and duties to protect the state’s interests, the pursuit of the national interest is the highest moral act. To act morally is to pursue power and conduct one’s affairs according to state interests and necessity. States are in constant competition and promoting human rights at the expense of the national interest can harm state interests (Loriaux 1992, 415). Furthermore, criticising other states for their human rights violations can harm important strategic relations between states (Morgenthau 1993, 245–249). One

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Introduction 5 must not be surprised therefore when states compromise on upholding human rights when security or strategic concerns come to the fore (Desch 2003, 417–418; Linklater 2011, 122–127; Loriaux 1992, 415–416; Morgenthau 1993, 245–249). One can better hope to limit unnecessary harm by practicing prudence through self-restraint, respecting the interests of others, and recognising limits of power (Linklater 2011, 123; Lang 2007; Hulsman and Lievan 2005). For Gilpin (1984, 304), ‘this moral scepticism joined to a hope that reason may one day gain greater control over passions constitutes the essence of realism and unites realists of every generation’. Realism provides a powerful means to understand the current problem of torture in world politics. It helps explain why repeated attempts at prohibiting torture have failed because such efforts do not take into account the weakness of norms and law or the incessant struggle for power among states. Moreover, it makes valuable contributions in showing how morality can act as a constraint on behaviour and how the conflict between different moral obligations and duties can contribute to violations. However, the realist narrative does not adequately explain the influence humanitarian pressures have on states, especially during norm violations. Realists assume that violations signify the weakness of norms, leaving realism unable to see the nuances of how the taboo can influence state interests, actions and identities. This does not mean that one should leave realism behind. As Linklater (2011, 127) argues, it is unwise to ignore realist warnings that ‘necessity’ will often trump concerns about moral norms but equally unwise to ignore normative developments that have helped constrain the ability to harm in world politics. States hide, deny, redefine and outsource their use of torture to hide the fact they have violated the torture taboo. Moreover, states have increasingly adopted notouch torture techniques to further hide evidence that torture has taken place (Rejali 2007). This behaviour goes beyond material interests and demonstrates the pressure of a constitutive normative framework in action (Frost 2009, 142–147). States know what they are doing is wrong and seek to hide their torture to avoid the stigma and public outrage that come with the violation of norms. To better understand these humanitarian pressures and how they offer hope of escape from the realist logic of anarchy, I now turn to show how constructivism can offer a more fruitful understanding of the power of the torture taboo.

Torture, international society and norm violations States are not just guided by the interests of power and necessity; they are part of a socially constructed international society that shapes states through norms, rules and institutions (Bull 1995; Dunne 1995). Hedley Bull argued it is an international society that, ‘although precarious and imperfect’ (Bull 1995, 50), helps to maintain order by seeking (among other things) to limit violence and war (see Bull 1995, 16–19). English School theorists, like Bull, do not dismiss realist insights regarding the forces of necessity or the struggle for power in an

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Introduction

anarchical system. However, what English School theorists argue is that this struggle between states is moderated by the rules and norms of international society (Linklater 2011, 127–133). This has important implications for thinking about the torture taboo and how it matters in world politics. One of the moderating factors that helps constrain states has been visions of ‘a universal moral community’, or what Bull called, world society (Bull 1995, 36–38). World society concerns the common values and interests reflective of Kantian principles of human solidarity (Bull 1995, 36–37) and consist of non-state actors and values such as human rights and humanitarian laws of war. Although Bull himself was sceptical of the role that human rights, like the torture taboo, could play in reducing power struggles, contemporary English School theorists and constructivists have shown how norms other than sovereignty influence the conduct of states. These scholars have examined the important role human rights and humanitarian norms play in constituting state interests and identities and shaping state actions (Clark 2001, 2007; Risse et al. 1999, 2013; Vincent 1986; Wheeler 2000). Clark (2007) argues that human rights have received recognition from states, institutions and international law to a point where these values now constitute a large part of international legitimacy in international society (see also Teitel 2011). These harm conventions and international norms, such as humanitarian laws of war and the torture taboo, are taken into account by states as they engage with one another, moderating their conduct and limiting the use of violence (see Linklater 2011; Linklater and Suganami 2006). Walzer (1978) has shown that even during times of war and necessity, moral norms are not forgotten. War is a moral domain that involves judgements about good and bad, right and wrong, and moral dilemmas of how one ought to act in particular circumstances. In recognising that norms matter in international relations, much attention has been given to studying norms themselves, including how they constrain states and constitute state identities and interests (see Finnemore and Sikkink 1998), how norms evolve (Barkin 1998; Nadelmann 1990; Price 1997; Tannenwald 2007), how the meanings of norms are contested (Krook and True 2012; Van Kersbergen and Verbeek 2007; Wiener 2004, 2009) and how norms help constitute, for example, the security policies of states (Katzenstein 1996a). However, if norms are shown to matter by their ability to constrain states, where does this leave the torture taboo? Although the torture taboo is widely prohibited, it is also widely violated. I argue that the humanitarian pressures from the taboo continue to operate on states, even when they violate the norm, and counterintuitively, the strength of the taboo’s legitimacy can be found by studying its violation. The fact states have to always deny their torture, hide it and redefine it as something else shows that the constitutive and regulative function of the norm continues to operate on states, even during times of necessity and war. This argument complements and builds upon the existing work on norm violations in international relations theory. It is generally acknowledged that

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Introduction 7 violations of a norm do not necessarily invalidate it (Kowert and Legro 1996, 484–485; Kratochwil and Ruggie 1986, 766–769; Sandholtz 2008, 108–109). Price (1997), for example, has looked at violations of the chemical weapons taboo, showing how the norm was not forgotten even though it was violated and how violations of the taboo helped to contribute to the establishment of the Chemical Weapons Convention. Other studies on violations have focused on why states violate norms (Chaynes and Chaynes 1993), the psychological processes of violation (Shannon 2000) or how violations can create new norms or change/remove old ones (Panke and Petersohn 2011). Violations have also been examined by international relations and human rights scholars interested in understanding how to get states to abide by international human rights commitments (see Clark 2001). Keck and Sikkink (1998), for example, have examined how transnational advocacy networks pressure states to conform to norms in what they call their ‘boomerang model’. Transnational advocacy networks expose state violations and then shame states or leverage more powerful states to pressure the violating state into conformity (Keck and Sikkink 1998). Similarly, Risse et al. (1999, 2013) have developed a ‘spiral model’ that shows how states internalise norms and implement them into their domestic laws. As a country violates a norm, this triggers an arguing process between the violating state and transnational advocacy networks that pressures states into implementing the norm and generating norm compliance (Risse et al. 1999, 2013). I build upon the above literature by separating legitimacy from compliance (see Hurd 2013) to show how compliance is not the only way to determine the robustness of a norm (Barnes 2016a). How states behave while they are violating the norm, and the ability of the norm to remain resilient in the face of violations tell us much about the strength of a norm’s legitimacy. Norm violations are a site of justification for behaviour and these justifications can demonstrate evidence of a norm. One may interpret the hypocrisy of states regarding the torture taboo as evidence of the weakness of the taboo and evidence that moral norms represent ‘hot air’ in world politics. In its 1973 global Report on Torture, Amnesty International (1973, 17) wrote: It is significant that torture is the one form of violence today that a state will always deny and never justify. The state may justify mass murder and glorify those that kill as killers, but it never justifies torture nor glorifies those that torture as torturers. Yet these ‘communicative trails’ of lying, denying, hypocrisy and other justifications are not just fig leaves, but evidence of a norm (Finnemore and Sikkink 1998, 892). There is a distinction between the intentions of actors to attempt to use a norm as a fig leaf for their behaviour, and the norm itself. As Finnemore (1996a, 159) notes, communicative trails are ‘literally an attempt to connect one’s actions to standards of justice, or, perhaps more generically, to standards of appropriate and acceptable behaviour’.

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Introduction

The normative framework of the taboo places limits upon state behaviour. Although the norm is still violated, states cannot do as much as would be possible if no norm existed at all. It is this counter-factual that helps us understand the power of the taboo. The hiding and denying of torture is explained not just by the constraining function of the taboo, but also by its constitutive function (see Frost 2009, 142–147). The taboo constitutes one’s identity as a ‘civilised’ state. To openly challenge the taboo, then, is to challenge one’s ‘ethical standing’ (Frost 2009, 142–147). Torture is denied and kept secret because it is not considered appropriate behaviour and not something ‘we’ do. This can impact on some of the most brutal and powerful states. As I show in Chapter 2, the Nazis and the Soviet Union refused to admit to torture or openly challenge the taboo because they feared the impact it would have on their legitimacy and international reputation.3 Violating the taboo can also have serious consequences for a state’s identity, reputation and policies. Although some states do not care about their reputation (see Keohane 1997), for those that do, the political blowback that can come from violating valued moral principles can undermine state policies and bring about norm conformity. In Chapter 4 I show how France employed torture in French Algeria to defeat the Algerian independence movement. This provoked moral outrage in segments of the French population who feared France was degenerating into a ‘barbarous’ state. The domestic pressure, in conjunction with international outrage, contributed to the decision for France to withdraw from Algeria, despite significant military victories. The most powerful states are not immune from the consequences of norm violations (Sikkink 2013). Although one may argue that the US violated the torture taboo during the ‘war on terror’ with minimum impunity, this ignores the fact that the US suffered severe damage to its international reputation (Roberts 2007, 200). The Abu Ghraib scandal and revelations of torture in Guantanamo Bay undermined the moral credibility of the US in the Middle East (Guardian 2004). Military strategists have argued that the Abu Ghraib scandal continued to have an adverse impact on US military and counter-terrorism long after the 2004 scandal, with repercussions being felt even to this day, 12 years after the event (see Johnson et al. 2016). International politics is not an environment whereby the strong do what they like while the weak do what they must; even the strongest face limits and negative consequences from violating international moral principles. However, this is not to suggest that violating the taboo automatically results in blowback. Morality does not exist in a vacuum. As Morgenthau argued, states have many different interests and these will often come into conflict with one another. As I show in Chapter 5, despite Egypt using widespread torture to fight terrorism, Egypt continued to receive strong support from powerful states like the US. This was because the US and other Western countries did not want to jeopardise important strategic interests it had with Egypt by criticising it for using torture. By continuing to receive international support, the negative political implications of using torture were ameliorated and Egypt was able to

Introduction 9 withstand allegations of ‘barbaric’ behaviour. This qualification does not undermine this book’s argument, rather it shows the possibilities and limits of stopping torture in an anarchical society.

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Challenging the realist logic of anarchy So far, I have argued that the humanitarian pressures from the taboo continue to operate on states, even when they are violating the norm. But how does this help us determine the norm’s strength? The constructivist literature has demonstrated the strength of norms in two major ways. First, by showing how norms have constrained states when it was in their material interests to violate them, and second, how some norms have become internalised and taken for granted, making conformity to the norm automatic (see Finnemore and Sikkink 1998). The fact this book looks at violations of the torture taboo and not norm conformity raises the question as to whether one can call the torture taboo a strong norm in the sense that it constrains states. Focusing on norm conformity to show the strength of norms has led recent scholarship to question the ability of human rights to change the behaviour of states. Hafner-Burton and Ron (2007, 2009), Hathaway (2002) and others (Hafner-Burton and Tsutsui 2007) have argued that despite the rise in rhetoric concerning human rights among political elites and international institutions in world politics, this rhetoric has not translated into concrete practice. Hafner-Burton and Tsutsui (2007), for example, argue that human rights treaties have no impact in changing the behaviour of ‘repressive’ states in the short or long term. Brunnee and Toope (2010, 269) have also examined the efficacy of the torture prohibition to shape states and have reached similar findings, arguing the torture prohibition ‘is rhetorically strong but practically weak’ as it fails to shape state behaviour. This important work provides insights into the weakness of the international human rights regime and the inability of the torture taboo to successfully constrain states. While recognising this aspect of the taboo’s weakness, I argue there is still grounds for optimism regarding the taboo. Assessing the strength of the norm as the ability to constrain falls short in understanding the complex workings of the torture taboo. To understand how the norm continues to influence states during its violation, one must also examine the norm’s legitimacy (Clark 2005, 2007; Franck 1988, 1990; Hurd 1999, 2007). Legitimacy is the ‘normative belief that a rule or institution ought to be obeyed’ (Hurd 2007, 7) and determines rightful members and rightful conduct of a community (Clark 2005). As the international system lacks enforcement of laws, norms and rules, legitimacy plays a key role in maintaining order and justice (Clark 2005, 2007; Hurd 1999). Scholars have shown how legitimacy, along with coercion and self-interest/costbenefit calculations, generates norm compliance within the international system (Hurd 1999, 2007). However, by detaching the concept of legitimacy from norm compliance (Hurd 2013) it is also possible to see how a norm’s legitimacy allows it to shape actors during its violation. As Franck (1988, 712) argues, ‘The chance to take a

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Introduction

quick, decisive advantage may overcome the counterpull of even a highly legitimate rule. In such circumstances, legitimacy is indicated not by obedience, but by the discomfort disobedience induces in the violator’. The strength of the taboo’s legitimacy can be seen by the measures states take to deny and hide norm violations, the public outcry that results when torture is exposed, and the inability of states to openly challenge the norm without being stigmatised as ‘uncivilised’. This demonstrates that the norm’s compliance ‘pull’ (see Franck 1988) continues to operate on states, even when the state is violating the norm. Although I do not deny that violating the taboo demonstrates the norm’s inability to completely constrain states, the fact the taboo continues to be violated, but is still legitimate, is a testament to its resilience. If the taboo is weakened enough, not only will the taboo fail to constrain an actor, but the actor will no longer feel the need to hide, deny, redefine or outsource its torture. They may openly advocate or condone it, legalise torture or seek to regulate it. Although some academics and public figures have in fact argued for such policies, no state has taken this path. Political elites do not feel it is appropriate (or politically palatable) to go into this realm of debate because the norm continues to have such widespread global support.4 This reflects the problem of legitimation, that is, the fact states cannot legitimate torture (Barnes 2016a, 204). Simply focusing on the struggle for power or compliance with international law ignores the impact the norm has on moderating violence and providing a moral resource for actors to challenge the most powerful states. As Finnemore (2009, 66) argues, ‘[a]ttacks on legitimacy are important “weapons of the weak.” Even actors with limited or no material capability can mount damaging attacks on the credibility, reputation, and legitimacy of the powerful’. Studying violations to demonstrate the power of the taboo challenges the realist logic of anarchy in several ways. First, it highlights the strength of the torture taboo at the very site at which the realist argues it demonstrates its weakness. And second, despite the conflicting interests and obligations imposed upon states that may lead it to transgress the taboo, the taboo continues to shape its actions and interests and constitute its identity. I also take the position that the realist understanding of international relations is not a reflection of reality, but a socially constructed understanding of reality. Constructivists examine the reflexive relationship between the social construction of reality and knowledge and the role power plays in linking the two (Guzzini 2000). The material and social world does not have any intrinsic meaning that human beings have access to, rather we create meaning through the co-constitution between agents and the social structure. The co-constitution of international society breaks away from the realist argument that anarchy is a battleground of violence. As Wendt (1992) argues, ‘anarchy is what states make of it’. This means that structure is never out of the control of agents as such, but it does place constraints on the ability for change (Giddens 1984, 1–37). The ontological and epistemological assumptions that the world and knowledge is a social construction and that there is a co-constitution of agents and structure are combined with a third element of constructivism, which argues that

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Introduction 11 identities and interests are constituted by the international normative and legal structure (Adler 1997; Price and Reus-Smit 1998; Reus-Smit 2004). States do not just abide by norms because of self-interest or coercion. By showing that norms constitute an actor’s interests and identity, we can also see that actors can abide by norms because it is what they ought to do (March and Olsen 1998). Even though there are different types of constructivism,5 each share these ontological and epistemological assumptions. By challenging the idea that international relations is just a repetition of violence, or that these essentialist qualities are beyond the reach of agents changing its constitution, it offers the possibility for change. As Wendt (1995, 80) states, if change ‘is possible, then it would be irresponsible to pursue policies that perpetrate destructive old orders, especially if we care about the well-being of future generations’. The torture taboo represents a symbol of the efforts taken by international society to abolish cruel and unnecessary suffering. Unlike the realist who would argue the widespread violation of the taboo is evidence of a lack of society, the continuing strength of the taboo during violations is evidence of an international society. Torture is hidden, denied and redefined because torture cannot be justified in the national interest. International laws and norms recognise that the torture taboo cannot be violated under any circumstance. The fact the taboo is still taken into account and influences state actions, interests and identities during violations shows how these forces can be harnessed to help bring about change and offer hope of a new, more humane global politics. So far, I have argued that despite the taboo’s widespread violation in international society it is still a strong norm. But what makes torture ‘taboo’? How and why has torture come to be considered so immoral? And how has it developed?

The torture taboo Taboos are norms, but not all norms are taboos. I define norms as referring to standards and expectations of appropriate behaviour (Katzenstein 1996b, 5). Taboos differ in that they identify and classify transgressions that are concerned with ‘the sociology of danger’ (Douglas 2002; Steiner 1999; Tannenwald 2007, 10). That is, taboos are concerned with the crossing of a boundary that results in untold danger (Steiner 1999, 189; Tannenwald 2007, 11). To violate a taboo, according to the anthropological literature, is to bring about a social contagion effect that affects not only the violator but the wider community. Therefore, for Steiner (1999, 147), taboos localise danger ‘both by the specification of the dangerous and by the protection of society from endangered, and hence dangerous, persons’ (Steiner 1999, 147). In localising and protecting individuals and the community from danger, taboos uphold ‘a vision of the good community’ (Douglas 2002, xx). Seeing the torture taboo in terms of ‘the sociology of danger’ provides a more nuanced understanding of torture and why it is prohibited (see Barnes 2016a, 2016b). Torture is condemned not just because it is immoral but because it is

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dangerous. Torture is embedded in a network of classifications and categories of pain and suffering that help make the identification of a transgression (and hence danger) possible. It is not the infliction of pain and suffering per se that is deemed to be dangerous, but whether it is an excess and unnecessary infliction of pain. It was the excess of pain that led the philosophes in the eighteenth century to see torture as dangerous to the social order. Torture undermined justice in the social contract by taking away too much liberty from citizens than was necessary to maintain order. Yet cruel and unnecessary punishments also transformed citizens into callous brutes and generated fears that one’s society would regress to a barbarous age. By the twentieth century this danger was exacerbated, as torture was condemned as a ‘crime against humanity’ that posed a threat to international peace and security. One can see here the localisation of danger. The infliction of pain and suffering during warfare is deemed legitimate if carried out according to the laws of war, however, transgress these principles and one faces unforeseen danger. The danger behaviour from transgressing the taboo is phenomenological. As Douglas (2002, xiii) argues, ‘[t]he people can believe because they collectively want to believe’. The danger from a violation of the taboo is based on historically contingent inter-subjective beliefs and metaphors that help us interact with one another. Taboos tell us what is prohibited, thereby shaping our actions by indirectly telling us what is permitted. But what is so dangerous about torture? Why do we continue to allow exceptions to using nuclear weapons or to the killing of other human beings in war, but condemn torture so absolutely? Since the eighteenth century, the torture taboo has become a symbol that represents a set of values deemed in need of absolute protection for individuals to lead a fulfilling life. The taboo represents the Kantian principle that the individual must be treated as an end and never as a means (Kant 2005, 105). The taboo is therefore integral to world justice, understood as those ideas linked to ‘the world common good’ (Bull 1995, 81). Torture represents a particularly cruel form of pain and suffering that attacks the defenceless (Shue 1978), forces the victim to collude against him/herself (Sussman 2005) and violates the consent of the victim (Scarry 1985). As I show in this book, over time, torture has come to be seen as a practice that targets the personality and dignity of the individual, which are intertwined and constitute one another. In doing so, it seeks to destroy that part of the human being which is unique to each and every one of us, yet at the same time, are elements that we all share and which separate us from the rest of the animal kingdom. To torture, then, is not just to destroy a particular human being, but to destroy those elements common to all of us and which provide us with the potential and capacity to enjoy the good life. The torture taboo contains cosmopolitan values and principles that have several effects on states in world politics. As already discussed, the taboo seeks to constrain and discipline states by prohibiting torture absolutely. This is represented in extensive prohibitions in international human rights law and humanitarian laws.6 Second, the taboo constitutes identities and interests of states and

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Introduction 13 other actors in international society. To document a case of torture is an accusation against that state in which torture has occurred and poses a risk to their identity as a ‘civilised’ state. Since torture’s prohibition, torture has become a marker that has helped to distinguish ‘civilised’ states, which have an absence of torture, from ‘barbarous’ ones, which do torture. This leads to the third effect of the taboo. To violate the torture taboo is to breach these normative expectations and open up the opportunity to rank states as ‘barbaric’ or ‘uncivilised’. I draw upon Dahrendorf (1968, 167–176) and Towns (2010) to show that wherever there exist norms that have attached an evaluative element relating to normative expectations in society, the sanction and reward behaviour used by society to maintain conformity and order has the by-product of ranking. In a similar way, Donnelly (1998, 20) has labelled human rights a new ‘standard of civilization’ as human rights form part of a state’s ‘political legitimacy’. Donnelly (1998, 21) argues that as the nineteenth century standard of civilisation had the ranking effect of identifying who was ‘in’ and who was ‘out’ of European international society, today, human rights provide a similar legitimising logic as they represent ‘the important idea that international legitimacy and full membership in international society must rest in part on standards of just, humane or civilized behaviour’. By linking human rights to ranking it provides the opportunity to stigmatise norm violating states as engaging in ‘uncivilised’ conduct. As ‘civilised’ conduct is a requirement of being a participating member of an international community of nations, to transgress those standards also raises questions about that state’s right to participate in the international community. However, just because a state tortures does not automatically mean it will be ostracised, as the case study on Egypt in Chapter 5 shows. Even though Egypt was not punished for its use of torture, it did not mean Egypt was not aware of the negative repercussions of using torture. Egypt, like Nazi Germany and the Soviet Union, continued to deny and hide torture, reaffirm the taboo, and torture without marks so as to challenge and contest allegations of illegality and ‘uncivilised’ conduct. In addition to the ranking effect of the taboo, Giddens also draws attention to how social relations position people in relation to ‘categories and ties’ and these social positions specify the ‘rights and obligations relevant to persons having a particular social identity’ (Giddens 1984, 89). In this instance, to uphold one’s identity as ‘civilised’, the taboo imposes particular obligations and duties on states that they must uphold. During the nineteenth century, the obligations and duties of ‘civilised’ states to prohibit torture in the non-European world legitimised and facilitated interventions in so-called ‘barbarous’ societies to ‘civilise’ ‘backward peoples’. Failing to fulfil these obligations would have brought the legitimacy of the colonial ‘civilising mission’ into crisis and damaged the colonial power’s identity as a ‘civilised’ and responsible state. In the contemporary period, the torture taboo imposes positive and negative obligations on states under the UN Convention against Torture (UNCAT). States have the obligation to refrain from torturing or send detainees off to countries where they are at risk of torture. But the Convention also imposes duties for

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states to take measures to prevent torture and punish torturers. The Convention recognises universal jurisdiction over the act of torture, meaning a state must either punish individuals suspected of torture or send them to a state that will. One cannot remain neutral regarding the use of torture. To help understand how the torture taboo developed these obligations and its stigma over time, I have employed a genealogical method of inquiry, something to which I now turn.

Genealogy of the torture taboo I stated above that the torture taboo represents Kant’s principle of always treating individuals as ends and never as means. But how did the torture taboo come to be understood in this way? What factors led to its stigma and how has its association with danger developed over time? I have used a genealogical study to help understand how torture came to appear as ‘naturally’ barbaric. Genealogical studies challenge the idea that norms have a transcendent origin or authority. A genealogy examines how norms develop due to fortuitous events, historical accidents and contingencies we have all but forgotten (Bartelson 1995; Foucault 1984, 1991; Nietzsche 2003; Price 1997). This means that the meaning of the torture taboo is not found in its origins, but in particular historical moments that highlight changing epistemologies, metaphors and interpretations (Nietzsche 2003, 77–78). A genealogy is first and foremost a history of the present. That is, it seeks to show how the present was formed (Bartelson 1995, 73–78). It moves away from presentism, which sees history develop to some sort of ideal, and also moves away from finalism, which projects an image of the present onto the past (Bartelson 1995, 54–55). A genealogy is open-ended and is intended to show how norms, values and identities are historically contingent (Bartelson 1995, 75, 78). This methodology has important implications for the study of the torture taboo. A genealogy traces the changing meaning of torture over time and destabilises the apparent fixed categories of unnecessary and cruel pain and suffering. My argument is that there is no definitive definition of torture, nor is our aversion to torture ‘natural’. Rather, I show that the meaning of torture, and hence the torture taboo, is an on-going social construction. For example, Elaine Scarry (1985) argues that the infliction of pain through torture represents a negation that destroys the human being. However, this has not always been the case. Since the time of the Greek city states, and up until the eighteenth century, torture had been deemed a legitimate judicial practice. In fact, as I show in Chapter 1, during the ancien régime torture was deemed a way to gain the truth and offer the sinner salvation and redemption. It has only been recently (over the last two centuries) that torture has been understood as a negation of humanity. A genealogical method is also useful in understanding the messy development of the torture taboo. The torture taboo has been constructed over centuries by a wide array of actors, including individuals, medical physicians, states, courts and international institutions. Human rights activists have played an important role in putting the torture taboo on the international agenda,

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Introduction 15 documenting rights violations and pressuring states into norm conformity (see Finnemore 2009; Keck and Sikkink 1998; Risse et al. 1999, 2013). Yet it has also been fortuitous events and historical accidents that have helped the taboo become more robust over time. These include revolutions in the European criminal justice system and changing epistemologies of pain, developments in international law, European colonial policies and, perhaps most surprisingly, large-scale inhumanity. As I show in Chapters 2 and 3, the Nazi atrocities of World War II did not weaken the stigma of the torture taboo but strengthened it. Torture was condemned absolutely in the Nuremburg Trials and prohibited under the 1948 Universal Declaration of Human Rights and the 1949 Geneva Conventions. Moreover, the debates that ensued in the immediate post-war period further strengthened the normative stigma of the taboo by associating torture with ‘crimes against humanity’, which pose a threat to international peace and security. The protection of the taboo was integral not only for international peace, but for individuals to experience the good life. Similar events occurred when Amnesty International (1973, 1984) exposed the global violation of the torture taboo during the 1970s and 1980s. As a result of Amnesty International’s campaigns, the UN Convention against Torture was adopted in 1984, which encompassed the principles of universal jurisdiction and non-refoulement. Despite widespread violations, the absolute prohibition continued to remain standing. Violations of the norm contribute to its own development by providing an environment that facilitates condemnation, disputes and arguments that can assist in normative development (Checkel 2001; Crawford 2002; Muller 2004; Risse 2000; Sandholtz 2008). It is through arguing that actors obtain an understanding of the meaning and interpretation of norms, as well as modify rules for future debates (Sandholtz 2008, 105, 110). Yet violations also provide an environment to reflect on the importance of norms, the consequences of the violations, and to reframe (see Keck and Sikkink 1998; Payne 2001; Price 1998) or revise the norm to strengthen it to prevent future violations. In addition, violations can trigger identity and ethical arguments among actors. This is particularly relevant to the torture taboo’s development. Crawford (2002, 24–25) states, ‘[i]dentity arguments may apply to groups or to individuals, but they are specifically about the characteristics of those individuals and what those characteristics imply in terms of actions or reactions’. To live up to a particular identity, one must conduct oneself in a manner consistent with the values and norms associated with that identity and the broader community (Barnett 1996, 411). This means that identity and ethical arguments are heavily intertwined, for to be a ‘humane’ actor, one must treat others in a ‘humane’ fashion (Crawford 2002, 25). Violations generate identity arguments because they highlight the dissonance between identities and actions. In doing so, they can create an environment of reflection whereby actors try to close this gap by taking measures to strengthen the norm. In order to trace the development of the torture taboo, I have used what Price (1997, 9) has identified as ‘two of the genealogist’s analytical tools: discourses

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and power’. By discourses, I refer to both language and practices (Foucault 2002; Gee 2011). In terms of power, I draw upon the social constructivist understanding of power as the reflexive link between the social construction of reality and knowledge (Guzzini 2000). Both power and discourses are intertwined, for, as Hopf (1998, 179) notes, discourse has the ‘power to produce inter-subjective meaning within a social structure’. Discourses help to differentiate, classify and categorise meanings, that is, they make the world by organising perception and the social world itself (Bourdieu 1989, 22). Because power is about counterfactuals, the ability to legitimise a particular interpretation of reality is an element of power (Guzzini 2000, 171–172). By showing that the meanings of norms form part of an inter-subjective framework worked on by many actors, we can break away from the realist understanding that norms and international institutions reflect the interests of the powerful (Krasner 1999; Mearsheimer 1994–1995, 7). One can see this realist understanding of norms in E.H. Carr’s (2001, 75–81) analysis of the ‘harmony of interests’ or Carl Schmitt’s (2007, 54) notion that those who act in the name of humanity wish to cheat. The realist insight ignores the fact that the production of knowledge often has autonomy from powerful states (Barnett and Finnemore 1999), and as I show in Chapters 5 and 6, states cannot define norms however they like. How are materially weak actors able to pressure the most powerful states into conforming to the taboo? As Foucault (2002, 55–56) notes, discourses are bound up with ‘sites’ that legitimise discourse and not only provide the speaker with a prestige to speak on a topic (such as a doctor on health), but also provide an assurance to the audience that what this authority is saying is true. For human rights groups, such as Amnesty International, its authority relies heavily on its reputation as objective and accurate (Scarry 1985, 9). This reputation is reinforced when international institutions such as the United Nations or the European Court of Human Rights rely on human rights reports to make their own decisions relating to torture (see Forowicz 2010, 217–228; Kelly 2009, 2012). Courts draw upon legal expertise and the appearance of politically neutral discourse for their authority. Their ability to determine whether torture has taken place under the law, how torture is to be distinguished from other practices and their ability to legitimise an interpretation of the law can set standards for future conduct (see Bourdieu 1986–1987). Medical physicians gain their authority through knowledge of the body and the ability to recognise and document cases of torture, their ability to engage in differential diagnoses and their ability to associate bodily symptoms and scars with particular methods of torture (United Nations 2004, 33–34). It is this authority that provides these actors with the agency to exercise social power, and in doing so, challenge the most powerful states into conforming to the taboo. The reflexive relationship between the construction of reality and knowledge and the linkage of power is integral in understanding the normative developments of the taboo, how it has become distinguished from other forms of pain

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Introduction 17 and suffering, and how torture has developed its strong stigma. However, in engaging in such an analysis, and in removing a transcendent authority of the taboo, does one lose the ability to approve or disapprove of torture in international society? And in showing how the taboo developed, does this book destroy the taboo at the same time as it tries to protect it? Undertaking a genealogy does not necessarily mean that one has to reject what is being studied (Guess 2002, 212). Other genealogies in international relations, such as Price’s (1997) analysis of the chemical weapons taboo and Donnelly’s (1998) analysis of human rights, do not reject the norm(s) under study. To suggest there is no such thing as transcendent norms does not mean that ‘anything goes’ or that morality is not binding. In fact, Nietzsche (2006, 159) condemned such arguments as ‘childish follies’. Rather, a genealogy, as I employ it here, seeks to show how the taboo is a historical construction, how it has helped constitute who we are today, and how the taboo shapes and regulates our actions in world politics. To show that the torture taboo developed because of fortuitous events is not the same as arguing that it is of no value. Nor is it to suggest that agency plays no role in creating history. The history of the torture taboo is a political struggle between different actors that has vital importance for the recognition of a violation of human dignity. Furthermore, genealogies have been used by different scholars for different purposes (see Owen 2007, 146–151). Williams (2002) identifies two major types of genealogies. The first is associated with Nietzsche and Foucault and concerns a revaluation of values. This ‘destructive’ form of genealogy seeks to undermine the values or norms under study (Williams 2002, 37). Nietzsche (2003) used it well to destabilise the metaphysical foundations of Christian morality, while Foucault (1991) in his study of the birth of the prison showed that prison reform has not been as humane as initially thought. Foucault showed that prison reform resulted in the rise of disciplinary power, creating a new form of control over prisoners. Although this revaluation of values is the most common understanding of genealogy, Williams (2002) and Hoy (2008) have argued genealogies can also be vindicative of the norms under study. Showing the historical contingencies of a norm does not mean we have to disown it. In fact, believing that moral norms come from saintly origins is arguably naïve and idealistic. For Williams (2002, 36), a vindicatory genealogy is one where after the genealogy has been told, one still has hope in, and respect for, the value under study. Drawing upon the vindicative purpose of genealogy, the genealogy in this book seeks to show why, despite its contingent development, the taboo is valuable and must be maintained. By focusing on the sociology of danger, this book shows how the use of torture undermines political legitimacy and human dignity, but it also hurts the victims, the torturers, and the wider community. In short, it destroys what it means to be human. By showing the value of the taboo, this book shows why undermining the taboo is not only politically reckless, but morally dangerous.

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Chapter outline Undertaking a history of the torture prohibition is an enormous task and I do not claim that the case studies analysed in this book represent a complete history of the taboo. There are many examples of torture around the world, therefore I had to limit the case studies. There are three reasons for choosing these case studies. First, I have analysed particularly important cases that have offered the opportunity for discussion about the meaning of torture and how international society should deal with it. As torture is secret, many cases of torture go unknown. In order to focus on the taboo’s reconstructions, it was necessary to focus on those cases that sparked public argument and debate. Second, these case studies offer the opportunity to analyse the different strategies that states have used to hide their torture. This includes secrecy, denial, redefining, outsourcing and using ‘clean’ torture techniques that do not leave marks on the body. As I show, these strategies have become more sophisticated over time as the human rights framework has strengthened. And third, I have focused on cases that have resulted in public debate surrounding torture to show how we understand the meaning of torture in a particular historical moment as well as the negative implications torture has on states that use it. This selection of case studies, as well as the vast primary and secondary material I have drawn upon to support my argument provides a sound foundation to analyse how the meaning of torture has changed, how the taboo has developed, and how our different understandings of torture in different moments in time have shaped actor’s actions, interests and identities in international society. The outline of this book is as follows. Chapter 1 focuses on the abolition of torture. It analyses the use of torture in the ancien régime when it was a legitimate judicial practice and the factors that eventually led to its prohibition. Chapter 2 shows how the torture taboo became more robust in relation to developments under international law and European colonialism during the nineteenth century. I then turn to an analysis of the torture taboo in the Soviet Union and Nazi Germany to show that despite its violation, the torture taboo still mattered. Chapter 3 details how the taboo remained resilient after Nazi atrocities during World War II through the Nuremburg Trials and the Universal Declaration of Human Rights. The debates at Nuremburg helped create important reconstructions of the norm. The fourth chapter turns to the use of torture by France in Algeria between 1954 and 1962 to demonstrate how the taboo influenced the outcome of the war. The second half of the chapter focuses on the 1984 UN Convention against Torture, showing again that the taboo was strengthened in the face of widespread violations. Chapter 5 examines the definition of torture under international law and how Israel manipulated international law to define torture in a way that better reflected its interests. Chapter 5 also looks at torture in Egypt in the 1990s and the rise of ‘clean’ torture techniques in the latter half of the twentieth century to show that the taboo continues to influence states regardless of regime type. The final chapter examines the use of torture during

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Introduction 19 the ‘war on terror’ to show how the taboo shaped US interrogation policy and its use of ‘extraordinary renditions’ whereby the US sent detainees off to third countries to receive torture. All these chapters link up to tell a story of how the taboo has developed and the role it plays in world politics. The chapters show how torture transformed from a legitimate to a prohibited practice which has strengthened over time, how the strategies states have used to hide their torture have become more sophisticated, and the developments under international law that have helped make the taboo. The conclusion examines what implications this argument has for theory and practice and the normative visions immanent in the present that can be harnessed to create a more humane global politics.

Notes 1 See Article 5 of the Universal Declaration of Human Rights; Article 99 of the Third Geneva Convention and Common Article 3 of the Geneva Conventions of 1949; Article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms; Article 7 of the 1966 International Covenant on Civil and Political Rights; Article 5(2) of the 1969 American Convention on Human Rights; Article 5 of the 1981 African Charter on Human and People’s Rights; Article 2(2) of the 1984 UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Article 5 of the 1985 Inter-American Convention to Prevent and Punish Torture; and Article 7, 8 and 55 of the 1988 Rome Statute of the International Criminal Court. 2 Also known as a peremptory international norm. Article 53 of the Vienna Convention of the Law of Treaties (1969) defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. (See also Malanczuk [1970] 1997, 57) 3 However, not all violations damage a state’s identity. As the Kosovo intervention by NATO demonstrated, an act can violate international law but still be seen as legitimate (Falk 2005). Norms can also sometimes have exceptions that allow actors to violate them under particular circumstances (Frost 2009, 144–147). Moreover, the many different norms in international society create ‘tensions and contradictions’ as different actors find that values often clash with one another, whether this be, for example, human rights and security or equity and economic growth (Finnemore 1996b, 341–342). This means that in some instances, a state may violate a norm and still hold its identity intact as the violation is interpreted as legitimate. It is when a state violates a norm that challenges the broader moral fabric of international society that a state can be condemned and excluded from the international community. 4 Amnesty International (2014b) released a global survey on torture in 2014, finding widespread support for the absolute prohibition against torture. 5 For Habermasian communicative theory, see Risse (2000); for Bourdieu based theory, see Guzzini (2000); for Giddens structuration theory, see Wendt (1992) and Towns (2010); and for work that draws upon Nietzsche and Foucault, see Bartelson (1995) and Price (1997). 6 See note 1.

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Introduction 23 Kant, Immanuel. 2005. The Moral Law: Groundwork for the Metaphysic of Morals. London and New York: Routledge. Katzenstein, Peter J., ed. 1996a. The Culture of National Security: Norms and Identity in World Politics. New York: Columbia University Press. Katzenstein, Peter J. 1996b. ‘Introduction: Alternative Perspectives on National Security.’ In, The Culture of National Security: Norms and Identity in World Politics, edited by Peter J. Katzenstein, 1–32. New York: Columbia University Press. Keck, Margaret E. and Kathryn Sikkink. 1998. Activists Beyond Borders: Advocacy Networks in International Politics. Ithaca and London: Cornell University Press. Kelly, Tobias. 2009. ‘The UN Committee Against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty.’ Human Rights Quarterly 31(3): 777–800. Kelly, Tobias. 2012. This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty. Pennsylvania: University of Pennsylvania Press. Keohane, Robert O. 1997. ‘International Relations and International Law: Two Optics.’ Harvard International Law Journal 38(2): 487–502. Kowert, Paul and Jeffrey Legro. 1996. ‘Norms, Identity, and Their Limits: A Theoretical Reprise.’ In The Culture of National Security: Norms and Identity in World Politics, edited by Peter J. Katzenstein, 451–497. New York: Columbia University Press. Krasner, Stephen D. 1999. Sovereignty: Organized Hypocrisy. New Jersey: Princeton University Press. Kratochwil, Friedrich, and John Gerard Ruggie. 1986. ‘International Organization: A State of the Art on an Art of the State.’ International Organization 40(4): 753–775. Krook, Mona Lena and Jacqui True. 2012. ‘Rethinking the Life Cycles of International Norms: The United Nations and the Global Promotion of Gender Equality.’ European Journal of International Relations 18(1): 103–127. Lang Jr., Anthony F. 2007. ‘Morgenthau, Agency, and Aristotle.’ In Realism Reconsidered: The Legacy of Hans Morgenthau in International Relations, edited by Michael C. Williams. New York: Oxford University Press. Levinson, Sanford, ed. 2004. Torture: A Collection. New York: Oxford University Press. Linklater, Andrew. 2011. The Problem of Harm in World Politics: Theoretical Investigations. Cambridge: Cambridge University Press. Linklater, Andrew and Hidemi Suganami. 2006. The English School of International Relations: A Contemporary Reassessment. New York: Cambridge University Press. Loriaux, Michael. 1992. ‘The Realists and Saint Augustine: Scepticism, Psychology, and Moral Action in International Relations Thought.’ International Studies Quarterly 36(4): 401–420. Lutz, Ellen L. and Kathryn Sikkink. 2000. ‘International Human Rights Law and Practice in Latin America.’ International Organization 54(3): 633–659. Machiavelli, Niccolò. 2003. The Prince. Penguin Books: London. Malanczuk, Peter. 1997. Akehurst’s Modern Introduction to International Law. 7th revised edition. London and New York: Routledge. March, James G. and Johan P. Olsen. 1998. ‘The Institutional Dynamics of International Political Orders.’ International Organization 52(4): 943–969. McCoy, Alfred W. 2007. A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror. New York: Holt Paperbacks. Mearsheimer, John J. 1994–1995. ‘The False Promise of International Institutions.’ International Security 19(3): 5–49. Morgenthau, Hans. 1945. ‘The Evil of Politics and the Ethics of Evil.’ Ethics 56(1): 1–18.

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Morgenthau, Hans. 1993. Politics Among Nations: The Struggle for Power and Peace. Brief edition, revised by Kenneth W. Thompson. New York: McGraw-Hill, Inc. Muller, Harald. 2004. ‘Arguing, Bargaining and all that: Communicative Action, Rationalist Theory and the Logic of Appropriateness in International Relations.’ European Journal of International Relations 10(3): 395–435. Murray, A.J.H. 1996. ‘The Moral Politics of Hans Morgenthau.’ The Review of Politics 58(1): 81–107. Nadelmann, Ethan A. 1990. ‘Global Prohibition Regimes: The Evolution of Norms in International Society.’ International Organization 44(4): 479–526. Nietzsche, Friedrich. 2003. The Genealogy of Morals. Mineola, New York: Dover Publications, Inc. Nietzsche, Friedrich. 2006. The Gay Science. Mineola, New York: Dover Publications, Inc. Owen, David. 2007. Nietzsche’s Genealogy of Morality. Stocksfield: Acumen Publishing Limited. Panke, Diana and Ulrich Petersohn. 2011. ‘Why International Norms Disappear Sometimes.’ European Journal of International Relations 18(4): 719–742. Payne, Rodger A. 2001. ‘Persuasion, Frames and Norm Construction.’ European Journal of International Relations 7(1): 37–61. Price, Richard M. 1997. The Chemical Weapons Taboo. New York: Cornell University Press. Price, Richard M. 1998. ‘Reversing the Gun Sights: Transnational Civil Society Targets Land Mines.’ International Organization 52(3): 613–644. Price, Richard and Christian Reus-Smit. 1998. ‘Dangerous Liaisons? Critical International Theory and Constructivism.’ European Journal of International Relations 4(3): 259–294. Rejali, Darius. 2007. Torture and Democracy. Princeton and Oxford: Princeton University Press. Reus-Smit, Christian, ed. 2004. The Politics of International Law. New York: Cambridge University Press. Risse, Thomas. 2000. ‘ “Let’s Argue!”: Communicative Action in World Politics.’ International Organization 54(1): 1–39. Risse, Thomas, Stephen C. Ropp and Kathryn Sikkink, eds. 1999. The Power of Human Rights: International Norms and Domestic Change. Cambridge: Cambridge University Press. Risse, Thomas, Stephen C. Ropp and Kathryn Sikkink, eds. 2013. The Persistent Power of Human Rights: From Commitment to Compliance. Cambridge: Cambridge University Press. Roberts, Adam. 2007. ‘Review Essay: Torture and Incompetence in the “War on Terror.” ’ Survival: Global Politics and Strategy 49(1): 199–212. Rodley, Nigel S. with M. Pollard. 2009. The Treatment of Prisoners Under International Law. 3rd edition. Oxford: Oxford University Press. Sandholtz, Wayne. 2008. ‘Dynamics of International Norm Change: Rules against Wartime Plunder.’ European Journal of International Relations 14(1): 101–131. Scarry, Elaine. 1985. The Body in Pain: The Making and Unmaking of the World. New York and Oxford: Oxford University Press. Schmitt, Carl. 2007. The Concept of the Political. Chicago and London: The University of Chicago Press. Shannon, Vaughn P. 2000. ‘Norms are What States Make of Them: The Political Psychology of Norm Violation.’ International Studies Quarterly 44(2): 293–316. Shue, Henry. 1978. ‘Torture.’ Philosophy and Public Affairs 7(2): 124–143.

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Introduction 25 Shue, Henry. 2006. ‘Torture in Dreamland: Disposing of the Ticking Bomb.’ Case Western Journal of International Law 37(2&3): 231–239. Sikkink, Kathryn. 2008. ‘The Role of Consequences, Comparison and Counterfactuals in Constructivist Ethical Thought.’ In Moral Limit and Possibility in World Politics, edited by Richard M. Price, 83–111. New York: Cambridge University Press. Sikkink, Kathryn. 2013. ‘The United States and Torture: Does the Spiral Model Work?’ In The Persistent Power of Human Rights: From Commitment to Compliance, edited by Thomas Risse, Stephen C. Ropp and Kathryn Sikkink, 145–163. Cambridge: Cambridge University Press. Simmons, Beth A. 2009. Mobilizing for Human Rights: International Law in Domestic Politics. New York: Cambridge University Press. Steiner, Franz Baermann. 1999. Taboo, Truth, and Religion: Selected Writings, Volume 1, edited by Jeremy Adler and Richard Fardon. New York and Oxford: Berghahn Books. Sussman, David. 2005. ‘What’s Wrong with Torture?’ Philosophy & Public Affairs 33(1): 1–33. Tannenwald, Nina. 2007. The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945. New York: Cambridge University Press. Teitel, Ruti. 2011. Humanity’s Law. New York: Oxford University Press. Thucydides. 1972. History of the Peloponnesian War. London: Penguin Books. Towns, Ann E. 2010. Women and States: Norms and Hierarchies in International Society. New York: Cambridge University Press. United Nations. 2004. Istanbul Protocol: Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. New York and Geneva: United Nations. www.ohchr.org/Documents/Publications/training 8Rev1en.pdf. Van Kersbergen, Kees and Bertjan Verbeek. 2007. ‘The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union.’ European Journal of International Relations 13(2): 217–238. Vincent, Raymond John. 1986. Human Rights and International Relations. New York: Cambridge University Press. Waltz, Kenneth N. 1979. Theory of International Politics. Boston, Mass.: McGraw-Hill. Walzer, Michael. 1978. Just and Unjust Wars: A Moral Argument with Historical Illustrations. London: Allen Lane. Wendt, Alexander. 1992. ‘Anarchy is What States Make of it: The Social Construction of Power Politics.’ International Organization 46(2): 391–425. Wendt, Alexander. 1995. ‘Constructing International Politics.’ International Security 20(1): 71–81. Wheeler, Nicholas. 2000. Saving Strangers: Humanitarian Intervention in International Society. Oxford: Oxford University Press. Wiener, Antje. 2004. ‘Contested Compliance: Interventions on the Normative Structure of World Politics.’ European Journal of International Relations 10(2): 189–234. Wiener, Antje. 2009. ‘Enacting Meaning-in-Use: Qualitative Research on Norms and International Relations.’ Review of International Studies 35(1): 175–193. Williams, Bernard. 2002. Truth and Truthfulness: An Essay in Genealogy. Princeton: Princeton University Press. Williams, Michael C. 2005. The Realist Tradition and the Limits of International Relations. Cambridge: Cambridge University Press.

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Our story begins with the abolition of torture in eighteenth century Europe. Up until the eighteenth century, torture had been deemed a legitimate practice since the times of the Greek city states (see DuBois 2007, 13–15; Peters 1985, 11–18; Ross 2005, 3–6). Torture was a legitimate means for European judicial systems to gather the truth and prosecute offenders. How, then, did torture come to be prohibited? There is a pervasive understanding that the abolition of torture was the result of Western Enlightenment ideals. The conventional story is that philosophes, like Beccaria and Voltaire, discovered the true meaning of torture as cruel and pressured European sovereigns to abolish the practice (Asad 2003, 107). The aim of this chapter is to challenge this account and offer an alternative to the origins of the torture taboo. Using a genealogical approach, I question the origins of the taboo as a ‘discovery’ made by Enlightenment philosophes in the eighteenth century. Although I do not deny the role that the philosophes, human rights or Enlightenment ideals played in helping to abolish torture, I argue torture was abolished due to a more complex series of events. The eighteenth century saw the destabilisation of the religious monopoly of the interpretation of truth, pain and suffering, changing attitudes toward the body and a revolution in the law of proof that made torture unnecessary to convict offenders. These factors helped to destabilise the foundations of torture, allowing for the meaning of torture to be reconstructed. It was through these fortuitous events that the eighteenth century laid the foundations for transforming torture into a ‘taboo’ associated with ‘the sociology of danger’ (Steiner 1999). By the end of the eighteenth century, although some individuals were still willing to defend torture as something useful in criminal deterrence, the abolitionist movement had gained dominance over the interpretation of torture as a particularly cruel form of pain and suffering that was dangerous not only to the individual, but also to the broader society.

Torture in continental Europe It is important to make a separation between torture and public executions in the ancien régime. Many modern scholars have associated public executions up until the eighteenth century with torture (Foucault, 1991; Rejali, 2003). However, as I

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Abolishing torture 27 discuss below, torture only became associated with punishment in the seventeenth century, and even then, it continued to be distinguished from public forms of punishment. How we understand torture today is different from how a seventeenth or eighteenth century mind understood the practice. I refer to torture as a judicial practice of procedure, separating it from public executions. No matter how gruesome they were, public executions were not torture (see Silverman 2001). Throughout Europe, with the exception of England, which had developed a jury system,1 judicial torture formed a fundamental part of criminal proceedings. The criminal justice systems were based on Roman-canon law, which spread across Europe after the Inquisitions in the thirteenth century. In the German Empire, the Constitutio Criminalis Carolina (1532) regulated criminal procedure. The Carolina was a combination of interpretations from Roman-canon law and the procedures of Italian authorities (Bar 1916, 224). In the Spanish Netherlands, it was the Ordinance of Philip II (1537) that regulated criminal proceedings. While in France, the criminal law underwent no fundamental change between the 1200s and 1700s. The Villers-Cotterets (1539) provided the foundations for the judicial system, and the Criminal Ordinance (1670) regulated criminal procedure (Bar 1916, 260). The criminal procedure, including charges against the accused, was secret: the accused was not told of his crime until well into the trial (Foucault 1991, 35; Lowell 1897, 226). Nor was the accused able to have defence counsel to help prove their innocence (Lowell 1897, 226), know their accusers, or have access to court documents (Foucault 1991, 35). According to Ayrault, trials were secret because of ‘the fear of the uproar, shouting and cheering that the people usually indulge in, the fear that there would be disorder, violence, and outbursts against the parties, or even against the judges’ (Foucault 1991, 35–36). The Romancanon system was reliant on certainty to convict. Unlike contemporary judicial systems, courts could not convict on circumstantial evidence. As Langbein (1977, 4) notes: It does not matter, for example, that the suspect is seen running away from the murdered man’s house and that the bloody dagger and the stolen loot are found in his possession. The court cannot convict him of the crime. The Roman-canon system could only convict a suspect if there were two eyewitnesses to the crime or if the accused confessed to the crime (Langbein 1977). The need for certainty to convict was a product of the ordeals. The ordeals represented immanent justice: the idea that divine intervention in the mortal world would not allow crimes to go unpunished (Peters 1985, 42). God was the determiner of truth, the punisher of sin, and the distributor of justice. If a suspect was subject to the hot iron, for example, he had to carry a hot iron and if his hand did not heal in three days, he was deemed guilty (Lowell 1897, 222). When the Fourth Lateran Council abolished the ordeals in 1215 and many continental states adopted the Roman-canon system, the latter’s demand for absolute

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certainty helped in the transition from relying on God’s judgement to convict to human judgement to convict (Langbein 1977, 6). Absolute certainty ‘was based upon the principle that no man ought to be convicted of a grave crime unless the evidence was absolutely conclusive, -clearer than daylight, as the phrase ran’ (Lowell 1897, 224–225). Unlike the contemporary Western system where the defendant is generally innocent until proven guilty, the system under the ancien régime operated in semi-proofs, half-proofs, and full-proofs. A defendant was somewhat guilty throughout the whole judicial process; a suspect could be ‘semi’ or ‘half ’ guilty, depending on the law of proofs that had been satisfied. A suspect could be tortured if there was a ‘half-proof ’: either one eye-witness or sufficient circumstantial evidence to suggest that the accused could be guilty (Langbein 1977, 5). A court could only convict the accused under full-proof: that is, total certainty of the truth. Circumstantial evidence could not convict, and a confession meant more than simply proclaiming guilt (Bar 1916, 239). The Carolina required that the suspect must provide information that ‘no innocent person can know’ (Langbein 1977, 5). The accused had to reveal information about the crime: where it occurred, what weapon (if any) was used, where the weapon was hidden after the crime, how the victim was killed, etc. This information was then followed up through investigation to prove if the information was sound (Langbein 1977, 5). Torture played its role in Roman-canon law by helping achieve the ‘queen of proofs’, the confession. However, torture was regulated and limited in its use. Roman-canon law prevented torture from being used as a first resort. To use torture, a judge had to first submit a plea stating the reasons to use torture. The suspect could appeal, and if successful, torture was not allowed to occur. If torture occurred without approval, the confession was void (Welling 1892, 199). The use of torture was restricted to capital cases (Welling 1892, 199) and where there was already sufficient evidence to suggest guilt. Article 20 of the Carolina stated: When legally insufficient indication of the crime which it is desired to investigate has not been produced and proven beforehand, then no one shall be examined; and should however, the crime be confessed under torture, it shall not be believed nor shall anyone be condemned upon that basis. (Ruthven 1978, 61) Nicolas Eymeric, the papal inquisitor of Aragon, stated in the fourteenth century: [o]ne must not resort to the question till other means of discovering the truth have been exhausted. Good manners, subtlety, the exhortations of wellintentioned persons, even frequent mediation and the discomforts of prison are often sufficient to induce the guilty ones to confess. (Ruthven 1978, 54)

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This limit was in place to deal with torture’s unreliability. Torture disadvantaged the weak who could not withstand pain, while allowing the strong to lie through torments to escape punishment (Welling 1892, 198). Ferriere notes: Judicial torture is a dangerous means of arriving at knowledge of the truth; that is why judges must not resort to it without due consideration. Nothing is more equivocal. There are guilty men who have enough firmness to hide a true crime … and innocent victims who are made to confess crimes of which they were not guilty. (Foucault 1991, 40) Torture was to be used as a last resort, and threats of torture should precede its application to induce the weak to confess (Langbein 1977, 13–15; Peters 1985, 67–68). Several torture techniques were common throughout Europe. These included the thumb-screw and leg-screw, which involved placing the respective body parts into metal vices (Langbein 1977, 19, 24). Another technique was the strappado, where the victim’s hands were tied behind their back and then hoisted into the air. Sometimes weights would be attached to the victim’s feet to add further strain on shoulder and back muscles. If the victim did not speak, the victim would be lowered and the process repeated (Peters 1985, 68). Other practices included the rack (Langbein 1977, 22), holding feet to fire (Cohen 1998; Peters 1985, 68), tightly tying hands, water torture, and sleep deprivation (Peters 1985, 68). A judge could not use torture himself, but had to rely on ‘satellites and bailiffs’ to torture (Welling 1892, 205). When torture was actually used, the accused had to face the judge without their advocate, however, a physician often stood by, especially in cases of severe torture (Peters 1985, 67). The French Criminal Ordinance (1670) made a distinction between two types of torture. The first, torture préparatoire, was used to gain a confession. The second, torture préalable, or ‘preliminary torture’, was used against a convicted criminal before they were executed to find out about other crimes they may have committed or the names of any accomplices (Langbein 1977, 16–17). The use of torture was not wanton cruelty. It was restricted in use and regulated: torture was only used for capital crimes, threatened and then used as a last resort. A suspect had to have ‘half-proof ’ of guilt for torture to be used and when a confession was provided it had to be investigated by the court to ascertain its validity. Although torture was used against anyone, there were exceptions: torture could not be used against ‘prepubescents; the mad; the deaf and dumb … the sick and infirm’ and pregnant women (Silverman 2001, 43; see also Welling 1892, 204). Torture was embedded in a legal system in such a way that the need for a confession as well as ‘[t]he two eyewitness rule left the Roman-canon system dependent upon the use of torture’ (Langbein 1977, 8).

