If it has no purpose, it’s not torture. So did Lynndie England torture? by mattsteinglass
May 8, 2009, 8:56 am
Filed under: Human Rights and Torture

Andrew Sullivan notes that calling torture “inhuman” is a bit odd since animals don’t do it:

But the act of intentionally exploiting suffering, of lingering over some other being’s pain – using it as a means to an end – is not an animal instinct, unless I’m mistaken.

My first reaction was to think of my cat, who certainly enjoys torturing toads in our garden. But then I realized that while Blacktop’s robust interest in batting froggies around without making any move to kill or eat them fits the vernacular understanding of “torture”, it doesn’t actually meet the legal definition. (Good news, Blacktop — you can travel to Spain after all!) That’s because, as Sullivan’s “means to an end” implies, the legal definition of torture requires that it be undertaken instrumentally — in order to punish someone, or coerce someone into doing something or disclosing information, or to discriminate against them:

Article 1

1. For the purposes of this Convention, 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.

Thus the UN Convention Against Torture. (The astute observer will note that Blacktop was never in real legal jeopardy because frogs aren’t “persons” and because he wasn’t acting in any official capacity.) In terms of the animal-instinct question, what this means is that animals can’t “torture” in the legal sense unless they possess a kind of conscious, instrumental rationality that we don’t generally attribute to animals, with the possible exception of some apes.

But that leads to another interesting point. The purpose of the torturing act is crucial because it’s how you distinguish between, say, waterboarding someone as part of SERE training, and waterboarding them in order to coerce information out of them. Yet much of the cruelty that goes on in torturing environments like Abu Ghraib seems to be without clear purpose in the minds of those who commit it; it’s just arbitrary out-of-control violence, pack savagery that may relieve personal emotional frustration or may be a form of horribly natural instinctive primate dominance-displaying behavior. Take for example this description by a former Khmer Rouge guard at a jail near the famous Tuol Sleng prison, also known for its waterboarding:

After I was assigned to guard this prisoner I saw the [interrogators] beating him, and when the interrogators were gone I stole inside and beat him too, pushing, kicking, and punching him freely, until the prisoner said, “What are you doing? You’ll kill me this way!”
— [Quoted in David Chandler, “Voices from S-21: Terror and History in Pol Pot’s Secret Prison,” P.114] 

Or take Lynndie England. England wasn’t an interrogator and probably didn’t have a very clear sense of why she was attaching naked men to leashes and stacking them in pyramids, except that her superiors had ordered her to do something along those lines, and everyone around her was doing it and it somehow seemed fun and appropriate at the time. She was behaving more or less like my cat does with a toad. If there was “purpose” here towards “obtaining information or a confession”, etc., it didn’t come from her; it came from higher up the chain, and it seems in some ways as odd to prosecute her for torture as it would be to prosecute the bug the CIA put in the box with Abu Zubaydah.

But clearly the law doesn’t see things this way, and it shouldn’t. England’s torture had a purpose, even if she wasn’t the one who determined it. The International Criminal Tribunal for the Former Yugoslavia has convicted numerous people of torture (Zelenovic; Kunarac, Kovac and Vukovic; Mucic, Delic, and Landzo) for doing horrible and apparently purposeless things in concentration camps in Bosnia, because those things were part of a policy framed by political leaders with the aim of “intimidation” and “discrimination” against people on the other side. And, appropriately, the ICTFY also went after those political leaders for war crimes, because that’s where the purposeful intentionality of the torture came from.


2 Comments so far
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Is your cat torturing the toad though, or enjoying its victory? Taunting it to attempt escape so it can repeat the glory?

Good post – I have no sympathy for Lynndie England but it’s absurd that only the people at the sharp end should be called to account for what was clearly a systemic failure at best and conscious policy at worst.

Same old, same old eh?

Comment by visceralnorth

Unfortunately, yeah.

Comment by mattsteinglass

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