essay on torture

Torture and Human Rights Violation Essay

Torture remains one of the most controversial issues yet to be solved. The contemporary world is pursuing principles of democracy and tolerance. All countries propagate such ideas. Ironically, at the same time torture is still an indispensible part of many people’s lives in both developing and developed world (Davis, 2005).

It is important to note that people in developed countries still resort to torture even though they may share democratic values. Moreover, certain ethical theories may justify torture. Nonetheless, the arguments provided are quite inconsistent. Therefore, it is time to make it perfectly clear that torture has no right to exist in the USA which is considered to be an exemplary democratic state.

Torture violates basic human rights and is against the law of nature. People have no right to torture other people even in the name of the overall good. It is important to define torture as an immoral practice which should be eliminated as justification or even silent tolerance of torture can have global implications.

In the first place, it is necessary to define the word to void any misinterpretation. According to the “Convention against Torture and Other Cruel, Inhumane, or Degrading Treatment or Punishment” which was adopted in 1984, torture is:

any act 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. (Davis, 2005, p. 163)

Now it is possible to take a closer look at instances of torture in the American society. For instance, torture was a police ethics issue and it was referred to as “the Dirty Harry Problem” (as cited in Davis, 2005, p. 161). The problem was named after a “bad” police officer in the 1971 film. In the film the police officer named Harry tortured a criminal who kidnapped and killed a girl. In the 1970s, people tried to understand whether torture could be justified. Though, the problem remained in the terrain of police ethics.

However, recent events show that the issue has broader implications and it should be considered thoroughly. Davis (2005) provides an example of 2002 news concerning American soldiers who tortured prisoners and combatants in Afghanistan, Guantanamo Bay and Iraq. The researcher notes that the government never provided a clear explanation of the events and their position on the possibility of resorting to torture.

On the one hand, the government “publicly condemned “torture” and blamed the well-documented instances on “a few bad apples” (poorly trained guards, rogue intelligence officers, and so on)” (Davis, 2005, p. 162). On the other hand, the government reported about new ways of interrogating prisoners and combatants, though they did not specify what exactly was meant by those new ways. Therefore, it becomes obvious that torture is still present in the US society.

Though it is officially condemned, it is justified in a variety of cases. There are still two camps in the American society. Some claim that torture cannot be justified and should be eliminated, while others stress that there are cases when torture is inevitable for the good of many.

Followers of such ethical theories as Deontological ethical theory or Natural Law condemn torture and claim that it cannot exist in the human society. For instance, in terms of Deontological ethical theory torture is unacceptable practice as it cannot become the so-called universal law.

According to Deontologists, torture “violates fundamental principles of humanity” (Bellamy, 2006). If torture can be applied to combatants, terrorists, prisoners or inmates, it becomes applicable in other situations and settings. In that case, torture in everyday settings should also be justified and any misdeed can lead to violence. Admittedly, violence leads to more violence. Clearly, torture is inappropriate and immoral practice which cannot exist in the human society.

As for the ethical theory of Natural Law, it also condemns torture which is unnatural (Banks, 2008). Again, it is stressed that torture violates major principles of humanness. There is no torture in the wild. Animals do not torture each other. Since a human is a part of the world of animals, torture cannot exist in the world of humans either (Banks, 2008). No individual can feel he/she has the right to cause pain and suffering to another person.

However, there is an ethical theory that justifies torture. Arguments justifying torture can be found within Teleological ethical theory. Thus, proponents of this ethical approach claim that consequences of the act define whether the act is rightful or wrongful. Thus, if torture is a tool that can make combatants or terrorists reveal important information which can save people’s lives, the tool can be used.

Sufferings of an individual can be justified if they will lead to the good of many. Of course, it is not articulated but it is still an important factor to be mentioned that combatants and terrorists are regarded as hostile aliens and enemies, which makes their sufferings less significant for proponents of the approach.

Nonetheless, opponents of this approach argue that sufferings of a close person or people’s personal sufferings would be seen differently (Banks, 2008). More so, effectiveness of the tool has not been proved as people often say anything to stop their torturers (Bellamy, 2006). Furthermore, there are certain pharmacological tools which can make people tell the truth. Therefore, the act of causing a person pain is not anymore an inevitable act of mercy to other people, but a simple sadistic act.

Admittedly, nothing can justify torture as no human being can cause suffering (physical or mental) to another human being. This is violation of basic human rights. All people are equal and no one can have the right to do wrong to another individual. Importantly, victims are not the only affected people.

Torture leads to a certain corruption of the very human nature as people causing pain to other people will inevitably lose major human characteristics. People causing suffering are likely to become cruel and violent. They can soon lose the sense of reality as it is unnatural to see (and cause) pain. This is also inhumane to make people cause suffering to another person, and, in this way, lose major human characteristics.

It is important to note that the issue has to be solved as soon as possible as the contemporary world needs clearly cut values. Globalization is one of the major reasons why torture should be eliminated as ideas, values and practices spread all over the world and people should focus on propagating real values and rightful practices.

Supposedly, torture remains an acceptable practice in the developed world. Globalization will contribute to the spread of such practices. Countries where torture was condemned can reconsider attitude toward this practice. Torture as a tool to cause pain to a restricted number of people to save thousands and millions will soon turn into a common practice applicable in all spheres of people’s life.

More so, this will have another implication on the global scale. The system of people’s values can become corrupted. People will reconsider values, which can lead to a distorted understanding of what is right and what is wrong. Justification of torture will inevitably lead to justification of any kind of violence. The entire basis of humanity can be reconsidered. Of course, this scenario is highly unlikely to happen as in the majority of countries people condemn torture of any kind.

On balance, it is necessary to note that the ethical issue concerning torture is to be solved in the nearest future as justification of torture can corrupt major human characteristics. This issue has been considered throughout centuries and there are a number of theoretical approaches to solve the issue. There is even at least one ethical theory that justifies torture. Thus, followers of Teleological ethical theory claim that suffering of an individual can be justified if many can be saved.

Nonetheless, it is important to remember that no reason can be sufficient to justify torture as it violates basic human rights. Not only the victim’s rights are violated, but the torturer’s basic right to live in accordance with certain (societal or personal) moral conventions is also violated. Justification of torture will inevitably have a number of implications globally.

It can lead to corruption of the major human values as well as corruption of the very nature of humanity. Of course, no society can afford such kind of corruption in the contemporary globalized world as the world is becoming small and major human values start playing paramount importance since these values help people cooperate and develop.

Reference List

Banks, C. (2008). Criminal justice ethics: Theory and practice. Thousand Oaks, CA: SAGE Publications.

Bellamy, A.J. (2006). No pain, no gain? Torture and ethics in the war on terror. International Affairs, 82 (1), 121-148.

Davis, M. (2005). The moral justifiability of torture and other cruel, inhuman, or degrading treatment. International Journal of Applied Philosophy, 19 (2), 161-178.

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This entry is in four parts. The first part concerns the definition of torture and addresses the question, what is torture? The second part concerns the defining features of torture from a moral standpoint and addresses the question, what makes torture inherently morally wrong? For instance, it is generally held that torture is defined in part as the deliberate infliction of extreme suffering and that – by virtue of this defining feature – torture is morally wrong. Note that even actions or practices that are inherently morally wrong might be morally justified in extreme circumstances. Or to put things another way, performing an evil action might be morally justified if refraining from performing it constituted a much greater evil. Indeed, the third part of the entry concerns just this possibility: the possibility that notwithstanding its inherent moral wrongness, torture might, nevertheless, in extreme emergencies be morally justified. In short, the third part addresses the question, is torture morally justified in extreme emergencies? The last part of the entry concerns the legality, as opposed to the morality, of torture and addresses the question,should torture ever be legalised or otherwise institutionalised? [ 1 ]

In relation to the definition of torture, there are now a number of contemporary philosophical accounts on offer, notably those of Twining & Paskins (1978), Davis (2005), Miller (2005), Sussman (2005), Gross (2009) and Kamm (2011). Moreover, there are numerous detailed discussions concerning the inherent moral wrongness of torture, all of which focus on the extreme suffering inflicted (Bentham 1804; Shue 1978; Miller 2005 and 2009; Matthews 2008; Brecher 2008; Kershnar 2011), but some of which put greater emphasis on torture as a violation of autonomy (Sussman 2005; Miller 2005). Useful collections of essays on this and related topics are Levinson 2004, Greenberg et al. 2005, Roth & Worden 2005, Rodin 2007, Allhoff 2008, Clucas et al. 2009, Luban 2014 and Shue 2016.