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The construction of torture How was the institution of torture sustained? How was torture, a practice today considered unreliable and cruel, seen to produce truth and uphold justice? Although today we see truth in criminal trials and interrogations being revealed through non-coercive means and free will, for jurists up until the eighteenth century, infliction of pain provided access to the truth. To understand the constitutive elements of this interpretation, one must look at the wider normative, political and cultural norms and institutions that interpreted truth, pain and suffering and provided the sovereign with the legitimacy to punish. Christianity, truth, pain and suffering In the judicial domain, truth was something that existed within the flesh. The body was the site of truth, and pain helped reveal the truth. As Silverman (2001, 59) notes, when interrogating the suspect, ‘[p]ain rather than fear should induce the accused to speak the truth’. The jurist had to ask questions in a manner that would obtain a ‘spontaneous’ answer. To give the suspect time to prepare an answer would be to allow time for invention (Silverman 2001, 101). Therefore, the questions asked by the judge had to be regulated: suggestive questioning or threats against the accused was not allowed (Peters 1985, 68). A confession had to provide the court with information that only the guilty could know, to paraphrase the requirements of the Carolina. The judge did not just wait for the truth to come from the mouth, but also examined how truth was revealed through the defendant’s bodily movements during torture: The judge must have his eyes fixed upon the accused, during the whole time that he interrogates him, and must observe all his movements with attention. If the accused trembles, if he weeps, or sighs, the judge will ask him the cause of these movements. Also, if he falters, or if he hesitates; if he is slow, and considers his response; the judge will press him with reiterated questions, and will make mention of everything in the interrogation. (Silverman 2001, 60) The judge is not to feel sympathy for the accused as he trembles, sighs, and weeps. Rather, he is to analyse the victim’s bodily movements, inquire as to what they mean, and observe whether the body reveals the truth. Therefore, before torture is carried out, the suspect’s body was shaven and searched for hidden charms that could prevent the body betraying itself to the court (Silverman 2001, 63; see also Welling 1892, 207). If the suspect confessed under torture, they then repeated the confession ‘voluntarily’ in front of a court within twenty-four hours of the torture (Silverman 2001, 45). If the suspect refused or recanted on their confession they were placed again under torture. This was to safeguard against torture’s unreliability (Langbein 1977, 15–16). Up until the

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Abolishing torture 31 sixteenth and seventeenth centuries, when a suspect held out under torture and did not confess to the crime, it purged the suspect of indicia and, unless new evidence was submitted, the suspect could be acquitted (Langbein 1977, 16). The extraction of the truth was the domain of an authority: anyone could not do it, only the magistrate who knew how to ask the right questions, was familiar with the deceitful moves the body revealed through pain, and with the law regarding guilt and innocence. However, the judiciary was not the only institution that helped constitute the value and meaning of torture. Christianity possessed a monopoly over the interpretation of pain and suffering in European societies. Pain and suffering was interpreted as punishment from God for violating divine law (see Caton 1985, 493–495). Medical historians have documented how religion was used to understand disease and illness during the ancien régime. Clergymen that served as physicians interpreted suffering as punishment or a test of faith, treating illnesses with amulets and magical rituals (Ramsey 1992, 101; Wear 1995, 240). At other times, individuals avoided ameliorating pain and suffering for fear they would provoke God’s wrath (see Risse 1992, 153). Yet suffering also had positive consequences. In establishing a connection with God, suffering offered the opportunity for redemption for the sufferer (see Caton 1985, 494). This is perhaps the reason behind the prestige of the confession: it offered redemption for the criminal and, in the words of Ayrault, allowed them to ‘judge and condemn themselves’ (Foucault 1991, 38; Pearce 2003, 58). The judicial interpretation of pain was further constituted and provided with additional meaning through the Christian meaning of the grotesque flesh. Porter (2001, 37) has shown that Christian theology defamed the body: it was a site of lust. Flesh was fallen, guilty, and deserving of contempt (Porter 2001, 38–39). This contempt for the body helped to justify judicial torture and public executions. It was through beating the flesh that one could reveal the truth. Judicial torture transcended the mortal world by forging a connection between the material and metaphysical realms of experience. How did Christianity have such a profound influence over interpretations of pain and suffering? One reason was that Christianity had a monopoly over people’s lives. As Caton (1985, 493) argued, ‘[m]onasteries were repositories of books and learning; clergy organized hospitals and distributed benevolences…. Priests officiated at every major event in people’s lives – baptism, confirmation, communion, marriage, sickness, and death’. Another reason was the powerful role Christianity had in constituting European laws and in understanding criminal behaviour. Individual criminality was understood through the narrative of The Fall. As Hunt (2007, 92) notes, The Fall was based on the belief that ‘evil in mankind resulted from original sin, the Christian doctrine that all people have been innately predisposed to sin ever since Adam and Eve fell from God’s grace in the Garden of Eden’. Christian notions of pain and suffering had a profound influence over jurists, and provided a prominent role in constituting torture as an institution. Silverman (2001, 111) found that in Toulouse, France, judges were often members of penitential confraternities. The major source for criminal law was the Bible and

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judges often cited from the Old Testament (Sanford 1988 [1854], 9). Torture was not carried out on Sundays or holy days (Langbein 1977, 13; Welling 1892, 204),2 and the duration of torture would be the ‘length of time it takes the judge to say a prayer, or creed’ (Peters 1985, 68–69). This interpretation of torture remained influential because of the dominant role of the parlementaries in the broader society. In France, for example, Parlementaries and judges were the elite in France; they were wealthier and outnumbered the merchants, and often dominated cultural organisations and activities, taking part in important holidays and festivals such as the Assumption of the Virgin (Silverman 2001, 51–52). The opening sessions of the parlements brought with it festivities that filled the streets in parts of France (Silverman 2001, 51–52). Moreover, the events of the court became popularised in legal texts for the non-legal specialists, providing both legal instruction and entertainment (Silverman 2001, 57–58). In France, the large amount of judge discretion in specifying penalties further provided them with power and high status in society. The magistrates saw themselves as the State, and saw it as their right to determine crimes and punishments (Bar 1916, 262–263). It was this situation more than anything else which in the preceding period had brought about the ascendency of the royal judicial officers – which has enabled them to make themselves both respected and feared, throughout the kingdom, as the relentless pursuers of crime and criminals, irrespective of kind or degree. (Bar 1916, 262) The judiciary and the Church were primary authorities and institutions that provided the theoretical and practical foundations for torture in absolutist Europe. The Church had a moral authority that was recognised by the state, judiciary and the European populations. Christianity differentiated the grotesque body from the soul, provided moral guidance and interpretation for individual suffering, and helped rationalise judicial torture. The judiciary claimed their authority as not only representatives of the state, and therefore reflective of the will of God, but through evidentiary proceedings and practices. The judiciary had its rules of semi-proofs and half-proofs and regulations regarding interrogation that provided its search for truth with legitimacy. Torture was made possible by the relations between these two authorities and the absolutist state. Torture and the absolutist state The development and concentration of the power to punish into a centralised state became a primary domain of sovereign power (see Bar 1916, 259–268) and it was legal theory that helped lay the theoretical foundations of absolutist power (Church 1967, 3). One of the most influential legal writers during absolutist Europe was Jean Bodin. Bodin was concerned with identifying ‘markers’ that could only be held by someone called a sovereign; that is, someone who ‘must

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Abolishing torture 33 not be subject in any way to the commands of someone else and must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others’ (Bodin 1992, 11). The sovereign made and repealed law, declared war and peace, appointed officers of state, and had the power over life and death (see Bodin 1992, 46–88). Bodin’s theory of sovereignty constructed a hierarchy between state and society. These markers could not be divided between the ruler and its subjects. Since a sovereign could only be subject to natural or divine laws (Bodin 1992, 13) the sovereign could not be both a subject and sovereign (Keene 2002, 43). This meant that until the eighteenth and nineteenth century when the state came to exist for the population, the sovereign ruled over society (Towns 2010, 59). The sovereign’s interests, reflective of God’s, were taken as state interests. Many laws reflected this relationship. For example, in the German Empire, stealing deer was punished with heavy penalties because it ‘was prejudicial to the exercise by the prince of his noble passion for the chase’ (Bar 1916, 230). Sovereignty was granted from above, legitimised in metaphysical, timeless laws. Upholding justice was integral to constituting the power of the sovereign. As Domat argued, ‘[t]he rule of justice … was both the supreme duty of the kind and the basis of his absolute power’ (Church 1967, 20). Justice derived from the sovereign (Parker 1989, 43), which, in turn, derived from ‘God himself who is justice’ (Church 1967, 20). Torture and public executions were integral to achieving justice in the ancien régime. Both practices operated in a system of punishment that focused on the body as the site of punishment and the symbol for the reconstitution of state power. Foucault (1991, 47–57) drew attention to the role inflicting pain upon the body in the public execution had in reconstituting the sovereign’s power and right to punish. Since laws were also divine laws, and the sovereign a representative of God, violations of the laws were a direct attack on the sovereign itself. The public execution was a public display of power. In the capacity to tear the flesh, it further constituted the privileged status that ‘in criminal matters the establishment of truth was the absolute right and exclusive power of the sovereign’ (Foucault 1991, 35). Torture formed one practice in a broader discourse of justice in the ancien régime. Torture helped to establish guilt. But torture was also distinguished from public executions and other forms of punishment. It is important to keep in mind that even when the Ordinance of 1670 placed torture as a punishment just behind the death penalty (Bar 1916, 269 fn. 3) torture remained somewhat separate from other punishments. Torture was the procedure that could either relieve or reveal the infamy of the offender by revealing guilt or innocence (Beccaria 1963, 35–36). The public execution was a means to reveal truth, infamy and deal with ‘unruly’ flesh (Porter 2001, 47). Title XXV, Article 13, of the 1670 Criminal Ordinance outlined a hierarchy of punishments (Bar 1916, 268). The first-class penalties concerned death penalties such as burning on the stake, broken on the wheel, quartering, hanging, and beheading (Bar 1916, 270). Second-class punishments included maiming such as cutting off the lips, nose or hand and

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flogging (Bar 1916, 273–274). Other punishments were more ‘symbolic’ of the crime (Foucault 1991, 44–45). In France, the Declaration of 30 July 1666 stated that the eighth offence of blasphemy would result in the criminal losing their tongue (Bar 1916, 281). Attacks against the sovereign’s life or his family were met with severe punishment. The punishment for ‘ “lèse majesté” proper’ (attempt to take the sovereign’s life) was listed in the Ordinance of 1539: ‘The offender is to be plucked with red-hot pincers and, after boiling lead has been poured into his wounds, is to be torn asunder by horses; his house is to be razed to the ground and his estate confiscated’ (Bar 1916, 282). Moreover, in some instances the body was still targeted after its execution and used as a spectacle. In serious crimes, the corpse of the criminal was sometimes dragged on a hurdle in public while the judiciary condemned the descendant’s memory (Bar 1916, 270). The criminal’s suffering in the public execution was shared with the community; it repatriated the body politic for the sins of the individual and restored order (Hunt 2004, 49, 2008, 94). Torture and public executions were two practices that helped to achieve truth and justice in the ancien régime. However, by the end of the eighteenth century, torture had lost its truth revealing qualities and had become stigmatised as ‘tyrannical’, ‘barbaric’ and ‘cruel’. Torture was prohibited not only in Europe but also in the United States of America (1791) (Dayan 2007, 6–7).3 Although Saxony prohibited torture in 1700, many other states followed suit half a century later. Prussia prohibited torture in 1754, and then in 1776, 1780, 1786, 1787 and 1789, torture was prohibited in quick succession in Poland and Austria-Bohemia, France, Tuscany, Austrian Netherlands and Sicily respectively (see Langbein 1977, 10). How can torture’s prohibition be explained?

The abolition of torture The conventional or progressivist account for the abolition of torture assumes that Beccaria and Voltaire, among others, shocked European sovereigns by demonstrating the true nature of torture as an affront to human rights and a hindrance to the advance of reason (Langbein 1977, 10–11; Peters 1985, 74–78).4 Although I do not deny that the human rights movement or Enlightenment thought contributed to the abolition of torture (see Hunt 2007; Peters 1985, 76), I suggest that torture’s abolition, and the origins of torture’s stigma, have a more complex genealogical history. One factor that contributed to torture’s prohibition was a revolution in the law of proof. Legal historian John Langbein (1977) argues the Roman-canon system, which relied on the use of torture to gain confessions, lost its monopoly in continental Europe in the seventeenth century to a new system of proof that relied on the free judicial evaluation of evidence. This new system emerged in the sixteenth century and became integrated into law in the seventeenth and eighteenth centuries. The revolution in the law of proof existed alongside the Roman-canon system, allowing the Roman-canon system to continue to be used for ‘easy cases’ that did not need a confession or two eyewitnesses to convict.

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Abolishing torture 35 The revolution in the law of proof took place in the sixteenth and seventeenth centuries when new forms of punishment emerged that replaced the blood sanctions of the Middle Ages. These included the galleys, workhouse, imprisonment, and transportation of convicts to overseas colonies for labour (Langbein 1977, 27–44). The term used to describe the use of the alternative forms of punishment was called ‘poena extraordinaria’: ‘an extraordinary or discretionary punishment’ (Langbein 1977, 45). This discretion was only used at the time on cases of full proof. The legal system continued to rely on torture, and it was only after guilt had been established that discretion was exercised. In the seventeenth century, poena extraordinaria began to serve another function. Poena extraordinaria was used in two types of cases when full proof was lacking: when the suspect withstood torture, and when persuasive circumstantial evidence did not meet the threshold of half-proof and therefore did not allow torture. Poena extraordinaria was used ‘subject to the important limitation that the punishment had to be less severe than that prescribed for full proof of the crime’ (Langbein 1977, 47). It therefore became possible to punish for serious crimes without the need for full-proof and without resorting to torture (Langbein 1977, 59–60). Langbein offers a powerful alternative to the progressivist story by examining how an alternative law of proof destabilised, and eventually replaced, the need for torture. Torture was abolished because it was no longer necessary to use it. However, Langbein does not address why torture continued to be used well into the eighteenth century despite the fact it was no longer necessary to do so. Nor does he examine how torture came to have such a powerful stigma. Lisa Silverman (2001) has addressed these important issues, arguing torture continued to be used because it had cultural value and meaning based in the religious interpretation of pain, suffering, and the judicial interpretation of truth until the eighteenth century. Therefore, to understand the abolition of torture and how torture became stigmatised as ‘barbaric’, one must look at the epistemological shift in these interpretations, in particular, the meaning of pain. Examining the use of judicial torture in France, Silverman argues that although the religious interpretation of pain continued to be used in the courts, pain was understood differently in other contexts in French society. In the medical context, pain was a negative phenomenon and the sick went to doctors for relief of pain. The sick did not see pain as ennobling but as something to be feared because it could negatively alter their way of life (Silverman 2001, 135–137). In early medical works from the 1500s, surgeons showed little sympathy for those who suffered pain (Silverman 2001, 148). Pain was something that could help in diagnoses and surgeons ‘were therefore reluctant to treat it’ (Silverman 2001, 137–140, 148). However, by the end of the sixteenth century, pain came to be seen as a problem for both the patient and witnesses of the pain (Silverman 2001, 148). Surgeons took measures to minimise and avoid unnecessary pain (Silverman 2001, 143). Drugs were provided to relieve pain such as the use of ‘mandrake, henbane, solanum, wild lettuce, and opium’ (Silverman 2001, 145) and alcohol was used during surgery as an anaesthetic (Silverman 2001, 146).

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By the eighteenth century, surgeons showed empathy and pity, but also horror and distress, for patients in pain (Silverman 2001, 149). Pain posed a danger to both the patient and onlookers. Pain was considered dangerous because of ‘the fear that repeated exposure to the sight of suffering was itself damaging’ (Silverman 2001, 150). As the meaning of pain became more contested and associated with danger behaviour, ‘painful practices like torture that relied on narrowly constructed definitions of pain became more difficult to support’ (Silverman 2001, 108). The shift in the epistemology of pain in the seventeenth and eighteenth centuries has been noted by others. Caton (1985, 495) points to the ‘secularisation’ of pain during this period and how this provided an ‘intellectual bond’ between the philosophes and the medical practitioners. The philosophes saw medicine as an important way to help people out of a life of self-incurred tutelage. Science and technology was seen as a means for humans to gain better control over their environment, to tackle the stronghold of superstition and to advocate the advance of human reason (Porter 1995, 374). Peter Gay argues that the advance in medicine gave the philosophes and the enlightenment a morale booster: ‘for observant men in the eighteenth century, philosophes as well as others, the most tangible cause for confidence lay in medicine’ (Porter 1995, 384). The changing attitude toward pain and the revolution in the law of proof was accompanied by the individualisation of the human body. Hunt (2007, 82) argues during the eighteenth century, ‘[b]odies gained a more positive value as they became more separate, more self-possessed, and more individualized’. Following on from the work of Norbert Elias, Hunt argues from the fourteenth century onwards that there had been a slow shift in attitudes concerning the body: improved manners, lower threshold for shame, and condemnation of violent emotional outbursts (Hunt 2007, 82). This shift was brought about by some unexpected practices, such as changes in how society enjoyed music and theatre, and the role of architecture and art. Audiences began watching and listening to theatre and music in silence instead of conversing and walking around with fellow audience members. Architecture in the home also began to shift, with individualised rooms becoming increasingly common in Parisian houses in the eighteenth century. Moreover, the rise of portrait paintings of individuals further strengthened the notion of individuality (Hunt 2007, 82–89). The product of the body’s individualisation with the changing attitudes to pain was that the body acquired a new dignity that could no longer be sacrificed for the community (Hunt 2007, 97). With the loss of the metaphysical and moral connotations associated with pain, the infliction of pain upon individuals resulted in negative reactions from onlookers (Hunt 2007, 82). Yet it also triggered empathy for the physical suffering of others. Even though all human bodies are individual and unique, they are all made of the same ‘stuff’. It was this empathy with other individuals, even criminals, as similar to oneself that provided a foundation for moral conduct. Cruel punishments harmed moral sentiments by turning people callous. Coming to understand the human body as autonomous and inviolable helped stigmatise torture as a particularly heinous and superfluous act.

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Abolishing torture 37 Langbein, Silverman and Hunt’s contribution provide the necessary background in which to examine how torture came to be ‘taboo’. Langbein demonstrates how torture no longer became necessary in the law of proof. However, Langbein’s thesis does not tell us how torture came to be described in terms of danger. Hunt and Silverman’s theses, while offering the origins of torture’s prohibition in the individualised body and shift in the epistemology of pain, do not tell us why torture was dangerous while other forms of infliction of pain, such as corporal punishment, were still advocated by the philosophes. I now turn to examine Beccaria’s famous text, On Crimes and Punishment, to demonstrate how torture became categorised as dangerous and different from other inflictions of pain, and how it shifted from a valued and meaningful practice to a dangerous one by the end of the eighteenth century.

Beccaria and the localisation of danger Drawing upon the work of Hobbes, Locke and Rousseau (Beccaria 1963, 6 fn. 8), Beccaria sought to discover natural laws based in reason that could form the foundations of a criminal justice system. Describing the criminal laws in Europe as antiquated and based on ‘obscure and unauthorised interpretations’ (Beccaria 1963, 3–4), Beccaria wanted to remove laws that reflected particular interests and replace them with laws that reflected the ‘general will’ of the people (Beccaria 1963, 8). The general will was not the interest of one individual or group in society (although at times it may be consistent with a particular set of interests), but reflected interests transcendent of any group or individual and encompassed the interests of all. It was laws based on the general will that produced ‘the greatest happiness shared by the greatest number’ (Beccaria 1963, 8). According to Beccaria, the general will served to turn independent human beings in the state of nature into moral and communal ones by strengthening social bonds (Rousseau 1968, 85). Yet the general will also acted on the sovereign to persuade him to act in the common good (Rousseau 1968, 69). The general will sought not only to transform individuals into rational, human beings, but to create a sustainable political order. In order to ensure a sustainable social order and prevent society regressing into a state of nature of all against all, the social contract asked individuals to sacrifice part of their liberty to live in peace and security (Beccaria 1963, 11). The sacrifices of liberty were deposited into the sovereign, which at the same time, also constituted the sovereignty of the nation and ‘the right to punish’ (Beccaria 1963, 11–13). However, there were limits as to how much liberty should be sacrificed. Beccaria argued individuals should only be obligated to sacrifice the minimally necessary amount of liberty needed to maintain order. No man (or woman) had ever freely sacrificed his (or her) liberty for the common good. As Beccaria (1963, 12–13) argued: It was, thus, necessity that forced men to give up part of their personal liberty, and it is certain, therefore, that each is willing to place in the public

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fund only the least possible portion, no more than suffices to induce others to defend it. This minimum level of liberty sacrificed by all ‘constitutes the right to punish; all that exceeds this is abuse and not justice; it is fact but by no means right’ (Beccaria 1963, 12–13). By ‘right’ Beccaria referred to that which was ‘most advantageous to the greater number’, and by ‘justice’, ‘nothing more than the bond required to maintain the unity of particular interests which would otherwise dissolve into the original state of insociability’ (Beccaria 1963, 13). When assessing torture, Beccaria asked whether torture worked in whatever purpose it was intended to serve and whether torture was ‘just’ (i.e. the bond required to maintain unity in the body politic) (Beccaria 1963, 10). Beccaria concluded that torture was cruel and should be abolished, having no justification for existence. Several reasons were given. First, torture inhibited the truth. One can notice here the role the shift in the epistemology of pain had in Beccaria’s argument. Torture operated on the principle that truth ‘lay in the muscles and sinews of a miserable wretch’ (Beccaria 1963, 31). This was the result of the ‘ancient and barbarous legislation’ of the judgements of God (Beccaria 1963, 32). Reason and a clear head produced the truth, not pain. Nor could pain purge one of infamy. Pain is a sensation that had no relationship with metaphysics or morality. This ‘confusion’ between the two was a product of religious dogma and was something that ‘should not be tolerated in the eighteenth century’ (Beccaria 1963, 35). Torture was also condemned because it was not just. Although Beccaria utilised utilitarian arguments to help prohibit torture, Beccaria’s argument also went beyond utilitarianism. Beccaria saw torture as both punishment and procedure and condemned torture as a practice that punished someone not yet proven guilty (Beccaria 1963, 30). Punishing the innocent was not only based on the principle that ‘might is right’, but was condemned by Beccaria as a residue of the Roman-canon system that operated on semi-proofs and half-proofs (Beccaria 1963, 39). It was in this system that ‘torture exercises its cruel power’ (Beccaria 1963, 39). Other arguments were also given to abolish torture: torture favoured the strong who could withstand pain, while punishing the weak who could not (Beccaria 1963, 31–33); torture was secret and therefore could not act as a deterrent to others (Beccaria 1963, 30–31); and there were alternatives to torture that could be used to find accomplices. Accomplices often fled into exile after committing crimes and alternatives such as examination of witnesses and the accused, as well as the material facts of the crime, could be used instead of torture (Beccaria 1963, 35). Beccaria classified, limited, and stigmatised forms of pain according to the principles outlined in the social contract. Consistent with Montesquieu’s (1949, 1: 299) writings on punishment, anything useless and unnecessary was tyrannical. It is important to note that this principle did not just apply to pain; it applied to any kind of law. In a discussion on severe punishments, Beccaria argued even

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Abolishing torture 39 if severity itself was not against the common good, but that if severity could be proven to be useless, it was against justice and the social contract (Beccaria 1963, 14). The individual should only give away that little amount of liberty that was necessary to maintain order. Uselessness asked for too much liberty for no good reason and people would not be willing to defend the social order if it became threatened. But this principle also served as a classifying theme in which to separate different acts and provide them with meaning. Here one can see Beccaria localising and narrowing danger to the political community, identifying ways in which to judge the danger a practice has, according to its utility and necessity. Corporal punishment could still serve a positive purpose if used in the correct manner (Beccaria 1963, 68). It was the unnecessary or ineffective use of pain that posed a threat to the social order. The sociology of danger could be seen not only in regards to torture but also in the cruelty of punishments. Cruelty could be dangerous by causing ‘contagion’ in the broader political community. Cruel punishments turned the human spirit callous and emboldened citizens to commit crimes. Moreover, those countries with more severe punishments were condemned by Beccaria because those societies often produced ‘the bloodiest and most inhumane of deeds’ (Beccaria 1963, 43–44). This was because the cruelties that guide legislators reproduce that cruelty in the minds of the citizens, in turn making new tyrants (Beccaria 1963, 43–44). Thomas Paine made similar observations regarding the use of cruel punishments, arguing that people ‘learn it [punishments] from the governments they live under, and retaliate the punishments they have been accustomed to behold’ (Paine 1985, 57). Invoking the execution of Damien, Paine (1985, 58) argued: [t]he effect of those cruel spectacles exhibited to the populace, is to destroy tenderness, or excite revenge; and by the base and false idea of governing men by terror, instead of reason, they become precedents. It is over the lowest class of mankind that government by terror is intended to operate, and it is on them that it operates to the worst effect. It is therefore necessary to ‘[l]ay then the axe to the root, and teach governments humanity. It is in their sanguinary punishments which corrupt mankind’ (Paine 1985, 58). The philosophes had cast any unnecessary practices as tyrannical. This combined with the medical discourses that demonstrated that pain endangered patients and onlookers to associate torture with danger behaviour. Torture, which was argued to be useless in every supposed function, was also associated with the cruel infliction of pain that threatened to turn the people into callous ‘mobs’ and damage social bonds. It was this stigma that associated judicial torture with despotism. In his Discours sur les moeurs in 1769, Joseph-Michel-Antoine Servan linked torture to oppressive rule:

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Abolishing torture Doubt it no longer; when you deliver a citizen to the torture, be it at the other end of the universe, despotism will be heard to cry and to speak with derision to the men whom it oppresses: ‘There then is Switzerland, there is that free government, which employs the question in the name of the laws,’ and it will add, ‘Happy slaves! You dare to complain now that I scorn both laws and liberty. You can still hope to bend your despot; but who will bend the law when the very virtue of the magistrates renders it inflexible?’ (Silverman 2001, 171)

It is also in the eighteenth century that one can see the comparison of torture with ‘barbaric’ countries, such as those in the Orient, which, apparently, was where humanity was most debased (Silverman 2001, 171). Torture existed in the realm of barbarity that lurked beyond community boundaries. The use of torture had become a marker to distinguish identities, but also form social hierarchies of superiority and inferiority. Those who tortured were inhumane and inferior, and those who had abolished torture had become humane and superior. Beccaria brought to light the hierarchical function that torture has among states. England, Sweden and Fredrick II of Prussia were praised as ‘examples of virtue’ and with wisdom for not having torture (Beccaria 1963, 36). Those who continued to use torture were deemed irrational for employing a practice not even used to regulate armies (Beccaria 1963, 36). What is interesting to note is that despite the prominent role Beccaria has in the abolition story, few of Beccaria’s critiques of torture were original in any sense of the word. Beccaria invoked many criticisms against torture that had been voiced since the Greek city states. Aristotle,5 for example, expressed caution concerning torture’s unreliability, and these concerns could also be heard during the Roman Empire.6 However, it should be kept in mind that Beccaria and Servan’s condemnation of torture as tyrannical was proclaimed in a different context than in the Middle Ages or in the Greek City States. For example, the criticisms made by Aristotle and in the Roman Digest concerning torture’s unreliability were prudential critiques, and did not suggest torture should be abolished. The eighteenth century critics had invoked older critiques of torture, but because of the shift in the attitudes to the body, the epistemology of pain, the human rights and Enlightenment discourse, and the association of uselessness with tyranny, these critiques took on a new meaning and linked torture with ‘the sociology of danger’ that threatened the well-being of the political community.

Contesting torture’s abolition The condemnation of torture was not unanimous. Even within the abolition movement, opinions differed as to the value torture could continue to provide to criminal justice. For example, Voltaire had different views to Beccaria on torture. Voltaire was one of the leading advocates in the abolition movement.7 However, he argued that torture préalable could still be useful in limited cases, and Voltaire in fact advocated its use in the case of the assassination of Henry IV

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Abolishing torture 41 to find accomplices and punish the assassin (Langbein 1977, 68; Silverman 2011, 167). Pierre Francois Muyart de Vouglans, the Conseillier au Grand-Counseil of France, argued in 1780 that not only is legalised torture successful, but taking it away poses a danger to ‘the fields of government, morals and religion’ (Peters 1985, 72–73). Muyart de Vouglans had a companion in the criminalist Jousse. In his Traite de la Justice Criminelle, Jousse wrote that the abolition movement sought to undermine ‘civilised’ laws and ‘injure religion, morals, and the sacred maxims of the government’ (Bar 1916, 318 fn. 12). And Ferdinando Facchienei, a Venetian monk from Vallombroso, published a scathing critique of Beccaria’s treatise in 1765 as part of his wider defence of the system of absolutism (Young 1984, 159). Other critics focused on the functionality of torture and the possible contribution it could continue to make to the criminal justice system. In a set of unpublished manuscripts written in the 1770s, Jeremy Bentham argued that sentiments often clouded beliefs surrounding torture, inhibiting the ability to think about it rationally (Twining and Twining 1973, 306, 308). Although Bentham praised Beccaria’s critique, and advocated the abolition of torture as it was then used in Europe, he argued torture could still be used. Relative to other forms of pain and suffering (such as enduring imprisonment), torture appeared to be no different to warrant such an absolute prohibition or place it beyond a debate about its possible utility for the creation of a just society. The advantages torture had over imprisonment was that torture relied on intensity of punishment, rather than duration, and this could make the prisoner conform more quickly: A man may have been lingering in prison for a month or two before he would make answer to a question which at the worst with one stroke of the rack and therefore almost always with only knowing that he might be made to suffer the rack, he would have answered in a moment. (Twining and Twining 1973, 311) Bentham did not associate torture with cruel or excessive punishment if used in a regulated manner, and therefore detached it from the sociology of danger. Still, others saw torture having utility in relation to criminal deterrence. The Belgian, de Fierlant wrote in 1771 that there is a fear that the removal of torture would make it difficult to deter and convict hardened criminals (Langbein 1977, 66). In the Netherlands, Voorda defended the rack as late as 1798, saying it was indispensable ‘unless the common welfare was to be sacrificed to rogues and villains’ (Bar 1916, 310). Many sovereigns feared the effect abolishing torture would have on deterring crimes, and many of the abolition decrees were issued in secret. These included Fredrick the Great’s orders in 1740 and 1754; Maria Theresa’s order in 1773; and Joseph II’s order for abolition in 1784 (Langbein 1977, 66–67). In some cases, the decrees came with reservations. On May 8 1788, Louis XVI issued an edict that abolished torture préalable. Although this edict was not implemented, it came with a clause that demonstrated the concerns

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of sovereigns: ‘reserving however regretfully [the option] of re-establishing torture préalable if, after some years of experience, we gather from the reports of our judges that it is an indispensible necessity’ (Bar 1916, 319; Langbein 1977, 66). The debate over torture in the eighteenth century demonstrated that torture was not universally considered morally abhorrent, nor was torture’s abolition universally seen as necessary. Arguably, the eighteenth century is too early to talk or think about torture as ‘taboo’ behaviour. Although the torture abolitionists won out, some still believed torture could provide a useful deterrent measure for criminals. Furthermore, it was still possible in the latter half of the eighteenth century to think of torture as being a part of a ‘civilised’ justice system. The debate surrounding the role of torture in European society shows that the abolitionist’s attempts to stigmatise and classify torture as barbaric and cruel was still politically contested. Yet the debate over torture was also more than a debate over torture itself. What was at stake was the ability to define prohibitions, limits to punishment, and the kinds of conduct fit for a humane, ‘civilised’, society.

Conclusion The purpose of this chapter was to show how torture came to be prohibited and find the seeds to torture’s association with danger behaviour, a vital element of what makes something taboo. Torture had existed for centuries as a legitimate practice that helped judicial authorities reveal the truth. The abolition of torture in the eighteenth century marked an important shift in the understanding of torture. However, as this chapter showed, to attribute torture’s prohibition to the human rights movement or the force of the philosophes’ arguments misses the important developments that made the prohibition possible. The abolitionist movement, the shifting epistemology of pain, changes in the law of proof and our changing attitudes toward the human body culminated to undermine the foundations of judicial torture. Torture, then, was not prohibited because the philosophes discovered the true meaning of torture, but because of a series of complex events that shifted how European society understood the meaning of torture. The politicisation of torture and the ensuing debates over its prohibition resulted in torture being classified as a particularly cruel form of pain and suffering. The reinterpretation of torture from a legitimate to an illegitimate practice linked torture to a tyrannical practice that harmed not only the victim but the social order as well. Torture threatened a regression to the state of nature by undermining social bonds that the social contract was intended to protect. Furthermore, the philosophes stigmatised torture by associating it with ‘barbaric’ societies, making torture a signifying marker with which to rank countries and states according to their internal conduct. What is important to note is that it was not any form of pain and suffering that possessed these qualities. The classificatory schemes that linked uselessness with

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tyranny helped demarcate torture from other types of infliction of pain, such as corporal punishment, which continued to retain its legitimacy. This distinction between different forms of pain and suffering was not related to any ‘essential’ qualities of the practice itself, but socially constructed categories that distinguished between the legitimate and illegitimate infliction of pain.

Notes 1 Although torture made a brief appearance in England under Queen Elizabeth in the latter half of the sixteenth century, neither was it an institutionalised legal practice, nor was it a target of the ‘abolition’ movement of the eighteenth century (Hansen 1991; Langbein 1977, 73–128). 2 In an analysis of the law of torture, Sebastian Guazzini, an Italian jurisconsult, wrote in 1612 that there were exceptions to not torturing on Holy days: an accused party shall not be tortured on a Feast Day celebrated in honor of God, except in grave cases. Judges who fear God observe this rule, says Julius Clarus, but judges otherwise minded do not pay much respect to it. (Welling 1892, 204) 3 On the influence of Enlightenment thought on the Eighth Amendment of the US Constitution, see Kastenberg (1995–1996). 4 In examining the abolition of judicial torture, I will not engage in examining the removal of public executions, which has been explored by others. See Foucault (1991). 5 Aristotle wrote in his Rhetoric, ‘Torture is a kind of evidence, which appears trustworthy, because a sort of compulsion is attached to it’, however: those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, while others are really ready to make false charges against others, in the hope of being sooner released from torture. (Ross 2005, 5) 6 The Roman law text, Digest, stated: It was declared by the Imperial Constitutions that while confidence should not always be reposed of torture, it ought not to be rejected as absolutely unworthy of it, as the evidence obtained is weak and dangerous, and inimical to the truth; for most persons, either through their power of endurance, or through the severity of the torment, so despise suffering that the truth can in no way be exhorted from them. Others are so little able to suffer that they prefer to lie rather than to endure the question, and hence it happens that they make confessions of different kinds, and they not only implicate themselves, but others as well. (Peters 1985, 34) 7 Voltaire played a leading role in the famous Calas case in the 1760s (see Silverman 2001, 157–159). Voltaire’s (2007, 36–37) critiques of torture also contributed to torture’s stigmatisation as ‘uncivilised’ and ‘barbaric’. Placing its origins as a practice used by highway robbers, Voltaire argued torture had now been co-opted by rulers to keep themselves in power. Yet he also associated torture with being an inhumane state. France’s identity was tainted by the continued presence of an ancient practice: ‘Woe unto the nation which, though long civilized is still led by ancient atrocious customs!’ (Voltaire 2007, 37). To be modern and civilised, progressive and humane, torture had to be done away with. This polemical critique sits uncomfortably with Voltaire’s argument in favour of the use of torture préalable.

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References Asad, Talal. 2003. Formations of the Secular: Christianity, Islam, Modernity. Stanford, California: Stanford University Press. Bar, Ludwig Von. 1916. A History of Continental Criminal Law. Boston: Little, Brown and Co. Beccaria, Cesare. 1963. On Crimes and Punishment. Upper Saddle River, NJ: PrenticeHall Inc. Bodin, Jean. 1992. On Sovereignty: Four Chapters from The Six Books of the Commonwealth. Cambridge University Press: Cambridge, New York. Caton, Donald. 1985. ‘The Secularization of Pain.’ Anaesthesiology, 62(4): 493–501. Church, William F. 1967. ‘The Decline of the French Jurists as Political Theorists, 1660–1789.’ French Historical Studies 5(1): 1–40. Cohen, Thomas V. 1998. ‘Three Forms of Jeopardy: Honor, Pain, and Truth-Telling in a Sixteenth-Century Italian Courtroom.’ The Sixteenth Century Journal 29(4): 975–998. Dayan, Colin. 2007. The Story of Cruel and Unusual. Cambridge, Mass. and London: A Boston Review Book, MIT Press. DuBois, Page. 2007. ‘Torture and Truth.’ In The Phenomenon of Torture: Readings and Commentary, edited and with an Introduction by William F. Schulz, 13–15. Philadelphia: University of Pennsylvania Press. Foucault, Michel. 1991. Discipline and Punish: The Birth of the Prison. London: Penguin Books. Hansen, Elizabeth. 1991. ‘Torture and Truth in Renaissance England.’ Representations 34(1): 53–84. Hunt, Lynn. 2004. ‘The 18th-Century Body and the Origins of Human Rights.’ Diogenes 51: 41–56. Hunt, Lynn. 2008. Inventing Human Rights: A History. New York: W.W. Norton & Company, Inc. Kastenberg, Joshua E. 1995–1996. ‘An Enlightened Addition to the Original Meaning: Voltaire and the Eighth Amendment’s Prohibition against Cruel and Unusual Punishment.’ Temple Political and Civil Rights Law Review 5(1): 49–70. Keene, Edward. 2002. Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics. Cambridge: Cambridge University Press. Langbein, John H. 1977. Torture and the Law of Proof: Europe and England in the Ancien Régime. Chicago and London: The University of Chicago Press. Lowell, Lawrence A. 1897. ‘The Judicial Use of Torture: Part I.’ Harvard Law Review 11(4): 220–233. Montesquieu, Baron De. 1949. The Spirit of the Laws. Hafner Press: New York: Hafner Press, London: Collier Macmillan. Paine, Thomas. 1985. Rights of Man. London: Penguin Books. Parker, David. 1989. ‘Sovereignty, Absolutism and the Function of the Law in Seventeenth-Century France.’ Past and Present 122(1): 36–74. Pearce, Frank. 2003. ‘ “Off With Their Heads”: Public Executions with Klossowski, Caillois and Foucault.’ Economy and Society 32(1): 48–73. Peters, Edward. 1985. Torture. New York: Basil Blackwell. Porter, Roy. 1995. ‘The Eighteenth Century.’ In The Western Medical Tradition: 800BC to AD 1800, edited by Lawrence I. Conrad, Michael Neve, Vivian Nutton, Roy Porter and Andrew Wear, 371–475. Cambridge: Cambridge University Press. Porter, Roy. 2001. Bodies Politic: Disease, Death and Doctors in Britain, 1650–1900. London: Reaktion Books Ltd.

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Abolishing torture 45 Ramsey, Matthew. 1992. ‘The Popularization of Medicine in France, 1650–1900.’ In The Popularization of Medicine 1650–1850, edited by Roy Porter, 97–133. London: Routledge. 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. Risse, Guenter B. 1992. ‘Medicine in the Age of Enlightenment.’ In Medicine in Society: Historical Essays, edited by Andrew Wear, 149–195. Cambridge: Cambridge University Press. Ross, James. 2005. ‘A History of Torture.’ In Torture: Does it Make us Safer? Is it Ever OK? A Human Rights Perspective, edited by Kenneth Roth and Minky Worden with Amy D. Berstein contributing editor, 3–17. New York and London: The New Press. Rousseau, Jean-Jacques. 1968. The Social Contract. London: Penguin Books. Ruthven, Malise. 1978. Torture: The Grand Conspiracy. London: Weidenfeld and Nicolson. Sanford, Henry Shelton. 1988 [1854]. The Different Systems of Penal Codes in Europe: Also, a Report on the Administrative Changes in France Since the Revolution of 1848. F.B. Rothman: Littleton, Colorado. Silverman, Lisa. 2001. Tortured Subjects: Pain, Truth, and the Body in Early Modern France. Chicago and London: The University of Chicago Press. Steiner, Franz Baermann. 1999. Taboo, Truth, and Religion: Selected Writings, Volume 1. Edited by Jeremy Adler and Richard Fardon. New York and Oxford: Berghahn Books. Towns, Ann E. 2010. Women and States: Norms and Hierarchies in International Society. New York: Cambridge University Press. Twining, W.L. and P.E. Twining. 1973. ‘Bentham on Torture.’ Northern Ireland Legal Quarterly 24(3): 305–356. Voltaire. 2007. ‘On Torture and Capital Punishment.’ In The Phenomenon of Torture: Readings and Commentary, edited and with an Introduction by William F. Schulz, 36–37. Philadelphia: University of Pennsylvania Press. Wear, Andrew. 1995. ‘Medicine in Early Modern Europe, 1500–1700.’ In The Western Medical Tradition: 800BC to AD 1800, edited by Lawrence I. Conrad, Michael Neve, Vivian Nutton, Roy Porter and Andrew Wear, 215–361. Cambridge: Cambridge University Press. Welling, James C. 1892. ‘The Law of Torture: The Study in the Evolution of the Law.’ American Anthropologist 5(3): 193–216. Young, David B. 1984. ‘ “Let Us Content Ourselves with Praising the Work While Drawing a Veil over its Principles”: Eighteenth-Century Reactions to Beccaria’s On Crimes and Punishments.’ Justice Quarterly 1(2):155–169.

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Throughout the nineteenth century and into the twentieth century, the contestation surrounding torture that existed in the middle and latter half of the eighteenth century died away. Torture not only became taken for granted as prohibited conduct, but the torture prohibition became part of the normative fabric of international society. Torture had become naturalised as a relic of older ages, a danger to society, and a marker of ‘uncivilised’ conduct. It was in the nineteenth century that torture became ‘taboo’. However, to see the consolidation of the torture taboo as a product of a linear movement of history would miss important genealogical events in the taboo’s development. This chapter examines the use of torture from 1800 to 1945 to examine how torture was consolidated as a taboo. I begin by examining torture within the nineteenth century European international society to demonstrate how the taboo constituted state identity and how it was strengthened further by being classified as ‘unnecessary suffering’ under the laws of war. I then show how the taboo interacted with European colonialism in the nineteenth century to become an important element of the ‘standard of civilisation’. Examining an investigation into torture allegations in British colonial India in 1855, I show how the taboo was integrated into the colonial powers’ ‘civilising mission’. Colonial states not only had the obligation to prohibit torture at home, but they also had to prohibit it in their colonies as well. This proved crucial in helping extend the taboo beyond Europe and establishing it as a global norm. I then turn to the rise of authoritarian regimes in Europe and the widespread use of torture by Nazi Germany and the Soviet Union. The use of electric and water torture, beatings and rape by these regimes certainly posed a significant challenge to the taboo. But what is interesting is that the norm did not die under these regimes. Torture continued to maintain its strong stigma as a ‘medieval barbarity’ that no modern, ‘civilised’ state would dare openly use. As a result, both regimes had to hide, deny and lie about their use of torture to maintain their legitimacy in the eyes of their domestic populations and other members of international society. Furthermore, the taboo violations by Nazi Germany and the Soviet Union had the paradoxical effect of actually strengthening the taboo’s stigma. The use of torture concentrated international attention on the norm violations. Political

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The taboo and the fear of regression 47 leaders, academics and World War II pamphleteers condemned the use of torture because it represented a ‘breakdown’ of civilisation (Woolf 1933, 7–8) that threatened to untie and break social bonds, invoking fears that progressive efforts at ameliorating harm in world politics would be lost. This fear of regression further stigmatised torture as a particularly dangerous and cruel form of pain and suffering. However, it also reinvigorated efforts to strengthen and institutionalise the norm in international society to preference the rights of the individual to be free from unnecessary harm over the rights of sovereign states to hurt.

Torture in ‘civilised’ states Allegations of torture emerged in several European and ‘civilised’ states in the nineteenth century. However, despite its use, torture was in no way emerging as appropriate behaviour. Torture was a scandal. In January 1870, the people of Switzerland had been ‘sadly startled’ when revelations emerged that a judge had employed an antiquated statute to justify the use of torture to extract confessions. Between 26 October and 10 November 1869, a judge ordered a suspect be fed only bread and water to force him to confess to a crime. When this had failed, thumbscrews were employed. Then, still after no success, the prisoner was bound, suspended, and subjected to the bastinado. It was reported that ‘on the sixth blow the sufferer burst into tears, and explained, “You may beat me to death, Herr Richten, but I can tell you no more than I have already said” ’ (The Times 1870, 10). Allegations of torture had to be staunchly denied. When Japan was accused of torture in 1880, the Secretary of the Japanese Legation in London dismissed the charges, writing in The Times, these ‘mendacious assertions … do injury to my country’ (Tetsnoske 1880, 10). The Secretary stated that like other ‘civilised’ countries, Japan had stopped using torture (Tetsnoske 1880, 10). Allegations of torture did not just harm one’s identity, but threatened social unrest. In Poland between November and December 1888, torture was employed on dozens of members of a revolutionary group in a Warsaw prison. It was used to force them to confess to attempting to ‘alter’ the existing government. The gendarmes subjected prisoners to floggings and sleep deprivation. In one case, a detainee became ill with a fever and was not treated. The gendarmes exploited his illness by waking him up ‘[e]very half-hour or so during the night’ and questioning him (The Times 1891, 13). This treatment ‘aggravated the delirium’ from his fever and led to the detainee losing ‘his reason’. The prisoner ‘became a raving lunatic, and had to be transported to a madhouse’ (The Times 1891, 13). When the guards became concerned that the ‘modern revival of the old and barbaric custom of questioning under torture might, if known, cause the outbreak of serious disturbances in the town’, the guards took efforts to prevent these facts from leaving the prison (The Times 1891, 13). However, this vain attempt backfired when the prisoners were released from prison, news spread of the torture, and the incident was reported in newspapers as far away as London (The Times 1891, 13).

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Torture had become a practice associated with ‘old’, ‘barbaric’ customs that had no place in a modern ‘civilised’ society. In fact, invoking torture was used as a stigma to help prohibit other forms of cruel punishment. During the 1870s, there was a debate in England concerning the prohibition of the ‘cat’, a whip used in corporal punishment. England was condemned by the Prison Congress, which held a conference in London in July 1871, for being alone in the ‘civilised’ world for continuing the practice (Pears 1872, 961–962). The cat was condemned for being useless and having an injurious effect on society. Pears (1872, 963), a barrister, wrote: before long, society will demand that the cat shall take its place in the Tower, side by side with the thumb-screw, the pincers, the rack, and the other instruments of legal or illegal punishment and torture in ages gone by. Human rights and penal reform groups also took up torture as an issue of protest and condemned states for not conforming to ‘civilised’ norms. The revelations that Spain had tortured anarchists and suspects in Cuba and the Philippines in the late 1890s provoked condemnation from different groups. In 1897 the International Prison Congress condemned Spain for ‘barbarous tortures, such as burning the flesh with hot irons, tearing out finger-nails with pincers, bodily mutations, compression of the skull by metal instruments, and other modes of treatment, both indecent and savage’ (Tallack 1897, 10). William Tallack (1897, 10) of the Howard Association in London, a group that promoted penal reform, argued Spain must abolish torture as it was representative of those ‘relics of savage and uncivilized ages’. But apart from reasons of humanity, Spain should stop torture for political reasons as the tortured anarchists were gaining sympathy among the population rather than the outrage they deserved for bombing populated areas (Tallack 1897, 10). The Spanish torture issue was taken up again, this time by the Spanish Atrocities Committee. On 3 August 1897, Joseph Perry, the Secretary of the Committee, wrote in The Times, ‘The Spanish Government must speak and disprove [the allegations of torture] if it wishes to keep its honour…. Unless she speak, and speak truly, the black cloud that now overhangs her will surely burst with terrible havoc’ (Perry 1897, 6). On the 22 August 1897, the Spanish Atrocities Committee organised a protest in Trafalgar Square, London, with the objective ‘to obtain public sympathy’ for the anarchist prisoners in the Spanish Montjuich Prison (The Times 1897, 9). Organisations and groups that attended included the Gas Workers’ Union, the Social Democratic Foundation, the Independent Labour party, refugees and anarchists. Literature concerning the tortures was distributed, including a victim’s account of their torture, as well as two doctors’ certificates that confirmed the tortures. G.W. Foote of the National Secularists’ Society moved the only resolution at the protest. The resolution condemned Spain’s ‘barbarous tortures’ and labelled them ‘detestable outrages on the common humanity of the civilized world’ (The Times 1897, 9). Foote also warned Spain that it risked transforming its citizens

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The taboo and the fear of regression 49 into ‘wild beasts’ if it continued to engage in torture (The Times 1897, 9). Foote invoked the torture critiques of the eighteenth century that warned that cruel punishments and tortures pose a danger because they spread to the population, transforming them into violent animals. Foote’s critique was a concern for the common humanity of the ‘civilised’ world, making an important distinction between ‘civilised’ and ‘barbarous’ societies, a distinction I discuss in more detail below. By the nineteenth century, torture had taken on a self-evident meaning as naturally barbaric. Although some of the eighteenth century critiques concerning the danger of cruel punishments remained, many of the utilitarian criticisms listed by Beccaria were no longer necessary to condemn torture. Torture was condemned because it was a backward and cruel practice. No other reason was necessary. The increased robustness of the taboo was in part strengthened by the humanisation of warfare and its inclusion in the category that prohibited unnecessary suffering. During the nineteenth century, several advances were made concerning the regulation of warfare, including the 1864 Geneva Convention that concerned the treatment of the wounded and sick, and the 1899 and 1907 Hague Conventions that sought to prohibit unnecessary or superfluous suffering during wartime (Linklater 2011, 62). The prohibition of unnecessary suffering was seen by Carr (2001, 141) as one of the most important elements in what he called the ‘international moral code’. The General Order No. 100 of 1863 (the ‘Lieber Code’), which regulated warfare during the American civil war, specifically prohibited ‘wanton violence’ (Article 44) and using violence against prisoners to gain information or to punish (Article 80). It also prohibited torture. Article 16 states, ‘Military necessity does not admit of cruelty – that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions’. Torture was deemed an excess of pain. Torture was associated with an ‘unfair fight’ and an attack on the defenceless (Shue 1978, 127–130). It was inflicted for reasons not related to the war effort but for soldiers’ desire for revenge. Torture was pain inflicted upon the defenceless after the battle, as Shue (1978, 130) points out. The torture taboo identified transgressions in ‘civilised’ society and offered protection from unnecessary harm during wartime. As a relic of an ‘old’ order, torture ranked states in a hierarchy. Those who used torture were ‘barbarous’ and those who upheld the taboo were ‘enlightened’. Although this hierarchy regarding the taboo represents a continuation of eighteenth century discourse surrounding torture, it was amplified when torture became an element within the European ‘standard of civilisation’.

Torture in the ‘uncivilised’ world The association of torture with ‘backward’, ‘uncivilised’ countries was reinforced with the intensified interaction of European and non-European societies in the nineteenth century. English School scholars have been at the fore in

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exploring how the European concept of the ‘standard of civilization’ laid out legal, moral and political norms that states had to adhere to in order to become a member of European international society (Bowden 2014; Bull 1995; Bull and Watson 1984; Buzan 2014; Gong 1984; Keene 2002; Suzuki 2005). Although the standard of civilisation was not explicitly stated under international law (Buzan 2014; Donnelly 1998, 3–4), it existed in the form of customary norms and morality that reflected the attitudes, practices and norms of the dominant powers, that is, Europe (Buzan 2014, 577–578). One of the products of the standard of civilisation was to rank states as ‘civilised’ if a state was in European international society, or ‘barbaric’ if outside of European international society (Donnelly 1998; Gong 1984). The standard of civilisation not only performed a ‘gate-keeping’ function by restricting membership into European international society, but it also served to legitimise the unequal power relationships between ‘superior’ European states and ‘inferior’ non-European states (Buzan 2014, 577–578). Keene (2002) has shown that during the eighteenth and nineteenth centuries, two patterns of legal and political norms operated: tolerance, which constituted and regulated behaviour between European states, and ‘civilising’ processes, which shaped relations between European and ‘uncivilised’ non-European states. The different classifications of ‘civilised’ and ‘barbarous’ allowed for different standards of treatment (Bowden 2007; Keene 2007; Pitts 2005; Suzuki 2005). Keene (2007, 319), for example, has shown how the emergence of the concept of ‘civilisation’ in the 1700s and its comparison with ‘barbarism’ stripped the latter of agency, in this case, to make law. J.S. Mill used this distinction between ‘civilised’ and ‘barbaric’ to justify imposed rule on colonial subjects. In his 1859 essay, ‘A Few Words on NonIntervention’, Mill (2006 [1859], 259) argued the moral and normative standards that applied between ‘civilised’ countries did not apply between ‘civilised’ and ‘barbarous’ societies. This was because ‘barbarous’ societies did not have the capacity to reciprocate under international law and morality. In Mill’s (2006 [1859], 259) words, barbarians ‘cannot be depended on for observing any rules. Their minds are not capable of so great an effort’. Furthermore, their cognitive deficiencies, along with their economic and cultural savagery meant they were incapable of independent government. Imposed rule had to be for the benefit of the natives until they advanced to a ‘civilised’ stage of development (Mill 2006 [1859], 259). This combination of civilising ambitions with the denigration of nonEuropean societies assisted in justifying brutal violence against ‘barbarous’ societies. As these societies were deemed ‘backward’, violence was often seen as necessary to bring about the ‘civilizing mission’ as violence was the only thing ‘backward’ societies understood (see Bowden 2007; Pitts 2005). In addition, because ‘barbarous’ societies could not reciprocate, and therefore, would not abide by the laws of war, the duties of restraint imposed upon ‘civilised’ actors no longer applied in regard to war between ‘civilised’ and ‘uncivilised’ (Bowden 2007). For example, although the use of dum-dum bullets were prohibited in

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The taboo and the fear of regression 51 ‘civilised’ wars, it was deemed appropriate to use them ‘against Asians and Africans’ (Headrick 1979, 256; see also Asad 2003, 117). However, what is interesting is that although European societies could transgress ‘civilised’ methods of warfare when fighting ‘barbarous’ societies, the same could not be said about transgressing the torture taboo. One of the most important normative principles of European international society, as Hedley Bull (1995, 18) noted, was the ‘limitation of violence resulting in death or bodily harm’. However, as I have just argued, violence did not have to be limited against ‘barbarous’ societies under particular circumstances. Yet, I argue that the torture taboo represented a prohibition, akin to slavery, in what Mill (2006 [1859], 259) called ‘universal rules of morality between man and man’ that could not be transgressed. Although the torture taboo formed part of the laws of war, it existed above these rules as a universal moral law. Colonial powers had a duty to prohibit, prevent and punish taboo-violators as part of their ‘civilising’ duties (The Times 1840, 3; The Times 1844, 8). In 1844 a Pasha in the Ottoman Empire tortured several suspects during an investigation relating to an assassination at Scala Nueva in Anatolia. The British ambassador, Sir Stratford Canning and the French Ambassador, M. Bouqueney, condemned the Pasha for ‘such barbarous practices’ (The Times 1844, 8). A circular was then issued by the Ottoman authorities ‘to all governors, civil and military, of the empire’ prohibiting torture and promising punishment for those who tortured in this particular instance (The Times 1844, 8). A failure to stop the tortures, or the difficulty in persuading colonial subjects that torture was unnecessary, often led to calls for colonial intervention to directly stop the practice (see The Times 1837, 7; The Times 1882, 6). On 9 September 1882, the British Foreign Office announced that Consul-General Malet had taken measures to prevent further torture occurring in Alexandria, Egypt. Malet stated ‘there is great difficulty in persuading the Arabs that thumbscrews are not necessary for the conducting of examinations, but, at any rate, the Khedive and his officers now know that the English refuse to tolerate barbarity’ (The Times 1882, 6). The inability of non-European subjects to realise that torture was unnecessary was reflective of the ‘barbarous’ nature of the native. M. Hilaire Gay, a Genevan and former captain in the foreign police force wrote of a scene he witnessed in 1882 while in Egypt of ‘the punishment of the bastinado inflicted on three unfortunate Arabs’ (The Times 1884, 8). He watched how several Arabs were punished by being whipped on the soles of their feet. Condemning it as a medieval torture, Gay wrote, ‘I could not help shivering with horror at the sight of so much suffering’ while his Arab companions ‘look[ed] unmoved on so cruel a sight’ and ‘seemed for a moment rather the creations of a discarded imagination than being of flesh and blood’ (The Times 1884, 8). According to this narrative, ‘Arabs’ did not have the same sensibility to pain as ‘civilised’ beings and had not yet ‘progressed’ to seeing such pain as repugnant. How do we explain why some forms of suffering such as torture were prohibited, but other forms of violence were not? As Asad (2003, 109–113) notes, it

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was not simply pain and suffering that was prohibited but the infliction of pain that violated what it meant to be a ‘civilised’ human being. Asad (2003, 109–113) and Dirks (1997) have noted how the British prohibited hookswinging in colonial India, claiming it to be cruel. Hookswinging was a religious practice in India in honour of the god Mhatoba. To be ‘hook-swung’ was a great honour. Metal hooks were inserted just above the swinger’s hips on their back. They were then hoisted and left to swing while being suspended by the two hooks (Kosambi 1967, 109–110). Despite the importance this practice had for the people, the colonial authorities prohibited it because it was ‘repugnant to the dictates of humanity’ (Dirks 1997, 193). The hierarchical relationship between European and non-European colonial subjects legitimised by the standard of civilisation played an important role in shaping European conceptions of cruelty. What constituted ‘cruel’ and ‘uncivilised’ conduct did not reflect some objective reality or essentialist qualities of the act. Rather, along with the hierarchical relations between states came a power to distinguish and classify different forms of pain and suffering based on cultural background and norms. At the same time, as colonial subjects were stripped of agency, it was the role of the colonial power to prohibit ‘uncivilised’ violence for the ‘Oriental’ because they could not do it themselves. This ‘civilising’ duty helped spread the taboo to non-European societies and establish the taboo as a global norm. But it also transformed state obligations and duties under the torture taboo. States not only had to stop torture in their own territories but abolish torture and punish offenders in their colonial territories as well. This positive obligation to abolish torture in distant societies was not part of the arguments of the eighteenth century abolition movement and represented an obligation formed through the practices and discourses of European colonialism. I now turn to a British investigation into torture in colonial India (see also Bhuwania 2009) to illustrate how the taboo played an important role in shaping obligations and identities in nineteenth century European colonialism. The Madras Report The emergence of allegations of torture by the East India Company in the Madras Presidency, India, sparked an intense debate in British Parliament in 1854 (see UK House of Commons 1854, 135: cc43–90). In response, on 9 September 1854, the British government commissioned the Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency (Madras), which was submitted to the British House of Commons on 16 April 1855. The Committee investigated the use of torture to collect government revenue and torture by the police to gain confessions (Madras 1855, 3). In a letter from H.C. Montgomery to the Commissioners of the investigation, it stated the allegations of torture were ‘injurious to the character of the British Government’ and should be denied if untrue, and if found to be true, efforts made to stop their practice (Madras 1855, 49).1

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The taboo and the fear of regression 53 The Commission issued notifications in the Presidency asking individuals who had complaints of torture to report by 1 February 1855. The Commission registered 519 complainants and received 1,440 letters of complaints (Madras 1855, 4). The Commission reported that between 1806 and 1852 ‘no fewer than 10 circular orders’ had been issued by colonial authorities ‘on the subject of the practice of extorting confessions’ (Madras 1855, 8). However, despite these Circulars, the Commission showed that torture by native officers was widespread within the Presidency. The Report cites witnesses to torture, ranging from missionaries, merchants, proprietors and ‘old’ judicial authorities to show the tortures were not new (Madras 1855, 5–15). The Commission found that although the use of torture had declined in recent years, it was still prevalent, with some districts experiencing more torture than others (Madras 1855, 31). The extraction of revenue for the native officers’ own interests was most common and torturing for revenge was exceptional (Madras 1855, 34). Moreover, torture used in police cases was often more severe than the torture used for extracting revenue (Madras 1855, 32–33). The police employed the following techniques to gain confessions: twisting a rope tightly round the entire arm or leg so as to impede circulation; lifting up by the moustache; suspending by the arms while tied behind the back; searing with hot irons; placing scratching insects, such as the carpenter beetle, on the navel, scrotum, and other sensitive parts; dipping in wells and rivers, till the party is half suffocated; squeezing the testicles; beating with sticks; prevention of sleep; nipping the flesh with pincers; putting pepper or red chillies in the eyes, or introducing them into the private parts of men and women; these cruelties occasionally persevered in until death sooner or later ensues. (Madras 1855, 34) The investigations found that the judges were lenient in punishing penalties and that it was difficult for victims to obtain redress. Barriers to receiving justice included: the long distances victims had to travel to make a complaint and the costs involved in such a travel; ‘the fear that their applications by letter, if permitted to reach head-quarters unadultered by misinterpretation, will be returned with the ordinary endorsement of a reference to the tahsildars’ (who are often involved in the tortures, see Madras 1855, 17–24); little or no action would be taken if complaints were made anyway; witnesses were often bribed; and victims feared if they reported their abuse they would be subjected to reprisals by native officers (Madras 1855, 37). The Madras Report cast the problem of torture as a product of the so-called ‘habits of the people’. Ill-treatment in revenue collection had ‘in the course of centuries come to be looked upon as “mamool”, customary, a thing of course, to be submitted to as an every day unavoidable necessity’ (Madras 1855, 34–36). The tradition of violence meant that even if individuals had money to pay the revenue collector, they often did not do so unless force was applied:

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I brought 14 rupees from my house,’ says a ryot, in a deposition referred to by Mr. Lushington, ‘but only paid six. I brought the said money to pay, but as no violence was used towards me, I did not do so. Had I been compelled, I would have paid them. (Madras 1855, 36) European officials were believed to have no knowledge of the torture. This was for several reasons. First, European officials had extensive duties and the difference in the ‘immense size of our collectorates, and the small number of Europeans employed’ to administer the province made it hard to supervise lower level officials (Madras 1855, 37). This allowed the Commission to conclude that this explained why European officers knew so little about the widespread torture (Madras 1855, 11). And second, native officers tortured so as to leave no marks on the body. In addition, they would often delay the transfer of detainees so that any marks that were left were ‘obliterated’ by the time the victim reached ‘European supervision’ (Madras 1855, 11, 35). This was because the native officers knew what they were doing was wrong and would not be tolerated by European officials (Madras 1855, 28–29). Therefore, the Commission stated there is: the certainty that no native would knowingly venture to have recourse to any such practice in the presence of a European, sets at rest any surprise at the very few cases in which any of our countrymen have personally witnessed the operation. (Madras 1855, 11) In offering a solution to the prevalence of torture, the Commissioners suggested several technical adjustments to colonial regulations, including, among others, separating revenue and police duties, improving pay, and better organising the police force under the supervision of European officers (Madras 1855, 42). The Commission claimed that although they found common usage of torture, it was declining in severity and frequency (Madras 1855, 31). It was therefore the role of the European ‘to guard the natives against themselves, such as they are now’ (Madras 1855, 47). The Report stated ‘the people at large’ know that European officers detest these practices and that the people often turn to European officials for protection: the whole cry of the people which has come up before us, is to save them from the cruelties of their fellow natives, not from the effects of unkindness or indifference on the part of the European officers of Government. (Madras 1855, 35) The Commission concluded by warning that the recommendations in the report must be acted upon or ‘the native population may be worse off than before’ (Madras 1855, 47).

