Torture Spring 2013

Nobel Lecture, Dec. 10, 2009 [E]ven as we confront a vicious adversary that abides by no rules, I believe the United States of America must remain a standard bearer in the conduct of war. That is what makes us different from those whom we fight. That is a source of our strength. That is why I prohibited torture. That is why I ordered the prison at Guantanamo Bay closed. And that is why I have reaffirmed America's commitment to abide by the Geneva Conventions. We lose ourselves when we compromise the very ideals that we fight to defend. And we honor – we honor those ideals by upholding them not when it's easy, but when it is hard.

Universal Declaration of Human Rights (1948) Article 5 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

European Convention on Human Rights (1950) Article 3 No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

European Convention, Article 15 “In time of war or other possible emergency threatening the life of the nation any [countries] may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation. … No derogation from Article 2 [right to life], except in respect of deaths resulting from lawful acts of war, or from Articles 3 [right against torture and degrading treatment], 4.1 [slavery and servitude] and 7 [ex post facto laws] shall be made under this provision.”

Daschner -- Gaefgen

von Metzler case: threat of torture permitted? Sept 27, 2002: Magnus Gaefgen (27) kidnaps Jakob von Metzler (11), son of a prominent banker Four days later, Gaefgen was arrested picking up the ransom, refusing to reveal the boy’s whereabouts Wolfgang Daschner, deputy police chief in Frankfurt, threatens torture – “a specialist will be flown in an inflict pain of a sort you’ve never experienced”

Gaefgen 2003: Gaefgen sentenced to life in prison appealed to German Supreme Court, European Court of Human Rights argues case should be dismissed because of human rights violation unsuccessful because confession had been dismissed and policemen were sentenced

Daschner Court argued D had dismissed possibility of confronting Gaefgen with von Metzler’s sister Did not think the case was unique Argued that a case like this should not tempt state to depart from its constitutional essentials recognized mitigating circumstances to such an extent that D was not punished at all -- retired in May 2008

Encountering Torture: Abu Ghraib

Encountering Torture

Encountering Torture: Berlin

Hohenschoenhausen

Encountering Torturers John Conroy, Unspeakable Acts, Ordinary People, Chapter on “Torturers” Last sentence: “Finding these men was not easy, convincing them to talk to me was hard work, but invariably our meetings went well. I never met the monster I anticipated.” (p 122)

Defining Torture (CAT) 1. (…) “[T]orture" 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.

What Counts as Torture? In the UN Committee on Torture the following were discussed and classified as torture: Daily beatings Detaining somebody in a small uncomfortable space for two weeks Forcing someone to sleep on the floor of a cell while handcuffed following interrogation Sleep deprivation in severe cases the threat of torture

What is Cruel, Inhuman, Degrading? Depriving somebody of food/water In severe cases, binding in restraint chair Physical restraint that may cause unnecessary pain and humiliation Long periods of detention (two weeks and more) in sub-standard cells

David Sussman, What’s Wrong with Torture? “[T]he torture victim finds herself to be not only physically and morally defenseless, but exposed to a will that appears largely if not completely arbitrary. The victim’s greatest interests are completely subject to the caprice of her torturers (….) Insofar as she is able to form any estimates of their motives and intentions, the victim must trust in the sincerity of people who have already shown that they have no scruples about how they treat her.” (p 7f)

Sussman Cont. “[T]orture fails to respect the dignity of its victim as a rationally self-governing agent. (…)[T]orture (…) involves a deliberate perversion of that very value, turning our dignity against itself (…) It is perhaps not accidental that many of the most common forms of torture involve somehow pitting the victim against himself, making him an active participant in his own abuse. In Abu Ghraib, captives were made to masturbate in front of jeering captors. Here the captive was forced into the position of having to put his most intimate desires, memories, and fantasies into the service of his torturers, in a desperate attempt to arouse himself for their amusement. The US soldiers could beat and killer their prisoners, but only the prisoner himself could offer up his own erotic life to be used against himself in this way.” (p 19-22).

Yet more Sussman “The torture victim finds within herself a surrogate of the torturer, a surrogate who does not merely advance a particular demand for information, denunciation, or confession. Rather, the victim’s whole perspective is given over to that surrogate, to the extent that the only thing that matters to her is pleasing this other person who appears infinitely distant, important, inscrutable, and free. (…) Like love or religious devotion, such an attitude can develop an emotional hold that persists beyond the circumstances that initially created it, as the phenomenon of “traumatic bonding” or “’Stockholm syndrome” attests.” (p 25f)