The contemporary debate concerning the moral justifiability of torture in extreme emergencies principally concerns the torture of terrorists and is dominated by two groups. There are those who argue in the affirmative and point to so-called ticking bomb scenarios to support their case. These theorists often adhere to some form of consequentialism, such as utilitarianism. They include Allhoff (2003, 2012), and Bagaric and Clarke (2007), albeit the classic utilitarian justification remains that of Bentham (1804). (See also Twining & Twining 1973.) Then there are those who argue in the negative and stress not only the inherent immorality of torture but also contest that it ever has good effects in practice (Davis 2005; Brecher 2008; Matthews 2008). For instance, they typically claim that torture does not work, since those who are tortured tell their torturers whatever they want to hear.

The classic denunciation of the legalisation of torture is that of Cesare Beccaria 1764. In the contemporary debate concerning the legalisation of torture many theorists of a liberal persuasion have stressed the incompatibility of torture with the values underpinning liberal institutions (Luban 2005; Waldron 2005, 2010; Shue 2016). Moreover, in this contemporary debate, the protagonists have tended to assume that if torture is morally justified in some extreme emergencies then it ought to be legalised. Thus Alan Dershowitz claims that torture is morally justified in some extreme emergencies and, in the light of this claim, argues for torture warrants in these cases (2003, Chapter 4). [ 2 ] See also Steinhoff 2006 and 2013. However, some theorists have argued that although torture can in some extreme emergencies be morally justified, nevertheless, torture ought never to be legalised or otherwise institutionalised. This position was originally advanced by Machan (1990) before being argued in more detail by Miller (2005) and (2009), and later by McMahan (2008).

Before proceeding to the question, or questions, of the moral justifiability of torture in extreme emergencies we need some understanding of what torture is. We also need some account of what is inherently morally wrong with torture.

1. Definition of Torture

2. what is inherently wrong with torture, 3.1 case study – the beating, 3.2 case study – the terrorist and the ticking bomb, 4. the moral justification for legalised and institutionalised torture, other internet resources, related entries.

Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g., tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end. [ 3 ]

All of these practices presuppose that the torturer has control over the victim’s body, e.g., the victim is strapped to a chair.

Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain . However, all of these practices involve the infliction of extreme physical suffering , e.g., exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person. If A accidentally sears B with hot irons A has not tortured B ; intention is a necessary condition for torture. Further, if A intentionally sears B with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenceless. [ 4 ]

Is the intentional infliction of extreme mental suffering on a non-consenting, defenceless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B ’s friend, A , is being tortured, e.g., A is undergoing electric shock treatment, but that B himself is untouched – albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A . However, B believes that A is being tortured; so B ’s mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A . In that case surely he is not torturing B either. [ 5 ]

On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenceless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else’s (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture.

In various national and international laws, e.g., Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (United Nations 1984 – see Other Internet Resources), a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g., flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g., causing a prisoner to pretend to have sex with an animal.

So torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person. Is this an adequate definition of torture? Perhaps not, albeit some theorists, such as Kamm (2011), adhere to this kind of conception. Consider the following imaginary counter-example. A woman who is being raped but who is, nevertheless, still in control of the movement of her jaws sinks her teeth into the face of her attacker causing him excruciating pain against which he is defenceless, until finally he desists. Surely the woman is not torturing her attacker but rather defending herself by inflicting excruciating pain on her attacker. Evidently what is missing in the account thus far is the relationship between torture and autonomy: torture substantially curtails autonomy

So torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person, and; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)). Is this now an adequate definition of torture? Perhaps not.

Here we need to consider the purpose or point of torture.

The above-mentioned U.N. Convention identifies four reasons for torture, namely: (1) to obtain a confession; (2) to obtain information; (3) to punish; (4) to coerce the sufferer or others to act in certain ways. Certainly, these are all possible purposes of torture, as is torture performed for sadistic pleasure. [ 6 ]

It seems that in general torture is undertaken for the purpose of breaking the victim’s will. [ 7 ] If true, this distinguishes torture for the sake of breaking the victim’s will from the other four purposes mentioned above. For with respect to each one of these four purposes, it is not the case that in general torture is undertaken for that purpose, e.g., in most contemporary societies torture is not generally undertaken for the purpose of punishing the victim.

One consideration in favour of the proposition that breaking the victim’s will is a purpose central to the practice of torture is that achieving the purpose of breaking the victim’s will is very often a necessary condition for the achievement of the other four identified purposes (and, indeed, for the achievement of sadistic pleasure). In the case of interrogatory torture of an enemy spy, for example, in order to obtain the desired information the torturer must first break the will of the victim. And when torture – as opposed to, for example, flogging as a form of corporal punishment – is used as a form of punishment it typically has as a proximate, and in part constitutive, purpose to break the victim’s will. Hence torture as punishment does not consist – as do other forms of punishment – of a determinate set of specific, pre-determined and publicly known acts administered over a definite and limited time period.

A second consideration is as follows. We have seen that torture involves substantially curtailing the victim’s autonomy. However, to substantially curtail someone’s autonomy is not necessarily to break their will. Consider the torture victim who holds out and refuses to confess or provide the information sought by the torturer. Nevertheless, a proximate logical endpoint of the process of curtailing the exercise of a person’s autonomy is the breaking of their will, at least for a time and in relation to certain matters.

These two considerations taken together render it plausible that in general torture has as a purpose to break the victim’s will.

So perhaps the following definition is adequate. Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general , undertaken for the purpose of breaking the victim’s will.

Note that breaking a person’s will is short of entirely destroying or subsuming their autonomy. Sussman implausibly holds the latter to be definitive of torture: “The victim of torture 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, powerful and free. The will of the torturer is thus cast as something like the source of all value in his victim’s world” (Sussman 2005: 26). (See also Bernstein 2015.) Such self-abnegation might be the purpose of some forms of torture, as indeed it is of some forms of slavery and brainwashing, but it is certainly not definitive of torture.

Consider victims of torture who are able to resist so that their wills are not broken. An example from the history of Australian policing is that of the notorious criminal and hard-man, James Finch: “He [Finch] was handcuffed to a chair and we knocked the shit out of him. Siddy Atkinson was pretty fit then and gave him a terrible hiding….no matter what we did to Finch, the bastard wouldn’t talk” (Stannard 1988: 40). Again, consider the famous case of Steve Biko who it seems was prepared to die rather than allow his torturers to break his will (Arnold 1984: 281–2). [ 8 ]

Here breaking a person’s will can be understood in a minimalist or a maximalist sense. This is not to say that the boundaries between these two senses can be sharply drawn.

Understood in its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period. [ 9 ] Consider, for example, a thief deciding to disclose or not disclose to the police torturing him where he has hidden the goods he has stolen (a torturing practice frequently used by police in India). [ 10 ] Suppose further that he knows that he can only be legally held in custody for a twenty-four hour period, and that the police are not able to infringe this particular law. By torturing the thief the police might break his will and, against his will, cause him to disclose the whereabouts of the stolen goods.

Understood in its maximal sense, breaking a person’s will involves reaching the endpoint of the kind of process Sussman describes above, i.e., the point at which the victim’s will is subsumed by the will of the torturer. Winston Smith in George Orwell’s 1984 is, as Sussman notes, an instance of the latter extreme endpoint of some processes of torture. Smith ends up willingly betraying what is dearest and most important to him, i.e., his loved one Julia.