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The taboo and the fear of regression 55 The response to the Report in the British Parliament was that action needed to be taken to prevent any further torture, and the Report’s recommendations implemented to protect British character. The tortures were condemned as cruel to the victims and ‘degrading to [the] human nature’ of those who engaged in torture (UK House of Lords 1856c, 141: c996). The Duke of Argyll brought attention to the fact the torture allegations in British India had received attention in Europe, and that Britain had been perceived as showing an indifference to the allegations. The Duke stated any resolutions passed must deny this indifference and should not ‘convey the impression of complicity or silence on the part of the Government to foreign countries or to the people of this country’ (UK House of Lords 1856c, 141: c976). The overwhelming opinion within the British Parliament agreed with the Report in stating that the Madras government was not complicit in the tortures. The Madras government was irresponsible for its ignorance, but was not deemed to have encouraged or condoned the tortures (UK House of Lords 1856a, 140: cc1563–1573; UK House of Lords 1856c, 141: cc975–998). Lord Monteagle blamed the habits of the natives and the previous regime in India, stating Britain had ‘inherited these barbarous practices from barbarous times’ (UK House of Lords 1856c, 141: c996). Members of Parliament invoked the recommendations of the Report, suggesting a separation of police and revenue collecting powers and a revision of the taxation system was needed to stop the tortures (see UK House of Lords 1856a, 140: cc1563–1573; UK House of Lords 1856b, 141: cc377–384; UK House of Lords 1856c, 141: cc964–999). The tension within the Report between exposure of torture and the presumed progressive and ‘civilising’ character of British colonial rule was ameliorated by blaming the traditional practices of ‘barbarous’ societies. Yet the investigation ignored the complicity of European officials in the use of torture. Alternative accounts suggest that even if some in the British Parliament were not aware of the tortures, the officials embedded in the colonial territory tolerated them. In an article published on 17 September 1857 in the New-York Daily Tribune, Karl Marx condemned the Madras Report. Marx (1968, 164) argued ‘[t]he universal existence of torture as a financial institution of British India is thus officially admitted, but the admission is made in such a manner as to shield the British government itself ’. The British government blamed the ‘native’ while the British ‘had always, however unsuccessfully, done their best to prevent it’ (Marx 1968, 164). Marx cited the Madras Native Association (MNA), which had presented a petition to British parliament in January 1856 condemning the investigation for not investigating the broader revenue system responsible for the tortures or investigating what superior officers in the Presidency knew of the tortures. Marx also cited a petition from the Malabar Coast recalling the abuse indigenous populations received from East India Company officials (Marx 1968, 166–167). This challenged the view that the natives saw the Europeans as their saviours. Marx concluded that the torture demonstrated the ‘real’ conditions of British rule and such cruelty constituted grounds to expel the British from India (Marx 1968, 167).

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Moreover, there was evidence within the Report itself that contradicted its conclusions. The Report cited one statement by the Court of Directors, made on 11 April 1826, arguing that torture was so prevalent that ‘I see no other mode of accounting for, than in the leniency with which such aberrations of public duty are noticed by their immediate superiors’ (Madras 1855, 8). However, the Commission did not elaborate on, or acknowledge, the significance of this statement. In addition, the Earl of Albemarle, an exception in the British Parliament, questioned the notion that the European officers knew nothing about the tortures when witness accounts provided in the appendix of the Madras Report proved otherwise (UK House of Lords 1856c, 141: cc964–975). Captain A Boileau, a Civil Engineer of Nellore, stated: The idea of its [torture] being tacitly tolerated by the Government or its European officers is so far prevalent, that a belief is expressed that any complaint made of torture inflicted for the non-payment of kist would not be attended to. (Madras 1855, 89; UK Hansard 1856, 141: cc967) While T.W. Goodwyn, a Civil and Session Judge of Salem, told the Commission: As far as I could ascertain or judge, the idea was prevalent among the people that such acts [of torture] were tacitly tolerated by Government or its European officers. If directed so to do, I can furnish some details which appear to me to support the above opinion. (Madras 1855, 115; UK Hansard 1856, 141: cc968) The Madras investigation helps us understand how torture was treated as a moral problem in colonial territories and the types of obligations European states had to their colonial subjects. Torture was not acceptable conduct and any allegations had to be dealt with before violations brought into question British identity as a ‘civilised’ state. This demonstrates the impact both the standard of civilisation and the torture taboo had in constituting state identities and shaping actions. As Gong (1984, xi) wrote, ‘no country wants to be ostracized as “uncivilized.” Even those countries most intent on pursuing their individual interests recognize the need for, and thereby usually acquiesce to some degree in, certain collective standards of international conduct’. Furthermore, in denying European officers’ complicity in torture, the Madras Report reaffirmed that torture was a product of ‘backward’ societies. In doing so, the Report provided a justification for the international hierarchy of ‘civilised’ and ‘uncivilised’ states and legitimised British colonialism for the benefit of the ‘natives’. What the Madras torture scandal also demonstrates is the strength of the taboo’s legitimacy. By focusing on the taboo’s violation in the Madras Presidency, we see that some native officers directly involved in the torture tried to hide their torture, while European supervisors tried to plead that they had no knowledge that torture was occurring. Both parties knew that torture was wrong.

The taboo and the fear of regression 57 Torture was not deemed acceptable by the indigenous populations in the Madras Presidency and the fact that the British Parliament condemned the torture in such strong terms further demonstrates the consolidation of torture as immoral and cruel conduct.

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The ‘barbarians’ within ‘civilisation’ The distinction between ‘civilised’ Europeans and ‘uncivilised’ non-Europeans came under challenge in the first half of the twentieth century with the rise of the fascist and communist dictatorships in Germany, Italy, and the Soviet Union. The belief that torture existed as an aberration in Europe and as an ingrained practice in the non-European world was challenged as torture became a widespread practice used by these regimes to gain information, confessions, and to hold on to power. Civilisation could no longer be used to distinguish Europeans from non-Europeans as many ‘civilised’ states entered the ‘uncivilised’ world (Arendt 1994, 302; Donnelly 1998, 14; Keene 2002, 123). Although historians have devoted much attention to these regimes and their crimes, what has been neglected is how the torture taboo continued to operate on these regimes. Focusing on the use of torture by Nazi Germany and the Soviet Union I show that torture could not be justified in international society. Despite employing torture, both regimes had to hide, deny and lie about their torture. Torture continued to retain its stigma as abhorrent behaviour despite widespread violations of the taboo. The taboo was not only able to remain resilient to the violations carried out by Nazi Germany and the Soviet Union, but the outrage these violations produced, especially in the United Kingdom and United States, helped to reassert the importance of the taboo and trigger efforts to reform the normative framework of international society. The Soviet Union The Soviet Union regularly employed torture against enemies to gain information, confessions and to punish. According to Thurston (2000, 36), torture was employed during ‘the Civil War of 1918–1920, collectivization of the peasantry in the late 1920s, a campaign to collect gold in the early 1930s, and the Terror of the late 1930s’. The 1937–1938 ‘Great Terror’ arguably saw the most widespread use of torture as Stalin launched a ‘final battle’ against ‘class enemies’ that had allegedly threatened the Soviet Union since the 1920s (Overy 2004, 182–184). These enemies included priests, Kulaks, former White Army soldiers and criminals (Thurston 2000, 37). Torture was authorised in secret in July 1936 and then again in 1937 (Conquest 1990, 121–122; Overy 2004, 184). Torture was employed on a daily basis during the Great Terror to gain information and confessions (Thurston 2000, 37). Several torture techniques were used. The swallow was a suspension technique that ‘involved tying the hands and feet behind the back and hoisting the victim into the air’ (Conquest 1990, 121). Another technique involved wrapping a wet

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towel around the victim’s head and leaving it to dry, causing immense pain (Conquest 1990, 125; Rejali 2007, 81). Positional tortures were also used. The stoika consisted of forced standing on tip-toe while leaning against a wall for hours (Conquest 1990, 121), while the vystoika involved prolonged standing. The vystoika caused the ankles to swell, formed blisters, and increased the victim’s heart rate to the point where fainting became a possibility and the kidneys began to shut-down (Rejali 2007, 80). Few prisoners could withstand torture (Overy 2004, 182). A Bolshevik recalled how only four out of 400 of his cell mates he met in prison did not confess under torture (Conquest 1990, 121). When prisoners did not confess, hostages were used. Kossior, a prisoner, ‘was only broken when his sixteenyear-old daughter was brought to the interrogation room and raped in front of him’ (Conquest 1990, 127). However, by 1938, many Soviet officials within the Central Committee started to question these ‘excesses’ of the Terror (Overy 2004, 184; Thurston 2000, 41). Of concern was that Soviet officers had fabricated cases and tortured innocent individuals (Thurston 2000, 41). These doubts over the mass arrests led to a shift in policy that reduced arrests and strengthened ‘investigative and judicial practices’ (Thurston 2000, 42). The head of the NKVD, Ezhov, was sacked and replaced with Lavrenti Beria in November 1938. However, torture continued to occur (Overy 2004, 184–185; Thurston 2000, 42). In 1939, Stalin signed ‘a telegram to provincial party and NKVD officials’ stating that although torture could still be used, it could not ‘be applied wholesale’ (Thurston 2000, 42). Stalin wrote in the telegram that because the ‘bourgeois intelligence services use methods of physical coercion against the representatives of the socialist proletariat’, it was deemed ‘that physical pressure should still be used obligatorily, as an exception applicable to known and obstinate enemies of the people, as … justifiable and appropriate’ (Khrushchev 1956, 51; Thurston 2000, 42). There are several things to note about this telegram. First, Stalin did not authorise a blanket approval of torture. Torture was to be used only in those instances where there was believed to be evidence of a crime (Thurston 2000, 42). And second, Stalin created a distance between himself and torture by arguing he did not initiate the violence, but was responding in kind. This removed notions that Stalin was authorising torture for personal pleasure or for terroristic violence, and placed the telegram in the realm of necessity, where he apparently had to authorise these practices in order to survive. Torture was deemed appropriate because it put Soviet forces on a level playing field in the class war against the bourgeoisie enemy. Authorising torture, then, was to allow for a ‘fair fight’. In suggesting that Stalin did not authorise torture in all circumstances or that he was responding to the ‘bourgeoisie enemy’, I do not claim that Stalin’s actions were humane or justified. Rather, I show that this telegram contained the workings of morality that shaped how Stalin authorised and justified torture. This is particularly important because Stalin was not seeking to legitimise his actions to Soviet citizens or an international audience, as the telegram only came

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The taboo and the fear of regression 59 to light in Khrushchev’s 1956 speech at the 20th Congress of the Communist Party (Khrushchev 1956). Although torture was widely used in the Soviet Union, it was not deemed ‘civilised’ or appropriate behaviour in wider Soviet society. As part of the end of the Terror, public trials took place in 1939–1940 that sought to prosecute Soviet security agents who had abused and tortured suspects (Overy 2004, 185; Thurston 2000, 42). In Moldovia, five NKVD agents were shot after confessing to using ‘illegal methods’ (Thurston 2000, 42). The public trials demonstrated that it was now understood among the police that ‘ “he who tortures or has tortured the innocent” is an enemy’ (Thurston 2000, 42). Another example that demonstrated why torture was not deemed acceptable within the Soviet Union was that Soviet officials were careful not to leave any marks of torture on victims who had to face ‘show trials’. This was to make it appear that individuals voluntarily confessed to crimes (Rejali 2007, 79–80). Beatings were clean. They included kicks to the shins, slaps to the face, blows to the kidneys, and chokeholds (Rejali 2007, 80).2 Rejali (2007, 79) argues: Even some of those who were eventually subjected to torture had themselves previously dismissed rumors of torture as ‘highly unlikely,’ naively believing that torture was ‘incompatible with the principles of democracy so solemly proclaimed a short while before, as well as with the “Stalinist solicitude for the human being.” Nazi Germany Torture occurred in Nazi Germany from the beginning of the Nazi regime in 1933 until its collapse in 1945. Torture during the 1930s included whipping (often with wet whips that cut deeper into the skin, or with lead-filled whips), finger screws and calf clamps, exhaustion exercises, stress positions (such as forced standing outside ‘while wearing full work equipment and staring into the sun’ (Rejali 2007, 97)), and beatings with the use of truncheons, rifle butts, and ‘sticks with rusty nails’ (Rejali 2007, 96–97). During World War II a decree was issued on the 12 June 1942 by Muller, the Gestapo Chief, authorising ‘third degree’ methods, a euphemism for torture. It stated if a preliminary investigation indicated that a person holds information on ‘important matters, such as subversive activities’, third degree methods may be used ‘though not for the purpose of extorting confessions of the prisoner’s own crimes’ (Nuremburg 1947a, 233). The order stated: Third degree may, under this supposition, only be employed against Communists, Marxists, Jehovah’s Witnesses, saboteurs, terrorists, members of resistance movements, parachute agents, anti-social elements, Polish or Soviet Russian loafers or tramps; in all other cases my permission must first be obtained.… Third degree can, according to circumstances, consist amongst other methods of very simple diet (bread and water), hard bunk,

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dark cell, deprivation of sleep, exhaustive drilling, also in flogging (for more than twenty strokes a doctor must be consulted). (Nuremburg 1947a, 233) However, as the Nuremburg Trials showed, many more torture methods were used during the war. M. Labussiere, captain of the French resistance Army, was tortured by the Nazis for information concerning meeting places and fellow resistance fighters (Nuremburg 1947b, 172). Labussiere provided a list of torture techniques used by the Nazis in France: the lash, which involved whipping; ‘the bath’, whereby the victim’s head was submerged in water until they became asphyxiated. The victim was then revived and the process repeated; electric torture; crushing testicles; suspension by the arms, which often resulted in dislocation; and burning with a soldering lamp or matches (Nuremburg 1947b, 173). On 12 March 1942, the Swedish newspaper Vastmanlands Lans Tidning devoted two pages to accounts of Gestapo torture in Norwegian prisons (The Times 1942b, 3). Although the paper was ‘seized by the Swedish Minister of Justice for fear of giving offence to Germany’, a copy reached The Times (The Times 1942b, 3). The article provided seven witness accounts of torture in prisons, including beatings with steel batons covered in rubber. In April 1944, more accounts had emerged of torture in Norway. The most cruel of the instruments, however, is a ring fitted round the head, with a rubber tube inside, which can be inflated and which stops the flow of blood to the head. The effect is reported to be terrible. (The Times 1944a, 3)3 Similar to torture in the Soviet Union, the Nazis tortured in secret. Gestapofiles on interrogation sessions contained no mention of torture methods, or that torture was used at all (Gellately 1991, 130). There was a prohibition on talking about the torture, genocide, and non-consensual medical experiments that occurred in the concentration camps during the war (Nuremburg 1947b, 288). The Nazi’s also went to lengths to demonstrate German concentration camps were not terroristic. On the ‘Day of the German Police’ in 1940, German forces were lauded for bringing a ‘clear legal order’ to Poland and introducing humane confinement practices in prisons (Gellately 2001, 44–45). Torture allegations were denied (Gellately 2001, 44). Propaganda was used to promote the camps as ‘civilised’ institutions that embodied discipline, education and hard work (Gellately 2001, 55–57). In a visit to Oranienburg, a journalist from a Nazi newspaper praised the regime for the virtuous treatment of detainees. He quoted a prisoner who said the prison guards ‘were upstanding guys. We thought you would deal mercilessly with us. But you treated us, your enemies, as human beings. And we thank you!’ (Gellately 2001, 55). In addition to denying torture and carrying it out in secret, the Nazis condemned others for torturing. A German citizen, Bruno Weigel, was arrested on

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The taboo and the fear of regression 61 9 November 1936 and held in a Prague prison by Czechoslovakian authorities. It was alleged that on 11–12 November Weigel was beaten, electrocuted and ‘forced to hold heavy weights in unnatural positions’ (The Times 1937a, 16). The Czech authorities promised his release if Weigel would undertake political work for the interrogators, which Weigel refused to do. He was later released on 20 May 1937. The Times reported that Germany made a protest to Prague about Weigel’s torture and that the German newspaper, Deutsche Allgemeine Zeitung, warned that Prague will see ‘that such an infamous deed cannot be cleared up by a mere diplomatic apology’ (The Times 1937a, 16). At the same time that the Nazi’s were passing laws permitting sterilisation (see Proctor 1992) and calling for the exclusion and elimination of Jews from the ‘German body’ (Overy 2004, 574–575), torture continued to remain absolutely prohibited. This German condemnation of the torture of Weigel would not have had weight if the Nazi’s had been open about their torture, or had attempted to publicly challenge the absolute prohibition. The reason for the secrecy was astutely observed by The Howard League for Penal Reform in a 1937 report dealing with treatment of prisoners during the trial process in Europe. It stated that torture had become a ‘widespread and increasing danger’ in Europe and that if ‘proof were needed that the use of torture, physical or mental, to secure evidence, is an incontrovertible evil, it could be found in the fact that no civilized country is ready to admit having recourse to it’ (The Times 1937b, 5). Although the violations of the taboo demonstrated its inability to constrain states, the secrecy and denial by states does not challenge the torture taboo’s legitimacy but reaffirms it. Regardless of what threatened state security, states could not openly justify torture. The behaviour of the Nazi and Soviet regimes revealed that even during violations, the taboo continued to retain its stigma and influence state behaviour.

A threat to international peace and security How did international society respond to the widespread use of torture within Europe? And what impact did the violations have on the taboo? The taboo violations, along with other crimes committed by Nazi Germany and the authoritarian regimes, placed the issue of cruelty on the international agenda. H.G. Wells (1940 [2015], 25–26) argued in his book, The Rights of Man, that people fighting against the Nazis had: been stirred profoundly by those outrages upon human dignity perpetrated by the Nazis.… When they realized reluctantly that such things could still be done in the heart of Europe, something like a lynching spirit was stirred up in them. ‘These Nazis are too bad,’ they said. A great fear was that these atrocities marked a regression of civilisation. In a series of lectures by the British Organisation Association for Education and Citizenship, Sir Ernest Simon (1938, 21) declared:

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The most revolting aspect of the new dictatorships has been the sudden reappearance of torture in a world from which it was believed to have disappeared for ever- probably the greatest set-back of civilisation, understood by democrats, that has occurred in the history of mankind. The perceived vulnerability of Europe to the cruelties of authoritarian regimes resulted in much attention being devoted to understanding why and how these atrocities were occurring in the first place. Many state leaders and war pamphleteers saw the continued dominance of nationalism as a primary factor in the rise of authoritarian regimes and the harming of human rights. The 1919 Peace Settlement and the minorities’ rights system had sought to base the source of freedom and justice in international society on the self-determination of the nation (see Buell 1926; Eisenmann 1926; Harris 1926; Kunz 1954; Rappard 1926). However, nationalism now had to be removed to destroy Nazism (Angell 1940, 61). Nationalism encouraged fear and insecurity among nation-states (Laski 1942, 151) and it was this fear and insecurity that had brought about untold harm and suffering, such as torture (Russell 1942, 235–236). In a powerful critique of world order and nationalism in 1945, E.H. Carr argued the 1919 European settlement that justified international order and justice upon the rights of nations and not individuals had ascribed a historical product (the state) with natural rights, something only the individual possessed (Carr 1945, 39). This became difficult to sustain, especially when the state was seen as a threat to individual well-being (Carr 1945, 46). A solution to nationalism and Nazi atrocities was the promotion of an international system of human rights. Scholars, pamphleteers and public figures argued human rights could provide a unifying moral foundation for international society, remove antagonistic national allegiances, and place respect for human dignity above and beyond the rights of sovereign states (Angell 1940; Zimmern 1939; Laski 1940; Mazower 2004, 387–388; Carr 1945, 44; Maritain 1971, 2, 65, 73). Human rights not only removed unjust divisions between people (see Willkie 1943, 152–140), but human rights were also seen as a way to transform human beings. Norman Angell argued that human beings were capable of being rational, but often succumbed to ‘folly’ and vicious interests that ‘thrust man back into barbarism’ and threatened civilisation (Angell 1940, 72, 78, 124). Strengthening human rights, however, could ‘cultivate’ individuals into becoming more tolerant of one another and contribute to ‘the intellectual and moral health of a community’ (Angell 1940, 72–73). In addition, human rights could also better protect one’s interests by preventing the encroachment of tyranny (Angell 1940, 72–74). The resurrection of human rights discourse also helped in the reconstruction of human rights as well. Throughout the war, human rights violations were seen as something that could not be contained within sovereign borders and which posed a threat to international peace and security. Integral to this framing process was Allied war propaganda, and in particular, the role played by US President Roosevelt. Although Roosevelt saw Nazism as a ‘localised menace’ after the

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The taboo and the fear of regression 63 Nazis came to power in 1933 (Adler 1957, 230), by 1937 Roosevelt began to see Nazism as a threat to American security. However, Roosevelt came up against an isolationist Congress that did not want to get involved in European conflicts. Between 1935 and 1937, Congress passed three Neutrality Acts that imposed arms embargos and prohibited loans and financial assistance to all parties in war (Donovan 1951, 301–2; Kissinger 1994, 378; Klingberg 1952, 248). The isolationist movement wanted to concentrate on strengthening democracy at home rather than engage in European ‘power politics’ (Donovan 1951, 300). It was argued that the Atlantic and Pacific oceans protected the US from the fascist threat, and that although the human rights violations were horrible, it was not the role of the US to act as the world’s policeman (Adler 1957, 253; Kissinger 1994, 379–385). Roosevelt used human rights discourse to help break the hold of isolationism in the US Congress and gain domestic support for war (Kissinger 1994, 390). The first major public address Roosevelt used to challenge isolationism was the ‘Quarantine Speech’ delivered in Chicago on 5 October 1937. Roosevelt (1937) warned that America was not immune from fascism, which threatened ‘a breakdown of all international order and law’. Roosevelt (1937) declared that the international lawlessness had become an ‘epidemic’ that needed to be stopped: ‘When an epidemic of physical disease starts to spread, the community approves and joins in a quarantine of the patients in order to protect the health of the community against the spread of the disease’. A solution to the fascist threat was to strengthen human rights. Roosevelt (1937) argued that one of the ‘causes’ of the epidemic was ‘Nations claiming freedom for themselves [and] deny[ing] it to others’. The interdependence of the modern world meant that upholding moral principles and human rights was the solution to long-term international peace and security: ‘There can be no stability or peace either within nations or between nations except under laws and moral standards adhered to by all’ (Roosevelt 1937). The world consisted of a common humanity, and security was linked to the freedom of all, not just to the freedom of a few. In January 1941, Roosevelt (1941) declared his four freedoms (freedom of speech, freedom of religion, freedom from want, and freedom from fear) in the State of the Union address and the importance upholding human rights had for international peace and order. On 27 May 1941, Roosevelt again appealed to the fascist threat in a radio address (Kissinger 1994, 390), and in August of that year, Roosevelt and Churchill signed the Atlantic Charter on a cruiser ‘off the Newfoundland coast of Placentia Bay’ (Lauren 1998, 142). This document drew upon Roosevelt’s Four Freedoms to declare ‘common principles in the national policies of their respective countries on which they base their hopes for a better future for the world’ (NATO 1941). The Atlantic Charter made clear that human rights violations were no longer just of concern to the violating state, but to all states in international society. Despite the fact that Roosevelt’s interests and condemnation of human rights violations was instrumental and selective (Nazi Germany’s human rights violations were deemed a threat to international peace and security but the Soviet

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Union’s were not), Allied war propaganda generated an important discursive reconstruction that linked human rights with a just world order (see Welles 1943). As I showed earlier in this chapter, when states violated the taboo it was a matter for the violating states only. Critics of the taboo violations condemned violating states for affronts to a ‘common humanity’, but they did not talk about such violations threatening international peace and security. Torture and Nazi cruelty also played an important role in delegitimising Nazi war strategies and reaffirming the importance of human rights. The UK released a White Paper in 1942 that exposed Nazi cruelties (Wells 1940 [2015], 30). Stalin also hypocritically invoked Nazi cruelties to delegitimise Nazi Germany. Stalin labelled Nazi cruelties as ‘medieval brutality’ (Stalin 1942, 43) and stated in November 1943, ‘Let these butchers know that they will not escape responsibility for their crimes or elude the avenging hand of the tormented nations’ (Stalin 1942, 45). Furthermore, those who were subjected to torture were given special mention. In 1942, a sixteen-year-old high school boy, Alexander Chekalin, was awarded posthumously the ‘highest possible’ award of ‘Hero of the Soviet Union’ for resisting torture by German troops. A member of a guerrilla group that fought the Germans, Chekalin brought the group arms and provided information of German transport movements. However, he was captured by the Germans in a village and was subsequently tortured and killed. The article reported Checkalin’s ‘refusal to betray his fellows under torture goaded the Germans into making a public demonstration of his death’ by hanging him ‘in the square of Likhvin on the eve of the anniversary of the October Revolution’ (The Times 1942a, 3). What is interesting to note here is that if it were not for Nazi wartime rights violations it would have been unlikely that human rights, such as the torture taboo, would have been placed on the international agenda or be considered so important to international justice. The strengths of a genealogical approach are demonstrated here. Not only were human rights and the issue of torture resurrected in response to Nazi inhumanity, but human rights were framed as important to international peace and security because Allied powers wanted to either use human rights violations to delegitimise Nazi Germany, or invoke human rights concerns to break the hold of an isolationist US Congress. In all of this we see the resilience of the taboo. The taboo was not only able to withstand widespread violations but continue to provoke outrage and condemnation as being one of the most vile acts of Nazi behaviour. Despite all the violence of World War II, torture was singled out as a particularly scandalous form of pain and suffering.

Conclusion The genealogy of the torture taboo from the nineteenth century to the end of World War II marked an important period in the taboo’s development. The advancement of international law placed torture within the category of unnecessary suffering during wartime and made the taboo a part of the humanisation of

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The taboo and the fear of regression 65 warfare. Furthermore, the expansion and intensification of European colonialism integrated the taboo within the ‘civilising’ duties of European powers and helped extend the torture taboo to a global norm. The ‘civilising mission’ expanded state obligations under the taboo to abolishing torture and prosecuting offenders in their colonial territories. But importantly, colonialism reaffirmed that torture happened in backward societies, legitimising the colonial relationship by justifying colonial interventions to abolish torture. European colonialism shaped the taboo, but the taboo also shaped state actions and identities of colonial powers. These genealogical developments proved crucial to strengthening the robustness of the taboo. By the end of the nineteenth century, it was no longer necessary to condemn torture in regards to its uselessness as Beccaria did in the eighteenth century. The taboo was taken for granted and its justification became circular. Torture was prohibited because it was torture. Moreover, the danger from violations had become more threatening. In addition to torture posing a danger to one’s identity and fuelling cruelty within the wider population, transgressing the prohibition also generated a fear of regression and a return to more savage forms of human relations and forms of punishment. Torture untied social bonds, broke them down, and setback the progress that had been made to abolish unnecessary harm. It was this robustness that was built up over the nineteenth century that allowed the taboo to withstand its widespread violations before and throughout World War II. Despite Nazi Germany and the Soviet Union violating the taboo, they were forced to hide, deny and lie about its use for fear they would be stigmatised as ‘backward’, ‘barbaric’ states. What is significant is not only that the taboo was able to withstand its violation during World War II, but that the taboo was reasserted because of the violations. Human rights discourse was given a new prominence in world politics and human rights were framed, for instrumental reasons, as an important moral framework to uphold international peace and security. The violations of the taboo not only demonstrated how important the taboo was to a modern, ‘civilised’ international society, but it also showed how inadequate international society was in upholding those norms. The war had disillusioned many about the ability for international rules, norms and laws to protect individuals from unnecessary harm. This disillusionment and fear was also based in the realisation that important norms that were taken for granted, such as the torture taboo, could come under attack in the heart of Europe. A new international normative and legal framework was needed to prevent similar cruelties happening again in the future.

Notes 1 Departments of the government, such as the Military Department and Collectors and Sub-Collectors, as well as the Court of Sudder Udawlut and the Board of Revenue were called upon to provide information about the tortures. Moreover, protection was to be afforded to torture victims to demonstrate that ‘the British Government does not in any shape or degree tolerate such atrocities, and will spare no effort to prevent them’ (Madras 1855, 50).

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2 Other techniques used for show trials included relay interrogation, sleep deprivation, use of blinding lights, positional torture (such as forced standing) and positional devices (such as straitjackets). Victims were placed in cold or hot rooms, freezing baths, given salty food, and alcohol was withheld from alcoholics (Rejali 2007, 80–81). 3 Other accounts of Nazi torture during the war and the techniques used can be found in Rejali (2007, 97–104). For The Times reports of torture by Nazi Germany during the war, see The Times 1940, 8; The Times, 1941, 4; The Times 1944b, 3; The Times, 1944c, 3.

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The taboo and the fear of regression 67 Gellately, Robert. 2001. Backing Hitler: Consent and Coercion in Nazi Germany. New York: Oxford University Press. Gong, Gerrit W. 1984. The Standard of International Society. New York: Oxford University Press. Harris, H. Wilson. 1926. ‘The League and Minorities.’ International Conciliation, 11 Doc. No. 222: 344–347. Headrick, Daniel R. 1979. ‘The Tools of Imperialism: Technology and the Expansion of European Colonial Empires in the Nineteenth Century.’ The Journal of Modern History 51(2) Technology and War: 231–263. International Committee of the Red Cross. 1863. Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863. www.icrc.org/ applic/ihl/ihl.nsf/INTRO/110?OpenDocument. Keene, Edward. 2002. Beyond the Anarchical Society: Grotius, Colonialism and Order in World Politics. Cambridge: Cambridge University Press. Keene, Edward. 2007. ‘A Case Study of the Construction of International Hierarchy: British Treaty-Making against the Slave Trade in the Early Nineteenth Century.’ International Organization 61(2): 311–339. Khrushchev, N.S. 1956. ‘On the Cult of Personality and its Consequences: Report Delivered to the 20th Congress of the CPSU on 25 February 1956.’ In The Stalin Dictatorship: Khrushchev’s ‘Secret Speech’ and Other Documents, edited by T.H. Rigby, 23–91. Sydney: Sydney University Press. Kissinger, Henry. 1994. Diplomacy. New York: Simon and Schuster. Klingberg, Frank L. 1952. ‘The Historical Alternation of Moods in American Foreign Policy.’ World Politics 4(2): 239–273. Kosambi D.D.1967. ‘Living Prehistory in India.’ Scientific American 216(2): 105–114. Kunz, Josef L. 1954. ‘The Present Status of the International Law for the Protection of Minorities.’ The American Journal of International Law 48(2): 282–287. Laski, Harold. 1940. The Rights of Man. Macmillan War Pamphlets, No. 8. London: Macmillan and Co. Ltd. Laski, Harold J. 1942. ‘Nationalism and the Future of Civilization.’ In Freedom Its Meaning, edited by Ruth Nanda Ashen, 148–175. London: George Allen and Unwin. Lauren, Paul Gordon. 1998. The Evolution of International Human Rights: Visions Seen. Philadelphia: University of Pennsylvania Press. Linklater, Andrew. 2011. The Problem of Harm in World Politics: Theoretical Investigations. Cambridge: Cambridge University Press. Madras Commission. 1855. Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency – Submitted to the Right Honourable the Governor in Council of Fort St. George, on 16 April. Maritain, Jacques. 1971. The Rights of Man and Natural Law. New York: Gordian Press. Marx, Karl. 1968. ‘Investigation of Tortures in India.’ In On Colonialism, by Karl Marx and Friedrick Engels, 162–167. Moscow: Progress Publishers. Mazower, Mark. 2004. ‘The Strange Triumph of Human Rights, 1933–1950.’ The Historical Journal 47(2): 379–398. Mill, John Stuart. 2006 [1859]. ‘A Few Words on Non-Intervention.’ New England Review 27(3): 252–267. NATO. 1941. ‘The Atlantic Charter: Declaration of Principles issues by the President of the United States and the Prime Minister of the United Kingdom,’ 14 August. www. nato.int/cps/en/natolive/official_texts_16912.htm.

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The taboo and the fear of regression 69 The Times. 1891. ‘The Revival of Question by Torture at Warsaw.’ The Times, 4 February: 13. The Times. 1897. ‘The Alleged Torture of Spanish Prisoners.’ The Times, 23 August: 9. The Times. 1937a. ‘Nazi Outburst Against Czechoslovakia: Alleged Torture of German.’ The Times, 19 June: 16. The Times. 1937b. ‘Torture to Get Evidence: “A Growing Evil”: Howard League’s World-Wide Inquiry.’ The Times, 22 September: 5. The Times. 1940. ‘Hungarian Nazi Gestapo: Terrorism within the Party: Beating and Torture.’ The Times, 22 January: 8. The Times. 1941. ‘Serbian Clergy Martyred: Torture and Death.’ The Times, 3 November: 4. The Times. 1942a. ‘16-Year-Old “Hero of the Soviet Union.” ’ The Times, 7 February: 3. The Times. 1942b. ‘The Torture of Norwegians. Gestapo Bestiality: Accounts by Victims and Witnesses.’ Reuter, reprinted in The Times, 18 March: 3. The Times. 1944a. ‘Norwegians Put to the Torture: German’s New Instruments.’ The Times, 11 April: 3. The Times. 1944b. ‘The Price of Resistance: Torture Chambers in Paris.’ The Times, 6 September: 3. The Times. 1944c. ‘Hand-Marks on the Wall: Gestapo Torture-Chamber at Issy.’ The Times, 14 October: 3. Thurston, Robert W. 2000. ‘The Rise and Fall of Judicial Torture: Why it was used in Early Modern Europe and the Soviet Union.’ Human Rights Review 1(4): 26–49. United Kingdom House of Commons. 1854. ‘India – Tenure of Land in Madras.’ Hansard, 11 July, vol 135, cc43–90. United Kingdom House of Lords. 1856a. ‘Torture in India.’ Hansard, 29 February, vol 140, cc1563–1573. http://hansard.millbanksystems.com/lords/1856/feb/29/torture-in-india. United Kingdom House of Lords. 1856b. ‘Torture in India.’ Hansard, 3 April, vol 141, cc377–384. http://hansard.millbanksystems.com/lords/1856/apr/03/torture-in-india. United Kingdom House of Lords. 1856c. ‘Torture in Madras.’ Hansard, 14 April, vol 141, cc964–999. http://hansard.millbanksystems.com/lords/1856/apr/14/torture-in-madras. Welles, Sumner. 1943. The World of the Four Freedoms. London, New York and Melbourne: Hutchinson and Co. Ltd. Wells, H.G. 1940 [2015]. The Rights of Man: Or What Are We Fighting For? London: Penguin Books Limited. Willkie, Wendell L. 1943. One World. London: Cassell and Company Limited. Woolf, Leonard. 1933. ‘Introduction By the Editor.’ In The Intelligent Man’s Way to Prevent War, edited by Leonard Woolf, 7–18. London: Camelot Press Ltd. Zimmern, Alfred. 1939. The Prospects of Civilization. Oxford Pamphlets on World Affairs No. 1. Oxford: Clarendon Press.

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The Nuremburg Trials and the Universal Declaration

The victory of the Allied forces in World War II resulted in a series of Trials that sought to prosecute Nazi and Japanese war criminals for their widespread atrocities which were carried out during the war. The International Military Tribunal of the Far East was responsible for prosecuting Japanese war criminals while the Nuremburg Trials, carried out between 14 November 1945 and 1 October 1946, concerned prosecuting Nazi war criminals. Although both of these Trials were important in their own right because the Tribunal in the Far East was based on the Nuremburg principles, this chapter will focus on how the Nuremburg Tribunals contributed to the development of the torture taboo. The Nuremburg Trials were novel because they prosecuted the individual offender and not the state (Wright 1947, 46). As Lauterpacht noted in 1944, ‘twenty-five or thirty years ago every respectable writer on international law had little hesitation in stressing emphatically the view that States only, and no one else, were subjects of international law’ (Idelson et al. 1944, 66). The prosecution team at the Nuremburg Trials consisted of representatives from the United States, France, the United Kingdom and the Soviet Union. The Nuremburg Trials served to punish past wrongs (Finch 1947, 20; Nuremburg 1947b, 155) and act as a ‘guide-post for the further development of the law of nations’ (Ehard 1949, 244). The first set of Trials, between 1945 and 1946, prosecuted Nazi war officials. The second set of Nuremburg Trials took place between October 1946 and April 1949 and were commonly known as the ‘Medical Cases’. The Medical Cases prosecuted Nazi physicians that experimented on concentration camp detainees without their consent during the war. This chapter demonstrates how the torture taboo actually strengthened as a result of its own violation during World War II. I first examine how the Nuremburg Trials interpreted torture and how it reconstructed torture as particularly dangerous conduct. The Nuremburg Trials enforced an absolute prohibition against torture under international law. Soldiers and officials found guilty of committing crimes against humanity could not escape punishment. Article 7 of the Nuremburg Charter stated that superior positions would not free soldiers from punishment or mitigation from crimes, while Article 8 stated that superior orders would not free the offender from responsibility, but mitigation may be considered (Nuremburg 1947a, 12). Throughout the Trials of both the Nazi war

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officials and the Medical Cases, the importance of the individual to be free from ‘unnecessary’ harm was reaffirmed over the interests of the state. Regardless of whether a state was fighting for its survival, it could not justify torture. The inclusion of torture within the legal category of ‘crimes against humanity’ further consolidated torture as not only absolutely prohibited, but an act that destroys what it means to be human. The second major post-war effort that reinvigorated the torture taboo was the United Nation’s Universal Declaration of Human Rights. The rise of human rights discourse during World War II, traced in Chapter 2, provided the necessary momentum and context to establish an international framework for human rights. An examination of the drafting process represents an important genealogical shift in not only the torture taboo, but how we understand the foundations of human dignity. By fortuitous events, the drafters came to agreement that human rights were no longer to be justified by God or natural law, but that human rights were innate within every human being. As I show, this had important implications for the torture taboo by elevating the norm above sovereign boundaries and, like the Nuremburg Trials, constituting the torture prohibition as absolute.

The medical cases Between October 1946 and April 1949, 12 Nuremburg Trials concerning medical experiments carried out by Nazi physicians during World War II took place. Held under Allied Control Council Law No. 10, 23 defendants were tried. These defendants were either physicians or officials concerned with the administration and authorisation of the medical experiments. Fifteen different types of experiments were carried out on concentration camp detainees without their consent at various camps, including at Dachau, Sachsenhausen, Natzweiler, Ravensbruek, Buchenwald, and Auschwitz. The experiments comprised of discovering medical cures to save German soldiers’ lives and developing better means to kill the enemy (Nuernberg 1946–1949a, 37–38). In one set of experiments, physicians sought to develop ways in which to rewarm German pilots who had parachuted into the North Sea. As part of the experiment, inmates were made to stand in ‘freezing weather from 9 to 14 hours’ or were placed in an iced-water tank ‘for 3 hours at a time’ (Nuernberg 1946–1949a, 42). In other experiments, Nazi physicians subjected detainees to high-altitude experiments (that often resulted in their deaths) (Nuernberg 1946–1949a, 92–198), injected them with typhus, malaria, mustard gas and other poisons (Nuernberg 1946–1949a, 43–44, 51–53), and used them as guinea pigs to test new methods of sterilisation (Nuernberg 1946–1949a, 48–50). The sulfanilamide experiments were condemned by the prosecution as perhaps the most gruesome experiments carried out throughout the war. The experiments tested the therapeutic efficacy of sulfanilamide on German war wounds and gas gangrene. The experiments were brought about by the loss of German troops on the Moscow Front during the winter of 1941–1942. The large distances and climate posed problems for treatment of wound infections. The

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experiments sought to determine whether soldiers should be treated surgically on the front lines or treated with sulfanilamide and then transferred back to the hospital base for proper treatment (Nuernberg 1946–1949a, 356). To recreate battle injuries of German soldiers, incisions were made on inmates’ legs and then a bacterial culture, wood fragments or glass pieces were inserted into the wound to bring about infection. When Grawitz, the head of the SS Medical Service, visited Ravensbruek and ordered the experiments be more severe to better simulate battle conditions (Nuernberg 1946–1949a, 45), physicians created bullet wounds on victims and tied off the blood circulation at either end of the wound to catalyse infection. After the gangrene culture was placed in the wounds and infection resulted, some of the victims were treated with sulfanilamide, while others were not treated at all to compare the results of nontreatment (Nuernberg 1946–1949a, 45). At the heart of the Allied prosecution’s case against the Nazis was that the Nazi medical experiments did not have the consent of the subject and were therefore prohibited. The prosecution stated: It is the most fundamental tenet of medical ethics and human decency that the subjects volunteer for the experiment after being informed of its nature and hazards. This is a clear dividing line between the criminal and what may be noncriminal. (Nuernberg 1946–1949a, 980) Telford Taylor, the US prosecutor, outlined the purpose of prosecuting these crimes. Taylor argued in his opening statement: it is far more important that these incredible events be established by clear and public proof, so that no one can ever doubt that they were fact and not fable; and that this Court, as the agent of the United States and as the voice of humanity, stamp these acts, and the ideas which engendered them, as barbarous and criminal. (Nuernberg 1946–1949a, 27) However, the Medical Cases were not merely retributive; the Trials sought to punish these crimes to prevent them from occurring again in the future. Taylor warned that the ideas that led to these atrocities had not yet died. Invoking Justice Jackson’s opening statement at the Nuremburg war crimes Trial, Taylor reiterated that these crimes must be exposed and condemned because these ‘wrongs … have been so calculated, so malignant, and so devastating, that civilization cannot tolerate their being ignored because it cannot survive their being repeated’ (Nuernberg 1946–1949a, 28). Undermining the dignity of individuals by subjecting them to medical experiments without their consent was not only inhumane, but dangerous. The experiments also degraded the physicians (Nuernberg 1946–1949a, 39). Human dignity and consent had to be upheld, even at the expense of protecting society from

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danger. In the cross examination of Dr Andrew C. Ivy, the prosecution’s expert witness, Dr Servatius, the Defence Counsel for the Nazi defendant Karl Brandt, posed a moral problem to Dr Ivy: Witness, take the following case. You are in a city in which the plague is raging. You, as a doctor, have a drug that you could use to combat the plague. However, you must test it on somebody. The commander, or let us say the major of the city, comes to you and says, ‘Here is a criminal condemned to death. Save us by carrying out the experiment on this man.’ Would you refuse to do so, or would you do it? (Nuernberg 1946–1949b, 42) This moral problem was in the context of one of the Defence arguments that because many of the concentration camp detainees were sentenced to death anyway, their bodies may as well be put to good use and used in the medical experiments for the benefit of society. Dr Ivy responded that he would not carry out the experiment because he did not believe these actions were morally justified (Nuernberg 1946–1949b, 42). Medical ethics had to be based on long-term considerations of ‘doing good’ for society because if these principles were undermined for short-term considerations, then it undermined public faith in the medical profession and would cause public outrage (Nuernberg 1946–1949b, 42). This means that for the physician, one cannot kill a few in order to save the many (Nuernberg 1946–1949b, 43). However, Dr Ivy made a distinction between the doctor and the politician, stating that although he, as a doctor, would not follow the order to subject the prisoner to experimentation, it is permissible for the politician to give the order, even if the doctor does not abide by the order and martyrs themself as a result (Nuernberg 1946–1949b, 43–44). In its final ruling, the Tribunal found ‘human experiments under such conditions are contrary to “the principles of the law of nations as they result from the usages established among civilized peoples, from the laws of humanity, and from the dictates of public conscience” ’ (Nuernberg 1946–1949b, 183). The Tribunal continued, stating: In every one of the experiments the subjects experienced extreme pain or torture, and in most of them they suffered permanent injury, mutilation, or death, either as a direct result of the experiments or because of lack of adequate follow-up care. (Nuernberg 1946–1949b, 183) Sixteen physicians were found guilty of war crimes and crimes against humanity, and seven physicians were sentenced to death (Grodin 1992, 137). The Tribunal established what became known as the Nuremburg Code: a set of principles to regulate future human medical experiments. The Code is intended to help identify transgressions and protect the individual from dangerous experiments, and it continues to have a powerful influence on medical ethics

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today (see Annas and Grodin 1992). The Code contains ten principles that establishes a set of patient rights and physician obligations regarding human experimentation. The Code states that experiments should ‘avoid all unnecessary physical and mental suffering and injury’ (Article 4) and experiments should not occur if ‘there is an a priori reason to believe that death or disabling injury will occur’ (Article 5). However, what is important for the purposes of the taboo was the emphasis and importance the Nuremburg Tribunal placed on individual consent. In Article 1 of the Code, it states, ‘[t]he voluntary consent of the human subject is absolutely essential’. The Tribunal paid particular attention to the quality of voluntary consent: This means that the person involved should have legal capacity to give consent; should be so situated as to be able to exercise free power of choice, without the intervention of any element of force, fraud, deceit, duress, over-reaching, or other ulterior form of constraint or coercion; and should have sufficient knowledge and comprehension of the elements of the subject matter involved as to enable him to make an understanding and enlightened decision. This latter element requires that before the acceptance of an affirmative decision by the experimental subject there should be made known to him the nature, duration, and purpose of the experiment; the method and means by which it is to be conducted; all inconveniences and hazards reasonably to be expected; and the effects upon his health or person which may possibly come from his participation in the experiment. (Nuernberg 1946–1949b, 181–182)1 What the Nuremburg Code shows is that voluntary consent removes danger from the social order. Pain and suffering that is experienced by a subject that has given voluntary consent lacks the danger associated with pain inflicted without the subject’s consent. In other words, although the subjects may physically risk danger to themselves through medical experimentation, this danger to others and to the broader social order is ameliorated when the infliction of pain is consented to. Dr Ivy’s response to Dr Servatius’ moral problem is important as it highlights the sociology of danger that comes about from violating the taboo. As I showed in Chapter 1, torture was condemned by the philosophes because it posed a danger to the moral fabric of society. The continuation of this interpretation, alongside the importance of the inviolability of the body, was developed further by the Nuremburg Trials by linking individual inviolability to society’s interests. As Hans Jonas (1969, 222) has argued: it may well be the case that the individual’s interest in his own inviolability is itself a public interest such that its publicly condoned violation, irrespective of numbers, violates the interest of all. In that case, its protection in each instance would be a paramount interest, and the comparison of numbers will not avail.

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As Steven Lukes (2006, 14–16) reminds us, this phenomenon was brought to light by Emile Durkheim during the Dreyfus Affair. Durkheim (1973, 53–54) argued that industrial society had become permeated by what he called the cult of the individual. Individual rights constituted the common feelings of a nation and helped provide society with social cohesion. However, when individual rights are violated, these social bonds break, bringing about ‘social dissolution’. Therefore, Durkheim argued that upholding the individual’s rights was not just important for that individual, but it was also in society’s interests as well. The Nuremburg Trials showed that upholding voluntary consent in medical experiments was also in society’s interest, even in the face of threats to state survival. This contributed to the robustness of the taboo by ensuring that no excuse, whatsoever, justified the use of torture.

Attacking the defenceless Despite the absolute condemnation by the Tribunal of medical experiments without the consent of the subject, it is questionable whether these practices were labelled and classified as ‘crimes against humanity’ because they inflicted pain and suffering per se. Rather, it was a particular category of pain and suffering that posed a danger to the victim and others. If one is willing to take the German Defence counsel’s arguments seriously, they show that the prosecutors had unstable foundations as to what practices constituted morally dangerous forms of pain and suffering. The Defence acknowledged the importance of consent in medical experiments as well. They argued non-consensual medical experiments placed a mental burden on the physician because the life of the experimental subject is placed at risk (Nuernberg 1946–1949a, 983). The Defence argued that patient consent should also be respected for instrumental reasons because it provided cooperation of the subject during the experiment and protected the physician from legal claims of damages (Nuernberg 1946–1949a, 983). However, the Defence argued that there were circumstances in which involuntary medical experiments could be carried out. The Defence sought to either relieve their defendants of responsibility for the medical experiments or to justify them as acceptable under the exceptional conditions, and therefore, absolve them from any illegality. These defences included questioning the applicability of Control Council Law No. 10 (the law that gave authority to the Tribunal) to Germans during the war, a lack of responsibility by subordinate (and superior) officers for the medical experiments, the status of Poland under international law where some experiments took place,2 and subjection of medical experiments in replacement of the death sentence (see Nuernberg 1946–1949a; Nuernberg 1946–1949b). Perhaps the most important argument made by the Defence was that the interests and rights of society could in some instances take precedence over the individual’s right to be free from harm. This argument was justified in two ways. The first was that compulsory medical experiments helped in the progress of

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society by conducting experiments that advanced medical science. In the case of the Nazi physicians, medical progress helped to alleviate the ‘evident state of distress’ the German army was facing from diseases and war injuries on the battlefronts (Nuernberg 1946–1949a, 988). The second argument relating to when society could take precedence over the individual was in instances where the infliction of pain and suffering could save society from imminent danger. In the final plea for the defendant Gebhardt, the Defence concentrated on the sulfanilamide experiments, arguing that these experiments were needed to help care for individual soldiers and uphold the ‘fighting power’ of the German nation and army (Nuernberg 1946–1949b, 5). The Defence argued that in the fighting on the Moscow front and in Rostov, in the south, between 1941 and 1942, wound infections on German soldiers became hard to treat, for the reasons outlined above. This demonstrated, argued the Defence, that the German Wehrmacht was in a fight for its survival (Nuernberg 1946–1949b, 6). If the German Wehrmacht did not do everything to prevent bacterial infection and gas gangrene, they would have neglected their duty to protect the German nation. They resorted to medical experiments after clinical observations had failed to resolve the question and were only used ‘to avert an imminent danger and to throw light on a question which was important to the individual wounded soldier as well as to the striking power of the whole army’ (Nuernberg 1946–1949b, 6). The German Defence did not suggest that these experiments were appropriate behaviour under normal circumstances, but that they represented a ‘lesser evil’ in an extraordinary situation (Nuernberg 1946–1949b, 9). If the wounds were not treated, there was a possibility of thousands of deaths (Nuernberg 1946–1949b, 9). Other methods of solving the wound infections had failed, and therefore, no alternative was left available (Nuernberg 1946–1949b, 9). By arguing that the compulsory medical experiments were in the interests of society and necessary to save the state in an extraordinary situation, the Nazis argued this justified their actions and ameliorated guilt (Nuernberg 1946–1949b, 7–8). In an emergency, interests of state override individual rights if all other alternatives in dealing with the danger have been exhausted (Nuernberg 1946–1949b, 7–8). The Defence pointed to how this legal argument had been incorporated into the laws of war and into German domestic law (Nuremburg 1946–1949b, 10). When this criminal law is applied to the state, this legal principle absolves the offender of guilt and justifies state actions (Nuernberg 1946–1949b, 7–8). As mentioned above, the Tribunal dismissed these defences, placing the importance of voluntary consent of the detainee as the first principle in the Nuremburg Code. How, then, can we understand why medical experiments carried out without the consent of subjects and in terms of necessity were condemned as a crime against humanity, but Allied violence, such as dropping the atomic bomb on Japan, was not? In fact, the Defence team invoked this example to discredit the prosecution’s argument. In the final defence plea of Karl Brandt,

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Brandt’s Defence counsel, Dr Servatius, raised the moral dilemma as to what kinds of sacrifices the state can make for the benefit of the political community (Nuernberg 1946–1949b, 126). Dr Servatius asked: What did the airman think who dropped the first atomic bomb on Hiroshima? Did he consider himself a criminal? What did the statesmen think who ordered this atomic bomb to be used. We know from the history of this event that the motive was patriotism, based on the harsh necessity of sacrificing hundreds of thousands to save their own soldiers’ lives. This motive was stronger than the prohibition of the Hague Convention, under which belligerents have no unlimited right in the choice of methods for inflicting damage on the enemy. (Nuernberg 1946–1947b, 127) Dr Servatius’ comments raise a very interesting problem. The nuclear bombs resulted in 70,000–80,000 deaths in Hiroshima and 35,000–40,000 deaths in Nagasaki. Moreover, the firebombing carried out by Allied forces in Tokyo killed 80,000–100,000 people (Tannenwald 2007, 80). How was a distinction made between the two acts? Nina Tannenwald (2007) has examined the origins of the nuclear taboo and argued that when it was used during World War II, nuclear weapons were seen as a legitimate weapon of war that represented a continuation of the wartime bombing strategy (Tannenwald 2007, 79). Although there were some military critics of the nuclear bomb (Tannenwald 2007, 82), many politicians and generals saw the bomb as a quick way to end the war and save American lives (Tannenwald 2007, 73, 75). Moreover, the ‘barbarities’ of the war and the Dresden bombings set the precedent for bombing civilians and removing distinctions between civilian and military targets (Tannenwald 2007, 81). The non-consensual medical experiments, on the other hand, invoked normative traditions of excessive cruelty prohibited under the laws of humanity. The victims were held under the power of the Nazis in concentration camps and therefore were associated with the protections accustomed to prisoners of war. As discussed in Chapter 2, no punishment or violence was to be inflicted on prisoners outside of a battle fight or for information. The experiments violated these principles because they sought to use violence to extract ‘information’ from prisoners, in this case, information concerning how to treat battlefield diseases and war injuries. They represented an attack on the defenceless. The experiments did not allow for a ‘fair fight’ (Shue 1978, 129–130), for the victim’s fight with the Nazi’s had finished when they were locked up and sentenced to death. The medical experiments not only invoked the tradition of prohibition against unnecessary suffering, but went outside battlefield conflicts and represented the beginning of a ‘fresh assault’ against a victim who had ceased to be a threat (Shue 1978, 130).

