Torture is a hate crime by mattsteinglass
May 14, 2009, 10:12 am
Filed under: Human Rights and Torture

If, like Andrew Sullivan, you don’t agree with the concept of “hate crimes”, then it seems to me you have a problem with the UN Convention Against Torture. Here, again, is that treaty’s definition of torture.

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.

I’ve bolded the relevant clause. What it means is that when, for example, Bosnian Serb concentration camp guards rape prisoners, not as part of an interrogation or in punishment or with any other goal in mind but simply to mess up some “Turks”, they can be prosecuted for torture, not just for rape. See, for one example among many, the Zelenovic decision of the International Criminal Tribunal for the Former Yugoslavia, P.13:

42. The Prosecution argued that all the incidents to which Mr. Zelenović has pleaded guilty are to be classified as torture because they were committed on discriminatory grounds.

That is, because Zelenovic’s many rapes and gang-rapes were committed as part of racist mass detentions of Bosnian Muslim civilians by Bosnian Serb soldiers, they’re not just rapes; they’re torture. The crime is of a different nature from everyday street-crime rape. It is not the act of an individual sexual predator; it is ostentatiously displayed group sexual violence by the uniformed militia of one tribe against captive members of the other tribe. It is as close to what Charles Graner was doing at Abu Ghraib as makes no nevermind — no, in fact, it’s exactly the same thing.

When, as with Matthew Shepard, a bunch of straight young men (or young men attempting to demonstrate that they are straight) beat up a young gay man, they are not simply engaging in assault and battery. That is not what we are looking at. What we are looking at is a different variety of primate behavior. The term “hate crime”, enshrined in the original 1969 Federal law, is probably unfortunate because of its Orwellian overtones, simultaneously evoking “thought crimes” and the “two-minute hate”. “Persecution” would I think be more apt. Government has a distinct interest in prohibiting this type of crime, separate from the general interest in prohibiting assault, because it is bound up with group violence and persecution, and such divisive violent conflict can tear a state apart. You’re not going to get at intercommunal violence and persecution anywhere, be it straight on gay, Hindu on Muslim, Jew on Arab, white on black, or what have you, without a law that addresses it as persecution.

Sullivan approvingly references a post by John Schwenkler. To me, Schwenkler seems to have missed his own point. He writes:

In short, the reason that doing violence or otherwise committing crimes “in an effort to harass, provoke or intimidate” is certainly more serious, and possibly deserving of more serious punishment, than doing the same violence or committing the same crimes without such ends in mind, is that the former behaviors constitute different actions than the latter, in much the same way that waterboarding a CIA agent as a part of SERE training isn’t an act of torture while doing the very same thing to an unwilling al Qaeda member clearly can be.

Precisely. And what those guys did to Matthew Shepard was a different action than a couple of guys beating another guy to death in a bar in a fight over money, or a woman. This was a gang of good ol’ boys out to beat up a fag. It’s discrimination; it’s persecution. If you want to stop torture, you have to outlaw torture, not waterboarding. If you want to outlaw persecution, you have to outlaw persecution, not beating people up.

The question of whether crimes of persecution are already adequately addressed by state law, rather than federal, is an entirely separate one. Also, Sullivan’s points about the irrelevance of the legislation to people’s actual needs, and his claim that it’s largely driven by PR and funding needs of interest-group organizations, are good ones.


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