Moreover, there are numerous examples of long term damage to individual autonomy and identity caused by torture, to some extent irrespective of whether the victim’s will was broken. For example, some victims of prolonged torture in prisons in authoritarian states are so psychologically damaged that even when released they are unable to function as normal adult persons, i.e. as rational choosers pursuing their projects in a variety of standard interpersonal contexts such as work and family.

Given the above definition of torture (elaborated in Miller 2005 and 2009), we can distinguish torture from the following practices.

Firstly, we need to distinguish torture from coercion. In the case of coercion, people are coerced into doing what they don’t want to do. This is consistent with their retaining control over their actions and making a rational decision to, say, hand over their wallet when told to do so by a robber who threatens to shoot them dead (albeit painlessly) if they don’t do so. As this example shows, coercion does not necessarily involve the infliction of physical suffering (or threat thereof). So coercion does not necessarily involve torture. Nor does coercion, which does involve the infliction of physical suffering as a means, necessarily constitute torture. Consider, for example, a South African police officer in the days of apartheid who used a cattle prodder which delivers an electric shock on contact as a means of controlling an unruly crowd of South African blacks. Presumably, this is not torture because the members of the crowd are not under the police officer’s control; specifically, they are not defenceless in the face of the cattle prodder. On the other hand, if – as also evidently took place in apartheid South Africa – a person was tied to a chair and thereby rendered defenceless, and then subjected to repeated electric shocks from a cattle prodder this would constitute torture.

Does torture necessarily involve coercion? No doubt the threat of torture, and torture in its preliminary stages, simply functions as a form of coercion in this sense. However, torture proper has as its starting point the failure of coercion, or that coercion is not even going to be attempted. As we have seen, torture proper targets autonomy itself, and seeks to overwhelm the capacity of the victims to exercise rational control over their decisions – at least in relation to certain matters for a limited period of time – by literally terrorising them into submission. Hence there is a close affinity between terrorism and torture. Indeed, arguably torture is a terrorist tactic. However, it is one that can be used by groups other than terrorists, e.g., it can be used against enemy combatants by armies fighting conventional wars and deploying conventional military strategies. In relation to the claim that torture is not coercion, it might be responded that at least some forms or instances of torture involve coercion, namely those in which the torturer is seeking something from the victim, e.g., information, and in which some degree of rational control to comply or not with the torturer’s wishes is retained by the victim. This response is plausible. However, even if the response is accepted, there will remain instances of torture in which these above-mentioned conditions do not obtain; presumably, these will not be instances of coercion.

Secondly, torture needs to be distinguished from excruciatingly painful medical procedures. Consider the case of a rock-climber who amputates a fellow climber’s arm, which got caught in a crevice in an isolated and inhospitable mountain area. These kinds of case differ from torture in a number of respects. For example, such medical procedures are consensual and not undertaken to break some persons’ will, but rather to promote their physical wellbeing or even to save their life.

Thirdly, there is corporal punishment. Corporal punishment is, or ought to be, administered only to persons who have committed some legal and/or moral offence for the purpose of punishing them. By contrast, torture is not – as is corporal punishment – limited by normative definition to the guilty; and in general torture, but not corporal punishment, has as its purpose the breaking of a person’s will. Moreover, unlike torture, corporal punishment will normally consist of a determinate set of specific, pre-determined and publicly known acts administered during a definite and limited time period, e.g., ten lashes of the cat-o-nine-tails for theft.

Fourthly, there are ordeals involving the infliction of severe pain. Consider Gordon Liddy who reportedly held his hand over a burning candle till his flesh burnt in order to test his will. Ordeals have as their primary purpose to test a person’s will, but are not undertaken to break a person’s will. Moreover, ordeals – as the Liddy example illustrates – can be voluntary, unlike torture.

Having provided ourselves with an analytic account of torture and distinguished torture from some closely related practices, we need to turn now to the question, What is Wrong with Torture?

In terms of the above definition of torture there are at least two things that are inherently morally wrong with torture. Firstly, torture consists in part in the intentional infliction of severe physical suffering – typically, severe pain; that is, torture hurts very badly. For this reason alone, torture is an evil thing.

Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing – even considered independently of the physical suffering it involves. (And if torture involves the breaking of someone’s will, especially in the maximalist sense, then it is an even greater evil than otherwise would be the case.)

Given that torture involves both the infliction of extreme physical suffering and the substantial curtailment of the victim’s autonomy, torture is a very great evil indeed. Nevertheless, there is some dispute about how great an evil torture is relative to other great evils, specifically killing and murder.

Many have suggested that torture is a greater evil than killing or even murder. For example, Michael Davis claims, “Both torture and (premature) death are very great evils but, if one is a greater evil than the other, it is certainly torture” (2005: 165), and David Sussman says, “Yet while there is a very strong moral presumption against both killing and torturing a human being, it seems that we take the presumption against torture to be even greater than that against homicide” (2005: 15).

Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies.

On the moral wrongness of torture as compared to killing, the following points can be made.

First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter – but not the former – necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him.

It does not follow that being killed is preferable to being tortured because the duration of the torture might be brief, one’s will might not ultimately be broken, and one might go on to live a long and happy life; by contrast, being killed – theological considerations aside – is always ‘followed by’ no life whatsoever. For the same reason it does not follow that torturing a person is morally worse than killing that person. If the harm brought about by an act of torture is a lesser evil than the harm done by an act of killing then, other things being equal, the latter is morally worse than the former.

A second point pertains to the powerlessness of the victims of torture. Dead people necessarily have no autonomy or power; so killing people is an infringement of their right to autonomy as well as their right to life. [ 11 ] What of the victims of torture?

The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenceless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer. Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defence official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him.

The conclusion to be drawn from these considerations is that torture is not necessarily morally worse than killing (or more undesirable than death), though in many instances it may well be. Killing is an infringement of the right to life and the right to autonomy. Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim’s autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time, and torture can in principle extend for the duration of the remainder of a person’s life. Further, according to our adopted definition, torture is an intentional or purposive attack on a person’s autonomy; this is not necessarily the case with killing. [ 12 ] Finally, torture can in principle involve the effective destruction of a person’s autonomy.

Let us now turn directly to the question of the moral justification for torture in extreme emergencies. Here we must distinguish between one-off cases of torture, on the one hand, and legalised or institutionalised torture, on the other.

3. The Moral Justification for One-off Acts of Torture in Emergencies

In this section one-off, non-institutionalised acts of torture performed by state actors in emergency situations are considered. The argument is that there are, or could well be, one-off acts of torture in extreme emergencies that are, all things considered, morally justifiable. Accordingly, the assumption is that the routine use of torture is not morally justified; so if it turned out that the routine use of torture was necessary to, say, win the war on terrorism, then some of what is said here would not be to the point. However, liberal democratic governments and security agencies have not even begun to exhaust the political strategies, and the military/police tactics short of the routine use of torture, available to them to combat terrorism.

The most obvious version of the argument in favour of one-off acts of torture in extreme emergencies is consequentialist in form. For example, Bagaric and Clarke (2007: 29) offer a version of the ticking bomb scenario in the context of their hedonistic act utilitarian theoretical perspective. A standard objection to this kind of appeal to consequentialism is that it licenses far too much: torture of a few innocent victims may well be justified, on this account, if it provides intense pleasure for a much larger number of sadists. As it happens, Bagaric and Clarke insist that they want to restrict the practice of torture; only the guilty are to be subjected to torture and only for the purpose of extracting information. However it is far from clear how this desired restriction can be reconciled with consequentialism in any of its various permutations, let alone the relatively permissive version favoured by Bagaric and Clarke. Why, for example, should torture be restricted to the guilty, if torturing a small number of innocent persons would enable the lives of many other innocents to be saved (as presumably it might). Again, why should under-resourced Indian police not torture – as they often do in reality – a repeat offender responsible for a very large number of property crimes, if this proves to be the only available efficient and effective form of retrieving the stolen property in question and, thereby, securing the conviction of this offender, reducing property crime and making a large number of property owners happy? The essential problem confronted by consequentialists participating in the torture debate is that their theoretically admissible moral barriers to torture are relatively flimsy; too flimsy, it seems, to accommodate the strong moral intuitions in play.