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Crimes against humanity The Nuremburg Trials further strengthened the taboo by creating a new classification of war crimes labelled ‘crimes against humanity’. Crimes against humanity were also prosecuted at the International Military Tribunal of the Far East and under Control Order Law No. 10 in the Medical Cases discussed above. Before and during the Trials, crimes against humanity also became part of much municipal law in ‘civilised’ societies (Schwelb 1946, 222–224). Although there were legal differences as well as similarities amongst the different interpretations of crimes against humanity, I would like to continue to focus on the term used in the International Military Tribunal. Article 6 of the Nuremburg Charter identifies three crimes within the jurisdiction of the Tribunal: crimes against peace, war crimes, and crimes against humanity. Crimes against humanity concerned the prohibition against torture and is defined under Article 6(c) as: murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war, or persecutions on political, racial, or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of domestic law of the country where perpetrated. (Nuremburg 1947a, 11) Crimes against humanity overlap with war crimes, with many war crimes (such as torture) also constituting crimes against humanity. Torture is not specifically mentioned in the Nuremburg Charter, constituting what the Tribunal labelled ‘inhumane acts’ (however, torture was mentioned in the definition used in the Medical Cases).3 Neither ‘inhumane acts’ nor ‘torture’ were defined in the Trial. Crimes against humanity contain a quantitative element in that crimes, such as torture, could only be a crime against humanity if carried out on a population and in conjunction or association with the other crimes of the Tribunal. Moreover, crimes against humanity did not have to be a crime within the domestic jurisdiction of the offending country for prosecution to take place, giving the term an international and cosmopolitan scope. The origins of crimes against humanity are dispersed. Crimes against humanity reflected the serious crimes in the domestic legal system of ‘civilised’ states (Radin 1946, 372). It is also found in the relationship between natural law or the ‘laws of humanity’ and the laws of war. The 1899 Hague Convention’s ‘Martens clause’, which has its roots in natural law, provided humanitarian protection for civilian populations. The clause acted as a form of customary law by providing a principle that could help judge actions not codified in law and ensured war was not left up to the whim of military commanders (Meron 2000, 79–80).4 Although the Nuremburg Trials placed crimes against humanity into international law, this was not the first time the term had been used. On 28 May 1915, Russia, France and Great Britain condemned Turkey for its genocide of

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the Armenian population as ‘crimes against humanity and civilization for which all the members of the Turkish Government will be held responsible together with its agents implicated in the massacres’ (Matas 1989–1990, 87; Schwelb 1946, 181). However, when the term was used in 1915, it did not have a legal basis but was reflective of customary law related to the laws of war (Schwelb 1946, 180). Despite this difference, in both cases, crimes against humanity referred to a quality of behaviour that transgressed the boundary of ‘civilised’ life (see Schwelb 1946, 195; Teitel 2004, 229). Finch (1947, 22) stated in 1947, ‘There could be no more sacred trust than that of upholding the law against primitive and barbarous acts of inhumanity which shock the conscience of all civilized peoples and are forbidden by divine as well as human command’. This classification sought to protect the individual body, as well as the social body – what we call ‘humanity’ – from unnecessary harm in warfare (Tietel 2004, 231). Crimes against humanity and the other crimes within the jurisdiction of the Tribunal helped classify forms of behaviour and identify transgressions, which had consequences that spilled over sovereign borders (Schwelb 1946, 195). One can see here the continuation of the Allied countries’ discourse before and during the war in the warning that such practices that breach the threshold of ‘civilised’ behaviour threaten a regression of civilisation. Justice Jackson stated Nazi crimes had ‘bathed the world in blood and set civilization back a century’ (Nuremburg 1947b, 154). Another discourse operated alongside the discourse of regression, namely, a discourse of destruction. Justice Jackson’s opening statement (cited above) that civilisation cannot survive a repeat of these war crimes in the future, demonstrated that crimes against humanity destroy the social body of humanity and the moral fabric of civilisation. That is, the moral and social bonds as well as the reciprocity and obligations each has to the other to prevent inflicting unnecessary harm. The Nuremburg crimes also stigmatised the identity of the perpetrator and helped to identify dangerous individuals. The pain and suffering that became prohibited under the crimes of the Tribunal were condemned because they represented the revival of ancient ‘barbarities’. The Nazis were likened to the despots of the ‘ancient East’ (Nuremburg 1947b, 99–100) and carried out practices such as torture that had not been seen for centuries (Nuremburg 1947b, 130). This is similar to the nineteenth century discourse that condemned torture as a barbaric relic of older ages and which constituted a threat to a state’s security. However, what distinguishes the nineteenth century discourse from that of the twentieth century is the fact that this ‘medieval barbarity’ constituted a threat to the security of other states. The threat these crimes posed to international peace and security were reiterated in the 1946 United Nations General Assembly resolution that reaffirmed the Nuremburg Charter principles (UN General Assembly Resolution 1946). Someone who carried out a crime against humanity was doubly condemned: first because they crossed a boundary and destroyed what it meant to be human, and second because they posed a danger to others.

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It has been a common assumption that crimes against humanity helped to undermine state sovereignty. The Chief British prosecutor in the Nuremburg Trial, Sir Hartley Shawcross, argued in his closing statement that crimes against humanity presented a warning to tyrants who think they can hide behind state sovereignty by arguing that this legal precedent of the Tribunals recognised the right for the international community to intervene in states to stop human rights abuses (Schwelb 1946, 198–199). The Nuremburg Tribunal undermined the idea that unconditional sovereignty prevented legal accountability outside of the state, or that leaders were immune from prosecution for acts carried out within the state (Falk 2009, 92). The categorisation of crimes against humanity therefore contributed to social solidarity in a cosmopolitan sense by giving the protection of the individual a sacred importance that transcended territorial sovereignty. To engage in crimes against humanity was not only to destroy a human being, but the social and moral bonds that provide the framework of a common, global, humanity. However, simultaneously, the ruling of the Tribunal placed a limit that, in fact, upheld sovereignty in relation to crimes against humanity. The Tribunal argued that practices such as torture can only be considered a crime against humanity if carried out on a civilian population and in association with other crimes within the jurisdiction of the Tribunal. The Tribunal did not deny that ‘circumstances of great horror and cruelty’ occurred in Nazi Germany before the war (Nuremburg 1947a, 254–255). But the Tribunal argued it could not convict defendants for cases of torture in Germany before the war because these practices were not carried out in association with war crimes or crimes against the peace. Schwelb (1946, 207) argued: it is doubly significant that the Charter and the Tribunal respected German sovereignty to the extent of subjecting to the Court’s jurisdiction only such criminal activities as were connected with either crimes against peace or with violations of the laws and customs of war, i.e. only such acts as directly affected the interests of other states. What impact did this limitation have on the robustness and reconstruction of the torture taboo? It could be argued that such a limitation harmed the taboo by refusing to label the practices carried out in Nazi Germany before the war as a crime against humanity. Although this limitation was seen as deplorable by the French IMT Judge Donnedieu de Vabres (Nuernberg 1946–1949a, 917), the limitation established by the Tribunal actually contributed to reconstructing torture as particularly dangerous behaviour with contagious effects. By associating crimes against humanity, and hence torture, with crimes against peace and war crimes, the Tribunal grafted torture onto practices that sought to challenge and overthrow the social and political order. Torture became an ‘accessory’ to aggressive war. The applied limitations of crimes against humanity gave torture’s danger behaviour a seriousness that perhaps it would not have attained if it were not associated, or executed alongside, the other crimes within the Tribunal’s jurisdiction.

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Allied hypocrisy Despite the contribution the Nuremburg Trials made to strengthening the stigma of the taboo in the face of unprecedented violations, one notices that elements of ‘Victors’ justice’ were present in the Trials. Allied crimes were not prosecuted and Allied forces retroactively applied international law.5 Carl Schmitt’s (2007, 54) argument that those who act in the name of humanity want to cheat had some substance. Even the lead prosecutor for the Allied forces, Justice Robert Jackson, acknowledged these concerns (see Falk 2009, 92). Alongside the Dresden bombings carried out by Allied forces, which violated the combatant/non-combatant distinction during wartime, the Soviet Union engaged in widespread killings and rapes in Germany near the end of the war (Overy 2004, 524–525). The UK also engaged in atrocities during and after the war. The British tortured detainees in London between 1940 and 1948 (in torture chambers known as the London ‘cage’) and in a secret prison (‘Bad Nenndorf ’) in British-occupied North-West Germany between 1945 and July 1947 (Cobain 2005a, 2005b, 2005c, 2006). However, despite these violations, Allied crimes did not represent an open challenge to the absolute prohibition of torture. The norm violations by the Nazis set a precedent that no other state wanted to be associated with. The British were keen to keep their torture hidden and secret for fear of undermining their legitimacy in international society. During the Attlee government, a memorandum was written to UK Foreign Secretary Ernest Bevin, by the Foreign Minister Hector McNeill, stating: I doubt if I can put too strongly the parliamentary consequences of publicity [regarding British use of torture]. Whenever we have any allegations to make about political police methods in Eastern European states it will be enough to call out in the House ‘Bad Nenndorf ’, and no reply is left to us. (Cobain 2005c) The British knew what they were doing constituted inappropriate behaviour, and it was this moral framework that forced Britain to hide and deny the existence of its torture centres, both during and after the war. Despite this hypocrisy and elements of ‘Victors’ justice’ at the Nuremburg Trials, it was within this hypocritical political environment that torture was consolidated under international law as absolutely prohibited. The Nuremburg Trials invoked the history of customary international norms to interpret Nazi violations of the torture taboo as a breach of well-established norms that constituted the laws of humanity. The Nuremburg Trials condemned torture absolutely, placed it within the new legal concept of a crime against humanity and grafted torture onto Nazi aggression, further constructing the sociology of danger. This closed off any openings to justify torture, signifying the taboo’s resilience and robustness to withstand such an onslaught of abuse. The Nuremburg Trials helped reaffirm the torture taboo as an important international normative principle in the

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post-war international order. This post-war reconstruction of the taboo was further cemented with the Universal Declaration of Human Rights.

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The Universal Declaration of Human Rights The second major post-war development that arose out of the Nazi atrocities was the United Nations Universal Declaration of Human Rights. After the United Nations was established in 1945, the United Nations Economic and Social Council set up the Human Rights Commission to draft an international bill of human rights. The Nuclear Commission (preparatory commission) met in April and May 1946 to make recommendations as to the duties of the Human Rights Commission. These meetings also discussed the purpose of an international bill of human rights. Henri Laugier, Assistant Secretary-General in charge of social affairs, stressed in the first meeting that international legal machinery was necessary to bind states and prevent further human rights violations. Arguing that a violation of rights within a nation constituted a threat to peace and security of international society as a whole, Laugier stated: Let us remember that if this [legal] machinery had existed a few years ago, if it had been powerful and if the universal support of public opinion had given it authority, international action would have been mobilized immediately against the first authors and supporters of fascism and Nazism. (UN Economic and Social Council 1946, 3) The desire for an international human rights system was in response to Nazi atrocities. Arnold J. Lien stated, ‘bills of rights are always monumental indictments of regimes of the past, as well as promised safeguards against the same abuses by regimes of the future’ (Lien 1949, 24). This discourse of ‘progress’ sought to separate the ‘old’ order from the ‘new-to-be’ order, and human rights were fundamental in the reconstruction of the moral foundations of civilisation. Laugier (UN Economic and Social Council 1946, 2) stated: In the reconstruction of the world, the material tasks are more important, but the effort of all town planners, of architects, or doctors, will only assume its real significance if humanity starts again to have confidence in its destiny, if the human community gets together around a minimum of common principles. These common principles were to be founded in and guided by human dignity (UN Economic and Social Council 1946, 1; see also Lien 1949, 24). International human rights established a new standard of civilisation with Laugier arguing that acceptance of international human rights was essential for ‘admission in the international community’ (UN Economic and Social Council 1946, 2–3). The purpose of the Declaration and what kinds of rights were to be included was a topic of debate amongst philosophers at the time (see in particular UN

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Economic and Social Council 1949). Both during and immediately after the war, many of the arguments made by states and public figures in favour of human rights argued that international society must have international legal machinery to enforce human rights (Angell 1940; Laski 1942; Morsink 1999, 12–13; Russell 1942). However, when the United Nations adopted the Universal Declaration in 1948, it was a Declaration only, and it lacked the fundamental legal guarantees many saw as necessary to restrain state power (see Morsink 1999). The Declaration was adopted by the UN General Assembly as having an educative purpose by setting human rights ‘as a common standard of achievement for all peoples and all nations’ (see Morsink 1999, 320–328). Despite this, the Declaration’s drafting process played an important role in the genealogy of the taboo by providing a discussion on the importance of torture as well as how to understand the concept of human rights. The Article on the Prohibition against Torture On 11 June 1947, the First Session of the Commission of Human Rights Drafting Committee met to discuss, among other things, the Secretariat draft outline of Article 4, which then concerned torture. Compared to the drafting process of some of the other human rights articles in the Declaration, this provision that prohibited torture had universal support within the Committee. Cassin, the French representative, and Chang, the Chinese representative, agreed that the Article should ‘stress the goodness of life itself ’ (UN Economic and Social Council 1947d, 12–13). Drawing upon the Nuremburg Medical Cases, Cassin stated the Committee should take into account questions such as ‘Do some humans have the right to expose others to medical experiments and do any have the right to inflict suffering upon other human beings without their consent, even for ends that may appear good?’ (UN Economic and Social Council 1947d, 13). The representative for Australia also suggested that both physical and mental torture should be covered by the Article as well as ‘torture resulting from involuntary experimentation’ (UN Economic and Social Council 1947d, 13). The main debate concerning the article prohibiting torture surrounded the wording of the article. The Draft Declaration (E/800) of article 4 read: 1 2

No one shall be held in slavery or involuntary servitude. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. (UN General Assembly 1948e)

Since my primary focus is torture, I will concentrate on the comments and amendments to the second sentence in the article. Uruguay and Cuba wanted to amend the second sentence so as to read without the word ‘torture’ or ‘inhuman’. Cuba’s amendment stated ‘[n]o one shall be subject to cruel, degrading and noncustomary punishment’ (UN General Assembly 1948a; UN General Assembly 1948f, 213). Cuba argued that there was no need to say ‘inhuman’ in the article

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as the term ‘cruelty’ sufficed to cover inhuman punishment. Cuba argued noncustomary punishment was more appropriate and also felt that the term ‘noncustomary’ could strengthen the article (UN General Assembly 1948f, 213; UN General Assembly 1948g, 216). Cuba’s amendment and the use of the word ‘non-customary’ was unacceptable to the Philippines (UN General Assembly 1948g, 215). Aquino, the Philippines representative, stated because customs vary in different countries, the Nazis could have justified their torture because it was customary to use it in Germany (UN General Assembly 1948g, 215). Venezuela also disagreed with Cuba, stating ‘inhuman’ should be kept in the Declaration wording because it has a wider meaning than ‘cruel’ (UN General Assembly 1948g, 217). Chile agreed with Venezuela, and Cuba withdrew the amendment (UN General Assembly 1948g, 218, 222). The final Declaration was to place the prohibition against torture on its own in Article 5, and retain the words ‘inhuman’ and ‘cruel’. Article 5 of the Universal Declaration of Human Rights states, ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’. The Universal Declaration does not define torture; nor does it define ‘cruel’, ‘inhuman’, or ‘degrading’ treatment or punishment. As I show in Chapters 5 and 6, this vagueness has been exploited by states to justify gruesome forms of violence. Despite this, Article 5 reaffirmed in international law an absolute prohibition on torture, something that was not even given to war. The torture taboo was linked to the good life and set boundaries as to the limits of the state’s power to hurt. What is interesting is that there was not a debate about whether torture should be included in the Declaration, or whether or not torture constituted prohibited conduct. It was taken for granted that this much was the case and this lack of debate shows the robustness of the taboo. However, what there was a debate over, and which had important implications for the taboo, was how to understand the philosophical foundations of human rights. This was discussed in the drafting of the Declaration’s Preamble. The Preamble At the seventh meeting of the Commission on Human Rights, the Preamble for the Declaration was discussed. At the beginning of the meeting, Chang, China’s representative, suggested that the Preamble should contain the philosophy that would form the foundation of the Bill (UN Economic and Social Council 1947b, 4). The philosophy should elevate human dignity and emphasise human respect (UN Economic and Social Council 1947b, 4). But the Preamble should also be anthropocentric; a distinction should be made between man and animal to demonstrate what separates human beings from other animals. It is in this separateness, Chang argued, that human dignity and the foundations of human rights are found (UN Economic and Social Council 1947b, 4). For Cassin and Chang, this meant highlighting permanent human qualities that were ‘common to mankind’ such as human equality (UN Economic and Social Council 1947b, 4).

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This was deemed an important element in the foundations of universal rights because Hitler had asserted human inequality before carrying out Nazi atrocities (UN Economic and Social Council 1947c, 3–4). What philosophical foundations were notions of human equality and dignity to be grounded in? Discussions surrounded whether human rights should gain its justification from a single authoritative framework, such as from God or Nature, or whether the Declaration was to be a secular document (Morsink 1999, 284–289). In the Third Committee, Brazil proposed that the Declaration should declare that God is the origin of rights, proposing the Preamble state that ‘human beings were “created in the image and likeness of God” ’ (UN General Assembly 1948b, 96). Both Argentina and Bolivia agreed that a reference to God would enhance the Declaration by giving human rights a transcendental quality that rises above politics (UN General Assembly 1948c, 109). The Netherlands also wanted an inclusion of God because of the importance of religion to many around the world, and because of the dangers of the recent ‘materialistic conception of man as a mere tool in the service of the State’ (UN General Assembly 1948h, 755; UN General Assembly 1948j, 776). However, there were several dissenters to this idea. The UK and French delegates argued that because ‘not all peoples were religious’, invoking God as a foundation for rights would harm ‘universal acceptability of the Declaration’ (Morsink 1999, 286). The Soviets dissented as well, arguing that a mention of God would conflict with the separation between Church and State. In addition, both the Soviets and China considered it inconceivable the Committee should seek to solve the metaphysical issue of the existence of God with a vote (UN General Assembly 1948c, 114; UN General Assembly 1948i, 760–761). Chang, on the other hand, argued a Declaration of universal scope should not contain theological references because to include metaphysical origins of human rights within the Declaration would be to impose it upon others (UN General Assembly 1948b, 98). Chang argued that the Chinese have a history of their own cultural values, but that China would not include these in the Declaration. Chang asked other countries to ‘show equal consideration’ and remove amendments that ‘raised metaphysical problems’ (UN General Assembly 1948b, 98). In order to remove metaphysical references from the Declaration, Chang engaged in what Morsink (1999, 284–290) called a ‘bargain’. Chang hoped that if metaphysical notions of Nature (which played a minor role in the drafting discussions) were removed from the Declaration, those who wanted to mention God would also withdraw their amendments. Deleting Nature from the text would also mean ‘those who believed in God could still find in the strong opening assertion of the article the idea of God, and at the same time others with different concepts would be able to accept the text’ (UN General Assembly 1948c, 114). Chang hoped this trade-off would convince Brazil to withdraw its amendment and spare the Committee a vote on the existence of God (UN General Assembly 1948c, 114). As Morsink (1999, 287–289) explains, due to a lack of support, Brazil withdrew its amendment concerning God, and the Committee subsequently removed mention of Nature as well.

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It was because of fortuitous events that the Commission came to an agreement that the foundations for human rights lay neither in God or Nature, but are inherent and inalienable within every human being because they are human beings. As Morsink (1999, 282–290) rightly notes, this secular understanding of human rights moves away from the eighteenth century ideas on human rights. Locke argued that the authority and meaning of human rights came from God, and therefore existed external and independent of history (See Dunn 2003, 271; Locke 2003). However, the shift away from a central authority did not leave eighteenth century thought behind completely (Morsink 1999, 281–328). To replace God and Nature in the Declaration, Chang suggested the Committee could learn from eighteenth century philosophy that emphasised the ‘innate goodness of man’ (UN General Assembly 1948c, 113–114). As Chang argued, the eighteenth century philosophes ‘had realized that although man was largely animal, there was a part of him which distinguished him from animals. That part was the real man and was good, and that part should therefore be given greater importance’ (UN General Assembly 1948c, 113–114). This ‘goodness’ was something emphasised in the drafting of the article that prohibits torture and it is here we find one of the constitutive elements behind the potency of the torture taboo. Torture strikes at our innate goodness and what it means to be human. To emphasise ‘inherent’ rights, the delegates placed ‘born’ in Article 1 so that it read, ‘All human beings are born free and equal in dignity and rights’. The term ‘born’ is used in two ways: a physical birth and a moral birth, with the latter referring to a ‘birth into the human family of rights and duties’ (Morsink 1999, 291). The inclusion of ‘born’ in Article 1 raised several issues. Venezuela argued for the omission of ‘born’ because human rights begin from conception, not from exiting the womb (see UN General Assembly 1948c, 111; UN General Assembly 1948d, 122), while the Soviet representative argued it was inadequate to merely claim that all are born equal when in reality this is hard to sustain as human equality was created through laws (UN General Assembly 1948c, 110). In the 99th meeting of the Third Committee, the French representative stated that although inequality did exist, the meaning of ‘born’ implied: the right to freedom and equality was inherent from the moment of birth. The men who had drafted the Bill of Rights of Man of 1789 had fully realized the existence of inequality and social injustice, but they had felt it essential to affirm their belief in man’s inherent right to equality and freedom. (UN General Assembly 1948d, 116) The word ‘born’ was left in the final version of Article 1. As Morsink (1999, 293) argues, ‘The word “born” was left standing by itself as an intentional reminder of the eighteenth century approach to human rights as rights inherent in human nature, however that being or nature is construed’. The Universal Declaration was accepted by all states in the United Nations, with eight abstentions.6 Human rights came to reflect the notions that progress

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and freedom were innate within all individuals and that this provided not only the justification for a Universal Declaration of Human Rights, but a way to understand what it means to be human. Human rights helped to make judgement upon past actions, such as those carried out by the Nazis, but also offered a guide for the appropriate behaviour of future conduct. Human rights were the moral measurement of appropriate behaviour for ‘civilised’ states. However, despite the Declaration drafters acknowledging that the torture taboo and human rights more broadly were key to the good life, what the ‘good life’ is was never defined. This openness within the Declaration represents an emphasis on founding a new international order not on what is good, but prohibiting what is bad. Linklater (2007, 23) draws attention to Adorno’s argument that we are more likely to be able to agree on what is bad, but not what is good, and these shared human frailties can provide a cosmopolitan ethic that is inclusive by breaking down the inside/outside barriers created by bounded human communities. We can recognise different moral interpretations of the good life, while at the same time setting thresholds in which no community may cross (such as the prohibition against torture) for individuals to experience the good life. This allows for a plurality of ways of life but also allows us to pass judgement on those who breach certain prohibitions that are seen to be universal (see also Lukes 2008).

Conclusion This chapter has shown that the most profound reconstruction of the taboo since torture was abolished in the eighteenth century was in response to the twentieth century’s most widespread and systematic examples of inhumanity. The Nazi atrocities demonstrated the difficulty of constraining states from inflicting unnecessary harm upon others despite the advancements in the laws of war that were made in the nineteenth and early twentieth century. The post-war period offered a unique environment to punish norm violators and take measures to ensure such atrocities did not happen again. The fear of regression of Western civilisation into a barbarous state if action was not taken against the Nazis, and the danger such crimes posed to international peace and security if repeated triggered the Allied prosecutors into action. The Nuremburg Trials reaffirmed the absolute prohibition on torture with Articles 7 and 8 of the Nuremburg Charter ensuring that one cannot escape punishment when they have ordered torture or carried it out themselves. Moreover, the Nuremburg judgements reaffirmed that some moral principles cannot be violated during wartime, even if state survival is at stake. The Nazi medical experiments were deemed an attack on the defenceless and a violation of individual consent, which was something that proved vital in distinguishing torture from the legitimate infliction of pain during wartime (see also Scarry 1985, 139–157). The Tribunal’s interpretation of torture marked a strong continuity of the taboo’s genealogy, such as respect for the inviolability of the body and the dangers that can come from violating the taboo.

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However, the Tribunal also contributed to reconstructions of the taboo. It classified torture as a ‘crime against humanity’, placing torture in a category of suffering that cannot be justified, destroys common humanity principles, and poses a danger to others. Torturing an individual not only harms the victim and the torturer, but it also undermines the broader moral framework of international society. Torture destroys civilisation and threatens a regression to ‘barbarous’ times. Yet in reaffirming the absolute prohibition against torture, even in the face of threats to a state’s survival, it not only reaffirmed torture as naturally barbaric, but it framed the taboo within the Kantian frame of treating individuals as ends and never as a means. This distinguished torture from other forms of pain and suffering during war and pushed it beyond ‘civilised’ boundaries. The Universal Declaration of Human Rights further strengthened the taboo by prohibiting torture absolutely and linking the protection of human dignity with the potential and capacity to live the good life. Although the Universal Declaration did not define the good life, it listed a set of prohibitions (such as the torture prohibition) that set benchmarks different ways of life must meet if they are deemed acceptable (Lukes 2008, 143–144). These precedents were followed in 1949 with the Geneva Conventions, which prohibited torture under Common Article 3 of the Fourth Geneva Conventions and Article 99 of the Third Geneva Conventions. In 1966, the International Covenant on Civil and Political Rights was adopted, which prohibited torture under Article 7. The Nazi medical experiments were still in the minds of the Covenant drafters, with the second sentence of Article 7 reading: ‘In particular, no one shall be subjected without his free consent to medical or scientific experimentation’. These post-war reconstructions not only demonstrate the torture prohibition’s resilience to violent attack but also the unusual way in which the taboo has developed. The Nuremburg Trials were carried out in an environment of hypocrisy that ignored the Allied powers’ use of torture during and after the war. The drafting of the Preamble of the UN Declaration of Human Rights revealed how the drafting committee decided to justify human rights in terms of innate rights based on a bargain to avoid a vote on God. Furthermore, despite the taboo becoming more robust throughout the nineteenth and early twentieth century, only to be widely violated during World War II, these violations did not trigger its decline, but reinvigorated it in the immediate post-war period. Torture emerged after the war to be one of the few practices in international society that was absolutely prohibited. The violations provided an environment for reflection on the norm, and a discussion over its importance and the impact of its violation. However, although the taboo’s legitimacy was reaffirmed, the ability of the norm to constrain states in the post-war world was yet to be seen.

Notes 1 The Nuremburg Code was not the first set of regulations on medical ethics that outlined the importance of informed consent. In 1900, a directive was issued by the Prussian minister for religious, educational and medical affairs to hospitals and clinics stating

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that the ‘unambiguous consent’ of patients was needed for ‘all medical interventions other than for diagnosis, healing, and immunisation’ (Vollmann and Winau 1996, 1446). In addition, in 1931 the German Reich Minister of the Interior issued regulations for human experimentation that included the need for informed consent of the experimental subject. As Grodin (1992, 129) notes, these guidelines were ‘important because they were recognized and cited during the Nuremburg Tribunal as a standard of ethics for the practice of human experimentation during the Nazi period’ (see also Vollmann and Winau 1996, 1446). 2 According to the Nuremburg transcripts, the German Defence team argued that because Poland had lost its sovereignty to German occupation in 1939, German law applied to Polish nationals, not international law (Nuernberg 1946–1949a, 974). 3 Article II, 1(c) of Control Council Law No. 10 states: Crimes against Humanity. Atrocities and offences, including but not limited to murder, extermination, enslavement, deportation, imprisonment, torture, rape, or other inhumane acts committed against any civilian population, or persecutions on political, racial or religious grounds whether or not in violation of the domestic laws of the country where perpetrated. (Nuernberg 1946–1949a, XVII) 4 The Martens Clause states: Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience. (Hague Conventions 1899) 5 The charge of retroactive lawmaking during the Nuremburg Trials caused controversy in the drafting of the Universal Declaration of Human Rights. Many drafters were concerned that a prohibition on retroactive law in the Declaration would have conflicted with the Nuremburg judgement, something they wanted to avoid (see Morsink 1999, 52–58). 6 The eight abstentions were ‘from the USSR, the Ukranian Soviet Socialist Republic (UKSSR), the BSSR, Yugoslavia, Poland, South Africa, and Saudi Arabia’ (Morsink 1999, 21). The six communist countries abstained because they argued the abstraction of rights ignored the fact that it was the state that granted rights; Saudi Arabia because of equal marriage rights and right to change religious belief; and South Africa because it believed the Universal Declaration was a means by which others could criticise its Apartheid regime (Morsink 1999, 21–28).

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Matas, David. 1989–1990. ‘Prosecuting Crimes Against Humanity: The Lessons of World War I.’ Fordham International Law Journal 13(1): 86–104. Meron, Theodor. 2000. ‘The Martens Clause, Principles of Humanity, and Dictates of Public Conscience.’ The American Journal of International Law 94(1): 78–89. Morsink, Johannes. 1999. The Universal Declaration of Human Rights: Origins, Drafting and Intent. Philadelphia, Pennsylvania: University of Pennsylvania Press. Nuernberg Military Tribunals. 1946–1949a. Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Volume I ‘The Medical Case,’ October 1946–April 1949. Nuernberg Military Tribunals. 1946–1949b. Trials of War Criminals Before the Nuernberg Military Tribunals Under Control Council Law No. 10, Volume II ‘The Medical Case’ and ‘The Milch Case,’ October 1946–April 1949. Nuremburg International Military Tribunal. 1947a. Trial of The Major War Criminals Before the International Military Tribunal, 14 November 1945–1 October 1946, Volume I Official Text in the English Language. Nuremburg, Germany. Nuremburg International Military Tribunal. 1947b. Trial of The Major War Criminals Before the International Military Tribunal, 14 November 1945–1 October 1946, Volume II Official Text in the English Language, Proceedings 14 November 1945–30 November 1945. Nuremburg, Germany. Overy, Richard. 2004. The Dictators: Hitler’s Germany and Stalin’s Russia. London: Allen Lane. Radin, Max. 1946. ‘Justice at Nuremburg.’ Foreign Affairs 24(3): 369–384. Russell, Bertrand. 1942. ‘Freedom and Government.’ In Freedom Its Meaning, edited by Ruth Nanda Ashen, 229–244. London: George Allen and Unwin. Scarry, Elaine. 1985. The Body in Pain: The Making and Unmaking of the World. New York and Oxford: Oxford University Press. Schmitt, Carl. 2007. The Concept of the Political. Chicago and London: The University of Chicago Press. Schwelb, Egon. 1946. ‘Crimes Against Humanity.’ British Year Book of International Law 23: 178–226. Shue, Henry. 1978. ‘Torture.’ Philosophy and Public Affairs 7(2): 124–143. Tannenwald, Nina. 2007. The Nuclear Taboo: The United States and the Non-Use of Nuclear Weapons Since 1945. New York: Cambridge University Press. Teitel, Ruti. 2004. ‘For Humanity.’ Journal of Human Rights 3(2): 225–237. United Nations. 1966. International Covenant on Civil and Political Rights, 16 December. www.ohchr.org/en/professionalinterest/pages/ccpr.aspx. United Nations Economic and Social Council. 1946. ‘Commission on Human Rights of the Economic and Social Council Summary Record of Meetings,’ First Meeting Held on Monday 29 April. Doc. No. E/HR/6, 1 May. http://daccess-dds-ny.un.org/doc/ UNDOC/GEN/GL9/901/88/PDF/GL990188.pdf?OpenElement. United Nations Economic and Social Council. 1947a. ‘Commission on Human Rights, First Session, Summary Record of the Seventh Meeting,’ Held at Lake Success, New York, on Friday, 31 January. Doc. No. C/CN.4/SR.7, 31 January. http://daccess-dds-ny. un.org/doc/UNDOC/GEN/GL9/902/37/PDF/GL990237.pdf?OpenElement. United Nations Economic and Social Council. 1947b. “Commission on Human Rights, First Session, Summary Record of the Seventh Meeting,” Held at Lake Success, New York, on Friday, 31 January. Doc. No. E/CN.4/SR.7, 31 January. http://daccess-dds-ny. un.org/doc/UNDOC/GEN/GL9/902/37/PDF/GL990237.pdf?OpenElement.

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Decolonisation and the UN Convention Against Torture

Despite attempts to strengthen international human rights law and humanitarian law after World War II, these efforts failed to stop torture. Post-war decolonisation saw the revival of torture by many European countries as part of military operations to crush unrest in their colonial territories. Torture was used by the British against the Mau Mau in Kenya between 1952 and 1956 (Elkins 2005; Rejali 2007, 157–158) and the Eoka in Cyprus between 1955 and 1959 (Creighton and Connett 2012), in Hong Kong in 1967, and in Yemen between 1963 and 1967 (Rejali 2007, 331). The Portuguese also used torture in Portuguese Guinea, Cape Verde Islands, Angola and Mozambique (Amnesty International 1973, 162–165). One of the most publicised uses of torture during decolonisation was by the French in Algeria between 1954 and 1962. The French embarked on a controversial war against the National Liberation Front (FLN), employing torture tactics such as electric shocks, water torture and beatings. The French use of torture provides an interesting test case for the torture taboo because the important strategic, political and economic interests at stake for the French in winning the war meant that material interests should have overridden any concern about adhering to moral norms. After World War II, de Gaulle saw the revival of the French colonial empire as integral to ensuring France maintained a leading role in world affairs (Beigbeder 2006, 57; Shepard 2006). Algeria, in particular, was considered the ‘crown jewel’ in the Empire and was historically linked to French identity and prestige (Merom 2003, 88; Shepard 2006, 20). In addition, the military did not want to face another humiliating loss after it was defeated by the Germans in World War II, and in the colonial territories of Vietnam, Tunisia and Morocco (Domenach 1958, 39; Kelly 1961, 384–385; Merom 2003, 88–89). Toward the end of the war economic and geopolitical interests also came into consideration. Significant reserves of coal, gas and oil had been found in the Sahara during the 1950s (Soustelle 1959). After oil production had begun in 1958, it was believed that by 1980, the reserves in the Sahara could provide all of France’s oil needs (Horne 1977, 241). As Horne (1977, 241) argued, ‘here was a glowing prospect of securing the nation’s need for the future, as well as solving her acute balance of payments problem’. Moreover, holding onto Algeria

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The Battle of Algiers The outbreak of revolutionary violence in Algeria on 1 November 1954 was met by metropolitan France with a proclamation that Algeria would remain French. M. Mendes-France stated: It is inconceivable that Algeria should secede from Metropolitan France. This should be clear and forever to all, in Algeria, in Metropolitan France, and abroad. France will never, no Parliament, no Government will ever, yield on this basic principle. Algeria is France, and not a foreign country under our protection [such as Tunisia and Morocco]. (Galula 2006 [1963], 8) François Mitterrand, the interior minister, stated that there would not be negotiations with the revolutionary FLN, as ‘the only negotiation [is] war’ (Merom 2003, 90). On 1 April 1955, Parliament declared the situation in Algeria an ‘emergency’. The French authorised laws to restrict movement such as confinement to residence, curfews, press censorship, the ability to search homes at night, house

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arrests, and closure of public places of entertainment such as theatres and cafes (Beigbeder 2006, 96). However, despite these tactics, by the end of 1955, the European colonizers in Algeria were disappointed with French efforts to quell the violence. The FLN had carried out a massacre at the El-Halia mine near Philippeville, killing ‘[t]hirty-seven French civilians, including ten children’ (Galula 2006 [1963], 12). In late 1955, the dissolution of Parliament saw socialist Guy Mollet come to power with the intent of negotiating with the FLN. Mollet proclaimed the war was ‘stupid and leading nowhere’ (Merom 2003, 90). Mollet elected General Catroux to Governor General in Algiers. This was condemned by colonists as Catroux was ‘suspected of “decolonizing” tendencies’ (Galula 2006 [1963], 12). When Mollet went to Algiers in February 1956, he was met ‘with ripe tomatoes, rotten eggs, and riots’ (Galula 2006 [1963], 13). Mollet altered his policy immediately. Governor General Lacoste, an advocate of a French-Algeria, was given cabinet rank and France increased its military presence in Algeria. Mollet sent 160,000 army reservists to Algiers in April, and this number reached 400,000 by August (Galula 2006 [1963], 13). Mollet also pushed through several laws that granted powers to the military. On 12 March 1956, with support from the Communists, the French Parliament passed the ‘special powers’ law which replaced the emergency law and authorised ‘exceptional measures’ to reinforce order in Algeria (Beigbeder 2006, 97; Wall 1977). In January 1957, Lacoste granted General Massu, who was the Commander of the 10th paratroops division, total police powers for Algiers with the intent to eliminate ‘terrorism from the greater city of Algiers’ (Aussaresses 2002, 64; Beigbeder 2006, 101; Merom 2003, 94). To attain these goals, General Massu received an order that torture could be used to collect information (Paret 1964, 71). Also known as ‘Operation Champagne’, the Battle of Algiers required the acquisition of information ‘by all possible means’ with the goal being to preserve French-Algeria (Giniger 1962, 3). Torture was carried out by the secretive Detachement Operationnel de Protection (DOP) established by Massu in 1957, and coordinated by General Paul Aussaresses (Aussaresses 2002). The DOP were ‘specialists in the interrogation of suspects who wanted to say nothing’ (Rejali 2007, 485). The DOP engaged in both arrests and interrogations (Lazreg 2008, 45). Torture was carried out in internment camps, transit centres and ‘unofficial’ centres in Algiers (Alleg 2006; Aussaresses 2002; Lazreg 2008, 46). Aussaresses recalls how once a suspect was taken to the Villa des Tourelles (unofficial torture centre in Algiers), suspects would be immediately questioned. If they refused to talk, they would be tortured. If information was obtained, further arrests would be made (Aussaresses 2002, 113). Suspects would then be shot and buried, often in ‘remote locations’ outside of Algiers (Aussaresses 2002, 114). Torture techniques included beatings (including on the feet with a stick) and burning with cigarettes (Fanon 2001, 226). Generators used to power field radio transmitters were modified to give electric shocks, known as ‘gégène’ (Aussaresses 2002, 20). Recalled in great detail in Alleg’s (2006) own account of torture that electrodes were often placed on the penis, testicles, or other sensitive

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Decolonisation – UN Convention Against Torture 97 parts of the body to intensify shock (see also Aussaresses 2002, 20). Water torture was also used whereby water was injected into the victim’s stomach at high pressure, sometimes with an enema of soapy water (Fanon 2001, 226). This often caused lesions and perforations of the intestine, as well as ‘[g]aseous embolisms’ and peritonitis (Fanon 2001, 226). Other tortures included inserting a bottle into the victim’s anus, brainwashing, and ‘motionless’ tortures. Motionless torture forced victims to stand in uncomfortable positions for periods of time, with soldiers issuing blows with truncheons if the victim moved (Fanon 2001, 226). The amount of people subjected to torture is unclear given the large amount of arrests during the Battle of Algiers. Massu had arrested 24,000 people out of a population of 80,000 (Rejali 2007, 482). The mass arrests reflected the notion that Algerians were guilty unless proven otherwise (Galula 2006 [1963], v), and this mentality among French soldiers resulted in the torture and deaths of many innocent people (Rejali 2007, 482). How did the French military justify its actions? There were two justifications. First, torture was deemed necessary in this new form of ‘modern’ warfare. Modern warfare differed from ‘traditional’ warfare in that the latter occurred between state actors while the former occurred between a state and non-state actor (Paret 1964). This structural change, according to the theorists of pacification (see Galula 2006 [1963]; Paret 1964; Trinquier 1964), implied different methods of warfare needed to be utilised to win the war. ‘Traditional’ warfare had prohibited torture under the laws of war because it constituted ‘unnecessary’ pain and suffering. But the demands of ‘modern’ warfare were not foreseen by the drafters of the laws of war and therefore the limitations on pain and suffering had to be renegotiated. The structure of modern warfare, the limited usefulness of heavy weapons, and the emersion of the ‘enemy’ in the population meant that intelligence gathering and police work were key to winning the war (Trinquier 1964, 43). As Paret (1964, 35–36) notes, a saying developed in Algeria that ‘the discovery of an FLN messenger or middleman was as important a victory as the capture of a fort had been in more conventional conflicts’. A refusal to use torture would result in a lost war and untold consequences for the French Republic. Colonel Trinquier (1964, 115) wrote: If, like the knights of old, our army refused to employ all the weapons of modern warfare, it could no longer fulfil its mission. We would no longer be defended. Our national independence, the civilization we hold dear, our very freedom would probably perish. The French argued torture was needed to quickly gain information in order to prevent further attacks. The next FLN attack was uncertain and it had to be prevented before it spread. The fast-paced nature of modern warfare placed an emphasis on utility and absolved any moral questions concerning the methods (see Aussaresses 2002, 114). General Aussaresses (2002, 17, 21) proclaimed:

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torture was legitimate in cases when it was urgent to obtain information … I must avoid thinking in moral terms and only do what is most useful. As of now the rebellion is located for the most part in the countryside. Tomorrow it can hit the house next door. The information needed was specific: it was not about attacks the suspects may have carried out, but about the suspect’s organisation, and the names and addresses of his superiors (Trinquier 1964, 21). If the information was given, the interrogation was ended. However, if the suspect refused to talk, ‘specialists must force his secret from him. Then, as a soldier, he must face the suffering, and perhaps the death, he has heretofore managed to avoid’ (Trinquier 1964, 21–22). The second justification for torture was that it ‘saved lives’ from further terrorist attacks (see Aussaresses 2002; Brady 1957, 3). The FLN was exploding bombs in cities and targeting innocent civilians as a means to gain international attention to their cause (Galula 2006 [1963], 15). The French military and civil servants argued if a bomber had planted a bomb and refused to release its location; torture was justified if no other way could make the bomber talk. To not torture, and not do everything possible to find the bomb, would let the bomb explode killing countless innocent lives. One would then have to explain to the victim’s family why everything was not done to find the location of the bomb (Aussaresses 2002, 18; see also Brady 1957, 3). For General Aussaresses (2002, 18), this morally justified the use of torture in that it: swept away any doubts I may have harboured [about torture]. I reached the conclusion that no one would ever have the right to pass judgement on our actions and that, should I have to do extremely unpleasant things in the course of my mission, I would never have any regrets. On 19 March 1957, General Massu expressed similar feelings in relation to torture, writing in a Note, ‘The sine qua non condition of our action in Algeria is that these methods be admitted, in our souls and consciences, as necessary and morally valid’ (Beigbeder 2006, 101). There was some contestation regarding torture among soldiers, with some arguing that torture did not work as the victims do not tell anything under torture (Fanon 2002, 213; Rejali 2007, 481), or that the purpose of torture was not to gain information but to terrorise the Algerian population into submission (Rejali 2007, 487). Yet even among those army officials who supported the use of torture, torture continued to retain its tainted character. General Aussaresses (2002, 17–18) condemned torture as ‘disgusting’ and ‘unacceptable under normal circumstances’. Moreover, efforts were made to hide the torture to prevent a public backlash. Many in the French military knew that employing torture would not be accepted in the wider French community. A young French soldier recalls how when it came to executions, ‘[t]hey used to ask for volunteers to finish off the guys who had been tortured (there are no marks left that way and so no danger of a witch-hunt later)’ (Horne 1977, 233).

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Decolonisation – UN Convention Against Torture 99 The argument that torture was a ‘necessary’ form of pain and suffering to win the war and save lives marked a continuation of the discourses of necessity that emerged at the Nuremburg Trials. Torture continued to be abhorrent behaviour, but exceptional circumstances were deemed to justify the taboo’s violation. What was new was the attempt to reclassify torture as necessary because France was facing a ‘new’ war that differed from ‘traditional’ warfare. This implied that elements of the laws of war, such as the torture taboo, were outdated for the modern age. Justifying torture in terms of ‘necessity’ was a setback in torture’s absolute prohibition as it challenged the categorisation of torture as ‘unnecessary’ suffering. However, torture was in no way emerging as appropriate behaviour within France more broadly, with French torture receiving strong criticism at home.

The anti-torture protests Throughout the entire war, torture critics came from a minority within French society. This anti-torture movement had no organised leadership or organisation, but consisted of groups from different segments of French society ranging from defecting French soldiers, church groups, human rights activists, and academics. Despite the fact the majority of French society did not actively protest against the instances of torture, the minority critics played a profound role in shifting public opinion away from French colonial rule in Algeria to an acknowledgment for the need for Algerian independence. Even before the war began in 1954, there had been instances and condemnation of French torture in Algeria. Governor-General Naegelen issued a circular in 1949 reinforcing the absolute prohibition against torture and vowing to severely punish those responsible for torture (Horne 1977, 196–197). On 6 December 1951, Claude Bourdet published an article in L’Observateur condemning French torture and likening the tortures to the tactics of the Gestapo (Beigbeder 2006, 110). The first critiques against torture that occurred after the war began were two articles (one again written by Bourdet) that appeared in January 1955 in the France-Observateur and L’Express (Beigbeder 2006, 110). In June of that year, France faced its first resignation over torture in Monteil, Soustelle’s chef du cabinet militaire (Merom 2003, 114). By 1957, there was increasing dissent to torture as the Battle of Algiers gained attention back home in France (Horne 1977, 234). Jean Bruler, an author who wrote resistance novels during the Nazi occupation of France, returned his Legion of Honour in protest against French tortures (Doty 1957a, 3). Moreover, in March 357 public figures, including writers, religious figures and political leaders signed a petition of protest to President Coty and provided testimony of French brutality (Doty 1957a, 3). March 1957 also saw the high-level defection of General Jacques Marie Roch Paris de Bollardiere. Le Monde stated Bollardiere, who had served under Massu, resigned because of a ‘categorical refusal to submit himself to orders and to apply methods that he deems to be inadmissible’ (Doty 1957a, 3). Bollardiere warned of the ‘frightful danger’ that awaited France

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if the Army continued to yield ‘on the absolute principle of respect for human beings’ (Horne 1977, 203) which had ‘been the grandeur of our civilization and of our Army’ (see Doty 1957a, 3). Bollardiere’s resignation was followed by Paul Tietgan, the police commissioner in Algiers, in September, and, a month later, the resignation of General Pierre Billotte (Horne 1977, 203–204; Merom 2003, 115; Paret 1964, 73–74). Human rights groups were also active in condemning torture. The League of Human Rights published a report in conjunction with the Maurice Audin Committee, which is a group named after the French torture victim: a mathematician at Algiers University and Communist party member. Entitled Dossier sur la torture et la répression, it was published in September 1958 and provided evidence of torture and advocated punishment of torturers (Beigbeder 2006, 109; see also New York Times 1960, 10). In February 1959, the Association for the Safeguard of Judicial Institutions and Individual Liberties adopted a resolution that condemned the use of ‘inhumane’ torture, ‘extrapenal repression’, disappearances and ‘their progressive extension to the metropole’ (New York Times 1959a, 6). Similar condemnations could be heard from Roman Catholic priests, the General Assembly of the French Protestantism, and religious publications such as the Catholic Témoignage chrétien, which published the recordings of tortures by a boy scout who had witnessed torture at an army camp (Beigbeder 2006, 111). Until the end of the war, these religious groups condemned torture as an ‘immoral’ and ‘unchristian’ practice that had to be stopped because it was damaging the nation and the consciences of the French soldiers (Beigbeder 2006, 113; Blair 1959, 3; Callender 1957a, 1; Doty 1960, 1; New York Times 1959b, 8; Paret 1964, 74–75). Many of these torture critics were in fact in favour of the war up until 1959–1960. This reflected the wider French public opinion regarding the Algerian war. When asked in July 1957 if Algeria should remain French, only 18 per cent supported Algerian independence (Talbott 1975, 357). Their criticisms were not against the war per se, but against the ‘excesses’ and illegalities of the war. Unlike some of the French soldiers who were willing to justify torture, torture critics condemned torture not only because it was bad in and of itself, but because it posed a danger to victims, soldiers and the French Republic. In 1957, Robert Delavignette, a member of the Mollet government’s Safeguard Commission, stated: The most serious problem is not the atrocities themselves, but that as a result of them the state is engaged in a process of self-destruction. What we are witnessing in Algeria is nothing short of disintegration of the state; it is a gangrene which threatens France herself.… (Horne 1977, 234) Characterising torture as an excess, illegal and destructive demonstrated that it was not violence per se that was condemned, but violence that stepped outside

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Decolonisation – UN Convention Against Torture 101 of the laws of war and challenged notions of what it meant to be a ‘civilised’ state. As Asad (2003, 123) argues, ‘the modern hostility [to physical pain] is not simply to pain, it is to pain that does not accord with a particular conception of being human – and that is therefore in excess’. Furthermore, the criticisms of torture were largely grounded in the logic of appropriateness: torture was immoral, wrong, and destructive. The fact torture was not criticised in instrumental discourses in the vein of Beccaria, demonstrated the consolidation of torture as abhorrent conduct. This showed the important role international norms and laws played in not only shaping expectations for state conduct, but constituting identities. By transgressing the laws of war, French soldiers were putting French identity, and its existence, as a ‘civilised’ state into question. Even though these critics supported a French Algeria, and torture was proclaimed by French soldiers to be an effective tool to win the war and to save French lives, the fact that torture continued to be considered so scandalous that no situation whatsoever could justify its use signified the importance of the taboo. In addition to those labelling torture an excess, there were more radical critiques of torture that directly linked torture to the French colonial system. Seen in the works of Jean Paul Sartre, Simone de Beauvoir and Franz Fanon, these critics argued that to pay attention to ‘excesses’ was to condemn one form of harm (torture) but justify another (colonialism). In 1962, de Beauvoir argued that ‘[t]o protest [against torture] in the name of morality against excesses or abuses is an error which hints at active complicity’ (Shepard 2006, 68). This criticism of ‘liberal’ opinion often resulted in conflict in the different anti-torture camps, with the most public dispute occurring between Sartre and Camus (Horne 1977, 234–235). One of the most powerful impacts on the campaign against torture was Henri Alleg’s personal account of torture. In The Question, released on 12 February 1958, Alleg retells how French troops used water torture, electric shock and beatings to make him confess where he had been hiding from officials. In the preface to Alleg’s book, Jean Paul Sartre wrote torture was not civilian, military or French in nature but constituted ‘a plague infecting our whole era’ (Sartre 2006, xxxvi). In the modern era, torture had become a ‘semi-clandestine institution’ that had been practiced by the Nazis, Stalin and others (Sartre 2006, xxxvi). Sartre argued the cause of French torture was in colonialism: the unjust power relationships that defined colonial rule produced violence and harm as a means to constitute its very existence. Unlike the ‘excesses’ discourse that placed the blame on military leadership and strategy, Sartre argued torture represented a means to consolidate and reinforce the superiority of the colonised over the inferior native. Having its roots in racial hatred (Sartre 2006, xliv), torture sought to reinforce the ‘manhood’ of the powerful, while denigrating the native to a subhuman status (Sartre 2006, xxxix). By making the wretched speak, torture acted to humiliate and enforce a sense of betrayal that not only destroyed the victim’s dignity and killed their spirit, but consolidated them as ‘a lower animal’ (Sartre 2006, xl–xlii). The second major radical critique (that Sartre also wrote a preface to) was Franz Fanon’s The Wretched of the Earth. Fanon’s text too saw torture as a

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product of colonialism and saw colonialism as a system that harmed all those encompassed within it. Toward the latter end of the text, Fanon documents the effects that torture had on both the victims and torturers during the Algerian war. Fanon recalled that victims of ‘motionless’ torture were often depressed and easily agitated (Fanon 2001, 227). Victims of electric torture suffered from aboulia and feared electricity such as turning on a switch or radio. ‘These patients felt “pins and needles” throughout their bodies; their hands seemed to be torn off, their heads seemed to be bursting, and their tongues felt as if they were being swallowed’ (Fanon 2001, 228). Victims of ‘truth serum’ suffered from verbal stereotypy, a clouding of intellectual or sensory perception, fear of private conversations, and inhibition marked by a ‘psychical slowing down’ (Fanon 2001, 230). Fanon also documents cases of soldiers who had developed anxiety attacks and trouble sleeping from the torturing. One patient heard screams during the night and could not stop them, despite placing cotton wool in his ears or putting on the radio or music to stifle the screams (Fanon 2001, 213–214). Others found it difficult to restrain from using violence. In one instance of domestic violence, Fanon recalls how one patient who had engaged in torture ‘wants to hit everybody all the time. In fact, he does hit his children, even the baby of twenty months, with unaccustomed savagery’ (Fanon 2001, 215). Sartre and Fanon’s discourse challenged the official policy discourse of colonialism by arguing that the colonial system does not ‘make men’ but destroys them (Fanon 2001, 201; Lapie 1944). Unlike in the nineteenth century where colonialism was needed to prohibit torture in ‘backward’ societies, Sartre and Fanon’s critiques argued it was because of colonialism that torture occurred. Therefore, for France to save itself from ‘this disgrace’ and end torture, the colonial system had to end (Sartre 2006, xliv). Both Fanon and Sartre argued this had to come through the use of revolutionary violence. Unlike the pain and suffering of torture, which was categorised as oppressive and cruel, revolutionary violence was a form of human creation in that it helped bring about emancipation through the act of killing (Sartre 2001, 21). Sartre (2001, 21) wrote: to shoot down a European is to kill two birds with one stone, to destroy an oppressor and the man he oppresses at the same time: there remain a dead man, and a free man; the survivor, for the first time, feels a national soil under his foot. (Sartre 2001, 22) For Fanon and Sartre, similarly to torture critics that labelled torture an excess, the problem was not the use of violence per se, but a particular category of violence that was the product of an unjust political system. Although these more radical critics represented a minority within the antitorture movement, by the end of the 1950s, many in French society (although not agreeing with everything Sartre or Fanon argued) came to see that France could no longer stay in Algeria. By February 1959, 51 per cent believed that

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Algerian independence would be necessary, and this increased to 58 per cent by August 1961 (Talbott 1975, 357). The exposure of torture had demonstrated the harmful impact it was having on the French Republic, the victims, and French soldiers, and this helped shift public opinion away from supporting a FrenchAlgeria (Horne 1977, 207). The use of torture invoked a ‘moral crisis’ within France, which was exacerbated by the government response and hypocrisy regarding French torture.