Faced with the slippery slope, as they see it, of one-off acts of torture in extreme emergencies transmogrifying into institutionalised torture, and/or simply appalled by the inherent evil of the practice of torture, many theorists – Arrigo (2004), Davis (2005), Luban (2005), Juratowitch (2008), Mayerfield (2008), Brecher (2008), Matthews (2008), and Shue (2016) – have opted for the opposite extreme and argued that torture can never be morally justified. Most of these theorists avoid the problems besetting consequentialists such as Bagaric and Clarke, and they are on strong ground when providing counter-arguments to consequentialist perspectives and/or views that seek to justify torturing the innocent. (But see Arrigo 2004.) However, their moral absolutism is not without its own problems: specifically, in relation to torturing the guilty few for the purpose of saving the innocent many. (See Walzer 1973, Miller 2005; Kershnar 2006 and Steinhoff 2013.)

Before turning in detail to the arguments on this issue, let us consider some putative examples of the justified use of torture. The first is a policing example, the second a terrorist example. Arguably, both examples are realistic, albeit the terrorist ticking bomb scenario is often claimed by moral absolutists to be utterly fanciful. Certainly, the policing example is realistic; indeed, it was provided by a former police officer from his own experience. Moreover, it is widely reported in the media that Al Qaeda, for example, has in the past sought to acquire a nuclear device to detonate in a western city and the 9/11 attacks and bombings in Bali, London, Madrid and Mumbai should leave no doubt whatsoever that Al Qaeda would use such a device if they could get their hands on one. So is it entirely fanciful that there could be such an attack and that an Al Qaeda operative known (on the basis of intercepted communications) to be a member of the cell involved in the planned attack might not be arrested, interrogated and tortured(?) prior to the detonation? At any rate, these are the two most popular kinds of example discussed in the literature. These cases include the real-life Daschner case involving the threat to torture a kidnapper by German police in 2002 which resulted in the kidnapper disclosing the location of a kidnapped child (Miller 2005).

Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition.

Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier.

In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was – property stolen from the car was found in his pockets. In the detectives’ office: “It’s been twenty minutes since you took the car – little tin box like that car – It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.”

Appeals to decency, to reason, to self-interest: “It’s not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.

The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage.

(Case Study provided by John Blackler, a former New South Wales police officer.)

In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following points: (1) The police reasonably believe that torturing the car thief will probably save an innocent life; (2) the police know that there is no other way to save the life; (3) the threat to life is more or less imminent; (4) the baby is innocent; (5) the car thief is known not to be an innocent – his action is known to have caused the threat to the baby, and he is refusing to allow the baby’s life to be saved.

The classic, indeed cliché, example used to justify torture is that of the so-called ‘ticking bomb’. [ 13 ] (See Bufacchi & Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman 2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider the following case.

Consider the following case study:

A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.

In this case study there is also a substantial moral justification for torture, albeit one that many moral absolutists do not find compelling. Consider the following points: (1) The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; (2) the police know that there is no other way to save those lives; (3) the threat to life is more or less imminent; (4) the thousands about to be murdered are innocent – the terrorist has no good, let alone decisive, justificatory moral reason for murdering them; (5) the terrorist is known to be (jointly with the other terrorists) morally responsible for planning, transporting, and arming the nuclear device and, if it explodes, he will be (jointly with the other terrorists) morally responsible for the murder of thousands.

In addition to the above set of moral considerations, consider the following points. The terrorist is culpable on two counts. Firstly, the terrorist is forcing the police to choose between two evils, namely, torturing the terrorist or allowing thousands of lives to be lost. Were the terrorist to do what he ought to do, namely, disclose the location of the ticking bomb, the police could refrain from torturing him. This would be true of the terrorist, even if he were not actively participating in the bombing project. Secondly, the terrorist is in the process of completing his (jointly undertaken) action of murdering thousands of innocent people. He has already undertaken his individual actions of, say, transporting and arming the nuclear device; he has performed these individual actions (in the context of other individual actions performed by the other members of the terrorist cell) in order to realise the end (shared by the other members of the cell) of murdering thousands of Londoners. In refusing to disclose the location of the device the terrorist is preventing the police from preventing him from completing his (joint) action of murdering thousands of innocent people. [ 14 ] To this extent the terrorist is in a different situation from a bystander who happens to know where the bomb is planted but will not reveal its whereabouts, and in a different situation from someone who might have inadvertently put life at risk (Miller (2005); Hill (2007)).

In the institutional environment described, torture is both unlawful and highly unusual. Accordingly the police, if it is discovered that they have tortured the terrorist, would be tried for a serious crime and, if found guilty, sentenced. We will return to this issue in the following section. Here simply note that the bare illegality of their act of torture does not render it morally impermissible, given it was otherwise morally permissible. Here it is the bare fact that it is illegal that is in question. So the relevant moral considerations comprise whatever moral weight attaches to compliance with the law just for the sake of compliance with the law, as distinct from compliance for the sake of the public benefits the law brings or compliance because of the moral weight that attaches to the moral principle that a particular law might embody. But even if it is held that compliance with the law for its own sake has some moral weight – and arguably it has none – it does not have sufficient moral weight to make a decisive difference in this kind of scenario. In short, if torturing the terrorist is morally permissible absent questions of legality, the bare fact of torture being illegal does not render it morally impermissible.

Note also that since the terrorist is, when being tortured, still in the process of attempting to complete his (joint) action of murdering thousands of Londoners, and murdering also the police about to torture him, the post factum legal defence of necessity may well be available to the police should they subsequently be tried for torture. [ 15 ]

Some commentators on scenarios of this kind are reluctant to concede that the police are morally entitled – let alone morally obliged – to torture the offender. How do these commentators justify their position?

Someone might claim that torture is an absolute moral wrong (Matthews 2008; Brecher 2008). (For criticisms of these authors see especially Steinhoff 2013 and Allhoff 2012.) On this view there simply are no real or imaginable circumstances in which torture could be morally justified.

This is a hard view to sustain, not least because we have already seen that being tortured is not necessarily worse than being killed, and torturing someone not necessarily morally worse than killing him. Naturally, someone might hold that killing is an absolute moral wrong, i.e., killing anyone – no matter how guilty – is never morally justified. This view is consistent with holding that torture is an absolute moral wrong, i.e. torturing anyone – no matter how guilty – is never morally justified. However, the price of consistency is very high. The view that killing is an absolute moral wrong is a very implausible one. It would rule out, for example, killing in self-defence. Let us, therefore, set it aside and continue with the view that torture, but not killing, is an absolute moral wrong.

For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture. In particular, it is difficult to see how torturing (but not killing) the guilty terrorist and saving the lives of thousands could be morally worse than refraining from torturing him and allowing him to murder thousands – torturing the terrorist is a temporary infringement of his autonomy, whereas his detonating of the nuclear device is a permanent violation of the autonomy of thousands.

In conclusion, the view that it is, all things considered, morally wrong to torture the terrorist in the scenario outlined faces very serious objections; and it is difficult to see how these objections can be met. It is plausible, therefore, that there are some imaginable circumstances in which it is morally permissible to torture someone.

Let us now turn to the other argument of those opposing the moral permissibility of torture mentioned above. This is not the argument that torture is an absolute moral wrong but rather that, as Michael Davis puts it, “For all practical purposes – and so, for moral agents like us – torture is absolutely morally wrong” (2005: 170). The basic idea is that while torture is not an absolute moral wrong in the sense that the evil involved in performing any act of torture is so great as to override any other conceivable set of moral considerations, nevertheless, there are no moral considerations that in the real world have overridden, or ever will override, the moral injunction against torture; the principle of refraining from torture has always trumped, and will always trump, other moral imperatives. Proponents of this view can happily accept that the offenders in putative examples should be tortured, while simultaneously claiming that the scenarios in these examples are entirely fanciful ones that have never been, and will never be, realised in the real world.

It is important to stress here that the kind of scenario under discussion remains that of the one-off case of torture in an emergency situation; what is not under consideration in this section is legalised, or otherwise institutionalised, torture.

The central claim of the proponents of “practical moral absolutes” seems to be an empirical one; ticking bomb scenarios, such as our above-described terrorist case – and other relevant one-off emergencies such as our above-described police beating case in which torture seems to be justified – have not, and will not, happen.

The first point to be made is simply to reiterate that some of these scenarios – such as police officers beating up kidnappers and other offenders to rescue children – are not only realistic, they are real; they have actually happened. What of the ticking bomb scenario in particular? As stated above, it is by no means self-evident that this kind of scenario is entirely fanciful. Here it can be conceded that there is no guarantee that torture would succeed in saving the lives of (to revert to our specific ticking bomb scenario) thousands of Londoners. This is because the person tortured might not talk or he might talk too late or he might provide false or misleading information. However, it should be noted that the police know that the offender has committed the offence and is in a position to provide the needed information, i.e. the police know that the offender is guilty. Moreover, the information being sought is checkable; if the terrorist gives the correct location of the bomb then the police will find it – if he does not, then they will not find it. Further, the police have no alternative methods by which to avoid the death of the innocent. Given what is at stake and given the fact that the police know the offenders are guilty, the police are, it seems, justified in the use of torture, notwithstanding a degree of uncertainty in relation to the likelihood of success. (See Thiessen (2010) for arguments that so-called enhanced interrogation techniques do in fact work.)

The second point is that, practicalities notwithstanding, the proponents of “practical moral absolutes” still need to offer a principled account of the moral limits to torture – an account of torture, so to speak, in the abstract. And these accounts could differ from one advocate of practical moral absolutes to another. For example, one advocate might accept that it would be morally permissible to torture the terrorist to save the lives of ten innocent people threatened by a non-nuclear explosive device, whereas another advocate might reject this on the grounds that ten lives are too few. What the two advocates would have in common is the belief that even the revised ticking-bomb scenario involving only the death of ten innocent people is, nevertheless, a fanciful scenario that has not occurred, and will not ever occur. In short, different advocates of practical absolutism can ascribe different moral weight to different moral considerations, and we need to know what these weightings are for any given advocate. For otherwise it is extremely difficult to assess the validity or plausibility of the associated general empirical claim that in practice no act of torture has ever been, nor ever will be, morally justified. Roughly speaking, the greater the moral weight that is given by the practical moral absolutist to refraining from torture – this moral weight considered both in itself and relative to other moral considerations – the more plausible the associated general empirical claim becomes. On the other hand, the greater the moral weight that is given to the principle of refraining from torture, the less plausible the narrowly moral claims of the practical absolutist become – indeed, at the limit the practical absolutist becomes a moral absolutist tout court .

At any rate, the general point to be made here is that the practical moral absolutist owes us a principled account of the moral weight to be attached to refraining from torture relative to other moral considerations. For without it we are unable to adequately assess whether or not putative counter-examples to this position are really counter-examples or not. It is not good enough for the practical moral absolutist just to give the thumbs down to any putative counter-example that is offered.

The third general point against the practical moral absolutist is to reiterate that it has already been argued that torture is not the morally worst act that anyone could, or indeed has or will, perform. If this is correct, then it is plausible that there will be at least some scenarios in which one will be forced to choose between two evils, the lesser one of which is torture. Indeed, the above-described police beating scenario (certainly) and the ticking bomb scenario (possibly) are cases in point.

We have seen that there are likely to exist, in the real world, one-off emergency situations in which arguably torture is, all things considered, the morally best action to perform. It may seem to follow that institutional arrangements should be in place to facilitate torture in such situations. However, it is perfectly consistent to concede that torture might be morally justifiable in certain one-off emergency situations and yet oppose any legalization or institutionalization of torture.

Luban (2005) and (2014), and Waldron (2005), in particular, have drawn attention to the moral inconsistency and inherent danger in liberal democratic states legalising and institutionalising torture, a practice that strikes at the very heart of the fundamental liberal value of individual autonomy. They have also detailed the tendency for a torture culture to develop in organisations in which torture is legalised or tolerated, a culture in which the excesses of torturing the innocent and the like take place, as in the US army detention centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba, and in the Israeli secret service (General Security Service). Nevertheless, it is useful to sketch a general argument against the legalisation and institutionalisation of torture. The argument is consistent with, indeed at some points it is more or less the same as, the arguments of Luban and Waldron. However, the argument has some novel elements, not the least of which is the claim that the view that torture is morally justified in some extreme emergencies is compatible with the view that torture ought not to be legalised and institutionalised.

Most of the theorists who oppose the legalisation and institutionalisation of torture also (at least implicitly) reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified. The argument has been put that there are, or could well be, such one-off extreme emergencies in which torture is morally justified. So the first task here is to demonstrate that these two claims are not inconsistent. Specifically, it needs to be shown that it does not follow from the fact that torture is in some extreme emergencies morally justified, that torture ought to be legalised, or otherwise institutionalised. So the claim is that it is just a mistake to assume that what morality requires or permits in a given situation must be identical with what the law requires or permits in that situation. This calls for some explanation.

The law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalisations to which the particular situation must be made to fit. Hence, if you exceed the speed limit you are liable for a fine, even though you were only 10 kph above the speed limit, you have a superior car, you are a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore the chances of you having an accident were actually less than would be the case for most other people most of the time driving at or under the speed limit. [ 16 ]

By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity. (This is, of course, not to say that there are not recurring moral situations in respect of which the same moral judgment should be made, nor is it to say that morality does not need to help itself to generalisations.) Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i.e. non-recurring, situation might not be an action that should be made lawful. Consider the real-life example of the five sailors on a raft in the middle of the ocean and without food. Four of them decide to eat the fifth – the cabin boy – in order to survive. [ 17 ] This is a case of both murder and cannibalism. Was it morally permissible to kill and eat the boy, given the alternative was the death of all five sailors? Clearly it was not pro tanto morally permissible, especially given the cabin boy was entirely innocent; but perhaps it was morally permissible all things considered. And even if it was not morally permissible all things considered, nevertheless, arguably it was morally excusable, and indeed the sailors, although convicted of murder and cannibalism, had their sentence commuted in recognition of this. But there was no suggestion that the laws against murder and cannibalism admit of an exception in such an extreme case; the sailors were convicted and sentenced for murder and cannibalism. Again, consider an exceptionless law against desertion from the battlefield in time of war. Perhaps a soldier is morally justified in deserting his fellow soldiers, given that he learns of the more morally pressing need for him to care for his wife who has contracted some life-threatening disease back home. However, the law against desertion will not, and should not, be changed to allow desertion in such cases.

Some theorists (Allhoff 2012) have invoked the legal principle of necessity in order to establish that torture in some extreme circumstances is or should be legally permissible (Gaeta 2004; Hunsinger 2008). However, the legal principle of necessity is inherently (and intentionally) vague. It typically applies to situations in which someone has infringed a law, but done so to avert a greater evil which is otherwise unavoidable. Here the notion of greater evil is radically underspecified and, therefore, in need of interpretation by the courts in any given case. Moreover, the application of the principle of legal necessity in cases in which it is state operatives who invoke it, such as in cases of torture by the members of security agencies, is fraught with danger. For the protection of the rights of citizens not to be tortured is likely to be significantly reduced if there is a legal justification for torture available to members of security agencies. Given the inherent vagueness of the notion of lesser evil, there is the potential in their adjudications for judges to favour the members of security agencies at the expense of ordinary citizens.

We will shortly turn to arguments to the effect that while there may well be morally justifiable one-off cases of torturing the guilty, it does not follow that torture should ever be legalised, even in such cases. However, it has been suggested by Steinhoff (2010) and (2013) that torturing the guilty can in many cases be understood as torturing the guilty in self-defence. If so, presumably torturing the guilty could reasonably be legalised on the grounds that torturing in self-defence is analogous to killing in self-defence, and self-defence is an explicit legal justification for killing in most jurisdictions. Steinhoff has also suggested (2006, 2013) that legalisation would not necessarily lead to institutionalisation in the sense of the creation of the institutional role of a torturer, the routinisation and bureaucratisation of the process of torture, and so on.