Government denial Despite Army officials arguing torture was necessary to win the war, the French government refused to publicly endorse the use of torture. The emerging allegations of torture prompted the government to commission the Wuillaume Report, which was delivered in March 1955. The Report found that torture was widespread, and that because it was widespread as well as effective in saving lives, it should be officially authorised and institutionalised. The criticisms of torture had affected police morale and this could be ameliorated by authorising the practice (Horne 1977, 197). The Report justified the use of torture by arguing the electricity and water techniques did not reach a pain threshold high enough to constitute torture: The water and electricity methods, provided they are carefully used, are said to produce a shock which is more psychological than physical and therefore do not constitute excessive cruelty…. According to certain medical opinion which I was given, the water-pipe method, if used as outlined above, involves no risk to the health of the victim. This is not the case with the electrical method which does involve some danger to anyone whose heart is in any way affected…. I am inclined to think that these procedures can be accepted and that, if used in the controlled manner described to me, they are no more brutal than deprivation of food, drink, and tobacco, which has always been accepted.… (Horne 1977, 197) Wuillaume narrowly categorised torture as something that constituted physical pain resulting in ‘excessive cruelty’ in order to classify water and electric torture as no different to food deprivation. Torture was only ‘torture’ if it posed a risk to the health of the victim, and even if the water and electricity methods resulted in a health risk, it was the victim’s fault. Despite the recommendation that torture was effective and should be legalised, Soustelle ‘categorically refused’ to endorse the Report’s conclusions (Horne 1977, 197). This refusal represented a wider trend in the French government regarding the use of torture. In response to Bourdet’s 1955 article, the Minister of Interior, Maurice Bourges Maunoury, denied the torture allegations (Beigbeder 2006, 110). In February 1957 Lacoste, the French minister in Algeria dismissed army abuses as ‘lies and calumnies’ promoted by the rebels and the

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‘pan-Arabic demagogy’ (Durdin 1957, 7). Lacoste described the ‘pacification’ program as ‘wise and balanced’, that critics should stay out of French affairs, and that French policy ‘will be able, within the framework of a French peace, to construct the liberty of each inhabitant of Algeria and a new French-Moslem fraternity’ (Durdin 1957, 7). However, as French authorities became entrapped by their rhetoric of denial (see Risse 2000), by March, government discourse had shifted. As French actions were being compared to Nazi atrocities, the government acknowledged that torture had taken place, but that critics’ allegations were either ‘non-existent or considerably exaggerated and distorted’ (Callender 1957a, 1, 1957b, 5). The government began targeting the moral integrity of its critics by suggesting they were ignoring the sacrifices made by the army. The government declared it had a duty to defend the army against the ‘odious slanders that can only disgust all those who know the spirit and courage and sacrifice shown by officers, noncommissioned officers and troops in Algeria’ (Callender 1957a, 1). By late March, the pressure from the anti-torture campaign had become so great that Premier Guy Mollet addressed the torture issue in Parliament. The New York Times reported ‘Mollet acknowledged that there had been isolated instances of indiscriminate brutality by security forces’ but that those people had been punished (Doty 1957a, 3). In April, a Cabinet meeting was called to respond to the situation in Algeria. As a result, the government established a commission to investigate allegations of human rights abuses in Algeria (Doty 1957b, 1). The Cabinet communiqué stated the government shared ‘the sincere emotion of those who hope that any individual lapses from the policy desired by France, attached to the safeguard of the rights of man, should be uncovered and punished’ (Doty 1957b, 1). Yet at the same time, it condemned ‘a campaign organized by the enemies of France’ that depicted French administration and army officials as torturers (Doty 1957b, 1). On 18 April 1957, a meeting was held that sought to prohibit torture ‘villas’ as well as prohibit and punish torture. The meeting consisted of French generals, the Minister Resident in Algeria, and the Prosecutor general in Algeria. However, the ‘proposals [were] met with active or passive opposition from all sides’ (Beigbeder 2006, 101). On 13 December 1957, a report by the government Commission for the Safeguard of Rights and Individual Liberties was released. Although first leaked to Le Monde, it was later released by the government (Doty 1957c, 1). The report stated that the instances of torture, disappearances, and arbitrary internment were in retaliation to terrorist attacks by the Algerian rebels. The rebels were constructed as engaging in wanton violence: the Commission stated the rebels ‘kill for killing’s sake, pillage, burn, slit throats, rape, crush infants’ heads against walls, disembowel women, emasculate men’ (Doty 1957c, 1). The Commission claimed that torture had saved lives by foiling terrorist plans (Doty 1957c, 1). However, it also argued that ‘neither the provocation of rebel excesses nor the argument of efficacy could justify use of illegal methods’, such as torture. What the Commission’s report shows is that even if torture was interpreted as being effective, it should still be prohibited.

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Decolonisation – UN Convention Against Torture 105 On 24 June 1958, after de Gaulle had earlier come to power in France, Andre Malraux, the Minister of Culture, stated to journalists that ‘[n]o act of torture has occurred, to my knowledge nor to yours, since de Gaulle came to Algiers [on 4th June]. There must not be any more from now on’ (Beigbeder 2006, 102). However, this statement was never acted upon. Although de Gaulle never publicly condemned torture, torture continued to be used until the end of the war in July 1962 (Beigbeder 2006, 103). On 27 August 1959, de Gaulle visited the army in Saida in Algeria and ordered Colonel Bigeard to stop the torture. However, on 29 October, Colonel Bigeard told officers that de Gaulle’s orders should be followed if reasonable, and gave the order of ‘No more torture, but still torture’ (Beigbeder 2006, 103). In an attempt to quell the anti-torture critics, the French government engaged in censorship tactics (see Harrison 1964). On 27 March 1958, the police seized Alleg’s The Question at Editions de Minuit, which was involved in clandestine activities during the Nazi occupation (New York Times 1958a, 6). On 3 December 1958 an edition of L’Express was seized because of an ‘attack on the morale and honor of the army’. The comment was made by the Minister-Delegate in De Gaulle’s Cabinet that charged the army with ‘excesses’ against the rebels (New York Times 1958b, 13). On 19 June 1959, the book La Gangrène, which accused the French army of torture, was seized (New York Times 1959c, 4). The government proceeded to seize four newspapers that published elements of a leaked Red Cross report (discussed below) that included Liberation, Le Patriote de Nice et du Sud-Est, Le Petit Varois and Le Monde (New York Times 1960, 10). Moreover, a cousin of the Premier Michel Debre was dismissed as a mathematics professor for signing a manifesto against French-Algerian policy (Doty 1960, 1). By the late 1950s, France was beginning to be internationally condemned and ostracised for its policies in Algeria. In February 1958, London saw a three-day protest in front of the French embassy against the trial of Djmaila Bouhired, a victim of French torture. In addition, British Labour MP, Barbara Castle, blamed nationalist terrorism on French repression (Horne 1977, 243–244). In the United States, FLN delegates, in particular Abdelkader Chanderli and M’hamed Yazid, lobbied for Algerian independence to universities, the media and politicians, among others (Horne 1977, 245). They gave publicity to French torture and torture critics such as army defectors (Horne 1977, 245–246). Even when FLN terrorist violence was voiced, Horne (1977, 246) argues, it ‘would indeed produce a momentary revulsion in the United States, but the eventual reaction would, perversely, somehow end up as one of irritation against France as being responsible for the war in which such horrors could take place’. Criticisms were also voiced in the United Nations. In 1959 a group of North African and Middle Eastern countries submitted a letter to the United Nations Security Council claiming French actions were a threat to international peace (Parrott 1959, 1).1 On 25 September of the same year, France walked out of the General Assembly as the Saudi Arabian minister to the UN proclaimed in a speech that France ‘tortures with a “thirst for blood” ’ (Teltsch 1959, 3). By 1960, France became further isolated in its claim to Algeria as the General

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Assembly announced the Algerian war a threat to international peace and security and proclaimed Algeria had the right to independence (UN General Assembly Resolution 1960). France also received criticism from international humanitarian organisations. On 5 January 1960, a Red Cross report was leaked to the press that examined French Prisoner of War (PoW) conditions in Algeria (Beigbeder 2006, 103–105; Blair 1960, 5). The Red Cross noted improvements in PoW conditions since its 1958 visit but also stated that 60 per cent of transit and interrogation camps were unsatisfactory.2 ‘Primitive conditions, brutal treatment and frequency of the notation “killed while attempting to escape” were criticised by the committee’ (Blair 1960, 5). It was also reported that the Red Cross ‘saw marks of torture on at least one prisoner’ (Blair 1960, 5). In addition to this international criticism, the French-Algerian war had harmed French relations with its British and American allies. Neither state wanted to become closely associated with French policy in Algeria for fear it would harm their relations with the Arab states (Cogan 2002, 144; Goldsmith 2002, 160). As US Ambassador to the UN, Henry Cabot Lodge stated, Algeria ‘had become a symbol in Arab countries and in the Muslim world as a whole’ (Cogan 2002, 144). Both states had to play a balancing act that attempted to maintain allied relations with France, yet at the same time, not declare open support for France’s war (Cogan 2002; Goldsmith 2002). By the end of the 1950s, not only was the French government losing legitimacy in the eyes of the French public because of the torture scandal, but it became increasingly isolated in international society.

French withdrawal and why the taboo matters Although reasons for the French withdrawal were complicated, ranging from the failed Putsch by rebels within the French Army in April 1961, to the attitudes of the pied noirs and the violence of the FLN (Horne 1977, 505), the decision to withdraw went beyond material concerns. By the end of the war, the French were defeating the FLN militarily. The French defeated the FLN in Algiers in 1957 and by 1958 were achieving successes in the country side (Merom 2003, 84–85). David Galula (2006 [1963], 243), a captain and commander of counterinsurgency operations in Great Kabylia, Algeria, argued that by 1959, ‘our strength was such that the war had been won for all practical purposes’. By 1960, the French had reduced rebel numbers to 8,000–9,000, with rebel forces having only 6,500 weapons left (Galula 2006 [1963], 244). The French had recruited over 100,000 ‘Moslems’ to the French side and the territorial borders were closed off (Galula 2006 [1963], 244). Moreover, FLN control over the population was minimal. The FLN could not organise a general strike, and in 1961 when the FLN called for a boycott over the independence referendum, Algerians defied FLN calls and voted (Merom 2003, 87–88). One of the major factors which contributed to French withdrawal was the condemnation France received both domestically and in international society

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Decolonisation – UN Convention Against Torture 107 regarding its conduct of the war. De Gaulle stated, ‘there is an international situation almost entirely and openly against us. This will not change if we seem to have to keep Algeria in the position where it is vis-à-vis ourselves’ (Horne 1977, 343). Galula (2006 [1963], 6) observed that, ‘[o]n the international front, the situation was favorable to the insurgents from the beginning. While France had no ally, the rebels benefited from the material, financial, diplomatic, propaganda, and moral support of communist bloc and Arab countries’. The negative impact that torture had on French soldiers also contributed to the decision to withdraw. General Allard, Massu’s superior, complained to the Ministry of Defence that the press’ ‘incessant repetition [concerning torture] … place at risk the morale of the army’ (Horne 1977, 234). Efforts were made to improve army morale. Colonel Trinquier asked Father Louis Delarue to sanction torture, which he did, by arguing torture was the lesser of two evils and therefore morally justified under the circumstances (Merom 2003, 126–127). Despite these efforts, army morale was heavily damaged not only by the repeated use of torture, but by the sense of betrayal by the government. As Horne (1977, 234) notes, ‘there was an increasingly savage feeling that they [the army] had been called in to carry out the dirty work of the civil authorities and were now being carted for it’. The impact of the tortures on the Army was acknowledged by Louis Joxe, who was involved in the Algerian peace settlement: I shall never forget the young officers and soldiers whom I met who were absolutely appalled by what they had to do. One should never forget the significance of this experience in considering a settlement for Algeria; for practically every French soldier went through it. This is something that the supporters of Algerie Française never properly understood. (Horne 1977, 206) Although I do not argue that the exposure of torture was the only or primary reason for French withdrawal, it did play a potent role in contributing to the French decision to grant Algeria independence. The French were militarily winning the war up until 1962. Oil reserves were found in the Sahara which would have provided much needed revenue for the French government. And historically, Algeria constituted an important element of French identity and prestige. And yet by 1962, the French withdrew from Algeria. The exposure of torture not only generated a fear of moral degeneration within France itself, but it also led to a crisis and demoralisation within the army. The ability of the taboo to withstand such violations during the FrenchAlgerian war is a testament to its resilience. The army’s attempt to justify torture because it was necessary in a ‘new’ type of war was harshly criticised by torture critics. Furthermore, despite being violated, the taboo continued to constitute identities and interests and shape actions. The French government denied and downplayed allegations of torture, took measures to silence critics and refused to challenge the taboo despite receiving reports that torture was necessary. This was to avoid the stigma of torture and raise questions over France’s status as a

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‘civilised’ state. Moreover, the government’s condemnation of torture was based in the moral discourse of disgust and immorality, not instrumentality. French violations of the taboo do not show the weakness of the taboo, but the strength of its legitimacy. The humanitarian pressures of the taboo continued to operate even while the taboo was being violated. In addition, the French-Algerian war also helped challenge the idea that torture only occurred in ‘backward’ non-European countries or in authoritarian regimes. The fact a liberal democracy employed torture demonstrated that all countries, regardless of political regime, were capable of using torture. This marked an important genealogical shift in how international society understood and responded to torture, and it subsequently shaped the drafting of the UNCAT.

The UN Convention Against Torture In 1973, Amnesty International (1973) released a Report on Torture as part of its 1972–1973 international campaign against torture. This report highlighted for the first time how torture had become a global phenomenon. Former colonies that had condemned their colonial oppressors for using torture were now employing it themselves to gain information, confessions, to punish and to intimidate. Although torture continued to remain hidden and denied, the discourse in the French-Algerian war that justified torture as necessary to gain information and to save lives from ‘ticking bombs’ spread to other conflicts around the world (see Amnesty International 1973, 19–23). Superpowers and other Western countries were also sponsoring and training torturers in Third World countries as part of their Cold War strategies, and ignoring the plights of the suffering of torture victims to protect their material and strategic interests (Amnesty International 1973; see also Chomsky and Herman 1979; McCoy 2007). At the heart of Amnesty International’s (1973, 18–20) campaign was to demonstrate how the taboo was being undermined by both public indifference to torture and its constant violation. The result of this global exposure of torture was not to debate or argue about whether torture should be prohibited or not. Rather, the taboo’s importance and value was taken for granted and efforts were made to strengthen institutional protections of the taboo in international society. Amnesty (1973, 34) argued that torture constituted a ‘crime against humanity’ and had become a ‘contagious disease’ spreading around the world (Forrest 1996, viii). Amnesty’s anti-torture campaign was intended to break the indifference shown to torture and declare a program to abolish torture based on the themes of ‘document, denounce, mobilize’3 (Amnesty International 1973, 7; Prokosch 1996, 26). In 1974, Amnesty set up an International Secretariat with the task to ‘organize actions against torture in specific countries’ (Prokosch 1996, 29) as well as an Urgent Action network that connected Amnesty members and coordinated appeals on behalf of those at risk of torture (Prokosch 1996, 29). Amnesty International also presented the United Nations with a petition with over a million signatures that called for the UN General Assembly ‘to outlaw immediately the torture of prisoners throughout the world’ (Prokosch 1996, 27).

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Decolonisation – UN Convention Against Torture 109 In response to Amnesty International’s anti-torture campaign, the UN General Assembly adopted Resolution 3059 that condemned torture and called on states to become Parties to international instruments that prohibited torture and cruel and inhuman treatment (Burgers and Danelius 1988, 13; UN General Assembly 1973). In 1974, the UN affirmed that further efforts needed to be taken to eradicate torture (see UN General Assembly 1974). The Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders acted on this concern and drafted a Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, which was adopted without a vote on 9 December 1975 (Burgers and Danelius 1988, 13–17). Soon after the Declaration was adopted, the UN General Assembly (1975) passed Resolution 3453 that called for further efforts to be made to ensure protection against torture and cruel, inhuman and degrading treatment (CIDT). On 8 December 1977, the UN General Assembly (1977) adopted Resolution 32/62 which requested the Commission on Human Rights to draft a convention against torture and cruel and degrading treatment. The drafting process occurred between 1977 and 1984. In an effort to not only see the convention adopted by the UN, but also to respond to the continued use of torture around the world, Amnesty International engaged in a second campaign against torture between 1984 and 1985 that focused on measures of prevention (Amnesty International 1984). By 4 February 1985, the UNCAT was open for signature. The UNCAT entered into force two years later, on 26 June 1987 (Burgers and Danelius 1988, 107–110). By January 1988, the Convention had been ratified or acceded to by 28 states and signed by 59 states out of 159 members of the United Nations (see Burgers and Danelius 1988, 107–109). Today, there are 78 signatories and 151 Parties to the Convention.4 Both the Declaration and Convention set out positive and negative obligations for states to deal with torture. The first Article defines torture, which will be examined in the next chapter. The Declaration announced torture was a violation of the purposes of the United Nations Charter (Article 2) and no reason whatsoever could justify torture (Article 3). Each state shall take measures to prevent torture (Article 4), ensure that torture is a criminal offence under domestic law (Article 7) as well as train and establish rules and regulations for officials involved in custody of offenders, with these rules being reviewed over time (Article 5, 6). A victim of torture has the right to complain to ‘competent authorities’ (Article 8) and the state is under an obligation to investigate allegations of torture (Article 9) and prosecute offenders (Article 10). The victim has a right to compensation (Article 11) and any statement a victim has made under torture cannot be used against the victim as evidence in ‘any proceedings’ (Article 12). The Convention incorporated the principles of the 1975 Declaration against Torture as well as built upon the Declaration in important respects. Under Article 3(1) a state cannot ‘return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he [or she] would be in danger of being subjected to torture’. The Convention also establishes universal

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jurisdiction for the prosecution of torture offenders whereby a state has to either extradite a suspected torturer for prosecution or to prosecute the suspect under domestic law (Article 5). The choice of which option a state must do is left to the discretion of the state that has the suspect in custody. These articles not only reflect the customary nature of the torture taboo as a jus cogens international norm but are an attempt to eliminate the practice of using state sovereignty as protection from prosecution for human rights violations (Burgers and Danelius 1988, 131). According to Clark (2001), Amnesty’s campaigns were crucial to getting the Convention adopted. Amnesty was not only able to expose the gap between human rights standards and the facts on the ground, but it was also able to build a consensus among the many different actors about the need to institutionalise international legal guarantees against torture. This campaign was also largely effective because Amnesty was advocating a norm that had a high level of support. I do not retell that story here, but rather, explore what implications the Convention had for the taboo.

The Convention and ranking The Convention established a Committee against Torture to help enforce adherence to the Convention. The Committee consists ‘of ten experts of high moral standing and recognized competence in the field of human rights, who shall serve in their personal capacity’ (Article 17 (1)). Human rights groups also work alongside the Committee in helping the Committee establish facts on the ground in particular countries (Kelly 2009, 786–788).5 A state must submit a report within one year of when the Convention comes into force for that State Party, and the report should outline measures that the State has taken to achieve the aspirations and goals of the Convention. A State Party then submits a report every four years of new measures it has taken to prohibit and prevent torture (Article 19(1)). The Committee is then able to publish ‘at its discretion’ comments made on a State Party report in its annual report (Article 19 (4)). The Committee can accept petitions from those who allege to have been victims of torture,6 and carry out investigations if it receives ‘reliable’ and ‘well-founded’ information that a State Party is ‘systematically’ using torture (Article 20, 21). The UN Committee against Torture and the UNCAT made important contributions to the robustness of the taboo. The Convention consolidated the taboo as absolutely prohibited. The arguments made during the French-Algerian war by French soldiers that the laws of war were antiquated for ‘new’ types of warfare or that torture was needed to prevent ‘ticking bombs’ were not given the time of day. Furthermore, the taboo’s institutionalisation broadened state obligations regarding the prevention of torture. This includes not only non-refoulement and universal jurisdiction, but also the obligation to care for torture victims. The latter half of the twentieth century saw an increase in medical and psychiatric research on torture, with many medical physicians and non-governmental organisations (NGOs) working closely with Amnesty International in its anti-torture

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campaigns. The medical and psychiatric treatments of torture victims demonstrated the negative mental and physical impacts torture has on the ability of victims to live fulfilling lives and have meaningful social relationships with others (see Denford 1996; Fabri 2005). The recognition that torture continued to have harmful practices long after the act of torture itself resulted in the United Nations Victim’s Fund, passed by the UN General Assembly (1981) on 16 December 1981. The Fund is based on voluntary donations of states, individuals and NGOs and these donations are used to help NGOs provide needed assistance to victims and their families. The increasing attention given to treatment and rehabilitation of torture victims represents a consolidation of torture as a destructive practice. The Preamble of the 1984 UNCAT reaffirms the foundations of human dignity negotiated during the drafting of the Universal Declaration of Human Rights, stating ‘the equal and inalienable rights … derive from the inherent dignity of the human person’. Torture is condemned because it targets these innate rights. Peter Kooijmans, the UN Special Rapporteur on Torture, stated in 1985, torture destroys the ‘individual personality that constitutes man’s inherent dignity’ (UN Economic and Social Council 1986, 1). Torture’s destructive power targets an internal quality of the human being. The personality is something unique to the individual but also something which all of humanity shares. Describing torture as having a destructive quality reinforces torture as dangerous as it not only destroys the attributes (personality and dignity) that make us human, but in destroying these attributes, torture also takes away the possibility and capacity for human beings to experience the good life. The institutionalisation of the taboo also removed the old ranking system that operated in the nineteenth century between ‘civilised’ Europeans and ‘uncivilised’ non-Europeans that helped explain the existence of torture. As I showed in Chapter 2, the hierarchical relationship between those who were in European international society and those outside of it shaped the former’s obligations to prohibit torture in the latter. Torture was deemed a product of ‘barbarous’ societies in need of colonial rule to stop torture. However, an important effect of the politicisation of French torture during the French-Algerian war was that it removed this nineteenth century hierarchy in how we understood torture and demonstrated to international society that democracies too were capable of cruelty. The UN Committee against Torture now interprets the problem of torture as a problem of too much liberty of officials over persons deprived of their liberty. As the Special Rapporteur on Torture argued, torture occurs in environmental contexts ‘in which human beings find themselves in the absolute power of other human beings’ (UN Economic and Social Council 1986, 2; Amnesty International 1973, 23). For Amnesty International (1973, 7), this meant torture presented a ‘danger which threatens the citizens of every country, however long its tradition of civilized conduct’ (Amnesty International 1973, 7). In order to stop and prevent torture, the Committee recommends that countries implement monitoring institutions to limit the exercise of power (Kelly 2009, 2012). Recommendations include, amongst others, improving police

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culture, ensuring an independent judiciary, preventing the ‘preconditions’ of torture (Amnesty International 1984, 11), such as incommunicado detention, and improving monitoring and surveillance in prisons (see Kelly 2009).8 The Committee’s recommendations regarding monitoring are complemented by the work of the UN Special Rapporteur on Torture, which is established by the UN Human Rights Commission under UN Resolution 1985/33. The Special Rapporteur receives allegations of torture, makes appeals to governments concerning individuals at risk of torture, conducts on-site investigations, makes recommendations to states to prevent torture and identifies reasons or obstacles for why the torture prohibition has not been fulfilled (Rodley 2005, 107; UN Economic and Social Council 1997). This monitoring approach has also been adopted by regional human rights institutions as well. The 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment and the 1985 InterAmerican Convention to Prevent and Punish Torture carries out similar monitoring functions. This includes carrying out on-site visits to persons deprived of their liberty and producing human rights reports on State Parties (see Burgers and Danelius 1988, 26; Ginther 1991; IACHR 2011). What is worth noting here is that the problem of torture has become a technical issue of monitoring (Kelly 2009). The problem is not whether or not torture should be prohibited, but how to close the gap between prohibition and violation. As the Special Rapporteur on Torture stated in 1986, ‘in view of the fact that all States have unequivocally committed themselves to respect the inherent dignity of man, torture should be seen essentially as a non-political issue’ (UN Economic and Social Council 1986, 4). However, in removing the nineteenth century standard of civilisation, this did not mean the discourse of ‘civilised’ and ‘barbaric’ conduct also went away. Although World War II and the decolonisation movement overturned the nineteenth century standard of civilisation, the monitoring function of the UNCAT has the by-product of ranking that has helped constitute a modern form of the standard of civilisation based on international human rights (see Bowden 2014; Buzan 2014; Donnelly 1998; Kelly 2009). According to Buzan (2014, 587), since World War II, human rights have been ‘used as a criterion … for conditionality regarding membership’ in international society. However, because international society is universal, the modern standard of civilisation identifies not who is in and who is out of international society per se. Rather, the modern standard of civilisation differentiates states on how ‘civilised’ a state is, creating a hierarchy that ranks actors and ‘differentiate[s] the more “civilised” from the less so’ (Buzan 2014, 586). The conditionality of human rights provides a benchmark for behaviour that allows states to lay judgement upon one another and identify the types of behaviour appropriate for a modern, ‘civilised’ state (Bowden 2014). The UN Committee against Torture, like other UN monitoring institutions, also performs a disciplinary function in that its role to document and report on torture provides it with a power over knowledge and an authority to determine

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Decolonisation – UN Convention Against Torture 113 what constitutes a violation of the taboo and who constitutes a law-abiding state (see Price 1997, 154–156; Barnett and Finnemore 1999). In a similar vein to the publication of reports by human rights groups, the documentation of torture is at the same time a denouncement of that state (Prokosch 1996). When the UN Committee publishes its annual report, it has the discretion to include or exclude information it has received on certain states throughout the year. The Committee uses this discretion to pressure states to conform by rewarding states by keeping the matter confidential, or punishing states by going public (Burgers and Danelius 1988, 162). The Special Rapporteur follow-up reports are also an on-going form of discipline that checks the progress of a norm-violating state. The follow-ups occur once a year whereby the UN Special Rapporteur asks countries to report on what they have done to meet the recommendations. The state’s response is then published in the annual report (Rodley 2005, 115). The recommendations at the end of human rights reports are intended to identify failings of states and the followup reports reconstruct the ranking of states by evaluating its progress in achieving previously made recommendations. A similar function can be seen in the UN Committee’s reviews of State Parties that occur every several years. This allows for the revision of a state’s status according to attempts made at progress. Being stigmatised as a torturing state is taken seriously by some states as there is the implication within that accusation that the violating state is engaging in ‘uncivilised’ behaviour and is therefore inferior to others. For example, a state can refuse a visit from the Special Rapporteur, however, doing so can stigmatise a state as a pariah state that has something to hide (Rodley 2005, 115). The fear of stigmatisation, and the ranking that comes with it, is used by the UN to get violating states to agree to human rights conditions. For example, according to Rodley (2005, 108), a former Special Rapporteur on Torture, ‘a country-specific rapporteur is often seen as the UN nuclear weapon, so much so that sometimes countries can end up agreeing to something even more intrusive to avoid that fate’. Rodley (2005, 108) recalls a conversation with the Colombian army high command, who stated: ‘The one thing we don’t want is a [country-specific] special Rapporteur on us’. These concerns about being accused of torture also exist in private sessions as well. Referring to the investigatory functions of the UN Human Rights Commission, Amnesty International (1984, 42) argued, ‘These procedures offer a form of sanction, for no government wishes to stand accused of torture before other governments, even in closed session’. The institutionalisation of the taboo under the UNCAT has been strengthened in recent years with the Optional Protocol of the Convention against Torture, adopted on 18 December 2002 (UN General Assembly 2002). The Optional Protocol establishes a Subcommittee on the Prevention of Torture that carries out inspections in State Parties and provides assistance and advice in establishing ‘National Preventative Mechanisms’ (Article 11). This adds a further layer of scrutiny to state conduct and reinforces the existing disciplinary function under the UN Committee against Torture.

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The UNCAT and its associated monitoring bodies has institutionalised the taboo as one of the most potent norms in world politics. By developing both the positive and negative obligations of the taboo, the UNCAT not only made the problem of torture a matter for international society as a whole, but through non-refoulement and universal jurisdiction, it targeted inside–outside dualisms between those across sovereign boundaries to generate ‘stronger attachments to a universal moral community’ (Linklater 2011, 221). It is ironic that it was because of humanity’s cruelty to one another in the first place that such an important moral and legal development was able to occur at all.

Conclusion The decolonisation period and the latter half of the twentieth century marked an important period in the history of the torture taboo. Despite states violating the taboo to deal with colonial unrest, the stigma against torture remained robust. By analysing the French violation of the taboo during the French-Algerian war, I demonstrated how the taboo was not forgotten during the war, but continued to play an important role in shaping French decision-making. Despite the French army trying to revise the taboo, the French government refused to endorse torture, tried to hide it and denied it was occurring in Algeria. The failed attempt by French soldiers to recategorise torture as ‘necessary’ pain and suffering is ironic as it was previously the Nazis that had tried to do this and they were condemned at Nuremburg by the Allied countries (including France) for trying to do so. The French government knew what it was doing was wrong and knew that it could not openly support torture, even if it was proving strategically effective. Despite the changing material conditions of war, torture’s stigma proved to be too strong to challenge. The public backlash and fear that France was in moral decline delegitimised French claims to Algeria and played a powerful role in contributing to French withdrawal. The negative impacts France faced by using torture did not show a taboo in decline, but highlighted the strength of the taboo’s legitimacy. The violations of the taboo during decolonisation and in the latter half of the twentieth century also contributed to the moral and legal development of the torture taboo. Violations do not just destroy, but can offer the opportunity to create. The violations exposed by Amnesty International provided an environment for the international community to strengthen international legal protections concerning the taboo and provided mechanisms to rank, discipline and stigmatise states into norm conformity. The fact that such an important international convention was created out of the exposure of taboo violations demonstrates the importance of the taboo and the relevance the taboo continues to have in international society. The revelations of French torture also demonstrated that all countries were capable of torture, shaping our understanding of why torture occurs and how to stop it. However, after the UNCAT came into force, torture continued to occur around the world. Although this can be interpreted as demonstrating the taboo’s

Decolonisation – UN Convention Against Torture 115 weakness, especially as states adopted torture to tackle the rising threat of transnational terrorism, as I show in the remaining two chapters, such a simplified interpretation misses the important nuances that reveal the strength of the taboo’s legitimacy.

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Notes 1 Representatives who signed the letter were from the countries ‘Afghanistan, Burma, Ceylon, Malaya, Ghana, Guinea, Indonesia, Iran, Iraq, Jordan, Lebanon, Liberia, Libya, Morocco, Nepal, Pakistan, Saudi Arabia, Sudan, Tunisia, the United Arab Republic and Yemen’ (Parrott 1959, 1). 2 From the outset of the conflict, France argued that the 1949 Geneva Conventions did not apply to the conflict in Algeria because it was not an international conflict. However, France soon changed its position and recognised the applicability of the Conventions in Algeria on 23 June 1956. The International Committee of the Red Cross visited camps and detention centres in Algeria seven times, with the first visit occurring between 12 May and 28 June 1956 (Beigbeder 2006, 103–104). 3 Alongside Amnesty International’s campaign, other (non-governmental organisations) NGOs emerged that dedicated themselves to investigate, document, and expose torture. This includes (but is certainly not limited to) the Action of Christians for the Abolition of Torture (France), the Swiss Committee against Torture (today known as the Association for the Prevention of Torture), the Vicaria de la Solidaridad (Chile), the Free Legal Assistance Group of the Civil Liberties Union of the Philippines (Prokosch 1996, 29), and The Argentine Permanent Assembly for Human Rights (see Pion-Berlin and Lopez 1991, 75). 4 See United Nations Treaty Collection, available at http://treaties.un.org/Pages/View Details.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&lang=en. 5 See the ‘Participation of non-governmental organizations (NGOs) and National Human Rights Institutions (NHRIs) to the reporting process to the Committee against Torture’, available at www2.ohchr.org/english/bodies/cat/follow_up_ngo.htm. 6 This is on condition that the State Party from which the allegations are coming from recognises the competence of the Committee (see Article 22). 7 Since the 1970s and 1980s, there has also been a rise in the number of medical NGOs concerned with torture documentation and treatment. These groups emerged out of the human rights movement, the Amnesty campaign against torture and in response to allegations that doctors were participating in torture (Krüger 1977, 7). In 1974 Amnesty International’s Danish Medical Group was formed to help in torture detection (Krüger 1977, 7). In 1982 the Rehabilitation and Research Centre for Torture Victims was formed, and by 1985, the International Rehabilitation Council for Torture Victims emerged, which now acts as an umbrella organisation for 140 organisations in 70 countries (see www.irct.org). In 1985, The Medical Foundation for the Care of Victims of Torture was founded, which continued the work of volunteer physicians who had worked with Amnesty International (Denford 1996, 153). 8 These are common recommendations found throughout the history of the Committee’s recommendations to State Parties. See http://tbinternet.ohchr.org/_layouts/TreatyBody External/SessionsList.aspx?Treaty=cat.

References Amnesty International. 1973. Amnesty International: Report on Torture. London: Geral Duckworth and Co. Ltd in association with Amnesty International Publications. Amnesty International. 1984. Torture in the Eighties. London: Amnesty International Publications.

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Alleg, Henri. 2006. The Question. Lincoln, NE and London: University of Nebraska Press. Asad, Talal. 2003. Formations of the Secular: Christianity, Islam, Modernity. Stanford, California: Stanford University Press. Aussaresses, General Paul. 2002. The Battle of the Casbah: Counter-Terrorism and Torture. New York: Enigma Books. Barnett, Michael N. and Martha Finnemore. 1999. ‘The Politics, Power, and Pathologies of International Organizations.’ International Organization 53(4): 699–732. Beigbeder, Yves. 2006. Judging War Crimes and Torture: French Justice and International Criminal Tribunals and Commissions (1940–2005). Leiden: Martinus Nijhoff Publishers. Blair, W. Granger. 1959. ‘35 Priests Accuse Troops in Algeria: French Torture Insurgents and Execute the Wounded, Clerics with Army Say.’ New York Times, 13 April: 3. Blair, W. Granger. 1960. ‘France Improves P.O.W. Conditions: But Inquiry by Red Cross in Algeria Finds Inhumane Treatment Continues.’ New York Times, 5 January: 5. Bowden, Brett. 2014. ‘To Rethink Standards of Civilisation, Start with the End.’ Millennium: Journal of International Studies 42(3): 614–631. Brady, Thomas F. 1957. ‘Torture Charges Vexing to French: Algiers Aides Embarrassed by Disappearance of Young University Instructor.’ New York Times, 9 September: 3. Burgers, Herman J. and Hans Danelius. 1988. The United Nations Convention against Torture: A Handbook on the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Netherlands: Martinus Nijhoff Publishers. Buzan, Barry. 2014. ‘The “Standard of Civilisation” as an English School Concept.’ Millennium: Journal of International Studies 42(3): 576–594. Callender, Harold. 1957a. ‘Paris to Try Critics of Army in Algeria.’ New York Times, 15 March: 1. Callender, Harold. 1957b. ‘Risks to France in Algeria Cited: Paris Editor Says Military Policy Could Alienate the Whole Arab Population.’ New York Times, 17 March: 5. Chomsky, Noam and Edward S. Herman. 1979. The Washington Connection and Third World Fascism: The Political Economy of Human Rights: Volume I. Boston: South End Press. Clark, Ann Marie. 2001. Diplomacy of Conscience: Amnesty International and Changing Human Rights Norms. Princeton: Princeton University Press. Cogan, Charles. 2002. ‘France, the United States and the Invisible Algerian Outcome.’ Journals of Strategic Studies 25(2): 138–158. Creighton, Sam and David Connett. 2012. ‘Cyrus Fighters Sue Britain for Torture During Uprising.’ The Independent, 2 December. www.independent.co.uk/news/uk/homenews/cyprus-fighters-sue-britain-for-torture-during-uprising-8373867.html Denford, John. 1996. ‘The Treatment of Survivors of Torture.’ In A Glimpse of Hell: Reports on Torture Worldwide, edited by Duncan Forrest for Amnesty International, 153–166. New York: New York University Press. Domenach, Jean-Marie. 1958. ‘Democratic Paralysis in France.’ Foreign Affairs 37(1): 31–44. Donnelly, Jack. 1998. ‘Human Rights: A New Standard of Civilization?’ International Affairs (Royal Institute of International Affairs 1944–) 74(1): 1–23. Doty, Robert C. 1957a. ‘French General Quits in Algeria: Area Chief Resigns His Post in Step Seen as Protest on Methods of Repression.’ New York Times, 29 March: 3. Doty, Robert C. 1957b. ‘France Forms Agency to Guard Liberties in Rebellious Algeria.’ New York Times, 6 April: 1.

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Decolonisation – UN Convention Against Torture 117 Doty, Robert C. 1957c. ‘France Concedes Algeria Excesses: Inquiry’s Report Denounces Reprisals as Well as Acts That Provoked Them.’ New York Times, 14 December: 1. Doty, Robert C. 1960. ‘Prelates Assail Algeria Excesses: French Catholics Urge Both Sides to End Terrorism.’ New York Times, 18 October: 1. Durdin, Tillman. 1957. ‘U.N. Algeria Move Pleases Lacoste: Minister Says Attempts to Disfigure France’s “Wise” Policy Have Failed.’ New York Times, 17 February: 7. Elkins, Caroline. 2005. Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya. New York: Henry Holt and Company. Fabri, Dr Mary R. 2005. ‘Treating Torture Victims.’ In Torture: Does It Make Us Safer? Is It Ever OK? A Human Rights Perspective, edited by Kenneth Roth and Minky Worden with Amy D. Berstein contributing editor, 131–135. New York and London: The New Press. Fanon, Frantz. 2001. The Wretched of the Earth. London: Penguin Books. Forrest, Duncan. 1996. ‘Introduction.’ In A Glimpse of Hell: Reports on Torture Worldwide, edited by Duncan Forrest for Amnesty International, viii–x. New York: New York University Press. Galula, David. 2006 [1963]. Pacification in Algeria: 1956–1958. Santa Monica, CA, Arlington, VA and Pittsburgh, PA: RAND Corporation. Giniger, Henry. 1962. ‘3 Members of Secret Army Sentenced by France.’ New York Times, 3 August: 3. Goldsmith, Christopher. 2002. ‘The British Embassy in Paris and the Algerian War: An Uncomfortable Partner?’ Journal of Strategic Studies 25(2): 159–171. Harrison, Martin. 1964. ‘Government and Press in France During the Algerian War.’ The American Political Science Review 58(2): 273–285. Horne, Alistair. 1977. A Savage War of Peace: Algeria 1954–1962. London and Basingstoke: Macmillan London Limited. Inter-American Commission on Human Rights (IACHR). 2011. Report on the Human Rights of Persons Deprived of Liberty in the Americas. Doc. No. OEA/Ser.L/V/II, Doc. 64, 31 December 2011. www.oas.org/en/iachr/pdl/docs/pdf/PPL2011eng.pdf. Kelly, George A. 1961. ‘The French Army Re-Enters Politics 1940–1955.’ Political Science Quarterly 76(3): 367–392. Kelly, Tobias. 2009. ‘The UN Committee Against Torture: Human Rights Monitoring and the Legal Recognition of Cruelty.’ Human Rights Quarterly 31(3): 777–800. Kelly, Tobias. 2012. This Side of Silence: Human Rights, Torture, and the Recognition of Cruelty. Pennsylvannia: University of Pennsylvannia Press. Krüger, Henrik. 1977. ‘Composition of the Medical Group’. In Evidence of Torture: Studies by the Amnesty International Danish Medical Group, edited by Amnesty International. London: Amnesty International Publications. Lapie, P.O. 1944. ‘The New Colonial Policy of France.’ Foreign Affairs 23(1): 104–111. Lazreg, Marnia. 2008. Torture and the Twilight of Empire: From Algiers to Baghdad. Princeton and Oxford: Princeton University Press. Linklater, Andrew. 2011. The Problem of Harm in World Politics: Theoretical Investigations. Cambridge: Cambridge University Press. McCoy, Alfred W. 2007. A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror. New York: Holt Paperbacks. Merom, Gil. 2003. How Democracies Lose Small Wars: State, Society, and the Failures of France in Algeria, Israel in Lebanon, and the United States in Vietnam. New York: Cambridge University Press. New York Times. 1958a. ‘French Seize a Book on Torture Charges.’ New York Times, 28 March: 6.

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New York Times. 1958b. ‘Paris Weekly Seized: Issue Barred for Reference to Treatment of Rebels.’ New York Times, 5 December: 13. New York Times. 1959a. ‘Charge of Torture in Algeria Renewed.’ New York Times, 18 February: 6. New York Times. 1959b. ‘Torture Scored Anew: French Army Chaplains’ Head Condemns it in Algeria.’ New York Times, 25 April: 8. New York Times. 1959c. ‘French Seize Book Charging Tortures.’ New York Times, 20 June: 4. New York Times. 1960. ‘French Ban Papers for Algeria Report.’ New York Times, 6 January: 10. Paret, Peter. 1964. French Revolutionary Warfare from Indochina to Algeria: The Analysis of a Political and Military Doctrine. London: Pall Mall Press. Parrott, Lindsay. 1959. ‘Algeria Put to U.N. by Africa-Asia Bloc.’ New York Times, 11 July: 1. Pion-Berlin, David and George A. Lopez. 1991. ‘Of Victims and Executioners: Argentine State Terror, 1975–1979.’ International Studies Quarterly 35(1): 63–86. Price, Richard M. 1997. The Chemical Weapons Taboo. New York: Cornell University Press. Prokosch, Eric. 1996. ‘Amnesty International’s Anti-Torture Campaigns.’ In A Glimpse of Hell: Reports on Torture Worldwide, edited by Duncan Forrest for Amnesty International, 26–35. New York: New York University Press. Rejali, Darius. 2007. Torture and Democracy. Princeton and Oxford: Princeton University Press. Risse, Thomas. 2000. ‘ “Let’s Argue!”: Communicative Action in World Politics.’ International Organization 54(1): 1–39. Rodley, Sir Nigel. 2005. ‘On Negotiating with Torturers, interviewed by Amy Berstein.’ In Torture: Does It Make Us Safer? Is It Ever OK? A Human Rights Perspective, edited by Kenneth Roth and Minky Worden with Amy D. Berstein contributing editor, 106–116. New York and London: The New Press. Sartre, Jean Paul. 2001. ‘Preface.’ In The Wretched of the Earth, by Frantz Fanon. London: Penguin Classics. Sartre, Jean Paul. 2006. ‘Preface: “A Victory.” ’ In The Question, by Henri Alleg. Lincoln and London: University of Nebraska Press. Shepard Todd. 2006. The Invention of Decolonization: The Algerian War and the Remaking of France. Ithaca and London: Cornell University Press. Soustelle, Jacques. 1956. ‘France Looks at Her Alliances.’ Foreign Affairs 35(1): 116–130. Soustelle, Jacques. 1959. ‘The Wealth of the Sahara.’ Foreign Affairs 37(4): 626–636. Talbott, John. 1975. ‘French Public Opinion and the Algerian War: A Research Note.’ French Historical Studies 9(2): 354–361. Teltsch, Kathleen. 1959. ‘French Walk Out on Speech in U.N.: Arabian Delegate Charges Torture in Algeria – He Also Denounces Israel.’ New York Times, 25 September: 3. Trinquier, Roger. 1964. Modern Warfare: A French View of Counterinsurgency. London: Pall Mall Press. United Nations Economic and Social Council, Commission on Human Rights. 1986. Report by the Special Rapporteur, Mr. P. Kooijmans, Appointed pursuant to Commission on Human Rights Resolution 1985/33. Forty-Second Session, 19 February. Doc. No.: E/CN.4/1986/15. http://ap.ohchr.org/documents/E/CHR/report/E-CN_ 4-1986-15.pdf.

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Decolonisation – UN Convention Against Torture 119 United Nations Economic and Social Council, Commission on Human Rights. 1997. Report of the Special Rapporteur, Mr. Nigel S. Rodley, Submitted Pursuant to Commission on Human Rights Resolution 1995/37 B. Fifty-Third Session, 10 January. Doc. No. E/CN.4/1997/7. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G97/101/13/PDF/ G9710113.pdf?OpenElement. United Nations General Assembly Resolution 1573 (XV). 1960. 19 December, (A/RES/1573(XV)). United Nations General Assembly Resolution, 3059 (XXVII). 1973. 2 November, (A/RES/3059(XXVIII)). United Nations General Assembly Resolution, 3218 (XXIX). 1974. 6 November, (A/RES/3218(XXIX)). United Nations General Assembly Resolution 3453 (XXX). 1975. 9 December, (A/RES/3453(XXX)). United Nations General Assembly Resolution, Third Committee, 32/62. 1977. 8 December, (A/RES/32/62). United Nations General Assembly Resolution 36/151. 1981. 16 December, (A/RES/35/151). United Nations General Assembly Resolution 57/199. 2002. 18 December, (A/RES/57/199). Wall, Irwin M. 1977. ‘The French Communists and the Algerian War.’ Journal of Contemporary History 12(3): 521–543.

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5

The politics of the definition of torture

So far in this book I have traced the twists and turns of the torture taboo to understand how torture became prohibited, how the taboo has strengthened over time, and the important role the taboo plays in shaping state actions, interests and identities, even during violations. This chapter turns to an important period in the taboo’s history surrounding the politics of torture’s definition. Since the eighteenth century, the localisation of danger that has helped international society distinguish torture from other types of pain has been justified in moral discourses that created a dichotomy between ‘barbaric’ and ‘civilised’ conduct. Although this discourse is still very much in use today, by the latter half of the twentieth century, legal discourses also started to distinguish torture from practices such as ‘inhuman’ and ‘degrading’ treatment and the legal infliction of pain (see Kelly 2012). As this chapter shows, the use of legal discourse to localise danger profoundly shaped how torture was practiced and how torture is understood today. Since a landmark ruling on torture by the European Commission on Human Rights (European Commission) in the late 1960s, there has been a debate in international society regarding how to define torture. The debate, which has encompassed the European Court of Human Rights (ECHR), the European Commission, the United Nations, as well as human rights groups and states, has been concerned with the difficult question of how to separate torture from other painful acts. Although this debate has been discussed by legal scholars (Bates 2010; De Vos 2007; Forowicz 2010; Rodley 2002), it has been neglected in international relations scholarship (see Barnes 2016). Legal debates over whether torture should be determined by the severity of pain inflicted or the purpose of the act has resulted in contestations over how to determine whether or not a practice constitutes torture, cruel, inhuman or degrading treatment (CIDT) or the legitimate infliction of pain. This chapter examines this norm contestation to show the fierce politics behind the definition of torture (see Birsdall 2016; Krook and True 2012; Van Kersbergen and Verbeek 2007; Wiener 2004, 2009). I begin this chapter with an analysis of the evolution of torture’s definition starting from the European Commission’s landmark ruling on torture in the late 1960s. I then turn to analyse the implications of the politics surrounding torture’s definition by focusing on

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The politics of the definition of torture 121 the case of Israel’s use of ‘moderate physical pressure’. Between 1987 and 1999, Israel employed a set of physical interrogation techniques that it argued were necessary to gain confessions from terrorism suspects and prevent terrorist attacks in Israel. Although condemned internationally as constituting torture, Israel maintained these techniques were legal and did not violate the taboo. Although Israel’s use of ‘moderate physical pressure’ has been examined before (see Hajjar 2008), what has been neglected is the important role the taboo continued to play in shaping Israel’s conduct and constituting its interests and identities. The politics around torture’s definition is so contentious because no one wants to be seen to be violating the taboo. Israel did not ignore the taboo or attempt to justify openly abrogating it. What one finds within this example is a society agonising about appropriate moral behaviour, what behaviour is fit for a humane state, and the dangers one faces if they transgress moral boundaries. Even though Israel argued that it was facing terrorist attacks, it was not willing to openly justify torture. The redefining of torture by Israel demonstrates torture’s potent stigma and reaffirms the strength of the taboo’s legitimacy. This chapter also examines the implications the rise of the global use of torture had on the torture taboo in the latter half of the twentieth century. The taboo’s institutionalisation under the UNCAT failed to stop torture, and by 2000, Amnesty International reported 150 countries continued to practice torture on a ‘widespread or persistent’ basis (Amnesty International 2000). However, this widespread violation did not trigger a decline in the taboo’s legitimacy. Focusing on torture in Egypt under former President Hosni Mubarak, I show how Egypt consistently denied and lied about its use of torture. Not even authoritarian states are willing to openly justify torture or admit to using it. Torture continued to be a taboo in that it could not be seen to be condoned, advocated or used.

The evolution of the definition of torture The debate surrounding the definition of torture under international law began in the Greek Case (1967–1969) in the European Commission. In 1969 the Commission found that Greece had violated Article 3 of the European Convention on Human Rights, which reads, ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’ (Bates 2010, 265). Specifically, the Commission found that since the Greek military regime came to power in 1967, it had employed torture, such as ‘ “falanga” or severe beatings on all parts of the body’ in order to gain information and confessions (Bates 2010, 266). According to Bates (2010, 266), ‘this was the first time that an international human rights body had concluded that a State had practised “torture” ’. One of the most important legal precedents that came from the Commission’s report on Greece was how the Commission defined ‘torture’ (Bates 2010, 266–277). In defining torture, the Commission separated torture from other prohibited acts as well as the legitimate infliction of pain. The Commission argued ‘all torture must be inhuman and degrading treatment’ but that torture was

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distinguished from inhuman and degrading treatment because it is aggravated and has a purpose (such as gaining confessions or information). Inhuman treatment is that which ‘deliberately causes severe suffering, mental or physical, which in a particular situation is unjustifiable’, while degrading treatment is that which ‘grossly humiliates him [or her] before others or drives him [or her] to act against his [or her] will or conscience’ (European Commission 1976, 245). Not all infliction of pain is prohibited under Article 3, only that which in a particular context is ‘unjustifiable’.1 Although the Commission recognised that severity of pain helped distinguish torture from other lawful painful practices, it also acknowledged that the purpose of the act played a role in distinguishing torture from other prohibited forms of pain and suffering (Barnes 2016, 108; De Vos 2007, 4; Forowicz 2010, 197). The definition in the Greek Case was drawn upon in another prominent case of torture in the Commission known as the Ireland Case (1976). Ireland argued that the United Kingdom violated Article 3 of the European Convention on Human Rights during the emergency situation in Northern Ireland in August 1971. The case concerned the interrogation of individuals taken to unidentified detention centres and subjected to ‘interrogation in depth’.2 Also known as the ‘five techniques’, these detainees were subjected to wall standing, hooding, loud noise, sleep deprivation, and a reduced diet of food and drink (European Commission 1976, 396–397). When reports emerged that these techniques were used in Northern Ireland, the British government set up two commissions of inquiry to investigate the allegations. The Compton Commission, which was adopted on 3 November 1971, looked at the ‘interrogation in depth’ of 11 individuals (Brownlie 1972, 501). It found the techniques constituted ‘physical ill-treatment’ but not ‘brutality’ (Brownlie 1972, 502). The Parker Committee was then established to examine whether authorised interrogation practices needed amendment (European Commission 1976, 389). Adopted on 31 January 1972, the Parker Report found that although the techniques were illegal, they could be justified on the basis of ‘reasonable necessity’ (Brownlie 1972, 505–507; European Commission 1976, 389). The Report argued the techniques had been used in colonial contexts since World War II to save lives and gain information, and could continue to be used ‘in a manner consistent with the highest standards of our society’ (Brownlie 1972, 505; European Commission 1976, 393). Despite the Parker Report arguing the techniques could be morally justified, on 2 March 1972, the same day the Report was published, British Prime Minister Health stated in Parliament that the five techniques would not be used in the future for interrogation purposes but reserved the right to use them with parliamentary approval (European Commission 1976, 390). When Britain came before the European Commission, it tried to argue that because Prime Minister Heath had taken measures to prohibit the practices, and two commissions had been launched to investigate the practices, there was no need for the Commission to examine them (European Commission 1976, 375). However, the European Commission disagreed. Because the British commissions did not examine whether

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The politics of the definition of torture 123 the five techniques violated the European Convention, the status of the techniques remained unresolved (European Commission 1976, 393–394). In determining whether the five techniques breached the European Convention, the Commission drew upon the Greek Case and distinguished ‘torture’ from ‘inhuman’ and ‘degrading’ treatment as well as the infliction of pain that did not breach the Convention. The Commission acknowledged that what constituted ‘cruel’ pain ‘varies between different societies and even between different sections of them’ (European Commission 1976, 377). Furthermore, it distinguished prohibited pain and suffering from ‘a certain roughness of treatment’, which ‘may take the form of slaps or blows of the hand on the head or face’ (European Commission 1976, 377). The Commission found the five techniques to be an administrative practice characterised by repetition and official tolerance (European Commission 1976, 391). If the five techniques were carried out separately, they may not have violated Article 3 of the Convention, and assessing such ‘would rather depend on the circumstances and the purpose and would largely be a question of degree’ (European Commission 1976, 401). However, carried out in combination, the Commission ruled by a unanimous vote that the five techniques constituted inhuman treatment and torture as they negatively ‘affect[ed] the personality physically and mentally’ and were intended to ‘break or even eliminate the will’ (European Commission 1976, 402).The Commission ruled, ‘the systematic application of the techniques for the purpose of inducing a person to give information show a clear resemblance to those methods of systematic torture which have been known over the ages’ (European Commission 1976, 402). The UK did not dispute the Commission’s ruling and it vowed not to use the techniques again (ECHR 1978, par. 152, 153). However, when Ireland subsequently took the UK to the ECHR over the five techniques, the ECHR ruled that the five techniques did not constitute torture. Unlike the Commission, which placed greater emphasis on the purpose of the act to separate prohibited forms of pain from one another, the European Court relied on the severity of pain inflicted (De Vos 2007). The Court argued that because the Convention makes a distinction between torture and inhuman and degrading treatment, it was the intention of the Convention that torture has attached ‘a special stigma to deliberate inhuman treatment causing very serious and cruel suffering’ (ECHR 1978, par. 167). The Court concluded that although the practices constituted inhuman and degrading treatment, ‘they did not occasion suffering of the particular intensity and cruelty implied by the word torture as so understood’ (ECHR 1978, par. 167). Several judges dissented in this Case regarding Article 3, albeit for different reasons. Sir Gerald Fitmaurice J argued that the five techniques did not even reach the level of inhuman treatment, but constituted ‘mere aches, pains, strains, stresses and discomforts’ (ECHR 1978, 118). However, the rest of the dissenting judges argued against using the severity of pain as the distinguishing feature of torture. As Evrigenis J argued, this judgment had the potential to

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exclude ‘modern techniques of oppression’ that were not necessarily about violence and physical pain but were concerned with causing ‘even if only temporarily, the disintegration of an individual’s personality, the shattering of his mental and psychological equilibrium and the crushing of his will’ (ECHR 1978, 124). Human rights groups and international lawyers also reiterated the dissenting judges’ opinions in response to the ruling because it did not take into account ‘modern’ forms of torture (Amnesty International 1984b, 15; Bates 2010, 273–274; Bonner 1978; Spjut 1979, 271–272). Despite this condemnation, the Court continued to uphold its interpretation of torture in subsequent trials, using the severity of pain, and not the purpose of the act, to identify torture (see Forowicz 2010, 197–202). Article 1(1) of the UN Convention against Torture The ECHR’s ruling in the Ireland Case had a profound impact on the definition of torture in the drafting of the UNCAT (see Burgers and Danelius 1988, 41; De Vos 2007; Forowicz 2010, 198–199; Rodley 2002, 474–475). During the drafting, there was a debate as to whether the Convention should define torture in relation to other prohibited acts in terms of severity of pain inflicted or by the purpose of the act. The US and UK wanted to define torture as constituting extreme pain (Burgers and Danelius 1988, 41, 45; Forowicz 2010, 199). Other parties, such as Amnesty International and the International Commission of Jurists wanted the purpose of the act to be the distinguishing feature of torture (Rodley 2002, 475) in order to take into account modern forms of torture. As Forowicz (2010, 199) argues, the final definition in the Convention reflected a compromise between these two positions. The definition of torture in Article 1(1) reads: For the purposes of this Convention, the term ‘torture’ means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. The UNCAT also moved away from the previous definition of torture in the 1975 UN Declaration against Torture (see De Vos 2007). The Declaration (Article 1(2)) refers to torture as ‘an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment’ (UN General Assembly 1975). However, the UNCAT removed the term ‘aggravated’, signalling a shift away

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from the ECHR’s Ireland judgement that used the severity of pain as the distinguishing feature between torture and CIDT (Do Vos 2007, 7; Forowicz 2010, 199; Rodley 2002, 474). Article 16(1) defines cruel, inhuman or degrading treatment or punishment as acts: which do not amount to torture as defined in Article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. Other courts and committees have also moved away from using a hierarchy of pain to distinguish torture from other prohibited acts. Article 2 of the InterAmerican Convention to Prevent and Punish Torture (Department for Law, OAS 1985) does not make reference to the severity of pain in its definition of torture,3 and rulings by the Inter-American Commission on Human Rights have reiterated this view (Barnes 2016, 108; Rodley 2002, 478–480). The UN Human Rights Committee has also argued that severity of pain is not required for torture to have taken place. However, it has not moved away from it altogether, having taken into account aggravation of suffering in some of its rulings (Rodley 2002, 478). These evolving interpretations of torture have in turn come back to shape the ECHR, with the ECHR adopting a dual approach to torture in 1999 by taking into account both the severity of pain and the purpose of the act (De Vos 2007, 7; Forowicz 2010, 203–204). This shift has been interpreted as suggesting that the ECHR would now rule the five techniques used by the UK as cruel and inhuman treatment and torture (De Vos 2007, 7; Rodley 2002, 477). How are we to understand the evolution of the definition of torture under international law? First, both torture and cruel and inhuman treatment are prohibited absolutely. Second, with the exception of the Inter-American Court of Human Rights, torture and CIDT is distinguished from the lawful infliction of pain because it constitutes severe pain and suffering (Rodley 2002, 489). And third, by the end of the 1990s, the purpose of the act had been adopted as a key element of torture (Rodley 2002, 491). However, there remain legal ambiguities. The exact role severity of pain plays in distinguishing torture from CIDT is still not unanimous, (Rodley 2002, 489) and whether the five techniques, individually, would constitute torture, was not made clear by the European Commission (Barnes 2016, 109). One must not see this evolution in torture’s definition as a quest to find a ‘real’ definition of torture. How we interpret torture is an ongoing social construction, shaped and constituted by historical moments in time. The direction torture’s definition should head in, however, has resulted in a definitional struggle between different actors. Definitional struggles are not just a technical legal issue. How one defines torture has implications for the kinds of practices that are included and excluded from ‘civilised’ life. This battle became an international issue in the late 1980s and 1990s when Israel adopted what it called ‘moderate physical pressure’.