Torturing the guilty in self-defence is arguably something of a misnomer. Firstly, it is not really self defence per se, but rather the saving of the lives of others. After all, generally the would-be torturer’s life is not at risk, and even if it is at risk in a particular location, as in some terrorist bombing scenarios, then presumably the risk can be averted by the torturer simply abandoning his immobilised victim and fleeing the area. Note that on many accounts self defence is a more readily acceptable moral justification or excuse for killing an attacker than is defending the lives of others (at least, others who are not members of one’s family or close friends). Secondly, torturing in order to save life is inherently unreliable by comparison with killing in self-defence. This is because killing an attacker is directly connected to the desired outcome of removing the threat; indeed, to kill the attacker is to remove the threat. This is not so with torture. Rather torturing is one action and removing the threat (e.g., disarming the ticking bomb) is another act necessarily at some causal remove from the first action. Moreover, the putative (necessarily indirect) causal connections between the two actions may well not obtain. Thirdly, torturing the guilty to save innocent lives does not typically involve an imminent threat, as typically must be the case in instances of lawful self-defence in well-ordered jurisdictions. For the threat posed by (say) a terrorist-bomber is either imminent, as in the case of a suicide-bomber, in which case there is no time to torture anyone; or the threat is not imminent in which case there is time to pursue other options, such as intercepting the communications of other members of the terrorist cell and, thereby, locating the bomb. Again, consider typical kidnapping cases. Either the kidnapper is not in custody in which case he or she cannot be tortured; or the kidnapper is in custody in which case the threat to the kidnapped child from the kidnapper in custody is not imminent (the child is either dead or is alive and no longer under threat from the kidnapper in custody). Naturally, as we saw in the last section, there may well be a very small number of exceptional cases in which the threat is more or less imminent and torture is, nevertheless, a realistic option for removing the threat (and, indeed, the only option). Accordingly, this small number of exceptional cases might be analogous to killing in self-defence. Moreover, in some torturing the guilty scenarios the all things considered morally best option might be to torture the guilty party; indeed the general argument for the latter proposition was outlined in the last section. However, this does not demonstrate that justified torturing of the guilty to save the innocent they threaten is essentially a species of justified self-defence and that, therefore, it ought to be legalised.

It is consistent with the rejection of explicit legalisation of the torturing of the guilty that, as noted above, there be some form of legal redress in the very small number of exceptional cases of torturing the guilty in which the threat to the innocent is imminent (and torture is morally justifiable all things considered). These forms of legal redress for the torturer might include the existence of mitigating circumstances or the application of the legal principle of necessity – since the cases in question involve a genuinely dilemmatic situation in which the least harmful of the available options was chosen and chosen to the advantage of the innocent rather than the guilty.

The upshot of this discussion is that torturing the guilty to save the lives of the innocent is not analogous to killing in self-defence. Specifically, the legalisation of torturing the guilty faces the problem of imminence; unlike killing in self-defence it almost never involves an imminent threat. Accordingly, the legalisation of torturing the guilty is likely to be regarded as extremely problematic, since presumably legalisation is likely to result in institutionalisation. Consider in this connection police killing in defence of the lives of innocent citizens. This involves the creation of the institutional role of police sniper with all its attendant training, development and implementation of procedures (including the requirement that the threat be imminent before shots are fired) and, more generally, bureaucratisation. This is, of course, not to say that (as argued above) certain one-off cases of torturing the guilty might not be both morally justifiable and legally excusable (or otherwise be able to avail themselves of mitigating circumstances).

As already noted and contrary to the above-mentioned presumption, Steinhoff insists that legalization does not in fact necessarily lead to institutionalization. Specifically, he argues that the legalization of killing in self-defence has not led to its institutionalization, and he also claims (as we have seen) that torturing in self-defence is akin to killing in self-defence. As we have seen, the proposition that torturing the guilty to save lives is analogous to killing in self-defence is open to question and there is surely at least a presumption that legalisation will lead to institutionalisation. However, there is a further more specific point to be made here in relation to legalisation and institutionalisation. It is true that individualistic killing in self-defence on the part of private citizens has not led to institutionalization, but this is because it is an individual, non-institutional activity which is subject to stringent institutional accountability mechanisms (at least in well-ordered liberal democratic states). But it is extremely doubtful that an individual citizen is ever going to be in a situation where he has to defend his life by torturing his attacker. What we are talking about in this debate is the killing or torturing by institutional actors, e.g., police, of persons who are attacking third parties (whether by killing, kidnapping etc.); the third parties in question are, typically, members of the community. As noted above, the legalized killing by police of third parties has been institutionalized (police snipers). So evidently killing in self-defence does not constitute a relevant case in which there is legalization but not institutionalization.

Whether or not torture is likely to be institutionalised once legalised, or is even likely to be institutionalised if not actively resisted on an ongoing basis, is partly a matter of the motivational drivers in play. And unfortunately, even in liberal democracies, when the threat to the community is regarded as substantial, institutional actors (such as police and military personnel) have been willing to engage in routinised extra-judicial killing (India, today) and more than willing to engage in routinised torture (use of the third degree by police agencies world-wide). In doing so, they have typically appealed to a self-defence moral justification (‘We had to torture/kill in order to save lives’). Moreover, in the case of the extra-judicial killings they have typically helped themselves to and often been aided by the legal justification of self-defence – ‘the Naxalites (in India) shot at us first and we fired back in self-defence’ (albeit what has also been revealed over time is a culture of ‘shoot first and ask questions later’). Torture is much more prevalent than killing in part because (as Steinhoff argues) torture is rightly regarded as not necessarily as bad as killing (criminals tortured by police are typically able to carry on with their lives, even if in prison) and perhaps also in part because torture is less susceptible to the available accountability measures (you cannot hide corpses, at least in liberal democracies). In short, there is good reason to believe that legalizing torture in contexts in which there is a substantial threat to the community will lead to its institutionalization.

It has been noted on a number of occasions that the law and morality can and do come apart. Moreover, it is plausible that sometimes they ought to come apart. A further point to be elaborated here pertains to the nature of the sub-institution of torture within the larger military, police, and correctional institutions. There is a need to begin with a few preliminary remarks about social institutions. [ 18 ]

Social institutions, including legal institutions and military, police, and correctional organisations, have both a massive collective inertia and a massive collective momentum by virtue of the participation in them of many agents over a long time who: (a) pursue the same goals; (b) occupy the same roles and, therefore, perform the same tasks and follow the same rules and procedures, and; (c) share the same culture. Accordingly, social institutions and their component organisations are like very large ocean liners that cannot slow down, speed up, or change direction very easily. It follows that very careful thought needs to be given to the establishment of any additional structure of roles and associated practices that is to be woven into the fabric of the institution. For such an additional (embodied) role structure, once it becomes, so to speak, an integrated working part of the larger institution, is likely to be extremely difficult to remove; it is now a beneficiary of the inertia of the institution. Moreover such an additional, but now integrated, role structure participates in, and influences the direction of, the institution; it is now a contributing element to the momentum of the institution.

So what can be said of the likely institutional fit between military, police, and correctional institutions on the one hand, and the sub-institution of torture on the other? The role structure of this sub-institution consists of torturers, torturer trainers, medical personnel who assist torturers, and the like. The core practice of torture has been described in an earlier section.

The practice of torture is endemic in many, perhaps most, military, police, and correctional institutions in the world today, including democracies such as India. It is only in recent times and with great difficulty that torture in Australian prisons and police services, for example, has been largely eliminated, or at least very significantly reduced. The Australian, British, American, and like cases are important not only because they illustrate that torture can be endemic to liberal democratic institutions, but also because they demonstrate that liberal democratic institutions are able – given the political will, suitable re-education and training, stringent accountability mechanisms, etc. – to successfully combat a culture of torture.

Let us look at some of the evidence from the past. Consider police organisations in liberal democracies such as the USA. The influential Report on Lawlessness in Law Enforcement from the National Commission on Law Observance and Enforcement, also know as the Wickersham Commission, in 1931 found that the use of the third degree was widespread throughout police organisations in the USA (National Commission on Law Observance and Enforcement 1931, 4). More recently, we have the Rampart Reports documenting extensive police brutality – including extra-judicial killings (Parks 2000, 87–109; Rampart Independent Review Panel 2000, 11–14) – and, in the wake of the Rodney King beating, the report of the “Christopher Commission” into the Los Angeles Police Department which found that a significant number of LAPD officers “repetitively use excessive force against the public and persistently ignore the written guidelines of the Department regarding force” (Independent Commission on the Los Angeles Police Department 1991, 9–12). In India – another liberal democratic state, albeit one at an earlier stage of economic development – police brutality is institutionalised. According to a recent Human Rights Watch Report (Human Rights Watch 2009: 14), “police violence and misconduct are … widespread and rooted in institutional practice”. Arvind Verma, an authority on policing in India, states that “Misuse of force, false-encounter killings (execution by police) and routine use of torture in extorting confessions are common with the police departments” (Verma 2011: 5).

Now consider prisons in liberal democracies. In the USA in the past widespread beatings and torture of prisoners (e.g., use of electrodes on prisoners’ private parts) has been documented in multiple jurisdictions, including Arkansas, Louisiana, Mississippi, Virginia and Florida. See, for example, Murton and Hyams’ classic work, Inside Prison, USA (Murton and Hyams 1969). In Australia there was the Nagle Royal Commission into New South Wales Prisons. Nagle reported systematic bashings in NSW prisons. He said of Grafton Gaol, in particular, that it had a “regime of terror”, “…brutal, savage and sometimes sadistic” (Nagle 1978: 108). He concluded thus: “It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners” (Nagle 1978: 119).

When it comes to authoritarian regimes matters are, of course, much worse. Let us set aside the infamous Soviet Gulags under Stalin and also Hitler’s concentration camps, and rather consider some more recent examples. The South African Truth and Reconciliation Commission stated that under the apartheid regime, “torture was used systematically by the Security Branch, both as a means of obtaining information and of terrorising detainees and activists. Torture was not confined to particular police stations, particular regions or particular individual police officers” (TRC 1998: 187). In Chile the National Commission on Truth and Reconciliation (NCTR 1993: 1122) detailed over 2000 victims of human rights violations by the security forces of the Pinochet regime of which victims approximately half were killed (hundreds tortured to death) and the remaining half disappeared after arrest. According to Juan Mendez (a UN Special Advisor who was himself tortured during the Argentinean military dictatorship): “Torture became systematic and pervasive during the military dictatorships of the 1970s and 1980s, but it would be a mistake to trace its origins only as far as this dark era. In fact, torture was used by dictatorial as well as elected but authoritarian governments throughout the twentieth century” (Mendez 2005: 56).

In the light of the evidence it would be a massive understatement to say that historically the sub-institution of torture – whether in a lawful or unlawful form – has been no stranger to military, police, and correctional institutions. Further, there is now a great deal of empirical evidence that in institutional environments in which torture is routinely practised it has a massive impact on other practices and on moral attitudes. For example, in police organisations in which torture is routinely used the quality of investigations and, in particular, of interviewing of suspects, tends to be low. Careful, logically based, questioning on the basis of the available evidence is replaced by beating up suspects. Thus lower echelon police investigators in India often have little or no training in best practice interviewing and (as noted above) they routinely use the third degree. Again, Baldwin’s findings based on hundreds of taped interviews indicate that the interviewing skills of UK police during the period of the infamous police use of the third degree against the Birmingham Six, Guildford Four and Maguire Seven would have been quite poor (Baldwin 1993). Police in organisations in which offenders are routinely tortured do not, unsurprisingly, tend to develop respect for the moral rights of offenders, suspects, or even witnesses. This is entirely consistent with the excesses detailed by Luban and Waldron in the US military detention centres in Iraq and elsewhere, e.g., the Abu Ghraib scandal, and in the case of the interrogations of suspected terrorists by the Israeli secret service. Indeed, these excesses are to be expected.

And there is this further point. The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.

It is to be concluded from all this that for the most part military, police, and correctional institutions are qua institutions very receptive to the practice of torture – even when it is unlawful – and that these institutions qua institutions would relatively easily incorporate the legalised sub-institution of torture; accordingly, it is very easy to legalise torture and thereby grow and develop a torture culture in military, police and correctional institutions. This does not mean that there are not important differences between, say, police services in authoritarian states and those in contemporary (though not necessarily historical) liberal democratic states; obviously there are. Nor does it mean that most, or even the majority, of the individuals who occupy roles in these institutions, whether in liberal democracies or elsewhere, are necessarily receptive qua individuals to engaging in the practice of torture; most of them might not be. However, most of them would not be torturing people; that would be done by a distinct minority, as in fact has usually been the case even in institutions in which torture is unlawful and endemic. The question is whether or not as individuals they would initially tolerate, and finally accept, the practice of torture, if it were legally and institutionally established; the suggestion is that the historical and comparative evidence is that they would, including in liberal democracies.

A additional conclusion to be drawn is that should the legalised sub-institution of torture be integrated into any of these institutions it would be very difficult to remove and would, even in liberal democracies, have a major impact on the direction, culture, and practices of these institutions. Again, this is what the historical and comparative empirical evidence tells, notwithstanding the initial and even continuing aversion of many, perhaps most, of the individuals in these institutions to torture as such. Consider the Israeli case. Limited forms of torture were legal in Israel prior to 1999, but illegal post 1999. However, evidently torture has by no means been eradicated post 1999. According to the Public Committee Against Torture in Israel (PCATI), reporting on the period between September 2001 and April 2003: “The affidavits and testimonies taken by attorneys and fieldworkers… support the conclusions …violence, painful tying, humiliations and many other forms of ill-treatment, including detention under inhuman conditions, are a matter of course….The bodies which are supposed to keep the GSS [General Security Service] under scrutiny and ensure that interrogations are conducted lawfully act, instead, as rubberstamps for decisions by the GSS…The State Prosecutor’s Office transfers the interrogees’ complaints to a GSS agent for investigation and it is little wonder that it has not found in even a single case that GSS agents tortured a Palestinian ‘unnecessarily’” (PCATI 2003).

The deeper explanation for the prevalence of torture cultures and the difficulty of eradicating institutionalised torture is no doubt very complex, but presumably it consists in part in the following elements: (1) moral docility, as opposed to physical docility, is a feature of individuals housed in, and materially dependent upon, large, hierarchical, bureaucratic organisations with strong, relatively homogenous cultures; (2) the roles of soldier, police officer, and prison warder necessarily involve the routine use of coercive, and even deadly, force against dangerous criminals, enemy soldiers, or terrorists, and therefore undertaking these roles inevitably results in a degree of moral de-sensitisation and a sense of moral ambiguity when it comes to torturing criminals and/or terrorists; (3) torture is an exercise of enormous power, and power is deeply seductive to many people (and much less dangerous than shooting at armed enemy combatants or trying to arrest or subdue violent criminals).

Armed with these observations on the difference between law and morality, and on the nature of the sub-institution of torture in military, police, and correctional institutions, what now can be said on the question as to whether or not to legalise and institutionalise torture in contemporary well-ordered liberal democratic states undergoing a lengthy period of attacks from terrorist organisations?