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Israel and ‘moderate physical pressure’ On 31 May 1987, the Israeli government established the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Landau Commission). Headed by former Israeli High Court Justice, Moshe Landau, the Commission investigated allegations the Israeli General Security Service (GSS) had employed violent interrogation techniques on suspects of ‘Hostile Terrorist Activities’ and lied about the use of these techniques in court. The revelations, exposed in the 1987 Nafsu Case, had ‘severely undermined the public’s confidence in the GSS, and in parallel, caused immense confusion, to the point of a danger of a loss of direction, within the GSS itself ’ (Landau Commission 1989, 148). The Landau Commission, as it came to be known, was launched to address these issues and make recommendations as to GSS investigative procedures relating to combating terrorism (Landau Commission 1989, 146). The Landau Commission confirmed that the GSS had used violent interrogation practices against terrorism suspects and then lied about it in court. However, instead of prohibiting the violent interrogation techniques, the Commission recommended they be legalised. This was because unlike the police, the GSS did not collect evidence to prosecute an offender, but to prevent terrorist attacks (Landau Commission 1989, 157). Furthermore, the GSS had used violent interrogation techniques since 1967 because they were deemed to be necessary and ‘unavoidable’ (Landau Commission 1989, 158–159). A confession was needed to convict terrorists, and these techniques were necessary because terrorists often engaged in resistance training against interrogation strategies (Landau Commission 1989, 158). The need to use physical interrogations and the ban from using them meant the GSS committed perjury to prevent confessions gained under physical coercion from being thrown out of court (Landau Commission 1989, 161–165). In siding with the GSS rationale for using violent interrogation techniques, the Landau Commission recommended ‘moderate physical pressure’ be used against terrorism suspects to prevent further attacks. The Commission justified its argument by invoking s22 of Israel’s Penal Law, which can justify a transgression of legal prohibitions to protect a greater value in Israeli society (Landau Commission 1989, 170). The Commission stated: To put it bluntly, the alternative is: are we to accept the offence of assault entailed in … slapping a suspect’s face, or threatening him, in order to induce him to talk and reveal a cache of explosive materials meant for use in carrying out an act of mass terror against a civilian population, and thereby prevent the greater evil which is about to occur? The answer is selfevident. (Landau Commission 1989, 174) The Landau Commission’s findings and recommendations represent an interesting test case for the taboo. The above argument that violence is necessary to

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The politics of the definition of torture 127 prevent a greater evil was similar to that used by French soldiers during the French-Algerian war to justify torture in response to ‘ticking bombs’. However, the Commission’s argument was also different in that it did not try and justify ‘torture’ as such. Rather, it made a distinction between ‘torture’, which is absolutely prohibited, and ‘moderate physical pressure’, which did not reach the level of torture. The Commission invoked the ECHR’s Ireland Case, discussed above, to argue that the ECHR ruled on the five techniques when used in combination (Landau Commission 1989, 179–181). It did not determine whether using them individually would constitute torture or CIDT. Moreover, the Landau Commission also invoked the European Commission’s statement ‘that a moderate measure of physical violence’ could be inflicted and not amount to torture or CIDT (Landau Commission 1989, 181). Although the Landau Commission never released its recommended techniques to the public, it stated that psychological techniques should be used first, and if these failed, ‘moderate physical pressure’ could then be used within set limitations and safeguards4 (Landau Commission 1989, 184–185). If followed correctly, argued the Commission, these techniques would not constitute torture, maltreatment, or a violation of human dignity and would set ‘the boundaries of what is permitted to the interrogator and mainly what is prohibited to him’ (Landau Commission 1989, 185). The Landau Commission recognised that despite the serious threat of terrorist attacks, Israel could not conduct itself however it liked. There were limits to interrogations, and these limits were set by the torture taboo. To violate the taboo was to bring about untold danger to Israel. The Commission argued that the types of interrogations used by a country ‘are a faithful mirror of the character of the entire regime’ and violating moral principles posed the ‘danger of sliding towards methods practiced in regimes which we abhor’ (Landau Commission 1989, 182–184). To prevent police despotism and ‘internal moral corruption’, the Commission stated the GSS had to ‘preserve humanitarian behaviour and human dignity in their treatment of terrorists, in order to uphold the credo of the State itself as a law-abiding State grounded in fundamental concepts of morality’, even if terrorism suspects had no right to such treatment (Landau Commission 1989, 183–184). To breach these boundaries was to bring into question the identity of Israel as a ‘civilised’ state (Landau Commission 1989, 182). The fact torture could not be used, even during a time of security crisis, demonstrates the robustness of the taboo’s legitimacy. Torture was not prohibited because it did not work. Rather, torture was prohibited because it was wrong, and threatened a moral decay of the state if it was used. This illustrates the important role the taboo’s constitutive and regulative effects had on not only the Landau Commission, but, as I show below, also on the Israeli government. Despite facing threats of terrorism, the taboo was not forgotten and had to be upheld. Yet, at the same time, the Landau Commission severely undermined the taboo by limiting its scope. The Commission interpreted the definition of torture in relation to the severity of pain inflicted, whereby only a large ‘quantity’ of pain constituted torture, allowing for a ‘moderate’ amount of pain to be inflicted.

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This ignored the European Commission’s interpretation of torture that took into account the purpose of the act. But it also ignored the warnings from the ECHR’s dissenting judges and from human rights groups that modern forms of torture do not have to inflict large amounts of violence upon a person to break their personality and will. The case of ‘moderate physical pressure’ is such an interesting case for the taboo because it not only demonstrates the strength of the taboo’s legitimacy, but it also shows how the taboo was undermined at the same time. Instead of advocating the use of torture, such as electric shocks, which Israel had employed at least since the early 1970s (see Amnesty International 1973, 211–214 and 1984b, 233–236; Bishara 1979, 7, 9; Hajjar 2008, 245–246), the Commission continued to maintain the absolute prohibition against torture, but redefined the boundaries of what constituted torture. This sparked a fierce debate within Israel about whether ‘moderate physical pressure’ constituted torture. As I now show, despite Israel undermining the taboo, the taboo continued to play an important role in shaping Israel’s interests, identity and actions. Israel was cognisant of remaining within morally acceptable behaviour in its counter-terrorism policy. In addition, the contestation surrounding ‘moderate physical pressure’ also helped to delegitimise the Landau Commission’s definition of torture, showing that although states may try to manipulate international norms to better reflect their interests, they cannot define norms however they like.

The battle over torture The use of ‘moderate physical pressure’ sparked controversy within Israel soon after the Landau Report was released. Human rights organisations condemned the Landau Commission’s recommendations as they saw ‘moderate physical pressure’ as constituting CIDT or torture and argued the techniques posed a danger to Israel’s democracy (Amnesty International 1991b, 1994a, 1995, 1997; B’Tselem 1991, 1992, 1997; Human Rights Watch 1994). In a 1994 report, Amnesty International disagreed with the recommendations of the Landau Commission, warning that ‘moderate’ pressure often becomes ‘immoderate’ as it is difficult to control the escalation of violence once violence has been condoned by the government (Amnesty International 1994a, 12). The Israeli human rights organisation, B’Tselem, argued the justification of these techniques for short-term interests undermined democratic values and blurred the distinction ‘between terrorism and those who combat it’ (B’Tselem 2000, 9–10). Critics of the interrogation program challenged the idea that the pain inflicted by GSS officials was ‘moderate’. B’Tselem (1991) published a report in 1991 documenting the use of physical violence on thousands of Palestinian detainees dating back from the beginning of the intifada in 1987. Techniques included: verbal insults and abuse; threats to harm the detainee or detainee’s family (including death threats); sleep and food deprivation; holding detainees in ‘closet’ cells of 1 × 1 metres, with some cells being refrigerated; different forms

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5

of tying-up such as the ‘al-Shabah’ and ‘banana tie’;6 forced physical exercise; beatings; the use of water (cold showers, wetting the detainee’s hood); covering the head with a sack and blindfolding the detainee (B’Tselem 1991, 54–75). Members of the Israeli Knesset were also critical of the interrogation techniques. In June 1993, nine MPs tried, and failed, to pass legislation that banned torture techniques that they argued were used against Palestinian detainees but not Jewish detainees (Olster 1993; Parker 1993). However, the Israeli government maintained a consistent position in the face of these criticisms. Dismissing revelations of human rights violations as ‘fabricated’ (The Toronto Star 1991; Reuters News 1992), the government argued that ‘moderate physical pressure’ was legal, did not constitute torture, and was necessary to stop ‘ticking bombs’ and save lives (Gellman 1995). Even when the government extended the GSS’ interrogation powers to go beyond the Landau Commission’s recommendations in response to a spate of suicide bombings in 1994, it argued these extended powers remained within ‘the principles set by the Landau Commission’ and did not constitute torture (Agence France-Presse 1994b). In justifying the interrogation techniques, the Environment Minister, Yossi Sarid, stated, ‘interrogations today are more violent than ever because there are many ticking bombs in many places that only a quick interrogation can neutralize. If they are not neutralized, terrible and awful tragedies will occur’ (Gellman 1995). It was not just the Israeli government that supported the interrogation techniques. Unlike during the French-Algerian war where public opinion toward torture was negative, the contestation surrounding whether or not ‘moderate physical pressure’ constituted torture created an environment where public opinion on the techniques was mixed. In January 1996, after Hamas carried out two suicide bombings in Jerusalem and Tel Aviv within a period of a month, the editor of the liberal-leaning Haaretz newspaper, Yoel Esteron, came out in support of temporarily extending Shin Bet’s interrogation powers, stating, ‘These are really bad guys and I don’t think we should worry too much about their rights’ (Bronner 1995). Similarly, medical physicians that worked with interrogators employing ‘moderate physical pressure’ provided the interrogators with support. It emerged in 1993 that ‘a “medical fitness for interrogation” form’ was given to physicians by Israeli interrogators to confirm whether detainees were fit for interrogation (Summerfield 1995a, 1413). Furthermore, some doctors did not document torture, something they are obliged to do under international conventions that regulate medical ethics (Bamber et al. 2002, 271; Summerfield 1995b, 755). When the role of Israeli medical physicians in interrogations became public knowledge, the Israeli Medical Association remained silent on the issue, stating it is ‘careful not to get involved in the political aspects of the issue’ of interrogations (Mamode 1996, 57; Summerfield 1995b, 755). However, in 1999, the Chairman of the IMA Ethics Committee, Professor Dolev, stated ‘a couple of broken fingers’ in interrogations could be justified if it elicited information to prevent ‘ticking bombs’ (Bamber et al. 2002, 271). Moreover, Dolov did not agree that Israeli techniques constituted torture (Bamber et al. 2002, 271).

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Although the advocacy of ‘moderate physical pressure’ undermined the taboo by attempting to legitimise a very narrow interpretation of what constituted torture, this contestation also highlighted the strength of the taboo’s legitimacy. The government was not advocating ‘torture’. Along with advocates of ‘moderate physical pressure’ within the Israeli general public, they continued to maintain that torture was wrong and was absolutely prohibited. This demonstrated that the taboo continued to shape Israeli identity, but it also shaped its interests and actions by placing moral constraints on how a ‘civilised’ state should respond to terrorism. The fact that the French army could advocate the use of torture to prevent ‘ticking bombs’, but Israel could not, demonstrates how the taboo had strengthened since the French–Algerian war. If Israel was facing the threat of future terrorist attacks, it would not have placed limits on its conduct if it thought the taboo was not important. Whilst this contestation demonstrated the strength of the taboo’s legitimacy, at the same time, it also highlighted the fragility of the government’s argument that ‘moderate physical pressure’ did not constitute torture. The fact that the Israeli government did not have the support of prominent human rights groups undermined the legitimacy of the government’s interpretation of torture. As ‘moderate physical pressure’ was never legalised by the Knesset (despite attempts at trying) (see Agence France-Presse 1996c; Agence France-Presse 1996b), the Israeli government resorted to using the courts to legitimise the interrogation practices. A case came before the Israeli courts in 1996 concerning the interrogation of terrorism suspect, Khader Mubarak. Mubarak endured interrogations that involved being subjected to painful positions, hooding, loud music and sleep deprivation (B’Tselem 1997, 26). Although the court prohibited the ‘painful shackling’ of the detainee, it argued that hooding, sleep deprivation and loud music were legitimate techniques. The Court followed the Landau Commission and made its judgement by examining the use of each technique individually, rather than in combination, ignoring the suffering caused by a combination of these methods (B’Tselem 1997, 28). The courts also helped re-establish interrogation techniques that had been prohibited. In one prominent case, a detainee was found to have died after being subjected to the torture technique called ‘shaking’. Shaking consisted of placing the detainee in a sitting position on a chair, with their ‘legs shackled below a low chair and the hands handcuffed behind and between the back bars of the chair’ (Amnesty International 1995, 10). This position inhibited the detainee from resisting as the interrogator shook the detainee (Amnesty International 1995, 10). One detainee recalled: An interrogator called ‘Captain Benny’ stepped on the chain linking my legs, while my hands were tied behind my back. He grabbed my shirt collar, bent me backward at a 45 [degree] angle and began to shake me very hard. When he did this I felt as if I was choking. I couldn’t feel my neck, as if it was not even there. The first time he did this I fell to the ground and fainted. (Amnesty International 1995, 11)

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The politics of the definition of torture 131 On 25 April 1995, it was publicly announced that a detainee, Abd al-Samad Harizat, had died while in Israeli custody. The autopsy, which was carried out on 27 April, concluded Harizat died of a right parietal subdural haematoma caused by violent shaking (Amnesty International 1995, 5–6). When Harizat’s death made news headlines in Israel, the Attorney General prohibited shaking in interrogations (Reuters News 1995). However, by January 1996, Israeli courts had given the Shin Bet the green light to continue using the technique (Agence France-Presse 1996a). Although the Israeli courts helped the Israeli government maintain the argument that its interrogations were legal, the overwhelming consensus of opinion outside of Israel was that the interrogation techniques constituted CIDT or torture. The International Committee of the Red Cross issued a rare public statement on 16 July 1991 and again in May 1992 calling on Israel ‘to put an immediate end to the ill-treatment inflicted during interrogation on detainees’ (Amnesty International 1994a, 1; B’Tselem 1992, 27). The Israeli Medical Association also came under attack for its complicity in the torture program. As Derek Summerfield (1995a, 1413), the Principal psychiatrist for the Medical Foundation for the Care of Victims of Torture, stated in regards to the use of medical fitness for interrogation forms, ‘doctors who completed such forms could not credibly claim to have no idea that they were certifying detainees to undergo some degree of abuse amounting to torture’. As a result of these positions, there were calls for the international medical community to boycott medical conferences held in Israel (Burns-Cox 1996, 57). The UN Committee against Torture also criticised Israel’s interrogation program. In a 1994 Israeli report submitted to the UN Committee, Israel outlined the measures and safeguards it had taken to implement the UN Convention against Torture. The Report made a distinction between torture and ‘moderate physical pressure’, arguing the latter techniques did not reach the level of torture or maltreatment, they upheld the suspect’s dignity, and they were unavoidable in order to prevent terrorist attacks (UN Committee against Torture 1994, 9). However, in the UN Committee’s 1997 concluding observations and recommendations report, the Committee condemned the Landau interrogation practices as constituting torture and CIDT. The Committee acknowledged Israel’s security concerns but stated it did not allow for a violation of the torture prohibition. Amongst some of the Committee’s recommendations was for Israel to cease applying internationally prohibited interrogation techniques7 and any other provisions that violated the Convention, and for Israel to publish the ‘landau rules … in full’ (UN Committee against Torture 1997a). Israel refused and both parties stuck to their positions in the subsequent report and conclusions in 1998.8 The UN Committee against Torture also played a role in delegitimising the use of Israeli courts to rubber stamp the interrogation program. In 1996, a case came before the Israeli courts regarding an application for an interim injunction on physical interrogation methods being used against a suspect held in Israeli custody. The Hamdan Case, as it became known, documented how Hamdan had

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been subjected to death threats, was tied up in painful positions, hooded, subjected to loud music, sleep deprivation, squatting and violent shaking (B’Tselem 1997, 14–19). The courts granted the interim injunctions but then revoked them on appeals by the GSS who claimed it had obtained recent knowledge concerning future terrorist attacks and needed to use the techniques to gain information (B’Tselem 1997, 7–19). The Hamdan Case sparked international outrage. On 18 November 1996, Yuval Ginbar, a senior researcher for B’Tselem, wrote to Allessio Brunni, Secretary of the UN Committee against Torture, stating he was concerned about the Israeli court’s ruling in the Hamdan Case: ‘We are concerned that this could have extremely dangerous implications beyond Israel and the Occupied Territories. If Israel’s policy is allowed to continue unhindered, other democratic states facing security problems may follow suit’ (B’Tslem 1997, 30). He then asked the Committee to request Israel for a special report explaining the interrogation methods under Article 19(1) of the UN Convention against Torture (B’Tslem 1997, 30). The next day, the Chairman of the Committee against Torture issued a press release stating ‘moderate physical pressure’ was ‘completely unacceptable’ and requested Israel to submit a report to the Committee under Article 19(1) to explain its practices, the first time in the Committee’s history it had done so (B’Tselem 1997, 19, 31). Moreover, the Committee stated it was concerned the Supreme Court decision in the Hamdan Case was intended to legitimise ‘moderate physical pressure’ ‘for domestic purposes’ (UN Committee against Torture 1997a, par. 259).9 These condemnations show that states cannot define norms however they like. Nor are states the only actors that can define norms. The fragility of Israel’s definition of torture could be seen by the fact that a leading authority on the interpretation of torture’s definition, the UN Committee against Torture, condemned Israel’s definition and undermined its credibility. Although actors such as the UN Committee may be materially weak, their ability to exercise power by structuring knowledge means they play an important role in the interpretation of norms (see Barnett and Finnemore 1999, 707–715). Although Israel continued to challenge the UN Committee and defend its interpretation of torture, Israel’s efforts to legitimise its techniques came to an end in 1999, when its own court prohibited their use.

The end of ‘moderate physical pressure’ The struggle over the interpretation of ‘moderate physical pressure’ reached a decisive moment in 1999. On 6 September 1999, the Israeli High Court ruled in Public Committee Against Torture in Israel [PCATI] v. The State of Israel that ‘moderate physical pressure’ techniques were illegal. The Court examined several Israeli interrogation techniques, including shaking, the ‘frog crouch’,10 hooding and loud music while being subjected to an uncomfortable seating position called the ‘Shabach’, ‘excessive tightening of handcuffs’, and sleep deprivation. The Court recognised that in all ‘progressive’ societies, interrogations cause

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The politics of the definition of torture 133 discomfort, but noted that there are limits to interrogations. The Court found these techniques were unnecessary and violated the subject’s dignity. The Court argued, ‘An illegal investigation harms the suspect’s human dignity. It equally harms society’s fabric’ (Israel Supreme Court 1999, par. 22). However, although the Court reaffirmed the absolute prohibition against torture (Israel Supreme Court 1999, par. 23), it did not in fact make a ruling as to whether the above techniques constituted torture. Rather, the techniques were illegal because the necessity defence did not authorise the techniques, and therefore, the GSS was not authorised to use them. Whilst the decision as to whether these techniques constituted torture was left undecided, the Court did suggest that it did not believe ‘moderate physical pressure’ constituted torture. By acknowledging that these techniques resulted in a violation of human dignity, the Court was implying that at a minimum, these practices constituted cruel and inhuman treatment. In a demonstration that the Court was fully conscious of the political and policy debates surrounding the use of the techniques, the Court acknowledged that its decision could negatively impact on Israeli counter-terrorism efforts, stating, ‘[t]he possibility that this decision will hamper the ability to properly deal with terrorists and terrorism disturbs us’ (Israel Supreme Court 1999, par. 40). It then stated the GSS could employ these techniques in exceptional circumstances if authorised by the legislature (Israel Supreme Court 1999, par. 39).11 The Court’s ruling against the use of ‘moderate physical pressure’ was hardly a resounding one in support of the taboo (see Imseis 2001; UN Committee against Torture 2001a). Although the Court upheld the absolute prohibition against torture, it left open the door for the techniques to be legalised, despite arguing they violated human dignity. The Court ignored the UN Committee against Torture’s interpretation that these techniques constituted CIDT and torture, as well as arguments by leading human rights groups that the techniques violated international law. Rather than settling the domestic and international contestation surrounding whether or not these techniques constituted torture, the Court’s ambiguous ruling provided a space for supporters of the techniques to continue to advocate for their use. Ephraim Sneh, the Deputy Defence Minister, was critical of the Court’s ruling because it ruled ‘moderate physical pressure’ was illegal under existing law. He argued: It’s very nice to have liberal legislation, maybe it is good in Scandinavia or Western Europe or North America, but in our part of the world, where we have fought terrorism so bitterly, such a verdict is almost completely irrelevant to the world we live in. (Kaplow 1999) In addition, Likud member Reuvin Rivlin tried, and failed, to pass a private member’s bill in the Knesset that authorised the use of ‘moderate physical pressure’ in exceptional circumstances (Bamber et al. 2002, 271; UN Committee against Torture 2001b, 11; Hajjar 2008, 251).

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Although the Israeli government claimed that the Court’s ruling was confirmation that ‘moderate physical pressure’ did not violate international law (UN Committee against Torture 2001b, 12), the Israeli government did not try and pass legislation to authorise the techniques. On the same day of the judgement, a directive was issued by the Israel Security Agency, ordering personnel to adhere to the Court’s ruling (UN Committee against Torture 2001b, 8). Instead of trying to legalise the techniques, the government sought to develop the operations of its security forces by improving manpower and technological resources (UN Committee against Torture 2001b, 11). To this day, Israel has not published the Landau Rules, telling the UN Committee against Torture that because the Israeli High Court ruled them illegal, publishing them was ‘no longer relevant’ (UN Committee against Torture 2001b, 13). Although Israel’s attempt to redefine torture undermined the taboo and weakened its ability to protect individuals from brutal forms of harm, the legitimacy of the taboo remained robust. The debate surrounding Israel’s techniques was not whether torture was okay or not, but what constituted ‘torture’. The problem of torture had narrowed to a definitional struggle, something that is indicative of the consolidation of the taboo. The taboo continued to play an important role in placing constraints on Israel’s conduct as well as constituting its interests and identities. Furthermore, the debate and contestation surrounding ‘moderate physical pressure’ helped to delegitimise the techniques. For example, in 2002, when the Knesset passed a bill concerning Shin Bet responsibilities, a clause on ‘moderate physical pressure’ was removed from the bill because of concerns expressed by lawmakers and fears it ‘would prompt an international outcry’ (Segal 2002). The Justice Minister Meir Sheetrit, stated, ‘When I presented the bill, I made clear that no law would be legislated allowing torture in Israel’ (Segal 2002). The fact Israeli ministers were referring to ‘moderate physical pressure’ as ‘torture’ is demonstrative of the failure to legitimise the techniques. Not only does Israel’s use of ‘moderate physical pressure’ show that states cannot define norms however they like, but the fact the taboo can be so severely undermined yet come out at the end in one piece is a testament to its resilience.

Torture in Egypt At the same time that Israel was employing ‘moderate physical pressure’ another case of torture reached international attention. In 1991, the Egyptian Organization for Human Rights (EOHR) launched a one-year campaign against the systematic use of torture in Egypt to gain information, confessions and to punish (Middle East Watch 1992; Murphy 1992). The following year, Egypt went to war with the Islamic militant groups Gama’a al Islamiyya and al Jihad (Cook 2011, 165). The militants launched attacks against, among others, tourists, politicians, Coptic Christians, public figures, and police forces (Amnesty International 1993; Baligh 1993; Middle East Watch 1993). Gama’a al Islamiyya assassinated the Egyptian writer Farouq Fouda in June 1992 (Hepburn 1993), attempted to

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The politics of the definition of torture 135 assassinate President Mubarak and the Nobel laureate Naguib Mahfouz in 1995 (Cook 2011, 165), and in November 1997, Gama’a al Islamiyya opened fire on tourists at the popular tourist site, the Temple of Hatshepsut, killing fifty-eight tourists and ten Egyptians (Cook 2011, 166). The terrorist attacks adversely impacted on Egypt’s multi-billion-dollar tourism industry and harmed ‘Egypt’s reputation as an island of stability in the Middle East’ (Middle East Watch 1993, 3). Not only did this conflict undermine EOHR’s one-year campaign to stop torture, but Egypt continued to systematically employ torture as a key strategy to fight these terrorist groups. Torture techniques included beatings on the body and the soles of the feet, electric torture on sensitive parts of the body such as the nipples, head and genitals, suspension, forced standing, whipping, burning with cigarettes, sexual abuse, and psychological torture such as death threats and threats to harm a detainee’s family (Middle East Watch 1992). Islamic militants were targeted, as was anyone critical of the regime, including lawyers, journalists and students, women and children (Amnesty International 1991c; Amnesty International 1994b; Amnesty International 2001; Middle East Watch 1992). The problem of torture was not new to Egypt. Nasser used torture after the 1952 military coup, and although it declined under Sadat, after Sadat’s assassination in 1981, President Mubarak oversaw the systematic and widespread use of torture to gain information and to punish (Middle East Watch 1992, 2–3, 71–72).12 Despite criticisms from human rights groups, such as Amnesty International, stretching back into the 1970s, Egypt continued to torture (see Amnesty International 1973, 1982, 1984a, 1984b). Focusing on Egypt’s use of torture in its counter-terrorism campaign during the 1990s, I argue that despite the fact the taboo failed to constrain Egypt from torturing, this did not mean the taboo failed to matter. The taboo continued to shape Egypt’s identity, interests and actions. Even though the taboo was violated, the impact the taboo had on Egypt showed that the taboo’s legitimacy remained remarkably robust.

‘Pure lies’ Despite Islamic militants killing innocent civilians, exploding bombs in public places and attempting to assassinate prominent Egyptian government officials, Egypt made no effort to revise the torture prohibition or attempt to justify its use. Similar to Nazi Germany and the Soviet Union, torture was denied. ‘There is no torture of any kind in Egyptian prisons’ stated an official from the Interior Ministry in response to a 1989 Amnesty International report identifying torture. ‘Up until now, no case of alleged torture has been proved’ (Middle East Watch 1992, 116–117). In 1991, Egypt responded to a 1990 Amnesty report on Egypt’s torture in the same manner, labelling the findings ‘pure lies and rumours circulated with the intention of hindering security operations against some suspect elements’ (Amnesty International 1991c). When torture was admitted, it was an ‘isolated’ incident and not reflective of government policy or of a systematic practice (Amnesty International 1996, 11; Middle East Watch 1992, 117).

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Egypt’s denials represented more than cheap talk. Egypt was concerned with how accusations of torture would ‘distort Egypt’s image’, how it threatened Egypt’s stability (Middle East Watch 1992, 124; Middle East Watch 1993, 2) and how it undermined its security policies. To protect Egypt’s ethical standing and counter the exposure of torture, the Egyptian government used the media to misrepresent its torture record and frame itself in a humane light. Between January and February 1991, Middle East Watch conducted observations of six Egyptian prisons. While Middle East Watch was monitoring the prisons, the Egyptian government spoke to several Egyptian newspapers stating Middle East Watch had found no torture, that prisoners were treated well, and ‘modern humane ways’ of punishment were being employed. The Egyptian government reported to the media that the only issue Middle East Watch found was an overcrowding of prisons, which the Egyptian government was apparently trying to correct (Middle East Watch 1992, 2). Middle East Watch publicly disputed the government’s claims. It released a statement correcting what the organisation had found in Egyptian prisons, identifying widespread torture including electric and water torture, sexual abuse, beatings and poor prison conditions, among others (Middle East Watch 1992, 4). The following year, the Egyptian government engaged in a similar tactic to protect its image. In response to a 1992 report by Amnesty International, the government formed a committee in January of that year to respond to the torture allegations. However, instead of investigating violations and prosecuting offenders, it used the committee to develop ‘media strategies to counter reports of torture’ (Middle East Watch 1992, 123–124). These denials operated alongside the public reaffirmation of the torture taboo. In its 1993 submission to the UN Committee against Torture, Egypt framed its image as a respectable and legitimate member of international society. Egypt’s report stated it had a long history of defending human rights and it had prohibited torture since the nineteenth century and prohibited other practices ‘detrimental to human dignity or conducive to physical pain’ (UN Committee against Torture 1993, 4). Egypt argued it had ratified important laws such as the International Covenant on Civil and Political Rights (ICCPR) and amended its domestic legislation to be in line with international standards (UN Committee against Torture 1993, 3–7). Despite fighting terrorists at the time, the Egyptian government argued it respected the absolute prohibition, even during states of emergency. In addition to denying torture and reaffirming the prohibition, the taboo also shaped Egypt’s conduct, albeit in a minor way. Many of the torture techniques Egypt employed left few, if any, permanent marks on the body. Electric torture, suspension, forced standing, beatings on the feet and psychological torture have been recognised internationally as ‘clean’ torture techniques (Amnesty International 1991c; Amnesty International 1996, 9–10; Rejali 2007). One victim, Dr Ahmad Ghassem el-Nafees, recalled how he was arrested in May 1987 and subjected to electric torture on the head, ‘nipples and sexual organs’ (Middle East Watch 1992, 211). He stated that despite the electric torture going on for over

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five hours, the torturers ‘were very careful not to leave any marks’ (Middle East Watch 1992, 211). In another case, Ahmad Thabet Muhammed was arrested in November 1991 and subjected to electric torture and beatings on his feet. The beatings made his legs swollen to a point where he could not stand. When his legs continued to remain swollen after a week in his cell, officers began massaging his legs to make the swelling go down. Muhammed recalls how: a policeman brought hot oil and made the soldiers massage it into my legs. On the third day, they brought doctors. There were three doctors at the camp. One doctor said there was no problem but another doctor decided to work on my leg. They took me outside the car and the doctor used crude procedures to lance my leg and remove the pus. (Middle East Watch 1992, 83) When these techniques were combined with incommunicado detention and delays in transferring detainees to a physician, torture marks often healed by the time detainees left SSI or prison custody (Amnesty International 1996, 10). In February 1992, Middle East Watch went to Tora Istikbal prison where 127 detainees reported torture. Middle East Watch (1992, 79) stated, ‘Of the 127 torture victims, twenty-nine (or twenty-three percent) said that marks of their torture still remained, such as ligament tears, fractures, scars bruises or perforated eardrums’. Despite attempts to hide torture marks for some detainees, in other cases it appeared that little effort was taken to hide evidence of torture. Adbel Harith Madani, a lawyer, was tortured in April 1994 and died in custody. His death made international news and sparked protests within Egypt. Although the government claimed Madani died of an asthma attack, Madani’s body had scabs, chain marks and ‘several puncture wounds surrounded by large blue bruises’, which according to the coroner, was caused by ‘the penetration of a sharp instrument’ (New York Times 1994; Sami 1994).

A weak taboo? How does one interpret the dissonance between Egypt’s words and deeds? There is no doubt Egypt’s hypocrisy demonstrated the failure of the taboo to adequately constrain Egypt from torturing. However, to simply dismiss Egypt’s denials as cheap talk misses the nuance of how the taboo shaped Egypt’s interests, actions, and identity. Despite the fact that Egypt was fighting Islamic militants that posed a serious threat to Egypt’s security, under no circumstances did Egypt try to revise the taboo or justify its use in the name of preventing ‘ticking bombs’. Unlike Israel, Egypt did not try to redefine torture or understand torture in terms of ‘measuring’ pain. In fact, Egypt reported to the UN Committee against Torture in 1999 that, ‘the offence of torture obtains however slight or negligible the pain may be and whether or not the torture leaves marks’ (UN Committee against Torture 1999, 12). Israel’s interpretation of torture offered a way for Egypt to continue using torture by arguing it did not inflict severe

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enough pain. However, Egypt did not go down this path, choosing to publicly take an interpretation that was more closely aligned to that of human rights groups and the Inter-American Court of Human Rights. Furthermore, the public denials also reaffirmed the importance the torture taboo had in constituting a ‘civilised’ member of international society. It appears unclear what strategic benefit Egypt would have in not leaving marks on the body or oiling a detainee’s legs to reduce swelling. There was also no logical reason for Egypt to ratify the ICCPR and UNCAT and have itself subjected to the Conventions’ monitoring mechanisms that would leave itself open to criticism. Egypt’s behaviour demonstrates how states sign up to international treaties and conventions not because they necessarily believe in the goals and aims of the laws, but because they recognise that they need to do so to become an accepted member of international society (Risse et al. 1999, 2013). Human rights scholars have shown that when states insincerely sign on to international human rights agreements it can create unexpected consequences for that state, and can provide an avenue for actors to expose a norm violating state’s hypocrisy and bring about norm conformity (Clark 2001; Keck and Sikkink 1998; Lynch 2008; Risse et al. 1999, 2013). However, despite the exposure of torture by human rights groups, Egypt did not stop torturing and it was not isolated from international society. If the taboo’s stigma is as strong as I have argued throughout this book, why were transnational advocacy networks so unsuccessful in pressing Egypt to conform to the taboo? Unlike during the French-Algerian war where French critics were able to voice their concerns about torture (even if the French government tried to censor elements of civil society), little room was provided in Egypt’s authoritarian political system for critics to challenge the government. Egypt has been under a constant State of Emergency (Law 162 of 1958) since the June 1967 war with Israel, except for a brief period in 1981 when President Sadat lifted the State of Emergency (Cook 2011, 152, 190). The State of Emergency was used to stifle civil society, censor and ban publications, target critics of the regime and harass non-governmental organisations (NGOs) (Agence France-Presse 1994a; Amnesty International 1994b; Cook 2011, 81–82; Jetschke and Liese 2013, 31; Stacher 2001). The continued state of emergency not only contributed to ‘a culture of violence among certain elements of the police and security forces’ (UN Committee against Torture 1999, 23), but the governmental assaults on, and misrepresentations of, NGOs minimised public support for human rights groups and deterred people from engaging with them (Middle East Watch 1992, 125; Stacher 2001).13 Moreover, in conjunction with stifling civil society, Egypt was considered an important strategic partner in the Middle East by the United States and the European Community (EC), both of whom were not willing to jeopardise their strategic relationship to uphold human rights in Egypt. From the 1970s, the US saw Egypt as a bulwark against communism in the Middle East and North Africa (Cook 2011, 52). However, the strategic importance extended beyond an anticommunist strategy. According to Cook (2011, 161), during the 1980s:

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With the Iran–Iraq War in full swing, the Cold War heating up, and the ongoing challenge of confronting regional radicals and rejectionists, Egypt was more important to the United States than ever. Indeed, Cairo played an important role in checking Iran’s influence, containing Soviet penetration of the Middle East, and leading the camp of Arab moderates, which included Saudi Arabia, Jordan, Morocco, and the small Gulf Arab states. Mubarak exploited this strategic importance by promoting Egypt as a ‘loyal reliable moderate ally in the Middle East’ (Risse and Sikkink 2013, 291). Although the US made public statements that it had spoken to Egypt about its human rights record, the US did not place any serious pressure on Egypt to change (Dawoud 1993; Mann 1993; Middle East Watch 1992, 165; Sipress 1995). Rather, the US continued to support Egypt, providing it with multi-billion-dollar financial and military aid packages every year (Middle East Watch 1992, 174–176, 178). In addition, as a ‘reward’ for Egypt’s support of US military actions in the Gulf War, the US, ‘Arab creditors’ and the Paris Club cancelled a combined $30 billion worth of Egypt’s debt (Cook 2011, 161; see also Middle East Watch 1992, 165–180). As transnational advocacy networks rely on shaming tactics as well as pressure from other states to generate change, when powerful states continue to support norm violating states, the violating state can see no reason for change. Egypt was not isolated from diplomatic relations with other states and this support helped reaffirm to Egypt its status in international society (Middle East Watch 1992, 178). Supporting torturing states for strategic reasons reflected a wider trend during the Cold War that at times placed strategic interests before concern for the torture taboo (see Chomsky and Herman 1979; McCoy 2007). For example, despite widespread condemnation of Greece for torture during the late 1960s and early 1970s, Greece continued to torture. Amnesty International (1973, 77) argued this was because the US continued to support Greece because the US needed military bases and facilities for strategic reasons, something Greece supplied. Amnesty noted, ‘The torturers [in Greece] from the start had said that the United States supported them and that was what counted’ (Amnesty International 1973, 96). The fact the taboo failed to constrain Egypt or that human rights groups were unable to affect change does show the weakness of the taboo. However, this does not mean the taboo failed to matter. The fact Egypt consistently denied accusations of torture, used torture secretly and adopted techniques that left few, if any, marks showed that the humanitarian pressures of the taboo were not forgotten. Egypt’s concern that using torture would negatively impact on its international status was a recognition not only of the importance torture’s stigma has in constituting identities, but of the taboo’s legitimacy. Egypt’s use of torture also reveals the impact the taboo had on Egypt’s behaviour. Unlike in Israel, where the government sought to regulate the use of pain by creating distinctions between ‘moderate’ and ‘cruel’ interrogation techniques, Egypt made no attempt at legitimising these distinctions between categories of pain. Rather, Egypt was not so much concerned with regulating

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pain as it was with developing better strategies to hide it. This created a distinction in international society between states that sought to regulate pain and states that showed no concern with limiting pain. Egypt’s behaviour is reflective of a broader pattern within international society whereby, in the latter half of the twentieth century, states around the world, regardless of regime type, went to great lengths to hide their torture. Hiding and denying torture shows that even though the taboo is violated, the violators know what they are doing is wrong, and they seek to hide that behaviour to prevent prosecution, condemnation or maintain legitimacy in the eyes of a domestic or international community. Rejali (2007, 14) cites an example where an officer under the Mobutu regime in Zaire told his soldiers to stop beating one of their prisoners because ‘[i]t will leave scars and we will get complaints from Amnesty International’. In postPinochet Chile, detainees were told after torture sessions to go ‘wash and make [themselves] look better for the press’ before they could video-record their ‘confessions’ (Amnesty International 1991a, 8–9). In Turkey, a victim was suspended naked and electrocuted on the testicles. He was then hosed down on the concrete floor. The victim recalled, ‘The torturers take good care not to leave marks, but underneath my arms there is still bruising’ (Amnesty International 1992, 12). Furthermore, UN Rapporteurs have shown that during inspection visits at police facilities and detention centres, countries have often hidden abused detainees and torture weapons from inspectors or even transferred large amounts of prisoners to other prisons to prevent them from being seen by the Rapporteur (see Rodley 2005, 106–116; UN General Assembly 2008). Regardless of whether states reside in Europe, Africa, Asia, the Middle East or Latin America, torture is never justified, always denied and hidden (Amnesty International 1973, 1984b). How torturers talk about torture when using it also has similarities across the globe. Scarry (1985, 44) and Crelinsten (1995) have shown that during torture sessions, torture is often not called ‘torture’. As Scarry (1985, 44) notes, ‘the person’s pain will be called “the telephone” in Brazil, “the plane ride” in Vietnam, “the motorola” in Greece, and “the San Juanica Bridge” in the Philippines’. Torture sessions are also not called torture sessions. It is ‘ “the dance” in Argentina’, while in Zaire, the beginning of a torture session is called ‘le petit dejeuner (the breakfast)’, which then proceeds to ‘le dejeuner (the lunch)’ (Crelinstein 1995, 40; Scarry 1985, 44). The use of similar torture strategies by states around the world undermined the torture taboo and highlights its inability to constrain states. However, what must not be lost here is the fact that the repetitiveness with which torture is hidden, denied and called something else actually reaffirms torture as prohibited conduct. The public refusal of states to openly challenge the torture taboo (even in the face of terrorist attacks) demonstrates the taboo’s legitimacy as something that could not be challenged. Regardless of how undemocratic a political regime is, it never wants to admit to using torture for fear of what impact it could have on its identity and ethical standing. It is this continual denial and hiding of torture and the public reaffirmation of the torture taboo that confirms its legitimacy and reinforces torture as abhorrent and cruel conduct.

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Conclusion This chapter shows that whether the debate over torture has narrowed in parts of the world to a definitional struggle, or is simply denied and hidden in other parts, it demonstrates a universal consensus that torture is not appropriate conduct and cannot be justified under any circumstances. Even though Egypt refused to stop torturing in the face of domestic and international criticism, Egypt did not seek to revise the norm or publicly justify the use of torture. The taboo proved too strong and resilient for Egypt to challenge. The case of Israel’s use of ‘moderate physical pressure’ also highlighted the strength of the taboo’s legitimacy. Despite Israel facing terrorist attacks, it did not openly challenge the taboo, rather choosing to redefine torture. Torture continued to remain prohibited, not because it was ineffective, but because it was morally dangerous. It was the taboo that inhibited Israel from openly engaging in ‘torture’ and it was the taboo that placed limits on Israel’s conduct. The narrowing of the battle over torture to its definition illustrates how the taboo has become more robust over time. But what it also demonstrates is the torture prohibition is not about prohibiting pain per se, but a particular type of pain relating to a ‘civilised’ identity. To exceed a certain amount of pain becomes ‘gratuitous’ and prohibited (Asad 2003, 114). This discourse of ‘excess’, which has been discussed in the previous chapters of this book, was refined by Israel to transform torture into a measurable concept. Quantifying pain by focusing on the severity of pain inflicted reflected an attempt to balance the usefulness of inflicting pain in interrogations with ‘civilised’ conduct. By narrowly defining what constituted torture, it blocked out of the taboo’s protection what the dissenting judges in the ECHR called modern forms of torture; that is, techniques that may not necessarily inflict physical violence upon a person but still harm the personality and crush the will. The international struggle over the definition of torture traced throughout this chapter marks an important development in the history of the taboo. This definitional struggle has important implications for the taboo as well as how to determine a violation of human dignity. How international society defines and classifies torture is integral to understanding whether a person has been tortured and what types of practices are encompassed within the taboo. Although Israel stopped using ‘moderate physical pressure’ in 1999, B’Tselem argued Israel’s redefinition of torture set a dangerous precedent that could spread to other liberal democracies as they face terrorist threats. As I show in the next chapter, this is exactly what happened, with severe implications for the torture taboo.

Notes 1 Manfred Nowak (2006, 821), the former UN Special Rapporteur on Torture, argued the justified infliction of pain could: include the use of force by police in the exercise of law enforcement, such as lawful arrest of a person suspected of having committed a crime, preventing a person lawfully detained from escaping, quelling a riot or insurrection, dissolution of a violent demonstration, defending a person against crime and unlawful violence, and the use of force by the military in case of armed conflict.

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2 The British government defined interrogation in depth as:

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asking extensive and searching questions on subjects specifically selected as likely to be able to provide useful information and its object is to obtain reliable information concerning the disposition of the enemy and of his intentions rather than to obtain evidence to achieve a conviction in court. (European Commission 1976, 391) 3 Article 2 of the Inter-American Convention to Prevent and Punish Torture (Department for International Law, OAS 1985) reads: For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish. The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article. 4 These limitations were: (1) ‘disproportionate’ pressure was prohibited; (2) the use of techniques must be weighed against ‘anticipated danger’, meaning that these interrogation techniques could only be used in limited and ‘necessary’ situations and were not standard behaviour; (3) the techniques must be defined in advance; (4) there must be supervision of the interrogation; and (5) any transgressions must be punished (Landau Commission, 1989, 175). 5 The al-Shabah position consists of tying an individual’s hands above their head, tying their feet together and placing a hood over their head or a blindfold over their eyes. Their hands are then placed above their head and suspended to a wall in such a way that the individual has difficulty standing (B’Tselem 1991, 62). 6 According to B’Tselem (1991, 55), the banana tie involves tying the victim to ‘a stool, with head and legs bent over on either side’. Beatings can accompany the banana tie. 7 The techniques the UN Committee condemned specifically included: (1) restraining in very painful conditions, (2) hooding under special circumstances, (3) sounding of loud music for prolonged periods, (4) sleep deprivation for prolonged periods, (5) threats, including death threats, (6) violent shaking, and (7) using cold air to chill. (See UN Committee against Torture 1997a) 8 For the Israeli report to the Commission, see UN Committee against Torture 1998b. For the Committee’s response, see Committee against Torture 1998a. 9 On 17 December 1996, the High Court of Justice issued another interim injunction which prohibited ‘the use of physical force’ on Hamdan by GSS interrogators (B’Tselem 1997, 19). 10 According to the Israel Supreme Court (1999, par. 11), the Frog Crouch ‘refers to consecutive, periodical crouches on the tips of one’s toes, each lasting for five minute intervals’. 11 To then suggest these techniques could be authorised is a decision that goes against the absolute prohibition of CIDT under international law. 12 Torture for punishment could be seen in 1989 when ‘52 journalists, lawyers, students and workers’ were detained and tortured because they participated in a strike at the Helwan steel factory in August of that year (Cowell 1989).

The politics of the definition of torture 143 13 This is consistent with the human rights literature in international relations that has shown it is more difficult to bring about human rights change in an authoritarian regime (Risse et al. 2013, 287).

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The politics of the definition of torture 147 Sami, Mariam. 1994. ‘Human Rights Group Alleges Lawyer Tortured Before Death.’ The Associated Press, 18 May. Factiva. Scarry, Elaine. 1985. The Body in Pain: The Making and Unmaking of the World. New York and Oxford: Oxford University Press. Segal, Naomi. 2002. ‘Knesset Passes Shin Bet Law.’ Jewish Telegraphic Agency, 11 February. www.jta.org/2002/02/11/life-religion/features/knesset-passes-shin-bet-law. Sipress, Alan. 1995. ‘A Case of Torture: Egypt Targets Activists, Lawyers.’ The Salt Lake Tribune, 19 February. Factiva. Spjut, R.J. 1979. ‘Torture under the European Convention on Human Rights.’ The American Journal of International Law 73(2): 267–272. Stacher, Joshua A. 2001. ‘A Democracy with Fangs and Claws and its Effects on Egyptian Political Culture.’ Arab Studies Quarterly 23(3): 83–99. Summerfield, Derek. 1995a. ‘Torture in Israel.’ British Medical Journal 310(6991): 1413. Summerfield, Derek. 1995b. ‘Israeli Medical Association Shirks “Political Aspects” of Torture.’ British Medical Journal 311(7007): 755. The Toronto Star. 1991. ‘Israel denies torture charges.’ The Toronto Star, 31 July. Factiva United Nations Committee against Torture. 1993. Supplementary Reports of States Parties due in 1992: Addendum: Egypt. 30 July. Doc. No: CAT/C/17/Add.11. http:// tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CAT%2f C%2f17%2fAdd.11&Lang=en. United Nations Committee against Torture. 1994. Initial Reports of States Parties due in 1992, Addendum: Israel. Twelfth Session, 18–28 April. Doc. No.: CAT/C/16/Add.4. www. unhchr.ch/tbs/doc.nsf/(Symbol)/c7f20ebdd71b91ccc12563610039133f?Opendocument. United Nations Committee against Torture. 1997a. Concluding Observations of the Committee against Torture: Israel. Eighteenth Session, 28 April–9 May. Doc. No. A/52/44, paras. 253–260. www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.52.44,paras.253-260.En? OpenDocument. United Nations Committee against Torture. 1997b. Second Periodic Reports of States Parties due in 1996, Addendum: Israel. Eighteenth Session, 28 April–9 May, Doc. No.: CAT/C/33/Add.2/Rev.1. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G97/156/98/ PDF/G9715698.pdf?OpenElement. United Nations Committee against Torture. 1998a. Concluding Observations of the Committee against Torture: Israel. Twentieth Session, 4–22 May, Doc. No.: A/53/44, paras. 232–242. www.unhchr.ch/tbs/doc.nsf/(Symbol)/A.53.44,paras.232-242.En?Open Document. United Nations Committee against Torture. 1998b. Second Periodic Reports of States Parties due in 1996, Addendum: Israel. Twentieth Session, 4–22 May, Doc. No.: CAT/C/33/Add.3., 6 March. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G98/154/ 79/PDF/G9815479.pdf?OpenElement. United Nations Committee against Torture. 1999. Supplementary Reports of States Parties due in 1996: Addendum: Egypt. 28 January, Doc. No. CAT/C/34/Add.11. http://tbinternet.ohchr.org/_layouts/treatybodyexternal/Download.aspx?symbolno=CA T%2fC%2f34%2fAdd.11&Lang=en. United Nations Committee against Torture. 2001a. Conclusions and Recommendations of the Committee against Torture, Israel. Twenty-Seventh Session, 12–23 November, Doc. No.: A/57/44. www2.ohchr.org/english/bodies/cat/docs/co/IsraelCO27.pdf. United Nations Committee against Torture. 2001b. Third Periodic Reports due in 2000, Addendum: Israel. Twenty-Seventh Session, 12–23 November, Doc. No.: CAT/C/54/ Add.1., 4 July. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G01/430/43/PDF/G014 3043.pdf?OpenElement.

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United Nations General Assembly, Human Rights Council. 2008. Report of the Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Manfred Nowak: Mission to Sri Lanka. Seventh Session, 26 February, Doc. No.: A/HRC/7/3/Add.6. http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G08/111/35/PDF/ G0811135.pdf?OpenElement. United Nations General Assembly Resolution 3452 (XXX), 9 December 1975a (A/ RES/30/3452). Van Kersbergen, Kees and Bertjan Verbeek. 2007. ‘The Politics of International Norms: Subsidiarity and the Imperfect Competence Regime of the European Union.’ European Journal of International Relations 13(2): 217–238. Wiener, Antje. 2004. ‘Contested Compliance: Interventions on the Normative Structure of World Politics.’ European Journal of International Relations 10(2): 189–234. Wiener, Antje. 2009. ‘Enacting Meaning-In-Use: Qualitative Research on Norms and International Relations.’ Review of International Studies 35(1): 175–193.

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6

Torture and the ‘war on terror’

In the first decade of the twenty-first century, torture was again placed on the international agenda. Although Amnesty International (2000) launched another anti-torture campaign in 2000, highlighting that torture continued to be a global problem, it was not this campaign that put the spotlight on torture. After the 11 September 2001 terrorist attacks against the US, the Bush administration launched a ‘war on terror’, vowing to do whatever was necessary to defeat alQaeda and transnational terrorism. Despite its proclamations that the US would uphold human dignity when fighting this war, in 2004, photographs were released that showed US military personnel abusing and torturing Iraqi detainees in Abu Ghraib prison, Iraq. Soon after it was revealed that the administration had been employing torture under the guise of what it called ‘counter-resistance’ and ‘enhanced interrogation techniques’ (EITs) to gain information and intelligence from terrorism suspects. These practices included, among others, waterboarding, stress positions, use of loud music and isolation. In addition, segments of the US population started to question the torture taboo, arguing that torture could be used in exceptional circumstances to prevent terrorist attacks and save lives. This has led to suggestions that the ‘war on terror’ triggered a regression of the taboo and normalised torture within the US (McKeown 2009). Although not denying that US torture and inhuman treatment undermined the torture taboo, to suggest US conduct sent the taboo into regression, either domestically or internationally, is overblown. This chapter shows that the ‘war on terror’ actually demonstrates the strength of the norm’s legitimacy, and, following on from the previous chapters in this book, I show how its strength can be seen by studying its violation (see Barnes 2016a, 2016b). The Bush administration never argued that the prohibition against torture did not apply during the ‘war on terror’. The US denied and lied about using torture, it redefined practices such as waterboarding as ‘enhanced interrogation techniques’ and it outsourced prohibited torture techniques to third countries through its ‘extraordinary rendition’ program. Despite being a global superpower, the US could not successfully rid itself of the norm or legitimise its definition of torture to domestic and international audiences (see Birdsall 2016). The administration became increasingly isolated in its interpretation of torture, suffered international condemnation, and as a result, had to back down from its EITs program. In

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addition, the debate, argument and reflection surrounding the US definition of torture also triggered domestic and international efforts to strengthen the taboo. The humanitarian pressures of the taboo were not forgotten during the ‘war on terror’ but played an important role in shaping US actions and constituting its interests and identity. In order to demonstrate the strength of the norm’s legitimacy, this chapter focuses on the internal US memorandums and policies that authorised ‘counterresistance’ interrogations and EITs. Following in Israel’s footsteps, the US separated torture from other forms of pain and suffering not only by the severity of pain inflicted, but also by the intent of the person inflicting the pain. This allowed the US to narrow the types of practices that came within the taboo’s protection, but also ameliorate the tension between ‘civilised’ conduct and the prohibition on unnecessary violence (Linklater 2007). However, the taboo continued to play an important role in shaping US interrogation practices as well as placing limits on US conduct. It is in these internal discussions and memorandums that we see US government officials arguing over moral conduct, debating whether or not these practices constituted torture, and warning of the adverse consequences engaging in torture and CIDT would have on US identity and policies. After analysing these internal US memorandums, I then turn to examining how US interrogation techniques harmed US partnerships and allies, undermined US moral credibility, and damaged counter-terrorism efforts. This inhibited the US’ ability to speak out against torture, and as a result, countries around the world took the opportunity to use torture with the knowledge that they could get away with it. However, despite this, there was still not a regression of the taboo. No country took steps to revise the taboo, openly support torture or advocate its use. In fact, states continued to deny and hide their torture to avoid torture’s stigma. Despite the ‘war on terror’ providing an ideal environment for states to revise the taboo, torture’s tradition as cruel behaviour proved too strong for countries to challenge, demonstrating the strength of the taboo’s legitimacy.

Military interrogations at Guantanamo Bay The first 20 enemy combatants from Afghanistan arrived at the US-run Guantanamo Bay Naval base, Cuba, on 11 January 2002 (United States Department of Justice (DoJ) 2008, 27). Interrogations, which began on 4 February (DoJ 2008, 27), were carried out by the Criminal Intelligence Task Force (CITF ), US military intelligence, and the Federal Bureau of Investigation (FBI). When interrogations began, interrogators relied on the Army Field Manual 34–52 (FM 34–52), Intelligence Interrogation, which is based on rapport-based interrogation techniques (US Senate Committee on the Judiciary 2009). Although interrogation tactics were relatively unorganised in the first few months, by May 2002, ‘Tiger Teams’ were adopted which ‘consisted of an FBI agent, an analyst, a contract linguist, two CITF investigators, and a military intelligence interrogator’ (DoJ 2008, 34). The FBI was the lead interrogator on the Tiger Teams as they

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Torture and the ‘war on terror’ 151 had the most experience interrogating terrorism suspects (DoJ 2008, 34). These Teams continued for four to five months, and although producing some successes, ‘the FBI withdrew from participation in the Tiger Teams in the fall of 2002 after disagreements arose between the FBI and military intelligence over interrogation tactics’ (DoJ 2008, 34). This can be seen in the interrogation of Guantanamo Bay detainee, al-Qahtani. In mid-July 2002, the US found out that al-Qahtani was connected to the September 11 terrorist attacks. The lead interrogator, FBI Special Agent Thomas, moved al-Qahtani on 8 August to isolation at the Navy Brig. Thomas interrogated al-Qahtani for thirty days before the military told the FBI to ‘step aside’ and allow the military to take over and pursue more aggressive interrogations (DoJ 2008, 82). The DoJ Review (2008, 82) stated: According to Demeter [the case agent for Guantanamo Bay between February 2002–April 2003], the military’s decision to pursue a more aggressive approach was the ‘beginning of a real schism’ between the FBI and the military regarding detainee interrogation techniques. On 3 October, al-Qahtani was taken to a ‘plywood hut in Camp X-Ray’ where he was interrogated until the early hours of 4 October. An FBI agent recalled how ‘Al-Qahtani was “aggressively” interrogated and that the military interrogators yelled and screamed at him’ (DoJ 2008, 83). A military interrogator squatted over a Koran that had been provided to al-Qahtani which ‘incensed’ him (DoJ 2008, 83). Military interrogators also incorporated dogs into interrogations whereby: the guard handling the dog first agitated the dog outside the interrogation room, and then brought the dog into the room close to Al-Qahtani … the dog barked, growled, and snarled at Al-Qahtani in very close proximity to him, but was never allowed to have contact with him. (DoJ 2008, 84) FBI SSA Foy emailed the On-Scene Guantanamo Bay Commander on 8 October to describe how military interrogators were using ‘sleep deprivation, loud music, bright lights, and “body placement discomfort” ’ on al-Qahtani and that alQahtani was ‘down to 100 pounds’. Foy stated the interrogations were having ‘negative’ effects, and more interrogations had been planned for the weekend (DoJ 2008, 84; Barnes 2016b). Al-Qahtani was subjected to techniques that looked an awful lot like those used by Israel as well as the ‘five techniques’ that were condemned by the European Commission as constituting CIDT and torture. These techniques were not carried out by military officials operating outside of the law, but were in fact legal and authorised. How did the Bush administration justify their use? The answer lies in how the administration defined its obligations under international law and how it defined ‘torture’.

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The ‘humane’ treatment of detainees From the beginning of the war in Afghanistan in 2001, one of the problems the Bush administration faced regarding captured combatants was the limitations the Geneva Conventions placed on questioning PoWs. Under the 1949 Geneva Conventions III, ‘PoWs are only obliged to give name, rank, date of birth and personal or serial number’ (Roberts 2002, 24). This posed significant issues for the US as the Bush administration sought to interrogate detainees regarding information relating to al-Qaeda. In addition, the US was concerned with the judicial proceedings under the Geneva Conventions that state PoWs must be sentenced ‘by the same courts according to the same procedure as in the case of members of the armed forces of the Detaining Power’ (Roberts 2002, 24). This raised concerns for a number of reasons, including that al-Qaeda may use the courts for publicity, or that the courts would not be able to meet the standard of proof for punishment (Roberts 2002, 24–25). The Bush administration resolved these issues by narrowly interpreting its obligations under international law to exclude captured combatants from the Geneva Conventions (see Bybee 2002a). On 19 January 2002, Secretary of Defense Donald Rumsfeld (2002, 80) stated that Taliban and al-Qaeda detainees would not be provided with PoW status under the 1949 Geneva Conventions. Alberto Gonzales (2002), Council to the President, supported this decision, arguing that it provided the US with ‘flexibility’ to pursue various policy options. Repeating arguments first made by the French in the 1950s, Gonzales argued that this ‘new war’ against transnational terrorists emphasised ‘obtain[ing] information from captured terrorists’ to prevent future attacks and save lives. This meant that the traditional laws of war were outdated in this ‘new paradigm’ of war (Gonzales 2002, 119). This policy decision sparked debate within the administration. Secretary of State Colin Powell (2002, 123) warned against excluding the Geneva Convention as it went against the history of US support for the Geneva Conventions, and it would result in international condemnation, harm military and legal cooperation with allies, and make US officials and troops vulnerable to prosecution and legal challenges. However, in a 7 February memorandum, Bush (2002, 134–135) dismissed Powell’s warnings and stated that it was US policy that the Geneva Conventions would not apply to al-Qaeda, and that Articles 3 and 4 would not apply to the Taliban because they were ‘unlawful combatants’. Removing Geneva Convention protections proved integral to paving the way for the military’s and CIA’s interrogation programs. This was because the ‘flexibility’ of absolving the Geneva Conventions also made the restrictions on questioning enemy combatants obsolete (Gonzales 2002, 119). However, to suggest that removing PoW status from al-Qaeda and Taliban detainees provided the Bush administration with the ability to engage in torture would be incorrect. Throughout this debate on the PoW status of detainees, the administration did not declare that it could treat detainees however it liked. Although Assistant Attorney General Jay S. Bybee (2002a, 111–116) had provided an argument whereby the executive authority could abandon customary international law,

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Torture and the ‘war on terror’ 153 Bush did not adopt this position. Bush’s memorandum stated that, ‘our values as a Nation, values that we share with many nations in the world, call for us to treat detainees humanely, including those who are not entitled to such treatment’ and that this treatment must be ‘in a manner consistent with the principles of Geneva’ (Bush 2002, 135). Limits were placed on US conduct, and these limits were determined not by the effectiveness of the techniques, but by principles of morality, such as standards of ‘humane’ treatment. I do not deny that Bush’s order to treat detainees ‘humanely’ was in part cheap talk. However, as Gonzales (2002, 121) pointed out, this still placed a constraint on US conduct in its treatment of detainees, because it also meant that the US had to uphold ‘minimum standards of treatment universally recognized by the nations of the world’. Despite being the last global superpower, the US could not remove itself entirely from its international legal obligations. By placing constraints on its conduct by vowing to treat detainees ‘humanely’, it by virtue ruled out torture, the very epitome of inhumane treatment. This demonstrates the strength of the taboo’s legitimacy. The US was not treating detainees ‘humanely’ because ‘inhumane’ treatment was ineffective, but because it was wrong. By invoking the argument that engaging in inhumane treatment would undermine US identity and values, the Bush administration was recognising the taboo’s constitutive effects of defining a ‘civilised’ identity. Moreover, even though the French military argued during the French-Algerian war that a ‘new’ war and need for information made the laws of war, such as the torture taboo, redundant in its fight against non-state actors, the US did not make this argument. Torture remained prohibited. This shows how the taboo has strengthened over time, and that the same arguments once used to violate the taboo were no longer strong enough to justify torture. However, if the US ruled out using torture, how did it justify those techniques used against al-Qahtani? It did so by redefining what practices constituted ‘torture’. Torture as ‘extreme’ pain In a 1 August 2002 memorandum to Alberto Gonzales, Jay S. Bybee clarified what practices constituted torture under ss 2340–2340A, title 18 of the United States Code. This memorandum is important because it provided the definition of torture that formed the foundations of both the military and CIA’s interrogation programs. Under title 18 of the United States Code, torture is defined as an: act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control. (Bybee 2002b, 173) In interpreting this definition of torture, Bybee argued that for an act to constitute torture it had to cause ‘severe pain and suffering’. For Bybee, this meant

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pain that was ‘associated with a sufficiently serious physical condition or injury such as death, organ failure, or serious impairment of body functions’ (Bybee 2002b, 176). Furthermore, if ‘severe mental pain or suffering’ was inflicted, the suffering had to be prolonged and rise to the level of post-traumatic stress syndrome or chronic depression to constitute torture (Bybee 2002b, 177–178). And finally, he argued that a person had to specifically intend to inflict ‘severe pain and suffering on a person within his custody or physical control’ for the act to rise to the level of torture (Bybee 2002b, 175). Bybee’s interpretation of torture significantly narrowed the scope of the taboo by restricting what practices constitute torture. By relying on the severity of pain inflicted as the distinguishing mark of torture, he argued that only ‘extreme’ forms of pain and suffering would constitute a violation of human dignity and the taboo. In addition, by arguing that a person had to specifically intend to commit torture, Bybee made it harder for a person to be found guilty of torture. This was because if a person inflicts severe pain onto another person, but they do it out of ‘good faith’, such as inflicting pain to gain information about a terrorist attack, it would not constitute torture (Bybee 2002b, 174–175; Barnes 2016b, 110). By restricting the types of practices that could constitute torture, Bybee widened the ability for the US to use ‘harsh’ interrogation techniques. This was because anything that did not inflict ‘extreme’ pain did not constitute torture. However, Bybee also went further than undermining the scope of the taboo by justifying its violation. Bybee argued that because the prevention of terrorist attacks and interrogation of terrorists was imperative to the national security and defence of the US, the Commander in Chief authority regarding ‘conducting operations against hostile forces’ justified the use of torture if carried out under the defence of necessity or in self-defence against a terrorist attack (Bybee 2002b, 202, 207–213). This was the only finalised memorandum that explicitly authorised ‘torture’. The Bush administration did not try and justify using ‘torture’ at any time during the ‘war on terror’, and this legal advice to do so was not incorporated into policy. In addition, even though Bybee’s definition formed the foundation for ‘counter-resistance’ techniques and EITs, his argument that torture constitutes ‘extreme’ pain was actually quite fragile (see Birdsall 2016). Bybee (2002b, 185–190) argued that his interpretation of torture as ‘extreme’ pain reflected the US negotiation and ratification history of the UNCAT. He also argued that it was consistent with international law by arguing that it reflected the rulings of the ECHR in its Ireland Case as well as Israel’s Supreme Court ruling on ‘moderate physical pressure’. However, to get to this point, Bybee had to selectively interpret international law, ignoring the rulings by the ECHR since the Ireland judgement that used both the severity of pain and the purpose of the act to define torture. This fragility not only made it harder for the US to legitimise its interpretation of torture to domestic and international audiences, as I show below, it also made it harder to legitimise it to individuals within the US government.

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Although the torture taboo had a negligible impact on Bybee, the humanitarian pressures continued to operate on the Bush administration. Some within the US government saw these authorised ‘counter-resistance’ techniques as constituting ‘torture’ and they were not willing tolerate them. It is a testament to the taboo’s resilience and legitimacy that despite being so severely undermined in Bybee’s memorandum, it continued to shape US conduct, as well as its interests and identity. ‘Counter-resistance’ techniques Major General Dunlavely (2002) requested the approval of the military’s ‘counter-resistance’ techniques in October 2002. He argued that the existing interrogation techniques were no longer effective against terrorism suspects held at Guantanamo Bay and that new methods were needed to gain information. The techniques that were requested were based on the techniques used in the Survival, Evasion, Resistance, and Escape (SERE) program. This program helps US troops resist torture by foreign forces by subjecting them to harsh interrogation techniques as part of their military training. Three categories of techniques were requested. Category I consisted of yelling, deception, use of multiple interrogators, and pretending to be an interrogator from a foreign country that has ‘a reputation for harsh treatment of detainees’ (Phifer 2002, 227). Category II techniques included stress positions ‘for a maximum of four hours’, ‘use of falsified documents or reports’, ‘isolation for up to 30 days’, changing the interrogation environment, light deprivation, hooding, ‘20 hour interrogations’, taking away clothes and ‘comfort items’, switching hot rations for MREs,1 ‘forced grooming’, and exploiting ‘individual phobias (such as fear of dogs) to induce stress’. And Category III, the most coercive category, included inducing fear of imminent death of himself or his family, ‘[e]xposure to cold weather or water’, ‘[u]se of wet towel and dripping water to induce the misperception of suffocation’ and ‘[u]se of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing’ (Phifer 2002). Even though these techniques went outside of the standard military interrogation techniques outlined in the 34–52 Army Field Manual, the military argued that these techniques did not constitute torture. LTC Beaver, the Staff Judge Advocate for the Department of Defense (DoD) followed Bybee and argued that the techniques did not inflict severe enough pain to constitute torture and were therefore within the law (Beaver 2002). Furthermore, because they would be used in good faith to achieve a ‘legitimate governmental interest’ they would not constitute torture (Beaver 2002, 232–233). Despite warnings expressed by the Commander of CITF that these techniques were ineffective and would have legal consequences for military officials (DoJ 2008, 89), on 27 November 2002, Secretary of Defence Rumsfeld approved the first two categories of techniques and light pushing, grabbing and poking in the chest from Category III. Rumsfeld did not approve all the techniques. Even

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though Rumsfeld claimed all the techniques were legal, he stated that approval of all the techniques was not warranted because ‘[o]ur Armed Forces are trained to a standard of interrogation that reflects a tradition of restraint’ (Haynes 2002, 237). This reasoning was important. Despite Bybee offering a legal justification for violating the absolute prohibition against torture based on necessity, Rumsfeld did not authorise ‘torture’. Rumsfeld recognised that a prohibition against torture existed and that it had to be respected. This was not because torture was ineffective, but because torture was wrong. To violate the taboo was to bring the US’ history of restraint into question and therefore US identity. This is a clear case of the taboo shaping US interests, actions and identities. Despite the threat of a future terrorist attack, there were still limits in how a ‘civilised’ country could act, and these limits were grounded in moral norms, such as the taboo. The fact that Rumsfeld discussed these limits to interrogations within internal US memorandums that were not for public consumption, illustrates the fact that adherence to the taboo was not ‘hot air’, but constituted a fundamental element of US interrogation strategy. As I discuss later in this chapter, when these ‘counter-resistance’ techniques were made public in 2004, they caused outrage as constituting torture. Yet, concerns that these techniques constituted torture could be heard within US defence and intelligence circles before they were public knowledge. The FBI, which did not adopt coercive techniques as it saw rapport-based techniques as far more effective than coercive ones (DoJ 2008, 146), labelled the military’s interrogation techniques ‘stupid, demeaning, and ineffective’ (DoJ 2008, 110). Naval Criminal Investigative Service (NCIS) Director Brandt called the interrogation techniques ‘repugnant’ and vowed ‘that NCIS would not engage in abusive treatment even if ordered to and did not wish to be even indirectly associated with a facility that engaged in such practices’ (Mora 2004, 3–4). Admiral Mora, General Counsel of the Navy, became a prominent critic of the military’s interrogation program. Mora condemned the practices in Beaver’s memorandum and the 2 December memorandum authorising the harsh interrogation techniques. Mora claimed these techniques were cruel and inhuman and potentially reached the level of torture (Mora 2004, 14). The legal memorandums that justified the interrogation techniques were based on poor legal analysis, violated American values and ‘the President’s directive to treat the detainees “humanely” ’ (Mora 2004, 6). Admiral Mora (2004, 7–8) argued the memorandums did not define the boundaries of where appropriate conduct ended and where inappropriate conduct began. Mora highlighted the danger of using torture by warning that a failure to rescind these techniques would result in escalating violence at Guantanamo Bay, provoke a domestic and international backlash that would inhibit ‘support for the War on Terror’, and harm US relations with coalition partners and allies (Mora 2004, 10). The importance of these internal criticisms of torture was that even those on the front line in the ‘war on terror’ recognised the importance of upholding moral norms, such as the taboo, not only because of the adverse impacts on

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Torture and the ‘war on terror’ 157 policy but because it also undermined those that used it. Yet, even though the Bush administration’s definition of torture was challenged within the US government itself, these criticisms were not enough to overturn the techniques. After attempting, and failing, to get the techniques rescinded, on 15 January 2003, Mora wrote a draft memorandum stating the interrogation practices constituted at a minimum CIDT and possibly torture, and threatened to sign it if they were not revoked (Mora 2004, 14–15; Worthington 2007, 207–8). As result of Mora’s threat, on 15 January 2003 Rumsfeld rescinded the memo authorising the coercive techniques and requested that the DoD establish a Working Group to assess the legal, policy and operational issues relating to interrogations of detainees held by the US armed forces (Rumsfeld 2003a, 238). By April 2003, the techniques were reapproved (Rumsfeld 2003b). The Working Report, which used Bybee’s August 2002 memorandum as its definition of torture, recommended 35 interrogation techniques, 24 of which were chosen by Rumsfeld (US Department of Defense 2005, 5). Many of the techniques were in the Field Manual 34–52 (FM 34–52), however, Rumsfeld (2003b, 360–365) also approved several techniques that were not in the manual. These included ‘change of scenery up’,2 ‘change of scenery down’,3 dietary manipulation, environmental manipulation, sleep adjustment, ‘false flag’,4 and isolation. Rumsfeld left open the possibility that other techniques could be used, providing a written request was sent, which outlined safeguards and rationale for their use (Rumsfeld 2003b, 360). Rumsfeld’s memorandum authorising the techniques was secret, with Admiral Mora only discovering it a year later (Nowak 2006, 814). The approval of the military’s ‘counter-resistance’ techniques was not a free-for-all. The torture taboo provided a limit that interrogators could not cross (Barnes 2016b). Both Bush and Rumsfeld set limits to the interrogation and detention policy that was based, not on the effectiveness of the policies suggested, but by whether they met standards of ‘humane’ conduct and reflected the US’ ‘tradition of restraint’. Furthermore, the techniques that were approved could only be used under certain circumstances. These safeguards included approval and supervision of the use of techniques, interrogations were to be carried out by trained interrogators, and the techniques had to be used within a broader interrogation plan against a detainee who was believed to have held ‘critical intelligence’ (Rumsfeld 2003b, 364). If the torture taboo did not matter, the US would have had no reason to place limits on its conduct or be concerned about the adverse impacts that using torture would have on its identity. Although US ‘counter-resistance’ techniques undermined the efficacy of the taboo, the fact that the taboo’s constitutive and compliance pull function continued to operate on the Bush administration during a time of security crisis demonstrates the legitimacy of the taboo and the strength of its resilience. Despite its global status as a superpower, the US military could not rid itself of the taboo. I now turn to the authorisation of the CIA’s detention and interrogation program to show that the CIA could not rid itself of the torture taboo either.

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The CIA’s detention and interrogation program The ‘counter-resistance’ techniques authorised for the US military were different from those interrogations used by the CIA. According to the Schlesinger Report (2004, 942), which was commissioned by the Bush administration in response to the prisoner abuse scandal at Abu Ghraib prison in Iraq, the CIA operated under a different set of rules to the military in the ‘war on terror’. However, even though the CIA used a different set of interrogations to the military, torture remained prohibited and the CIA had to continue to treat detainees ‘humanely’ (The White House 2007). On the 17 September 2001, Bush authorised the CIA to ‘undertake operations designed to capture and detain persons who pose a continuing, serious threat of violence or death to U.S. persons and interests or who are planning terrorist activities’ (US Senate Select Committee on Intelligence 2014, 28). As part of these operations, the CIA was given a mandate to operate its own secret detention centres, known as ‘black sites’, to detain and interrogate ‘High Value Detainees’ (Amnesty International 2005; Council of Europe 2006, 15). Although the location of black sites was secret, with Bush only acknowledging the existence of the CIA’s detention and interrogation program in September 2006 (US Senate Select Committee on Intelligence 2014, 143–144), black sites were believed to have been held in Afghanistan, Bulgaria, Djibouti, Iraq, Kosovo, Lithuania, Macedonia, Morocco, Poland, Romania, Somalia, Thailand, and Ukraine (The Constitution Project 2013, 177–196). According to Amnesty International (2005, 3), one of the purposes of black sites was that they allowed the CIA ‘to collect intelligence through long-term interrogation, free from any legal restrictions or judicial oversight’. Black sites did not allow access to the International Committee of the Red Cross (ICRC) and they provided a space to hold detainees incommunicado (Human Rights Watch 2004, 8). It was in black sites that the CIA subjected its detainees to EITs. EITs were based on the concept of ‘learned helplessness’. This is where interrogators coerce detainees into becoming ‘passive and depressed in response to adverse or uncontrollable events’ so as to ‘encourage a detainee to cooperate and provide information’ (US Senate Select Committee on Intelligence 2014, 35). EITs were different to the military’s ‘counter-resistance’ techniques in that they consisted of more coercive techniques, such as waterboarding, and they were used on detainees that were believed to hold information about future terrorist attacks or information about al-Qaeda leaders (US Senate Select Committee on Intelligence 2014). Of the 119 detainees the CIA held between 2002 and 2008, thirty-nine were subjected to EITs (US Senate Select Committee on Intelligence 2014, 31, 95). This section examines two key elements of the CIA’s detention program. The first section examines the authorisation and use of EITs, while the second section examines the CIA’s ‘extraordinary rendition’ program. In both cases, the taboo played a fundamental role in the decision-making of CIA officials and in placing limits on CIA conduct.

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‘Enhanced interrogation techniques’ In November 2001, the CIA began exploring the use of coercive interrogation techniques (US Senate Select Committee on Intelligence 2014, 33). Although the CIA initially wrote a draft memorandum justifying the use of torture based on the necessity to save lives, it did not end up adopting this position (US Senate Select Committee on Intelligence 2014, 33, 44–51). Rather, the CIA went down the same path as the military by redefining what practices constituted torture. In an August 2002 memorandum by Jay Bybee to John Rizzo, Acting General Counsel for the CIA, Bybee responded to Rizzo’s request for the authorisation of ten interrogation techniques the CIA wished to use on al-Qaeda detainee Abu Zubaydah (Central Intelligence Agency 2004, Appendix C). Techniques included: ‘attention grasp’,5 ‘walling’,6 ‘facial hold’, ‘facial slap (insult slap)’, ‘cramped confinement’, ‘wall standing’, ‘stress positions’, ‘sleep deprivation’, ‘insects placed in a confinement box’7 and the ‘waterboard’ (Central Intelligence Agency 2004, Appendix C, 2; see also International Committee of the Red Cross 2007). Out of the ten techniques, the ‘waterboard’ was considered the most coercive, and it has also been the technique that has been the target of criticism of CIA EITs. The US Navy has traditionally used waterboarding as part of its Navy training exercises within the SERE program (Central Intelligence Agency 2004, Appendix C, 6; Fletcher and Stover 2008, 10). According to Bybee, waterboarding involves securing an individual ‘to an inclined bench’ with their feet elevated and a cloth covering their face. Water is then poured over the cloth. As the wet cloth restricts breathing and produces an increased level of carbon dioxide in their blood, it produces ‘an automatic physiological sensation of drowning that the individual cannot control even though he may be aware that he is in fact not drowning’. After 20–40 seconds of being unable to breathe, the cloth is removed, the detainee ‘is allowed to breathe unimpeded for three of four full breaths’ and then the whole process is repeated (Central Intelligence Agency 2004, Appendix C, 3–4). In assessing whether the waterboard and the other nine techniques constituted torture, Bybee used the same criteria that he used in his 1 August 2002 memorandum that interpreted torture. Bybee argued none of the ten techniques used individually or in combination would reach a level of pain severe enough to constitute torture (Central Intelligence Agency 2004, Appendix C, 11). Even though the waterboard threatened the victim with imminent death, a constitutive element of torture, he argued the interrogators did not hold the specific intent necessary for the act to constitute torture. In addition, as Zubaydah had no ‘pre-existing mental conditions’, it would be ‘highly improbable’ that these techniques would produce the prolonged mental harm necessary for it to breach it to constitute torture (Central Intelligence Agency 2004, Appendix C, 8, 17–18). Similar to the military’s interrogation techniques, the CIA did not seek authorisation to use ‘torture’. The CIA sought to remain within the law and uphold the absolute prohibition. Even when the CIA argued that the prohibition against CIDT did not apply to its interrogations, it sought to justify this position as being legal. The Bush administration argued that Article 16 of the

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UNCAT prohibiting CIDT did not apply to US interrogators in black sites because EITs were used overseas, and, according to the administration, a state does not have obligations to prohibit CIDT ‘outside “territory under its jurisdiction” ’ (Bradbury 2005c, 16). Furthermore, in a May 2005 internal memorandum, Principal Deputy Assistant Attorney General Steven G. Bradbury argued that even if Article 16 did apply, EITs would not breach the UNCAT anyway (Bradbury 2005c). The fact that the CIA set limits upon its conduct in black sites in foreign countries that lacked accountability mechanisms as well as access to monitoring bodies, such as the ICRC, illustrates the concern with which the CIA wanted to ensure it was abiding by the torture prohibition. CIA officers were careful what they wrote about interrogations in communications because of potential legal issues with detainee treatment (US Senate Select Committee on Intelligence 2014, 53, 87), and when questions over the legality of the interrogation and detention program arose, the program was suspended. For example, after Bush administration officials made public statements in July 2003 that the US treats its detainees humanely, the CIA stopped authorising EITs out of concern that its program did not confirm to the administration’s public statements (US Senate Select Committee on Intelligence 2014, 108–110). After the EITs were confirmed later that month that they were in fact consistent with administration policy, the EITs were suspended again in May 2004 because the CIA had been advised that it had not received a legal opinion regarding whether the EITs met US Constitutional standards (US Senate Select Committee on Intelligence 2014, 123). Although the CIA continued to use its EITs (except the ‘waterboard’) for the remainder of 2004 subject to ‘individualized approval’, when it received authorisation to use the techniques again in May 2005 the program was again suspended in December of that year (US Senate Select Committee on Intelligence 2014, 124–125, 132; see also Barnes 2016a, 209). This was in response to the Detainee Treatment Act, passed by Congress in December 2005, which narrowed permissible interrogations to those outlined in the Army Field Manuel (US Senate Select Committee on Intelligence 2014, 137). The CIA faced a further legal hurdle to its EITs program in July 2006 when the US Supreme Court handed down its decision in Hamdan v Rumsfeld. In that case, the Court ruled that ‘treating a detainee in a manner inconsistent with the requirements of Common Article 3 [of the Geneva Conventions] would constitute a violation of federal criminal law’ (US Senate Select Committee on Intelligence 2014, 143; see also Barnes 2016a). It was only in 2007, after Bradbury (Bradbury 2007) had constructed a legal argument to justify EITs in light of these legal developments that EITs were reintroduced. However, not all EITs were approved; waterboarding and nudity were excluded. The final EITs used on the CIA’s last detainee, Muhammad Rahim in July 2007, were: ‘(1) sleep deprivation, (2) dietary manipulation, (3) facial grasp, (4) facial slap, (5) abdominal slap, and (6) the attention grab’ (US Senate Select Committee on Intelligence 2014, 146, see also 146–149; see Barnes 2016a, 209).

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Torture and the ‘war on terror’ 161 If the torture taboo did not matter, it would not make sense for the CIA to continually be suspending its interrogation program at a time when it was argued the program was urgently needed to prevent terrorist attacks. The taboo exercised an important influence over the EITs program that had a real impact on the CIA’s conduct. Importantly, this limit was not enforced because torture was deemed ineffective, but because torture was illegal and wrong. In Bradbury’s 2005 memorandum that reauthorized EITs, he states, ‘Torture is abhorrent and universally repudiated … and the President has stated that the United States will not tolerate it’ (Bradbury 2005b, 51). For the CIA to suspend its program on the grounds that it could be violating its obligations under the taboo does not show a weak norm, but highlights its strength. However, this is not to suggest that the compliance pull of the taboo operated on all CIA officials. Despite CIA promises it would not use the ten techniques listed in the August 2002 memorandum in ‘substantial repetition’, the CIA waterboarded Khalid Shaykh Muhammad 183 times (Central Intelligence Agency 2004, 11, 45). Interrogators also used unauthorised techniques, including threatening detainees with handguns and power drills, using a stiff brush to bathe detainees, manipulating pressure points, and conducting mock executions, among others (Central Intelligence Agency 2004). Some detainees were forcefed rectally, either in response to hunger-striking or as a means to exert ‘total control over the detainee’ (US Senate Select Committee on Intelligence 2014, 84), while other interrogators used EITs as a way to impose discipline on detainees, rather than to gain information (US Senate Select Committee on Intelligence 2014, 82). Furthermore, even though the Bush administration received strong criticism that its EITs program constituted CIDT or torture, which I discuss later in this chapter, the CIA continued to use EITs until 2007. This shows the limits of the taboo, however, it does not detract from my overall argument that the taboo played an important role in shaping CIA conduct. The fact that the CIA’s EITs did prohibit ‘torture’, and that the CIA had to suspend its program numerous times because of concerns surrounding the taboo, does not show the weakness of the taboo but highlights its strength. At a time when the Bush administration vowed to do whatever was necessary to stop terrorist attacks, it still imposed limits upon itself, and these limits were based on the recognition that ‘torture’ was wrong and could not be used. It was this limit on conduct that gave rise to the practice of ‘extraordinary renditions’. ‘Extraordinary renditions’ In 2002, military interrogators at Guantanamo Bay developed a four-phase interrogation plan for al-Qaeda detainee, al-Qahtani (DoJ 2008, 87). The last phase, which would be implemented if the previous three failed to provide information, stated ‘Al-Qahtani would be sent “off Island” either temporarily or permanently to “either Jordan, Egypt or another third country to allow those countries to employ interrogation techniques that will enable them to obtain the requisite

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information’ ” (DoJ 2008, 87–88). Al-Qahtani was not subjected to phase IV of the military’s interrogation plan. However, this phase was demonstrative of a wider practice used by the CIA known as ‘extraordinary renditions’, where an individual would be sent to a third country for detention and interrogation. Renditions had been used under Reagan, Bush Senior and Clinton (Open Society Justice Initiative 2013, 14). However, under these presidents, the purpose of renditions was different. Renditions aimed to bring suspects to the US for prosecution when the US was unable to gain extradition (Amnesty International 2006, 6; The Constitution Project 2013, 165; Open Society Justice Initiative 2013, 14). Under Clinton, the purpose of renditions was to get terrorists ‘off the street’ and send them to foreign countries for detention or prosecution (Scheuer 2005). Interrogations played a minor role in the program because officials knew these individuals had been trained to resist interrogations and would just fabricate information (see Council of Europe 2006, 1; Scheuer 2005). After September 11, Bush signed a classified directive that made interrogations one of the primary purposes of renditions (Amnesty International 2006, 6). Moreover, unlike before September 11 where individuals would be sent to countries that had an arrest warrant against them,8 post-September 11, this policy ceased to exist. The US was, literally, outsourcing interrogations to third countries (Barnes 2016a, 202). For example, the Jordanian General Intelligence Department (GID), a large recipient of US rendered detainees, was given questions by the CIA to ask detainees. In addition, many of the suspects subjected to GID interrogations were not Jordanian nor were they wanted by the Jordanians (Human Rights Watch 2008, 46). The shift in the practice of renditions was because the Bush administration wanted immediate results in the fight against terrorism, and since the military was initially ill-prepared, the CIA was relied upon to produce results (Council of Europe 2006, 15). Furthermore, because the CIA operated its own black sites it was able to take detainees to its own detention facilities (Council of Europe 2006, 15). Although the extraordinary rendition program was run out of Washington it was made possible by the assistance of countries around the world (Amnesty International 2005, 2006, 2010, 2011; Council of Europe 2006, 2007; Human Rights Watch 2008; Open Society Justice Initiative 2013; The Constitution Project 2013; UN General Assembly 2010). To date, it has been estimated that around 54 governments were complicit in assisting the CIA including handing detainees over into CIA custody to be rendered to a third country, allowing the CIA to fly through a country’s airspace and land at its airports, hosting CIA black sites, or receiving individuals to interrogate for the US.9 It is suspected that since the ‘war on terror’ began, between 100 and 150 people were victim to extraordinary renditions (Barnes 2016a, 202; Open Society Justice Initiative 2013, 15; The Constitution Project 2013, 167). Although detainees were interrogated once they reached CIA black sites or were placed in the custody of a third country, the transfer of detainees itself was intended to make the detainees vulnerable to interrogations (Council of Europe 2006, 22–23; ECHR 2012; ICRC 2007, 6–7). Once apprehended, detainees were

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Torture and the ‘war on terror’ 163 stripped naked, photographs were taken, and then they were redressed in a diaper and tracksuit. Detainees were then hooded, blindfolded with goggles, and ear muffs placed over their ears. Once on the plane, detainees were restrained (often in uncomfortable positions) for the entire flight. Stories by victims recall how they were not given toilet access and were forced to urinate and defecate in their diapers (The Constitution Project 2013, 168). Once in detention, detainees were often moved to different detention centres in different countries, unaware of the time, date, or the safety of their families (see Amnesty International 2005, 2006; Human Rights Watch 2008; The Constitution Project 2013, 167; see also Barnes 2016a, 201–202). The types of torture techniques detainees were exposed to when rendered to third countries went beyond those permitted to US officials. Al-Tabuki was subjected to violent beatings, death and rape threats, family insults, and beatings on the soles of the feet with large sticks, known as ‘falaqa’. Al-Tabuki recalls after the beatings: my flesh in my feet would tear apart, they would untie the rope and order me to run across the courtyard, over saltwater. Throughout this, they would throw questions at me and demand answers to them, while kicking and beating me all over with sticks, including my sensitive parts. (Human Rights Watch 2008, 20–21) In 2001, Sweden handed Ahmed Agiza and Muhammed al-Zery over to US officials, where they were subsequently sent to Egypt and subjected to electric torture (Open Society Justice Initiative 2013, 31, 60; UN Committee Against Torture 2005; UN Human Rights Committee 2006). In September 2002, the Canadian Mahar Arar was detained by US officials while in transit at John F. Kennedy airport and rendered to Syria where he ‘was detained for more than ten months in a tiny grave-like cell seven feet high, six feet long, and three feet wide, beaten with cables, and threatened with electric shocks’ (Open Society Justice Initiative 2013, 32). Again in 2002, the Egyptian, Binyam Mohamed, who had obtained asylum in the UK, was detained in Pakistan and sent to Morocco, where Moroccan officials beat and drugged him, cut and poured hot liquid onto his penis, subjected him to threats of ‘rape, electrocution, and death’, exposed him to loud music, and ‘placed [Mohamed] in a room with open sewage for a month at a time’ (Open Society Justice Initiative 2013, 49; see also Grey 2006). The use of extraordinary renditions and black sites raise fundamental questions about what influence, if any, the taboo had on the administration’s conduct. Article 3 of the UNCAT prohibits the refoulement of individuals to countries where there is a risk they will be tortured. Although openly supporting the use of ‘extraordinary renditions’, the US denied that it was sending detainees to third countries to receive torture. In 2005, Secretary of State Condoleezza Rice stated renditions were a ‘vital tool in combating transnational terrorism’ (Human Rights Watch 2008, 7). Rice stated the US used diplomatic assurances from the

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recipient countries that detainees would not be tortured, and that the US ‘does not transport, and has not transported, detainees from one country to another for the purpose of interrogation using torture’ (Human Rights Watch 2008, 8). Rice’s public statement that the US did not send individuals to be tortured seems hard to believe given the fact the administration was told sending detainees to these countries would result in torture. Michael Scheuer confirmed that he told administration officials that sending a detainee to Egypt, for example, would expose detainees to torture (Scheuer 2005). Scheuer stated that when he told administration officials about the risk of torture, ‘They usually listened, nodded, and then inserted a legal nicety by insisting that each country to which the agency delivered a detainee would have to pledge it would treat him according to the rules of its own legal system’ (Scheuer 2005). The willingness to send detainees to third countries goes beyond negligence and points toward a systematic policy of outsourcing torture. As former Middle East CIA official, Robert Baer, stated: there’s a lot of franchising stuff out. Syria is a country, like Iraq, where they torture people. They use electrodes, water torture. They take torture to the point of death, like the Egyptians. The way you get around involving Americans in torture is to get someone else to do it. (Amnesty International 2006, 4) When the CIA was informing the Obama administration about its detention program, Vice President Biden stated, ‘Come on … you turn these people over to other countries so they can be tortured’ (The Constitution Project 2013, 168; see also Barnes 2016a, 210). The renditions program may be interpreted as a sign of the weakness of the taboo, and in part this is true. The use of ‘extraordinary renditions’ challenged the absolute prohibition against torture and violated the non-refouler principle. However, this is not to suggest the taboo had no impact on the Bush administration. What ‘extraordinary renditions’ offered was the opportunity to expose detainees to practices prohibited to US officials. In doing so, it paradoxically reaffirmed US identity as a country of restraint as opposed to countries that lacked restraint during interrogations. Abu Hamza al-Tabuki, for example, was arrested in Pakistan in 2001 and interrogated by US officials before being handed over to Jordan for interrogation. According to al-Tabuki, US officials told him he was being handed over to Jordan as Jordan ‘was more suitable … because American laws tie their hands and they cannot apply the methods of the Jordanians’ (Human Rights Watch 2008, 20). If the taboo had no effect on the US, it would not have found ‘extraordinary renditions’ necessary and would have carried out the interrogation practices of the Egyptians, Moroccans or Jordanians itself. In addition, the defences used by the administration in relation to ‘extraordinary renditions’ demonstrated the presence of a taboo that needed to be seen to be respected. The defence of diplomatic assurances demonstrated to the

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Torture and the ‘war on terror’ 165 international community that the US was taking precautions to ensure the detainee was not tortured. Although this has been condemned as a ‘legal nicety’, it demonstrated that a norm existed ‘out there’, regardless of the motives of the officials ordering the rendition. Recipient countries also took measures to hide their torture. Moroccan officials were careful not to cut Mohamed too deep to ensure they would not leave marks on his body (Grey 2006, 51), and doctors placed ointment on al-Zery’s skin to hide evidence of his electric torture (UN Human Rights Committee 2006, par. 3.15; see also Barnes 2016a, 210–211). The seriousness in which states around the world wanted to avoid being publicly involved in the renditions program could be seen in their response to press leaks surrounding the program. As the CIA’s EITs and black sites were exposed in newspapers, in particular in response to Dana Priest’s November 2005 article in the Washington Post, allies became angry at the failure of the US to protect their identity (US Senate Select Committee on Intelligence 2014, 137–138). The 2014 Senate Report (US Senate Select Committee on Intelligence 2014, 136) noted, ‘A combination of press leaks, international scrutiny of alleged [US government] detainee abuse, and the perception that [US government] policy on detainees lacks direction is eroding our partners’ trust in US resolve to protect their identities and supporting roles.’ Even though the CIA had faced difficulties finding partners to host black sites at the beginning of the ‘war on terror’, the press leaks made it even more difficult and contributed to closing down the program (see Barnes 2016a, 212). Although extraordinary renditions operated on a global scale, no state involved wanted to be associated with torture. All those involved denied their links with the torture program. Despite transnational terrorism being designated one of the biggest threats to international peace and security, no country was willing to openly support torture in the name of preventing further attacks. This behaviour does not demonstrate the taboo’s weakness, but signifies its strength.

Outrage at US torture How did actors within international society and in the United States react to the administration’s interrogation program? The Bush administration’s coercive interrogation program received condemnation around the world (Barnes 2016b, 113). After the Abu Ghraib scandal reached international news headlines in 2004, the administration went into damage control. President Bush went on several Arab news stations to explain and condemn the behaviour of those responsible for the Abu Ghraib torture (Guardian 2004a). Colin Powell publicly apologised for the abuses on behalf of the US, as did Rumsfeld in front of the Senate Armed Services Committee in May, 2004 (ABC News 2004; US Senate Committee on Armed Services 2004, 7–11). Furthermore, Bush administration officials sought to reaffirm the taboo. On 26 June, 2004, President Bush declared his support for the absolute prohibition against torture in respect for the United Nations International Day in Support of Victims of Torture (UN Committee against Torture 2006b). Other top-level officials, such as Alberto Gonzales, also reaffirmed the

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administration’s position that no circumstances justify torture (US Senate Committee on the Judiciary 2005, 14, 54). In addition, several investigations were launched into Abu Ghraib to not only understand why the abuses and torture happened but to demonstrate to the world that the US did not view this type of detainee treatment acceptable behaviour (see Greenberg and Dratel 2005). The Abu Ghraib scandal had negative consequences for US moral authority and undermined US legitimacy in the eyes of many in the Middle East. Ghassan Salameh, Lebanon’s former Minister of Culture, argued the US had ‘no moral authority’ (Baroudi 2007, 402), while front page headlines in Middle Eastern newspapers reported ‘The Scandal’ and ‘The Shame’, of US torture (Haaretz 2004b). Abu Ghraib represented ‘despicable scenes’ with citizens feeling ‘disgusted’ and ‘humiliated’ at the ‘ugly images’ of torture and abuse (Haaretz 2004a; Haaretz 2004b; see also Guardian 2004b). The US was heavily criticised for its definition of torture. The UN Special Rapporteur on Torture (Nowak 2006) and the UN Committee against Torture (2006a) condemned EITs as constituting torture and CIDT and criticised the use of diplomatic assurances as ineffective in preventing torture (Nowak 2006; UN Committee against Torture 2006a). Academics and human rights groups also challenged the US definition of torture and the legal justifications for ‘extraordinary renditions’, showing that both the use of EITs and ‘extraordinary renditions’ violated international law (see De Vos 2007; Sadat 2007; Satterthwaite 2007; Weissbrodt and Bergquist 2006). The Bush administration also received strong domestic criticism over its detention and interrogation program. Editorial responses to the leaking of the ‘torture memos’ condemned the administration for a ‘morally dubious culture of legal expediency’ (New York Times 2004) and ‘out-of-control government servants’ (Los Angeles Times 2004). The government was implementing policies that were undermining democracy (Kuttner 2004) and providing a justification of torture for dictators (Washington Post 2004).10 Republican Senator, John McCain, a torture survivor himself, condemned the Bush administration’s use of torture in 2004. McCain (2005, 156–157) argued that respecting humanitarian law is not only vital to protect American troops from harm, but the Conventions also ‘cut to the heart of how moral people must treat other human beings’ and to violate these laws, was to lose one’s moral standing in the world (McCain 2005, 157). In a 2008 Senate Committee Hearing on the use of SERE (Survival, Evasion, Resistance and Escape) techniques by the Bush administration, Admiral Mora called the ‘harsh interrogation techniques’ cruel and argued they had undermined American values and American security (US Senate Committee on Armed Services 2008, 58). Admiral Mora pointed to how the ‘legalised abuse’ had created divisions among the US and its allies who refused to be associated with those techniques and how the techniques harmed the respect the international community had for the US (US Senate Committee on Armed Services 2008, 59). Despite this domestic and international criticism, the Bush administration continued to stand firm that what it was doing was not torture and that it was lawful, necessary and legitimate. Unlike during the French-Algerian war where

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Torture and the ‘war on terror’ 167 France censored critics of its use of torture, in the US, the Bush administration sought to openly challenge its critics. Although the Bush administration implemented several laws after September 11 that infringed on civil liberties, such as the PATRIOT Act (see Evans 2002), censorship of torture critics was not a strategy used by the Bush administration. Arguably this is because of the fact that while the French population’s attitude was negative toward torture, helping to undermine French claims to Algeria, within the US, the US population’s attitude toward torture was more mixed (Barnes 2016b, 114). Editorials, academic articles and film and TV (such as the television show 24 and the movie Zero Dark Thirty) questioned the absolute prohibition against torture in the context of counter-terrorism (Alter 2001; Dershowitz 2006; Harris 2005). Although I showed in Chapter 5 that Israel’s public response to ‘moderate physical pressure’ was also mixed, the US public response was different in that some individuals were openly advocating ‘torture’. Advocates for torture argued that although torture is a cruel act, torture could be used in extreme circumstances in ‘ticking bomb’ scenarios to prevent future terrorist attacks and save lives. This severely undermined the taboo, as some opinion polls showed over 50 per cent support for torture in ‘ticking bomb’ scenarios (Gronke et al. 2010) and TV shows framed torture to save lives as a heroic act. However, to suggest that this indicated a ‘normalisation’ of torture within the US (McKeown 2009) is overblown (Barnes 2016b, 114). Gronke et al. (2010) reviewed 32 public opinion polls on torture in the US between 2001 and 2009 and found an average of 55 per cent of people opposed torture. Whilst recognising the limitations of opinion polls, this important study challenges the belief that the US public were in favour of torture and demonstrates that even in the face of a terrorist attack, the US public did not condone or support torture (Gronke et al. 2010, 437). The disparity between the perception of a pro-torture culture and the results of these polls can be attributed to what Gronke et al. (2010, 440) call a ‘false consensus’, which occurs if ‘an individual mistakenly believes that their viewpoints represent the public majority’. The false consensus meant ‘nearly two-thirds of Americans overestimated the level of national support for torture’ (Gronke et al. 2010, 440). In addition, even though the Bush administration felt it had some level of support within the US for its EITs program, the protests and outrage directed at its interrogation and detention program forced the administration to rescind the 1 August 2002 Bybee memorandum. The administration replaced it with the Levin memorandum in December 2004, which was deliberately written in an accessible manner so it could be released to the public to address the criticisms of Bybee’s memorandum. The Levin memorandum upheld the torture taboo, recognising that torture is prohibited absolutely. It moved away from defining torture as constituting severe pain that constitutes organ failure or death as well as the notion that mental suffering must always be prolonged. The Levin memorandum (Levin 2004) also removed the argument that torture could be justified if carried out with ‘good reason’, arguing that motive is not relevant in determining whether torture has taken place.

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Congress also took measures to strengthen the torture taboo. On 31 December 2005, the Detainee Treatment Act superseded Rumsfeld’s memorandums and stated there would be standardised interrogation techniques of those in detention of the DoD. The ‘McCain Amendment’ of the Bill sought to ensure that the legal basis of interrogations would be a return to the FM 34–52 and no techniques were allowed outside of it (Nowak 2006, 816). Furthermore, the Amendment closed the territorial gap regarding CIDT by stating US officials cannot engage in CIDT, even if it is carried out outside of territory subjected to US jurisdiction (Birsdall 2016, 189). However, despite these changes, the CIA continued to use EITs until 2007. The Levin memorandum (Levin 2004) did not provide sufficient legal barriers to reintroducing EITs and it continued to use severity of pain as the distinguishing feature between torture and CIDT. This bucked the trend of subsequent decisions made by the ECHR in 2004 and 2005 that had given attention to both severity of pain and the purpose of the act (see De Vos 2007; Forowicz 2010, 209–213). In May 2005, Steven G. Bradbury (2005a, 2005b, 2005c) wrote three memorandums arguing that EITs used individually and in combination did not constitute torture or CIDT. Bradbury also argued that even though the CIA’s techniques were similar to techniques the US government had criticised foreign governments for using in State Department human rights reports,11 the EITs were qualitatively different. This was because the US had a legitimate government interest in using them, EITs were employed only on individuals who were believed to hold valuable intelligence, the techniques were regulated, and medical professionals monitored detainees’ well-being (Bradbury 2005c). The debate that occurred over EITs during the Bush administration showed the possibilities and limits of the torture taboo to constrain states and prevent torture. Despite its widespread violation during the ‘war on terror’, torture continued to retain its stigma as cruel and ‘uncivilised’ conduct. The administration’s interrogation program provoked outrage and disgust that undermined US ethical standing and called into question US’ identity as a humane state. It is a testament to the strength of the taboo that even though torture is so widely used around the world, it continues to be considered a scandal. Even when sections of the US public advocated exceptions to the taboo, torture continued to retain its stigma as cruel behaviour. Although the Bush administration continued to use its EITs until 2007, it was the Obama administration that put an end to their use.

Obama, torture and a global regression of the taboo? Although the Obama administration has been heavily criticised for not prosecuting former Bush officials for authorising torture, Obama has taken measures to prevent torture from occurring again in the future. On 22 January 2009, President Obama issued Executive Order 13491 prohibiting interrogation techniques outside the Army Field Manual (The White House 2009). This executive order overrode the ‘torture memos’ of the Bush administration, closed down CIA detention centres and allowed the ICRC access to US detention facilities (The

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Torture and the ‘war on terror’ 169 White House 2009). The Obama administration also stated it prohibited ‘extraordinary renditions’ (The Constitution Project 2013, 320) and has called EITs, such as waterboarding, ‘torture’ (Reuters 2009; Lewis 2014). Congress has also made further efforts to prohibit torture during Obama’s Presidency. In November 2014, the Senate Select Committee on Intelligence released the executive summary of a confidential report that documented CIA torture of detainees and dismissed CIA arguments for EITs, arguing they were ineffective and produced unreliable information (US Senate Select Committee on Intelligence 2014). In June the following year, the Feinstein–McCain Amendment to the National Defense Authorisation Act was passed. This prohibited interrogation techniques outside of the Army Field Manual and ensured ICRC access to US-run detention centres (Lewis 2015). This reinforced Obama’s Executive Order 13491 and made it more difficult for a future president to revoke it, reaffirming the importance of the taboo (see Barnes 2016a, 213). Former Bush administration officials, such as Karl Rove (Gabbat 2010), Vice President Cheney (Huffington Post 2009) and even President Bush himself (Owen 2010), continued to defend the use of EITs as both necessary and effective despite Obama’s efforts to prohibit them. In addition, the CIA also defended its conduct during the ‘war on terror’ in response to the criticisms it faced by the 2014 Senate Report (Mazzetti and Apuzzo 2014). However, the momentum during the Obama administration has been to acknowledge that not only do EITs constitute CIDT or torture, which is absolutely prohibited, but that using torture is ineffective (US Senate Committee on the Judiciary 2009) and has dangerous strategic consequences. Since the end of the Bush administration, investigations into the use of torture have shown the negative consequences using torture has had on US policies and diplomatic relationships. Johnson et al. (2016) examined how US torture undermined counter-terrorism policy by acting as a recruitment tool for al-Qaeda and Islamic State. The use of torture also made it harder to win the hearts and minds of the Iraqi people (see also Foreign Affairs 2013; Haaretz 2009) and it undermined relationships with partners and allies. The ‘Australian Navy refused to train with the United States Navy in detention operations’ during the Bush administration because of its use of torture. And the British military refused, in one instance, to handover a captured terrorist into US custody in Iraq because of its concern over US detention policy (The Constitution Project 2013, 278; Johnson et al. 2016). The 2014 Senate report also notes that one country refused to share intelligence with the US because it believed it would violate its human rights obligations under international law if it did so (US Senate Select Committee on Intelligence 2014, 138, 411). The dangerous consequences of torture were not just limited to diplomatic relations. The EITs program also harmed the detainees subjected to the CIA’s EITs. Not only did the Office of Legal Counsel memorandums fail to constrain US interrogators, but the claim that EITs would not result in severe harm to detainees was also contradicted in practice (see Barnes 2016a, 201). The 2014 Senate report documents how some detainees experienced ‘visions, paranoia,

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insomnia, and attempts at self-harm’ after being subjected to EITs (US Senate Select Committee on Intelligence 2014, 106, 107, 125). The Senate Report also notes that a detainee died after being subjected to EITs. After being subjected to ‘48 hours of sleep deprivation, auditory overload, total darkness, isolation, a cold shower, and rough treatment’ (US Senate Select Committee on Intelligence 2014, 61–62), Gul Rahman was ‘shackled to the wall of his cell in a position that required the detainee to rest on the bare concrete floor’. Rahman was found dead the following day, with the autopsy reporting he ‘likely died from hypothermia – in part from having been forced to sit on the bare concrete floor without pants’ (US Senate Select Committee on Intelligence 2014, 62). The EITs also harmed US personnel involved in the CIA interrogation program. An internal CIA cable concerning the interrogation of Abu Zubaydah made a note that stated the interrogation team had been ‘profoundly affected’ by the use of EITs on Zubaydah, with ‘some to the point of tears and choking up’ (US Senate Select Committee on Intelligence 2014, 54).US interrogators were found to have suffered post-traumatic stress disorder, panic attacks and adjustment disorder (The Constitution Project 2013, 277–278). One Army Specialist even committed suicide because she refused to take part in interrogations that involved ‘burning prisoners with lit cigarettes and stripping prisoners naked to humiliate them’ (The Constitution Project 2013, 278). The dangers of using torture has been recognised by top level military officials. As Stanley McChrystal (Foreign Affairs 2013) argued: Whether or not torture works is an academic argument I don’t even want to be a part of, because at the end of the day, I think the torturers are weakened. They’re weakened internally individually, and they’re weakened strategically as a cause. Although the dangers of torture have become recognised within the US and efforts have been made to strengthen torture’s prohibition, what impact did US torture have on the taboo more broadly in international society? Did US torture increase torture around the world? Many states saw US conduct as an opportunity to launch their own aggressive counter-terrorism campaigns that violated human rights (Dunne 2007; Foot 2005, 2006; Human Rights Watch 2003, 2006, 7–9). China launched a ‘war on terror’ against Uigher separatists in the Xinjiang Uigher Autonomous Region, while Russia also engaged in a ‘war on terror’ in the Northern Causasus region. Both countries employed torture as part of their wars (see Amnesty International 2003, 9; Human Rights Watch 2005, 2006, 250–251). Another way torture spread was by virtue of the fact the US failed to speak out against torture because it had lost the authority and credibility to do so. As Human Rights Watch (2006, 3) stated: The effect [of the loss of US human rights credibility] was most immediate on issues of torture and indefinite detention (indeed, the administration

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rarely even raised concerns about torture by other countries and would have been labeled a hypocrite if it had), but even when the administration spoke out in defense of human rights or acted commendably, its initiatives made less headway as a result of the credibility gap. Human Rights Watch showed how in Egypt, a country which I have shown has a long history of torture, the US did not publicly or privately condemn it for torture. A ‘State Department official told Human Rights Watch, “how can we raise it [torture] when the Bush administration’s policy is to justify torture?” ’ (Human Rights Watch 2006, 9; see also Human Rights Watch 2003). At other times, the US’ desire to combat transnational terrorism meant that it ignored or tolerated torture by partners to achieve policy objectives, further contributing to torture. This can still be seen under the Obama administration in its relationship with Uzbekistan. Uzbekistan has a history of torture, including boiling people to death, to crush dissent (Worden 2005). However, the US failed to apply diplomatic pressure or sanctions on Uzbekistan to stop its torture as Uzbekistan has proven strategically useful for military bases and supply routes for the US war in Afghanistan (Amnesty International 2015). Although the US did not directly contribute to torture in Uzbekistan, the ‘war on terror’ has provided an environment that has allowed torture to take place, undermining the taboo as a whole. However, this global use of torture throughout the ‘war on terror’ does not mean the taboo is in regression. There is a difference between undermining the taboo and the taboo being in regression. If the taboo was in regression, we would be seeing states openly justify and use torture as well as openly challenge its absolute prohibition. However, this has not been the case. For example, China told the UN Committee against Torture in 2008 that ‘[i]t has worked unceasingly to combat torture and has obtained notable results’. China condemned the Committee for its ‘unwarranted criticisms’ and ‘slanderous and untrue allegations’ regarding China’s torture record, which it argued, were made by groups that wanted to overthrow the government (UN Committee Against Torture 2008, 2). Torture continues to be hidden and denied and it continues to retain its stigma. No country wants to be associated with it. The very fact that terrorist groups such as Islamic State and al-Qaeda can continue to criticise US torture as ‘barbaric’ and tyrannical in its propaganda shows that torture continues to remain scandalous and dangerous behaviour (Human Rights First 2016). In fact, the outrage, debate and reflection over US torture actually helped in delegitimising the US definition of torture (see Birsdall 2016). The US was unable to convince the rest of the world to adopt its definition of torture. US revisions of the taboo were not replicated by other states in international society and the US did not shift international law to better reflect US interests. The continued use of torture around the world to fight terrorism has also triggered efforts in international society to strengthen the torture taboo. In 2014, 30 years since the UNCAT entered into force, Amnesty International (2014a) launched a global campaign against torture that seeks to close the gap between the absolute

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prohibition and its widespread violation. The Organisation for Security and Cooperation in Europe (OSCE) called on all its members to adopt and ratify the OPCAT (OSCE 2014). And in March 2014, Chile, Denmark, Ghana, Indonesia and Morocco launched the Convention against Torture Initiative,12 which seeks to push for universal ratification of the UNCAT and to close the gap between the absolute prohibition and its violation. The violations of the taboo throughout the ‘war on terror’ brought attention to the taboo’s role in protecting human dignity. The widespread condemnation of torture, and the efforts, both within and outside of the US, that have been taken to reaffirm the taboo signify its continued importance as a key normative principle in international society.

Conclusion I have not denied throughout this book that violations of the torture taboo show that the taboo has failed to constrain states. But what I have brought attention to is the fact that even during times of crisis, states go to efforts to represent themselves as norm-abiding international citizens, illustrating the strength of the taboo. The redefinition of torture by the US during the ‘war on terror’ sought to remove notions of excessive, unnecessary and cruel connotations associated with torture and relabel it so it becomes ‘civilised’ and humane. Although EITs failed to protect individuals from brutal types of harm, it did place some limits on US interrogations. This was one of the reasons why ‘extraordinary renditions’ came to the fore: the US had to send detainees off to countries for torture practices prohibited to US officials. These practices showed the US acknowledged that a taboo existed, and that it mattered, even during times of necessity. The US knew what it was doing was wrong, and sought to hide, redefine and outsource its torture. None of these practices make sense if one takes away the idea that a taboo exists against torture. Although the analysis of material and strategic interests are important for understanding US actions during the ‘war on terror’, an analysis of morality is integral if one is to gain a more complex insight into US torture practices. It is quite remarkable that despite the potential threat of further terrorist attacks against the US, and the claims made by the Bush administration that everything in its power would be done to prevent another attack, torture could not be openly discussed or legitimised as a possible option to fight terrorism. The fact the US did not seek to openly challenge the taboo but sought to redefine what practices constituted torture demonstrates the taboo’s strength. The US did not prohibit some torture practices because they were deemed ineffective but prohibited them because they were wrong for a ‘civilised’ country to employ. The genealogy of how torture came to be prohibited and the development of its stigma over time proved too resilient and too strong for the world’s last remaining superpower to openly challenge. The Bush administration’s definition has not led to a revision of international law to reflect the US definition and it failed to legitimise its interpretation to others. This demonstrated that

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Torture and the ‘war on terror’ 173 international law does not just reflect the interests of the powerful. Nor can powerful states impose interpretations of the law upon others. Focusing on the severity of pain inflicted and narrowly defining the intention of interrogators is not satisfactory in determining the violation of one’s dignity. Moreover, although the Obama administration failed to prosecute former Bush administration officials that authorised EITs, the debate surrounding the politics of torture during the ‘war on terror’ actually facilitated domestic laws that strengthened the taboo within the US. Moreover, it also triggered international efforts to reinforce the taboo. This reflects the ongoing trend in the taboo’s genealogy that its legitimacy continues to strengthen in response to its own violation. I now turn to the conclusion to examine the implications my argument has for theory and practice in world politics.

Notes 1 MREs are the food rations that are given to army soldiers. 2 This practice refers to ‘[r]emoving the detainee from the standard interrogation setting (generally to a location more pleasant, but no worse)’ (Rumsfeld 2003b, 362). 3 This practice refers to ‘[r]emoving the detainee from the standard interrogation setting and placing him in a setting that may be less comfortable; would not constitute a substantial change in environmental quality’ (Rumsfeld 2003b, 362). 4 This practice refers to ‘[c]onvincing the detainee that individuals from a country other than the United States are interrogating him’ (Rumsfeld 2003b, 362). 5 This technique consists of ‘grasping the individual with both hands, one hand on each side of the collar opening, in a controlled and quick motion. In the same motion as the grasp, the individual is drawn toward the interrogator (Central Intelligence Agency 2004, Appendix C, 2). 6 A flexible wall is constructed and the individual is placed against it. The interrogator pulls the individual forward and then back so they hit the wall. The false wall creates a loud noise which is intended to produce a shock in the individual (Central Intelligence Agency 2004, Appendix C, 2). 7 Bybee states this involved inducing the detainee Zubaydah’s fear of insects by placing a caterpillar in a confinement box with Zubaydah. However, Zubaydah would be told it is a ‘stinging insect;’ (Central Intelligence Agency 2004, Appendix C, 3). 8 Other legal standards that had to be met in renditions under the Clinton administration included help from the country to apprehend the suspect in their jurisdiction, and a place for detention after arrest (Council of Europe 2006, 13). 9 In perhaps the most comprehensive review of the governments involved in renditions and black sites to date, the Open Society Justice Initiative lists 54 governments involved in assisting the CIA. These include: Afghanistan, Albania, Algeria, Australia, Austria, Azerbaijan, Belgium, Bosnia-Herzegovina, Canada, Croatia, Cyprus, Czech Republic, Denmark, Djibouti, Egypt, Ethiopia, Finland, Republic of the Gambia, Georgia, Germany, Greece, Hong Kong, Iceland, Indonesia, Iran, Ireland, Italy, Jordan, Kenya, Libya, Lithuania, Macedonia, Malawi, Malaysia, Mauritania, Morocco, Pakistan, Poland, Portugal, Romania, Saudi Arabia, Somalia, South Africa, Spain, Sri Lanka, Sweden, Syria, Thailand, Turkey, United Arab Emirates, United Kingdom, Uzbekistan, Yemen, and Zimbabwe (Open Society Justice Initiative 2013, 61–118). 10 For a review of media releases from a variety of American newspapers, see the Guardian (10 June 2004).

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11 These included waterboarding, solitary confinement, threat of dog attacks, stress positions, isolation, shackling of limbs, forced nudity, sleep deprivation, exposure to excessive heat and cold, and sensory and food deprivation (Malinowski 2005, 142–144). 12 The full text of the Joint Statement regarding the Convention against Torture Initiative, see www.apt.ch/en/news_on_prevention/states-launch-long-term-anti-torture-initiative/

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Torture and the ‘war on terror’ 181 Detention and Interrogation Program. New York and London: Melville House Publishing. Washington Post. 2004. ‘Legalizing Torture.’ Washington Post, 9 June. www.washing tonpost.com/wp-dyn/articles/A26602-2004Jun8.html. Weissbrodt, David and Amy Bergquist. 2006. ‘Extraordinary Rendition: A Human Rights Analysis.’ Harvard Human Rights Journal 19: 123–160. Worden, Minky. 2005. ‘Torture Spoken Here: Ending Global Torture.’ In Torture: Does it Make us Safer? Is it Ever OK? A Human Rights Perspective, edited by Kenneth Roth and Minky Worden with Amy D. Berstein contributing editor, 79–105. New York and London: The New Press: 79–105. Worthington, Andy. 2007. The Guantanamo Files: The Stories of the 774 Detainees in America’s Illegal Prison. London and Ann Arbor, MI: Pluto Press.

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Conclusion

Torture continues to remain a symbol of humanity’s ability to inflict cruel and unnecessary harm upon other human beings. Despite efforts to prohibit torture, international society continues to face widespread violations of the torture taboo when states are confronted with security threats. It was this dissonance that led to this book and the subsequent exploration of a number of important questions. If the torture prohibition is often violated by states, what role does the torture taboo play in world politics? Are realists correct in warning against the foolish belief that moral norms matter during times of crisis? And what does this dissonance mean for efforts to rid unnecessary harm and suffering from international society? In answering these questions, I have made three arguments. First, the torture taboo matters. More specifically, I have argued the taboo regulates behaviour and constitutes the interests and identities of states. And in order to do so, I have studied the very thing realists point to in order to show the weakness of moral norms: namely, their violation. This second argument has shown that when state interests and obligations clash with humanitarian and human rights norms, these norms may be violated, but this does not mean they have ceased to be important. States hide, deny, redefine and outsource their use of torture in order to prevent being condemned as an ‘uncivilised’ state, and this shows the strength of the norm’s legitimacy. This has placed moral limits and pressures on states at a time when humanitarian norms apparently do not apply. And third, the most profound reconstructions of the torture taboo, in terms of its meaning and legal constraints, have occurred in the face of its widespread violation. In order to demonstrate the power of the taboo, I have had to simultaneously ask another set of questions. Why is torture prohibited? How did we come to understand torture as a particularly cruel practice? How did the taboo develop? Moving away from a linear tale of the taboo, I have traced a genealogy of the taboo to show that torture is a historically contingent social construction that has developed from a series of fortuitous events and reinterpretations. Its jumbled history does not make the taboo any less important. The taboo contains immanent within it a cosmopolitan ethic that emphasises common vulnerabilities of humanity and lays out the foundations for a global moral community. The history of the torture taboo is not only about efforts to abolish unnecessary violence, but is integral to understanding what it means to be human (Asad 2003, 101).

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Why the torture taboo matters The argument has been made that the torture taboo and its normative framework continue to operate on states during its violation and in times of necessity. In doing so, I have challenged the realist explanation that a focus on power and material forces best explains the nature of world politics. Realists argue the relentless competition for security, the struggle for power over others and the lack of a global leviathan means that mistrust and fear dominate the international system, conditioning states to be concerned primarily with their survival (Mearsheimer 1994–1995, 9–12). Realists, whether they be classical or neo-realists, argue adherence to moral norms is fine when interests and morality do not clash. However, when a state’s security interests are at stake, states get placed under pressure and this exposes our inhumanity towards others (Walzer 1978, 4). Although not denying there is an element of truth here, I have argued the situation is far more complex than realists suggest. Even though torture may be used when it clashes with material or strategic interests, the normative principles are not sidelined completely and they continue to operate on states. Realists give insufficient attention to the constitutive effects of norms and the pressures placed on states to uphold humanitarian principles, even during times of crisis. As I have demonstrated throughout this book, the sociology of danger that comes from violating the taboo has negative consequences for states. Violating the taboo can stigmatise a state as tyrannical or ‘uncivilised’, rank a state as inferior by undermining its ethical standing, and damage a state’s legitimacy, which can hurt a state’s policies. Furthermore, the outrage and condemnation that can result from using torture can result in social sanctioning and isolation in international society. Torture is not only immoral, but it is dangerous and this is why torture cannot be justified in the national interest. It must therefore be hidden, denied, redefined and outsourced. Torture techniques that do not leave marks on the body are favoured, thereby not leaving any evidence that torture took place. These tactics are the product of morality; a state knows what they are doing is wrong. The fact that morality applies during crises and war shows that morality plays a powerful role in world politics. It demonstrates that not all practices are permissible. The limits the taboo places on states offers hope that international law and morality can help constrain the possibility for further superfluous violence between, and in, states. I have analysed several case studies to support my argument. In Chapter 2, I focused on the use of torture by the Soviet Union during the ‘Great Terror’ in the late 1930s and torture by Nazi Germany from 1933 until the end of World War II. I showed how despite the fact these countries widely violated the taboo, neither regime openly challenged the torture taboo. Both regimes had to hide and deny torture because they knew it could not be justified under any circumstances. Moreover, the widespread Nazi violations provoked outrage among the Allied countries and provided an opportunity to prohibit unnecessary harm in world politics. As I discuss in more detail below, this resulted in strengthening the taboo through the Nuremburg Trials and the Universal Declaration of Human Rights.

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In Chapter 4 I argued that the French use of torture in the French-Algerian war highlighted the taboo’s strength rather than its weakness. The moral pressures to not engage in unnecessary suffering had a profound influence on the French-Algerian war. France employed torture in secret and denied torture was being sanctioned or widely used. However, domestic concerns that France was entering a state of moral decay from employing torture, combined with the international condemnation of French torture, contributed to the decision by France to withdraw from Algeria in 1962. In Chapters 5 and 6 I argued that Israel and the US manipulated international law by redefining torture to better reflect their interests. Not only did this act of redefinition show that a taboo existed and had to be taken into account, but it also reaffirmed the absolute prohibition against torture. Neither Israel nor the US challenged the prohibition against torture. Rather, both states sought to legitimise their ‘coercive’ interrogation programs by arguing they did not constitute torture. In doing so, it actually set limits upon their conduct during a time of security crisis. The US went a step further than Israel in that it outsourced torture in its ‘extraordinary rendition’ network. Although this constituted a violation of the taboo, it also demonstrated a moral framework in action. If no moral limits applied to the US, sending detainees to foreign countries for torture would not be necessary; the US would just carry out the practices itself. In addition, the outrage and condemnation to US torture harmed US moral credibility, undermined strategic partnerships and made it harder for the US to win the hearts and minds of the Iraqi people. Although the ‘war on terror’ harmed the taboo by creating an environment in which it was easier for authoritarian states to get away with torture, the taboo did not die. Even the most undemocratic states continued to hide their torture, and denied they had used it. This should not be surprising. As I showed in Chapter 5 with the example of Egypt under President Mubarak, despite Egypt employing torture on a widespread and systematic basis, torture was denied, hidden and lied about because Egypt did not want the stigma of being an ‘uncivilised’ state. The fact that torture produces such a consistent response by states, regardless of whether a country is democratic or not, highlights the strength of the taboo’s legitimacy.

Constructing the taboo Throughout this book, I have argued that the meaning of torture as a dangerous and immoral form of suffering does not reflect a ‘natural’ aversion to this practice we have come to call ‘torture’. Rather, I have argued that how we understand torture is an on-going social construction. Since the time of the Greek city states, and up until the eighteenth century, torture was considered a legitimate judicial practice that helped reveal the truth in criminal trials. In Chapter 1 I showed that torture was integral to gaining full proof from suspects and constituting the sovereign’s right to punish. Torture was further buttressed by drawing upon Christian values of pain, which helped constitute torture as a practice that could offer redemption and salvation from sins. However, by the end of the

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eighteenth century, torture had become ‘uncivilised’, tyrannical and an unnecessary form of pain and suffering. The shift in the law of proof, the changing attitudes toward the body, and the ‘secularisation’ of pain helped to undermine the foundations of judicial torture. In addition, Beccaria linked torture to unnecessary and cruel punishments because torture required citizens to give up more liberty than was actually necessary to maintain a just and ordered society. It is here we see torture begin to concern itself with the sociology of danger that undermines principles of justice and the moral fabric of society. Although during the eighteenth century it was too early to call torture ‘taboo’, by the nineteenth century, torture had generated a circular reasoning whereby torture was wrong because it was torture. It was in the nineteenth century that torture could be considered a taboo. Revelations of torture were scandalous. Two significant developments occurred in the nineteenth century that helped cement torture as prohibited conduct. The first was through the development of the laws of war, which associated torture with an attack on the defenceless. The second major factor that contributed to the taboo’s development was the expansion of European colonialism. The increased contact of European with non-European societies through colonialism reinforced the categorisation of torture as something found predominately in ‘backward’ and ‘barbarous’ societies. This reinforced the derogatory discourse that the ‘civilised’ Europeans, who had prohibited torture, had to intervene in the non-European world to rid these societies of torture. In doing so, colonialism expanded state obligations under the taboo to prohibit torture not only in their own territories, but in their colonies as well. But it also set the foundations for the torture taboo becoming a universal norm that had to be prohibited in all societies. These two factors – the laws of war and European colonialism – reconstructed torture as a particularly dangerous form of pain by invoking a fear that to engage in torture was to set back the progressive development of human societies and regress into an inferior state of existence. Despite the fact torture represented a potent symbol of cruelty and unnecessary suffering, by the twentieth century, the taboo was violated on a widespread scale during World War II and the post-war period. However, it was in these periods of inhumanity that the taboo had some of its most profound reconstructions. Realists such as Morgenthau (1993, 224–249) have looked to World War II to show that the widespread atrocities carried out during the war subsequently led to the destruction of an international society. This book challenges this assumption. In Chapter 3 I argued that the Nazi atrocities during World War II produced an environment of reflection about the capacity of human beings to harm one another. The Nuremburg Trials were established to respond to Nazi atrocities by punishing offenders and setting standards for future international conduct. Although the Nuremburg Trials were conducted in an environment of hypocrisy in that it ignored the Allies’ war crimes, the Trials nonetheless made important contributions to the genealogy of the taboo. The Nuremburg Trials stressed the importance of protecting the individual from unnecessary violence when it ruled that not even threats to state survival

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justified inflicting non-consensual medical experiments upon concentration camp detainees. Torture was prohibited absolutely and classified as a ‘crime against humanity’. The Nuremburg Trials also contributed to the development of the taboo by emphasising torture’s destructive consequences. In the eighteenth and nineteenth centuries, torture was deemed dangerous to a political community. However, the Nuremburg Trials and the Allied war propaganda during World War II grafted torture onto expansionist fascist policies, associating torture with a threat to international peace and security. This important political reconstruction expanded the sociology of danger of torture in that the danger from torture was no longer seen to be localised to the norm-violating state, but like a contagion, could also pose a threat to other states as well. In addition to the Nuremburg Trials, the Universal Declaration of Human Rights was also a response to World War II atrocities. The Universal Declaration prohibited torture absolutely and linked the article prohibiting torture with ‘the goodness of life itself ’. The drafting of the Universal Declaration was an important event in the history of the taboo because it provided the foundations for human dignity and human rights. By fortuitous events, the drafting committee came to an agreement that it would justify human rights as being innate within all of us. Throughout the twentieth century, this secular understanding of human rights has become naturalised to the point where we now understand torture as a practice that destroys our innate dignity. Subsequent taboo violations developed the taboo even further throughout the twentieth century. The French-Algerian war not only demonstrated the strength of the norm’s legitimacy, but it also challenged our understanding of why torture occurs. Up until the middle of the twentieth century, it was believed torture was the product of ‘backward’ societies, or, when torture occurred in Europe, it was because of authoritarian regimes. However, the French-Algerian war showed the world that democracies can torture too. Torture was now understood to occur under any type of political regime where individuals exercise unregulated power over other individuals, such as in places of detention. Although France was not the first democracy to torture (see Rejali 2007), the French-Algerian war was significant because France’s use of torture generated such widespread debate. Furthermore, because it happened during a time in international society where norms of self-determination were at the fore and colonialism was being challenged, it helped remove the idea that torture was simply a product of ‘backward’ societies. This shift in the understanding of torture shaped the UNCAT. The UNCAT was again a product of the taboo’s violation. Amnesty International’s anti-torture campaigns in the 1970s and 1980s exposed the global violation of the taboo, which resulted in the UNCAT. The UNCAT established a universal jurisdiction on torture and the principle of non-refoulement, as well as the Committee against Torture, and subsequently, the UN Special Rapporteur on Torture. The Committee and Rapporteur have provided documenting and monitoring functions that can help identify norm violators, which can in turn rank states amongst each other and pressure states into conforming to the taboo.

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The institutionalisation of the torture taboo has strengthened the legitimacy of the norm under international law. However, it has also resulted in states developing techniques to better hide their torture. States are increasingly turning to torture techniques that leave few (if any) marks on the body to hide evidence of torture (Rejali 2007). What is interesting, and further reinforces the strength of a genealogical analysis, is that even though the institutionalisation of the norm failed to prevent its violation, the fact that no country is willing to admit torture, and countries continue to hide and deny their torture, has actually reaffirmed the taboo over time. That is, paradoxically, the secret nature of torture and its constant denial has reaffirmed torture as prohibited conduct. In the latter half of the twentieth century and in the first decade of the twentyfirst century, while the majority of states continued to hide, deny and lie about their torture, in some parts of the world, the debate over torture narrowed to a definitional or ‘legal struggle’ (Asad 1997, 304–305). Israel and the United States sought to distinguish torture from other forms of pain and suffering by the severity of pain inflicted. This limited the types of practices that came within the protection of the torture prohibition, while at the same time, allowing the US and Israel to engage in a wider range of ‘coercive’ interrogation techniques. Although there are some differences between human rights courts and international institutions regarding how to define torture, many actors in international society saw the definitions proposed by Israel and the US as inadequate in protecting victims from unnecessary harm. The debate and argument that ensued over torture’s definition was important in the taboo’s genealogy as it provided an opportunity to challenge the separation between torture and other forms of pain and suffering on the basis of the severity of pain inflicted. Both Israel’s and the US’ definition of torture was delegitimised, and their definitions failed to be incorporated into international law. Human rights groups, the UN and human rights courts recognised that modern forms of torture do not necessarily inflict a large quantity of pain, but that they still nonetheless destroy the will, and harm the dignity of the individual. Although the severity of pain continues to be important in distinguishing torture from other forms of pain and suffering, the outrage over Israel’s and the US’ definition of torture brought to light the fact that other factors, such as the purpose of the act, also need to be taken into account. This book has shown that the development of torture’s stigma has become so strong over time that no state wants to openly challenge it. However, this does not mean that arguments have not been made that have tried to justify torture. Since Nazi Germany tried to use the necessity defence to justify its medical experiments, France, Israel, the US and others (see Amnesty 1973) have argued that torture techniques need to be used to prevent terrorist attacks and save lives from ‘ticking bombs’. In addition, both France and the US used the argument that ‘new’ wars against non-state actors need ‘new’ methods, such as torture, in order to win. In all these cases, either exceptional circumstances or changes in the structure of war have been invoked in order to justify transgressing the taboo. Although this demonstrates that the taboo is not beyond challenge, the genealogy

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has also shown that these arguments have never been strong enough to bring about a revision of the taboo. This is both a testament to the taboo’s resilience and a recognition of the strength of its legitimacy.

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Implications for international relations theory and practice What does this book contribute to international relations theory? I have drawn upon the work of Walzer (1978) to show that even during times of war or security crises, international norms and morality still matter, and the strength of a norm’s legitimacy can be found by studying its violation. I have decoupled legitimacy and compliance (see Hurd 2013) to show that a norm’s legitimacy is not determined solely by its ability to prevent violations. The hiding, denying, redefining and outsourcing of torture demonstrates how states cannot openly legitimise torture. I have also examined how violations can contribute to positive norm development. Violations do not necessarily contribute to the demise of the taboo, but can provide an environment for reflection, argument and debate about the norm to develop ways in which it can be strengthened. The fact that the torture taboo still operates during its violation, and has strengthened in response to its violation, is evidence that not only is the taboo a resilient norm, but that norm revisionism is difficult (Barnes 2016). Throughout this book, many different states have sought to revise the taboo to either make exceptions to the norm or define torture in a way to better reflect its interests. But in all of these cases, the norm revisions failed. Furthermore, the history of the taboo also demonstrates that norms do not simply reflect the interests of the powerful. In fact, the US’ and Israel’s failed attempt to redefine torture showed that powerful states cannot define norms however they like. The norms and institutions of international society are reconstructed through a struggle of interpretations between different actors and authorities. This includes states, courts, human rights groups, and international institutions, such as the UN. This struggle is over the ability to exercise power to define norms and legitimise them to others in international society. As Finnemore (1996, 185) notes, ‘the relationship between norms and power’ is more complex than the realist suggests. Norms are created through intersubjective practices and cannot be legitimised if imposed upon others through force. Although this challenges some of the realist understandings of norms in world politics, this is not to say realism should be dismissed. It is useful here to heed Morgenthau’s advice that if one forgets about power, they will pursue moral principles in vain. This is why I have continued to argue that the realist perspective continues to hold powerful insights into prohibiting unnecessary harm in world politics. Recent efforts have been made in the international relations literature to facilitate dialogue between different theoretical traditions and this book strengthens the claims for further dialogue between realism and constructivism (Sil and Katzenstein 2010; Williams 2005, 128–168). How does this argument contribute to practice? As I argued at the start of this book, using a genealogical method should not be seen as undermining the taboo.

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If anything, the story of the torture prohibition reaffirms its importance and value to an international society committed to abolishing unnecessary and cruel harm. The taboo has been used as a moral resource by materially weaker actors to shame states and help bring about norm conformity. Furthermore, seeing torture within the concept of ‘the sociology of danger’ undermines many of the arguments states have used to justify torture. For example, torture has shown to not only be ineffective, but it generates blowback and undermines the moral credibility of those using it. Although I stated that these arguments in favour of torture have never been strong enough to trigger a revision of the taboo under international law, this does not mean these arguments have gone away. The UN Special Rapporteur on Torture, Juan Mendez, has stated that necessity continues to be an argument that he hears actors using to justify torture (UNTV 2016). Furthermore, the 2016 US Presidential Republican nominee, Donald Trump, argued he would do worse than using waterboarding on terrorism suspects if elected President (McCarthy 2016). However, the sociology of danger undermines these arguments by showing that torture is never an isolated incident but harms the victim, torturer and the broader social bonds in society. This can clearly be seen in the case of the ‘ticking bomb’ scenario (Brecher 2007; Sikkink 2008). Advocates of using torture in ‘ticking bomb’ cases fail to recognise that the harm that would come from torture cannot be localised to just the alleged ‘terrorist’ who is being tortured. Implementing torture warrants in the case of ‘ticking bomb’ scenarios, as Dershowitz (2006) has suggested, would harm the interests of society by bringing about what Durkheim called ‘social dissolution’ (Durkheim 1973, 53). Torture undermines the very moral foundation upon which society rests, which is respect for individual dignity. The sociology of danger reminds us that the protection of the individual’s dignity is also in society’s interest (see Durkheim 1973, 53–54; Lukes 2006, 14–16). The genealogy has also highlighted the complexity of, and the politics behind, defining torture. How we define torture is not just a technical legal issue but is important for recognising a violation of human dignity. If we want to protect individuals from unnecessary harm, international society needs to define torture in a way that favours the dignity and well-being of the individual over the interests of the state. However, one must exercise caution in trying to find a ‘true’ definition of torture. As torture is an ongoing social construction, what practices constitute torture, and how international society understands torture, will change over time. The value of the definition will be determined not only by its ability to respond to our changing sensibilities to harm, but also to the state’s capacity to inflict new forms of pain and suffering upon individuals. The history of the taboo shows how it can contribute to practice in international politics in another way. The fact the taboo continued to be taken into account by states, even when the taboo was being violated, shows that it has the potential, and capacity, to moderate the struggle for power and competition in international society. The forces of necessity are not going to go away anytime soon. But this does not mean that efforts cannot be taken so that prohibitions on unnecessary harm can play a greater role in international society (Linklater 2011,

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231). As Linklater (2011, 258) points out, ‘the challenge is to identify prospects for transnational solidarities that are not utopian or fanciful, but which have the potential to keep pace with the development of the power to hurt in world politics’. The history of the taboo traced in this book demonstrates the important role the taboo plays in international society and its ability to shape state conduct. The efforts of actors concerned with ending torture offers hope that the infliction of unnecessary suffering around the world will not go unnoticed, and that normative and legal developments that focuses on how to better respond to, and prevent, cruel and inhuman forms of harm will continue to occur. The taboo also provides the potential of a cosmopolitan mentality immanent in the present (see Linklater 1998, 2011; Falk 2009). The taboo contains cosmopolitan sensibilities that help to link humanity together by highlighting common vulnerabilities (see Linklater 2011). By defining what is bad, the taboo seeks to prohibit forms of behaviour, yet simultaneously, allow room for a plurality of different forms of life. As Lukes (2008) has shown, by setting minimal standards in which no society can cross in order to experience the good life, it allows one to go beyond moral relativism by being able to lay judgement upon others. This provides the basis for a moral universalism, but also allows room for plurality of different forms of social organisation (Lukes 2008, 129–159). Prohibiting torture today is vastly different from when it was prohibited in Europe in the eighteenth century. Back then, critics such as Beccaria and Voltaire were prohibiting a practice that was legal and constituted a narrowly defined institution with a specific function of revealing the truth and punishing offenders. However, in the contemporary period, international society is facing a different situation. The concern is no longer about trying to prohibit a legal practice as it is about forcing states to adhere to the prohibition. Moreover, unlike in eighteenth century Europe when the abolitionist movement concerned only a few European countries, the current anti-torture movement concerns states from around the world. Constraining the state’s power to harm is not going to be easy or quick, and requires vigilance and patience. The challenge of abolishing torture is arguably greater today than it was in the eighteenth century because of the nature and scope of the problem. However, efforts must continue to be made if we want to ensure the continuation of a taboo that protects individuals from unnecessary harm, embraces values of human solidarity, and provides the necessary protection for individuals to enjoy the good life.

References Amnesty International. 1973. Amnesty International: Report on Torture. London: Geral Duckworth and Co. Ltd in association with Amnesty International Publications. Asad, Talal. 1997. ‘On Torture, or Cruel, Inhuman, and Degrading Treatment.’ In Social Suffering, edited by Arthur Kleinman, Veena Das, and Margaret Lock, 285–308. Berkeley, Los Angeles, London: University of California Press. Asad, Talal. 2003. Formations of the Secular: Christianity, Islam, Modernity. Stanford, California: Stanford University Press.

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Barnes, Jamal. 2016b. ‘The “War on Terror” and the Battle for the Definition of Torture.’ International Politics 30(1): 102–124. Brecher, Bob. 2007. Torture and the Ticking Bomb. Malden, Oxford and Victoria: Blackwell Publishing. Dershowitz, Alan M. 2006. ‘Alan Dershowitz: Should we Fight Terror with Torture?’ The Independent, 3 July. www.independent.co.uk/news/world/americas/alan-dershowitzshould-we-fight-terror-with-torture-406412.html. Durkheim, Emile. 1973. Emile Durkheim on Morality and Society: Selected Writings, edited and with an introduction by Robert N. Bellah. Chicago and London: The University of Chicago Press. Falk, Richard. 2009. Achieving Human Rights. New York and London: Routledge. Finnemore, Martha. 1996. ‘Constructing Norms of Humanitarian Intervention.’ In The Culture of National Security: Norms and Identity in World Politics, edited by Peter J. Katzenstein, 153–185. New York: Columbia University Press. Hurd, Ian. 2013. ‘Torture and the Politics of Legitimation in International Law.’ In The Legitimacy of International Human Rights Regimes: Legal, Political and Philosophical Perspectives, edited by A. Follesdal, J.K. Schaffer and G. Ulfstein, 165–189. New York: Cambridge University Press. Linklater, Andrew. 1998. The Transformation of Political Community: Ethical Foundations of the Post-Westphalian Era. Cambridge: Polity Press. Linklater, Andrew. 2011. The Problem of Harm in World Politics: Theoretical Investigations. Cambridge: Cambridge University Press. Lukes, Steven. 2006. ‘Liberal Democratic Torture.’ British Journal of Political Science 36(1): 1–16. Lukes, Steven. 2008. Moral Relativism. New York: Picador. McCarthy, Tom. 2016. ‘Donald Trump: I’d Bring Back “a Hell of a Lot Worse than Waterboarding.” ’ Guardian, 7 February. www.theguardian.com/us-news/2016/feb/06/ donald-trump-waterboarding-republican-debate-torture. Mearsheimer, John J. 1994–1995. ‘The False Promise of International Institutions.’ International Security 19(3): 5–49. Morgenthau, Hans. 1993. Politics Among Nations: The Struggle for Power and Peace. Brief edition, revised by Kenneth W. Thompson. New York: McGraw-Hill, Inc. Rejali, Darius. 2007. Torture and Democracy. Princeton and Oxford: Princeton University Press. Sikkink, Kathryn. 2008. ‘The Role of Consequences, Comparison and Counterfactuals in Constructivist Ethical Thought.’ In Moral Limit and Possibility in World Politics, edited by Richard M. Price, 83–111. New York: Cambridge University Press. Sil, Rudra and Peter J, Katzenstein. 2010. Beyond Paradigms: Analytic Eclecticism in the Study of World Politics. Basingstoke, UK; New York: Palgrave Macmillan. UNTV. 2016. ‘Juan Mendez, Campaigner Against Torture.’ UNTV: 21st Century, 25 February. www.unmultimedia.org/tv/21stcentury/detail/4730492015001.html. Walzer, Michael. 1978. Just and Unjust Wars: A Moral Argument with Historical Illustrations. London: Allen Lane. Williams, Michael C. 2005. The Realist Tradition and the Limits of International Relations. Cambridge: Cambridge University Press.

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Index

abolition: Beccaria’s influence 37–40; construction of torture 30–4; contesting 40–2; context and overview 26; in Europe 34–7; history of torture in Europe 26–9; summary and conclusions 42–3 absolutist state 32–4 Abu Ghraib 8; international responses 165–6; Schlesinger Report 158; see also war on terror Agiza, A. 163 Albemarle, Earl of 56 Algeria: French withdrawal 106–8; state of emergency 95–6; see also French–Algerian war al Jihad 134 al-Qahtani 151, 161–2 al-Tabuki, A.H. 163, 164 al-Zery, M. 163 Allard, J.V. 107 Alleg, H. 101 Allied forces: atrocities 81; hypocrisy 81–2 aAmnesty International 7, 15, 135, 139, 158; anti-torture campaigns 108–10, 149–50, 186; petition to UN 108–9; reputation 16; responses to Landau Commission 128; working with medical professionals 110–11 ancien régime, judicial system 28, 32–4 Angell, N. 62 anti-torture protests: French–Algerian war 99–103; see also Amnesty International Arar, M. 163 Argyll, Duke of 55 Aristotle 40, 43n5 Army Field Manual 34–52 (FM 34–52) 150 army morale, French–Algerian war 107

Article 16, UNCAT 159–60 Article on the Prohibition against Torture, drafting of 83–4 Asad, T. 51–2, 101 Association for the Safeguard of Judicial Institutions and Individual Liberties 100 Atlantic Charter 63 atomic bombs 77 atrocities, Allied forces 81 attacking the defenceless 75–7 Aussaresses, P. 96–7, 98 authoritarian regimes 46–7; vulnerability to 61–2 Ayrault, J.M. 27, 31 Bad Nenndorf 81 Baer, R. 164 barbarity 40, 49; in ‘civilised states’ 57–61; of ‘uncivilised’ states 50 Bar, L. Von 32 Bartelson, J. 14 Bates, E. 121 Beaver, D. 155 Beccaria, C. 37–40, 49, 185, 190 Bentham, J. 41 Bible, as source of law 32 Biden, J. 164 Bigeard, M. 105 Billotte, P. 100 black sites 158, 160, 162–3, 165, 173n9 Blair, W.G. 106 Bodin, J. 32–3 body: attitude of Christianity to 31; individualisation of 36; as site of truth 30 Boileau, A. 56 book: aims of 17; approach taken 2, 7; arguments made 182, 183; background

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Index 193 182; contribution 188–90; genealogical perspective 14–17; implications 188–90; questions asked 182; structure and overview 18–19 Bourdet, C. 99, 103 Bradbury, S.G. 160, 161, 168 Britain: response to Madras Report 55; use of torture 94; see also East India Company; United Kingdom Brownlie, I. 122 Bruler, J. 99 Brunnee, J. 9 B’Tselem 128, 132 Bull. H. 5, 51 Bush, G.W. administration: defence of conduct 169; see also war on terror Buzan, B. 112 Bybee, J.S. 152, 153–4, 155–6, 159 Callender, H. 104 Canada, extraordinary renditions 163 Carr, E.H. 4, 16, 49, 62 case studies, choice of 18 Cassin, R. 83, 84 Caton, D. 31, 36 Catroux, G. 96 censorship 105 Central Intelligence Agency (CIA) 162, 168; defence of conduct 169; exposure in media 165; see also CIA detention and interrogation program Chang, P.C. 83, 84, 85 Chekalin, A. 64 Chemical Weapons Convention 7 Chile 140 China, war on terror 170 Christianity 30–2; see also Church Church: condemnation of torture 100; moral authority 32; see also Christianity Churchill, W. 63 CIA detention and interrogation program 158–65; enhanced interrogation techniques (EITs) 149–50, 159–61; extraordinary renditions 161–5 circumstantial evidence 28 civilisation, torture as breakdown of 47 civilised states: barbarity 57–61; use of torture 47–9 civilised–barbaric distinction 50, 111–12, 120, 185 civilising duty 52 civilising mission 46 civilising processes 50 civilization, and human rights 13

civilized states, duties 13 Clark, A.M. 6, 109 classical realism 4 Clinton, W. 162 Cobain, I. 81 Cold War 108 colonial governments, role in preventing torture 54 colonial intervention 51 colonial territories 49–57 colonialism: and attitudes to torture 185; torture as a product of 101–2 Commission for the Safeguard of Rights and Individual Liberties 104 Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity see Landau Commission communicative trails 7 compliance pull 9–10 Compton Commission 122 concealment: strategies 18; of torture 5, 187; see also denial; secrecy concentration camps 60 conclusion: arguments made in book 182, 183; constructing taboo 184–8; implications 188–90; questions asked 182; why taboo matters 183–4 confessions 28 consent 72–3, 74–5, 89–90n1 consolidation of taboo: civilised barbarity 57–61; civilising duty 52; context and overview 46–7; international peace and security 61–4; international responses 61–4; justification of violence 50–1; Madras Report 52–7; Nazi Germany 59–61; role of colonial governments 54; Soviet Union 57–9; standard of civilisation 46, 50; summary and conclusions 64–5; torture in ‘civilised’ states 47–9; torture in ‘uncivilised’ states 49–57 Constitutio Criminalis Carolina 27, 28 construction of torture, in Europe 30–4 constructivist perspective 5–9, 10–11 Control Order Law No. 10 78 controls, on use of torture 29 Convention against Torture Initiative 172 Cook, S.A. 138–9 cosmopolitanism 190 counter-resistance 149, 155–7 counter-terrorism see war on terror courts, decision making 16 court decisions, Israel 130–4

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Crawford, N.C. 15 crimes against humanity 71, 78–80, 108, 186 Criminal Intelligence Task Force (CITF) 150 criminal law, regulation of 27 Criminal Ordinance 27, 33–4; types of torture 29 criminal procedure 27 cruel, inhuman and degrading treatment (CIDT) 109, 120, 125, 127, 128, 131, 160 cruelty, dangers of 39 cult of the individual 75 cultural values, and human rights 85 culture, changing attitudes to 36 Czechoslovakia 60–1 Dahrendorf, R. 13 danger: of cruelty 39; localisation of 120; of torture 11–12 de Beauvoir, S. 101 de Bollardiere, J.M.R.P. 99–100 de Fierlant, G. 41 de Gaulle, C. 94, 105, 107 Declaration of 30 July, France 34 Declaration on the Protection of All Persons from being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 109–10 decolonisation 114–15; see also French–Algerian war degrading treatment 122 Delarue, L. 107 Delavignette, R. 100 denial 60–1, 103–6, 135–6, 140 destructive genealogy 17 Detachement Operationnel de Protection (DOP) 96 Detainee Treatment Act, US 160, 168 Digest 43n6 dignity 72–3, 84–5 Dirks, N.B. 52 discourses 16; legitimacy 16 disease, religious understanding 31 doctors see physicians dogs 151 Dolev, E. 129 Donnelly, J. 13 Dossier sur la torture et la repression 100 Doty, R.C. 104 Douglas, M 12 Dresden bombings 81

Dreyfus Affair 75 Dunlavey, M. 155 Durkheim, E. 75, 189 East India Company 52–7 economic interests 94 effects, of torture 102 Egypt 171, 184; denial 135–6; impact of taboo 139–40; international relations 138–9; international support 8–9; misrepresentation 136; state of emergency 138; strength/weakness of taboo 137–40; terrorism 134–5; use of torture 51, 134–40 Egyptian Organization for Human Rights (EOHR) 134, 135 El-Halia massacre 96 empathy 36 English School 5–6 enhanced interrogation techniques (EITs) 149–50, 159–61, 165, 166, 168 Enlightenment 26, 34, 36 epistemology of pain 35–6 equality 84–5 Esteron, Y. 129 Europe: abolition 34–7; absolutist state 32–4; changing attitudes 34; Christianity 30–2; construction of torture 30–4; history of torture 26–9; torture in 26–30; torture of prisoners 61 European Commission, definition of torture 121–2 European Commission on Human Rights, ruling on torture 120 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment 112 European Court of Human Rights (ECHR) 123–4, 125, 127 Evrigenis, D. 123–4 Executive Order 13491, US 168–9 extraordinary renditions 161–5, 166, 173n9; international cooperation 163 Eymeric, N. 28 Facchieni, F. 41 Fanon, F. 101–2 Federal Bureau of Investigation (FBI) 150–1, 156 Feinstein–McCain Amendment 169 Fifth UN Congress on the Prevention of Crime and the Treatment of Offenders 109 finalism 14

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Index 195 Finch, G.A. 79 Finnemore, M. 7, 10 fitness for interrogation 129, 131 Fitzmaurice, G. 123 five techniques 122, 123, 127, 151 FLN 95, 96, 106 Foote, G.W. 48–9 force-feeding 161 former colonies, use of torture 108 Foucault, M. 16, 17, 29, 33 four freedoms 63 France: absolutist state 32–4; acknowledgment of torture 104; antitorture protests 99–103; censorship 105; criticism of 105–6; Declaration of 30 July 34; government denial 103–6; highranking resignations 99–100; judicial system 32; Nazi torture 60; punishments 33–4; response to torture 8; use of torture 94; withdrawal from Algeria 106–8; see also French–Algerian war Franck, T.M. 9–10 freedom 63 French–Algerian war 184, 186; acknowledgment of torture 104; antitorture protests 99–103; army morale 107; Battle of Algiers 95–9; contestation of use of torture 98; context and overview 94–5; continued use of torture 105; French withdrawal 106–8; government denial 103–6; international responses 105–7; justification for torture 97–9, 127; prohibition of torture 104–5; public opinion 100–1; special powers law 96; state of emergency 95–6; summary and conclusions 114–15 Galula, D. 106, 107 Gama’a al Islamiyya 134–5 Gay, H. 51 Gay, P. 36 Gellately, R. 60 genealogies: types of 17; use of 17 genealogy, as methodology 14–17 General Security Service (GSS), Israel 126–7, 129 general will 37 Geneva Conventions 49, 152 genocide 78–9 geopolitical interests 94 Germany see Nazi Germany Ghassem el-Nafees, A. 136–7 Giddens, A. 13 Gilpin, E.M. 5

Ginbar, Y. 132 Gong, G.W. 56 Gonzales, A. 152, 153, 165 goodness, innate 86 Goodwyn, T.W. 56 Great Terror 57–8 Greece 121, 139 Greek Case 121, 123 Gronke, P. 167 Guantanamo Bay 8, 150–7; al-Qahtani 151; CIA detention and interrogation program 158–65; counter-resistance 155–7; enhanced interrogation techniques (EITs) 149–50, 159–61; extraordinary renditions 161–5; humane treatment 152–3 Guazzini, S. 43n2 Hafner-Burton, E.M. 9 Hague Convention 49 Hajjar, L. 1 Hamdan v Rumsfeld 131–2, 160 Harizat, A. al-S. 131 Heath, E. 122 hierarchical relationships, between states 52, 56, 111 hierarchy, of punishments 33–4 Hiroshima bombing 77 hookswinging 52 Horne, A. 94, 103, 107 Howard Association 48 Howard League for Penal Reform 61 Hoy, D.C. 17 human dignity 84–5, 111 human equality 84–5 human rights: conditionality 112; and cultural values 85; inconsistencies 4–5; individual rights 75; inherent rights 86; international system 62–3; and nature 85; origins of 85–6; and religion 85–6; as standard of civilization 13; and state interests 76; weakness of 9; see also United Nations’ Universal Declaration of Human Rights Human Rights Commission 82 human rights groups: anti-torture protests 100; monitoring 112; responses to Landau Commission 128; see also Amnesty International Human Rights watch 171 human solidarity 6 humanisation, of war 49 humanitarian organisations, criticism of France 106

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humanitarian pressures 6 Hunt, L. 36–7 Hurd, I. 9 hypocrisy 137 identity, and taboo 8 immanent justice 27–8 impact, of torture taboo 3 India: hookswinging 52; Madras Report 52–7 indifference 108 individual rights 75; and state interests 76 individualisation, of body 36 individuals, protection of 185–6 inherent rights 86 inhuman treatment 122 inhumane acts 78; see also cruel, inhuman and degrading treatment (CIDT) innate goodness 86 institutionalisation, of taboo 110–11, 113–14, 187 Intelligence Interrogation 150 Inter-American Commission on Human Rights 125 Inter-American Convention to Prevent and Punish Torture 112, 125; Article 2 142n3 interdependence 63 international community, ranking in 13 international cooperation, extraordinary renditions 163 International Covenant on Civil and Political Rights (ICCPR) 136, 138 international debate 120 international law, evolution of definition of torture 121–5 International Military Tribunal of the Far East 70–1, 78 international moral code 49 international peace and security 61–4 International Prison Congress 48 international relations 138–9 international reputations, and taboo violation 8 international responses: French–Algerian war 105–7; to Israel 131; manifestations of 183; to US torture 165–8 international society: and norms 5–9; responses to torture 61–4 interrogation in depth 122, 142n2 Ireland Case 122, 124, 127 isolationism, US Congress 63 Israel 184; court decisions 130–4; defining torture 187; international attitudes to

131; interrogation techniques 121; Landau Commission 126; moderate physical pressure 126–34; Penal Law 126; public opinion 129 Israeli Medical Association 129, 131 Ivy, A.C. 73, 74 Jackson, R.H. 79, 81 Japan, allied bombings 76–7 Johnson, D.A. 169 Jonas, H. 74 Joxe, L. 107 judges, as elite 32 judicial system, role of sovereign 33 judicial torture 27 jus cogens 2–3 justification for torture 97–9, 108, 127, 187–8 Kant, I. 12, 14 Keck, M.E. 7 Keene, E. 50 Knesset 129 Kooijmans, P. 111 Kruschev, N. 58–9 Labussiere, M. 59–60 Lacoste, R. 96, 103–4 Landau Commission 126–7, 128; UNCAT response 131 Landau, M. 126 Langbein, J. 27, 34–5, 37 Laugier, H. 82 Lauterpacht, V. 70 law of proof 34–5 laws of war 78, 185 League of Human Rights 100 learned helplessness 158 legal debates 120 legal discourse, use of 120 legal principles 4 legitimacy 184; of discourse 16; of norms 9–10; of taboo 56–7, 127, 130, 187; of torture 26; war on terror 167 Levin memorandum 167, 168 liberty, sacrifice for common good 37–8, 39 Lieber Code 49 Lien, A.J. 82 Linklater, A. 1, 5, 190 localisation of danger 120 Lodge, H.C. 106 logic of anarchy 1, 5; challenging 9–11 logic of appropriateness 101

Index 197

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London ‘cage’ 81 Lukes, S. 75, 190 McCain Amendment 168 McCain, J. 166 McChrystal, S. 170 Machiavelli, N. 3 McNeill, H. 81 Madani, A.H. 137 Madras Native Association (MNA) 55 Madras Report 52–7 Malet, E.B. 51 Malraux, A. 105 Marx, K. 55 Massu, J. 98 Maunoury, M.B. 103 Maurice Audin Committee 100 media, exposure of CIA 165 medical cases: defence arguments 75–7; Nuremburg Trials 70, 71–7; sulfanilamide experiments 71–2, 76 medical ethics 73–4, 89–90n1 medical experiments, regulation of 73–4 Medical Foundation for the Care of Victims of Torture 131 medical and psychiatric research and treatment 110–11 Melian Dialogue 3 Mendes-France, M. 95 Mendez, J. 189 Middle East Watch 135, 136 Mill, J.S. 50, 51 misrepresentation 136 Mitterand, F. 95 moderate physical pressure 121, 126–34; controversy 128–9; as distinct from torture 130; end of 132–4; illegality 133; unacceptable 132 Mohamed, B. 163 Mollet, G. 96, 104 monitoring, for prevention 111–13 Montesquieu 38 Mora, A. 156, 157, 166 moral crisis 103 moral norms, in war 6 morality: applicability 183–4; universal rules 51; in world politics 4–5 Morgenthau, H. 4, 8, 185, 188 Morsink, J. 85, 86 Mubarak, H. 139 Mubarak, K. 130 Muhammed, A.T. 137 Muller, H. 59 Muyart de Vouglans, P.F. 41

Naegelen. M.-E. 99 Nafsu case 126 Nagasaki bombing 77 National Defense Authorisation Act (US) 169 National Secularists’ Society 48–9 nationalism, threat of 62 nature, and human rights 85 Naval Criminal Investigative Service (NCIS) 156 Nazi Germany 59–61, 183, 185; responses to 61–4; see also Nuremburg Trials neo-realism 3 Neutrality Acts, United States 63 Nietzsche, F. 17 NKVD 58, 59 non-refoulement 15, 110, 115, 186 norm violations, studies of 7 normative framework, effects of 8 norms: contestation 120; defining 11; and international society 5–9; legitimacy of 9–10; violation and validity 7 Northern Ireland 122 Nuremburg Charter 78 Nuremburg Code 73–4 Nuremburg Trials 59–60, 185–6; Allied hypocrisy 81–2; attacking the defenceless 75; context and overview 70–1; crimes against humanity 78–80; Defence arguments 75–7; medical cases 70, 71–7; prosecutors 70; stigmatisation 79; summary and conclusions 87–8; victors’ justice 81; see also Nazi Germany Obama administration 168–72 oil 94, 107 OPCAT 172 Operation Champagne 96 oppression, and torture 39–40 Optional Protocol of the Convention against Torture 113 Ordinance of Philip II 27 Organisation for Security and Cooperation in Europe (OSCE) 172 Ottoman Empire, use of torture 51 outsourcing 162, 184 pain: Beccaria’s classification 38–9; in definition of torture 124–5; interpretation of 31–2; justified use 141n1; meaning of and attitudes to 35–6; prohibition of 122; secularisation of 36; torture as extreme pain 153–5

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pain thresholds 103 Paine, T. 39 Paret, P. 97 Parker Committee 122 parlementaries 32 peace and security 61–4 Peace Settlement 1919 62 Perry, J. 48 philosophes, attitudes to pain and medicine 36 physicians: attitudes to pain 35–6; recognition of torture 16; role in torture 129, 131 Pillay, N. 1 poena extraordinaria 35 political ethics 4–5 politics of definition 189; context and overiew 120–1; denial 135–6; Egypt 134–40; evolution of definition 121–5; Israel 126–34; strength/weakness of taboo 137–40; summary and conclusions 141; UN Convention Against Torture (UNCAT) 124–5 Porter, R. 31, 36 Portugal, use of torture 94 post-colonial states, use of torture 108 Powell, C. 152, 165 power 16; to hurt 1; in world politics 4 Preamble, United Nation’s Universal Declaration of Human Rights 84–7 presentism 14 prevention, monitoring for 111–13 Price, R.M. 7, 15–16 Priest, D. 165 prisoners, torture of 60–1 prohibition 104–5; changes in 190; as normative 46; and violation 2–3 Prokosch, E. 108 proofs, levels of 28 propaganda: allied countries 64; Nazi Germany 60 Public Committee Against Torture in Israel [PCATI] v. The State of Israel 132–3 public executions 26–7, 33–4 public indifference 108 public opinion 100–1; Israel 129; war on terror 167 punishments: hierarchy of 33–4; new forms 35 Quarantine Speech 63 questions asked in book 182 Rahim, M. 160

Rahman, G. 170 ranking, in international community 13 rapport-based techniques 150 realist perspectives 1–2, 4–5, 16, 183; logic of anarchy 1, 5, 9–11; strengths and weaknesses 5 Red Cross 131; criticism of France 106 redefinition 121, 127–8 refoulement 163 Rejali, D. 140 religion: and human rights 85–6; understanding of disease 31 religious groups, condemnation of torture 100 Report of the Commissioners for the Investigation of Alleged Cases of Torture in the Madras Presidency see Madras Report Report on Torture (Amnesty International) 7, 108 reputations, human rights groups 16 resilience 10; of taboo 107–8 retaliation 104 rhetoric, and practice 9 Rice, C. 163–4 right to punish 37–8 Risse, T. 7, 139 Rivlin, R. 133 Rizzo, J. 159 Roberts, A. 152 Rodley, N.S. 3, 113 Roman-canon system 27–8, 34; absolute certainty 27–8; guilt, levels of 28 Roosevelt, F.D. 62–3 Rousseau, J.-J. 37 Rumsfeld, D. 152, 155–6, 157 Salameh, G. 165 Sarid, Y. 129 Sartre, J.-P. 101–2 Scarry, E. 14 Scheuer, M. 164 Schlesinger Report 158 Schmitt, C. 16, 81 Schwelb, E. 79, 80 secrecy 61, 140 secularisation, of pain 36 security and peace 61–4, 186 Senate Committee Hearing on the use of SERE 166 Senate Select Committee on Intelligence, US 169–70 Servan, J.-M.-A. 39–40 Servatius, R. 73, 74, 77

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Index 199 shaking 130–1 Sheetrit, M. 134 Shue, H. 49 Sikkink, K. 7, 139 Silverman, L. 30, 31, 32, 35, 37, 40 Simon, E. 61–2 Sneh, E. 133 social construction, of understanding 184–5 social contract 37 social dissolution 189 social positioning 13 sociology of danger 11–12, 26, 39, 183, 189 solidarity 6, 190 Soustelle, J. 103 sovereign, judicial role 33 sovereign–state relationship 33 sovereignty 32–3, 37; and crimes against humanity 80; and taboo 80 Soviet Union 57–9, 81, 183 Spain 48–9 Spanish Atrocities Committee 48 spiral model 7 sponsorship 108 Stalin, J. 57, 58–9, 64 standard of civilisation 13, 46, 50 state interests, and individual rights 76 state of emergency, Egypt 138 states: hierarchical relationships 52, 56, 111; obligation to investigate torture allegations 109; relations between 4–5; responsibilities under UNCAT 110 status, of torture taboo 3 Steiner, F.B. 26 stigma, development of 187–8 stigmatisation 113, 183 strategies, of concealment 18 structural (neo)realism 3 suffering, interpretation of 31–2 sulfanilamide experiments 71–2, 76 superpowers, sponsorship and training of torturers 108 Survival, Evasion, Resistance, and Escape (SERE) program 155–6; Senate Committee Hearing on use of 166 swallow 57 Sweden: extraordinary renditions 163; Nazi torture 60 taboo: constituents of 12–13; construction of 14–15, 184–8; dangers of violation 127; effects on practice 139–40; genealogy 14–17; global regression

168–72; and identity 8; institutionalisation 110–11, 113–14, 187; legitimacy of 56–7, 127, 130; as moral resource 189; obligations of 13–14; questioning 149; resilience 10, 107–8; strength/weakness of 137–40; symbolism of 11; why it matters 183–4 taboo violation, and international reputations 8 taboos 11 Tallack, W. 48 Tannenweld, N. 77 Taylor, T. 71–2 techniques 47, 48, 51, 53, 57–8, 59–60, 66n2, 96–7, 103, 122, 128–9, 130, 132–3, 135, 136–7, 142n4–142n7; counter-resistance 157; enhanced interrogation techniques (EITs) 149–50, 159–61, 168; extraordinary renditions 163; five techniques 122, 123, 127, 151; rapport-based techniques 150; Survival, Evasion, Resistance, and Escape (SERE) program 155–6; of torture 29; unauthorised techniques 161; waterboarding 159; Working Group 157; see also medical cases terrorism, Egypt 134–5 The Question (Alleg) 101, 105 The Rights of Man (Wells) 61 The Wretched of the Earth (Fanon) 101–2 third degree methods 59 Thucydides 3 Thurston, R.W. 57, 58, 59 ticking bomb scenarios 2, 108, 110, 127, 129, 130, 137, 167, 187, 189 Tietgan, P. 100 Tiger Teams 150–1 tolerance 50 Toope, S.J. 9 torture: aims of 12; arguments against 38; attitudes to 1, 40–2 (see also abolition); barbarity 40, 49; Beccaria’s assessment of 38; changing attitudes to 14, 34, 184–5; concealment of 5, 187 (see also denial); danger of 11–12; defining 49, 103, 121–5, 153–5, 166, 168, 187 (see also politics of definition); effects of 102, 107, 111, 169–70; evolution of definition 121–5; extreme pain 153–5; and oppressive rule 39–40; prevalence 1; recognition of 16; as security threat 186; symbolism of 182; types of 29 Towns, A.E. 13 tradition, of violence 53–4

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training 108 Traite de la Justice Criminelle (Jousse) 41 treatment and rehabilitation, of victims 111 trials, secrecy 27 Trinquier, R. 97, 98, 107 Trump, D. 189 truth, located in body 30 Tsutsui, K. 9 Turkey, crimes against humanity 78–9 Twining, P.E. 41 Twining, W.L. 41 tyranny 39, 40 UN Committee against Torture 110, 112–13, 166, 186 UN Convention Against Torture (UNCAT) 13–14, 15, 108–10, 159–60, 186; definition of torture 124–5; institutionalisation of taboo 110–11, 113–14; Optional Protocol of the Convention against Torture 113; requirements of 110; response to Landau rules 131 UN Declaration against Torture 124–5 UN Human Rights Committee 125 UN Special Rapporteur on Torture 111, 112–13, 166, 186, 189 uncivilised states: barbarity 50; role of colonial governments 54; use of torture 49–57; violence against 50–1 understanding, social construction of 184–5 United Kingdom: in Northern Ireland 122; wartime atrocities 81; see also Britain United Nations: Amnesty International petition 108–9; criticism of France 105–6; Resolution 32/62 109; Resolution 1985/33 112; Resolution 3059 109; Resolution 3453 109 United Nations International Day in Support of Victims of Torture 165 United Nations’ Universal Declaration of Human Rights 71, 82–7, 186; Article on the Prohibition against Torture 83–4; Preamble 84–7; summary and conclusions 88; see also human rights United Nations’ Victims Fund 111 United States 184; defining torture 153–5, 187; effects of use of torture 169–70; Executive Order 13491, US 168–9; failure to condemn torture 171; international reputation 8; Neutrality Acts 63; Obama administration 168–72;

public opinion 167; use of torture see war on terror universal moral community 6 universal morality 51 unnecessary suffering 46, 49 unreliability: safeguards against 30; of torture 29 US Congress, isolationism 63 US military intelligence 150 Uzbekistan 171 Vastmanlands Lans Tidning 60 victims: as heroic 64; right of complaint 109; treatment and rehabilitation 110–11 victors’ justice 81 Villers-Cotterets 27 vindicatory genealogy 17 violations: by authoritarian regimes 46–7; dangers of 127; and development of taboo 15; effects of 13, 108; and international reputations 8; stigmatising effect 183; see also French–Algerian war; Nazi Germany; Nuremburg Trials; Soviet Union; war on terror violence: justification of 50–1; tradition of 53–4 Voltaire 40–1, 43n7, 190 Voorda, B. 41 Waltz, K. 3 Walzer, M. 6 war: humanisation of 49; justification for torture 97–9; laws of 78, 185; as moral domain 6; regulation of 49 war criminals: prosecutions 70; see also Nuremburg Trials war on terror: China 170; CIA detention and interrogation program 158–65; context and overiew 149–50; counterresistance 155–7; defence of conduct 169; defining torture 153–5; domestic criticism 166; enhanced interrogation techniques (EITs) 149–50, 159–61; extraordinary renditions 161–5; Guantanamo Bay 150–7; humane treatment 152–3; international effects 170–1; international responses to torture 165–8; Obama administration 168–72; public opinion 167; responses to interrogation techniques 156–7; summary and conclusions 172–3; unauthorised techniques 161; Working Group 157; see also Abu Ghraib wartime atrocities, Allied forces 81

Index 201

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waterboarding 159 Weigel, B. 60–1 Wells, H.G. 61 Wendt, A. 10 Williams, B. 17 Working Group, on interrogation techniques 157

world politics 2–5 world society 6 World War II 185; see also Nazi Germany; Nuremburg Trials Wuillaume Report 103 Zubaydah, A. 170

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