As we saw above, torture is a terrorist tactic. Indeed, arguably it is the terrorist tactic par excellence . Detonating bombs that kill the innocent has come to be regarded as the quintessential terrorist tactic. But this is presumably because terrorism has implausibly come to be identified only with non-state terrorism. At any rate, the point to be made here is that torture is a terrorist tactic, and for a liberal democracy to legalise and institutionalise it, i.e. weave the practice of torture into the very fabric of liberal democratic institutions, would be both an inherent contradiction – torture being an extreme assault on individual autonomy – and, given what we know about the practice of torture in military, police, and correctional institutions, highly damaging to those liberal democratic institutions. It would be equivalent to a liberal democracy legalising and institutionalising slavery on the grounds, say, of economic necessity. Legalised and institutionalised slavery is inconsistent with liberal democracy, as is legalised and institutionalised torture. So if legalised and institutionalised slavery and/or legalised and institutionalised torture are necessary because morally required, then liberal democracy is not possible in anything other than an attenuated form. But of course neither legalised/institutionalised slavery nor legalised/institutionalised torture is morally required, quite the contrary. At best, torture is morally justified in some one-off emergencies – just as murder and cannibalism might be morally excusable in a one-off emergency on the high seas, or desertion from the field of battle might be morally justifiable given a one-off emergency back home – but nothing follows as far as the legalisation/institutionalisation of torture is concerned.

A final point here concerns the proposition that, absent legalised/institutional torture, unlawful endemic torture in the security agencies of contemporary liberal democracies confronting terrorism is inevitable. The implication here is that unless legalised, torture will become endemic in these agencies. It has already been argued that legalisation/institutionalisation of torture would be profoundly damaging to liberal democratic institutions. Assume this is correct; it does not follow from this that a torture culture will not come to exist in those agencies in the context of torture being unlawful. Nor does it follow that an unlawful torture culture, indeed an unlawful sub-institution of torture, is inevitable. Here there is a tendency to use the kind of argument that is plausible in relation to, say, the prohibition of alcohol. It is better to legalise alcohol, because then it can be contained and controlled. This form of argument used in relation to torture is spurious. Consuming alcohol to excess is not morally equivalent to torture, and we do not legalise the use of alcohol in emergency situations only. Legalising the use of torture in extreme emergencies would be much more akin to legalising perjury in extreme situations. As with torture – and unlike alcohol – perjury is only morally justified in some extreme one-off situations. [ 19 ] However, no-one is seriously considering legalising perjury in one-off extreme situations (at least to my knowledge), and with good reason – to do so would strike at the very heart of the legal system.

The fact is that the recent history of police, military, and other organisations in liberal democracies has demonstrated that torture cultures and sub-institutions of torture can be more or less eliminated, albeit with considerable difficulty. The elimination of torture cultures and sub-institutions can only be achieved if torture is unlawful, the community and the political and organisational leadership are strongly opposed to it, police officers and other relevant institutional actors are appropriately educated and trained, and stringent accountability mechanisms, e.g., video-recording of interviews, close-circuit TV cameras in cells, external oversight bodies, are put in place. It is surely obvious that to re-introduce and indeed protect the practice of torture, by legalising and institutionalising it, would be to catapult the security agencies of liberal democracies back into the dark ages from whence they came.

The discussion has focussed on the legalisation and institutionalisation of torture, where the practice of torture is understood in general terms; it ought to be now obvious why torture should not be legalised. However, some commentators, notably Alan Dershowitz, have argued that legalised torture could be justified, if the torture in question was restricted to extreme emergency situations and subjected to appropriate accountability mechanisms. Specifically, he has argued for torture warrants of the kind introduced for a time in Israel (Dershowitz 2003, 2004; and Wisnewski 2008).

The notion of torture warrants is supposedly analogous to surveillance and telephone interception warrants issued to police by a magistrate or other judicial officer. The idea is that privacy is a fundamental right but it can be infringed under certain conditions, such as reasonable suspicion that the person whose privacy right is to be infringed is engaged in serious criminal activity, there is no alternative way to acquire the necessary information to convict him/her, and so on. In this kind of set-up the magistrate, not the police, makes the decision as to whether or not these conditions obtain. Consequently, the infringements of privacy rights are restricted, and subject to stringent accountability mechanisms.

However, morally speaking, torture warrants are entirely different from telephone interception or surveillance warrants. First, torture is a far greater evil than the infringement of privacy. For one thing, having one’s phone tapped or movements filmed is inherently much less distressing, harmful and morally repugnant than the physical suffering and loss of autonomy involved in being strapped to a chair and, say, having someone drill into an unanesthetised tooth. On the spectrum of evils, torture is closer to murder/killing than it is to the infringement of privacy. For another thing, torture is a far more dangerous practice than infringing privacy. For the degree of the infringement of privacy can be minimised, e.g., the information gained can relatively easily be kept strictly confidential by the police; moreover, there is no inherent reason for the police to illicitly widen a given infringement of privacy by breaching confidentiality. But in practice torture cannot be restricted likewise. The methods of torture and the process of torture exist on a continuum, and there is often an inherent reason to ‘push the envelope’ and inflict ever more severe forms of physical suffering on victims; so-called ‘torture lite’ becomes full-blooded, no holds-barred torture. One of the consequences of this continuum of torture is the ever-present possibility that the victims of torture will not simply be tortured, but rather be murdered; and in point of fact numerous people have died in the course of being tortured.

Second, as has already been argued, there is an inherent institutional receptivity of military, police, and correctional institutions to the practice of torture; a receptivity which is such that torture cultures will grow and flourish, notwithstanding Dershowitz’s proposal that only tightly controlled and highly restricted forms of torture are to be legally admissible. This institutional receptivity has the consequence that inevitably large numbers of innocent people will be tortured – as has happened in Israel (see PCATI 2003). Indeed, even under tightly controlled and highly restricted forms of torture some innocent persons will inevitably be tortured – just as the privacy of innocent people is infringed under the existing telephone and surveillance warrant systems. Arguably, the infringement of the privacy of some – in fact, many – innocent persons is a price that we ought to be willing to pay for the sake of preventing serious crimes. However, it would be preposterous to argue that (inadvertently?) torturing numerous innocent people is a reasonable price to pay in return for the information provided by those of the tortured who are in fact guilty.

Third, the information gained by wire-tapping or surveillance has in general far greater utility than that gained by means of the practice of torture – certainly by the tightly controlled and highly restricted forms of torture of the kind envisaged by Dershowitz. Indeed, it is by no means clear that the utility – in terms of saving lives (and leaving aside the costs) – of the system of legalised torture warrants will be very high. (In Israel, to repeat the example, it does not appear to have been particularly high.) This is so for two reasons. One reason is that torture victims typically tell the torturer whatever they think he wants to hear, e.g., they are happy to implicate others who are in fact innocent in order to bring an end to their own agony. And even in relation to desired checkable information there is often the problem of knowing whether or not the victim of torture is holding out or does not really know; this is especially the case with hardened terrorists. So by comparison with telephone and surveillance warrants, torture warrants are likely to yield unreliable information; there is a serious question about the quality of much of the information provided under a system of torture warrants. A further reason to disparage the utility of torture warrants is that, again unlike telephone and surveillance warrants, torture warrants are to be issued only in extreme emergencies. By contrast, telephone interception and surveillance warrants are issued as a matter of routine, albeit only under certain (recurring) conditions. Accordingly, the volume of information capable of being provided under a system of torture warrants is extremely limited. In short, over time the torture warrant system is likely only to yield an extremely small quantity of reliable information. This overall likely lack of utility of the torture warrant system qua institution is important to keep in mind in the context of a protracted struggle against terrorism involving ongoing loss of life on both sides. Here the torture warrant system stands in sharp contrast to telephone interception and surveillance warrant systems. Moreover, it is precisely because the set of conditions under which it is reasonable and effective to infringe privacy rights recurs, that infringements of privacy rights by police can reasonably be legalised and institutionalised, e.g., by means of a warrant system. Arguably, the proponents of the torture warrant system have made the mistake of proposing a legal/institutional solution to what ought to be regarded as a one-off moral problem; [ 20 ] hence the inadequacy of their proposal.

At any rate, the conclusion must be that any attempt to compare torture warrants to surveillance or interception warrants is entirely spurious. Torture is a very different beast.

In the light of the above three points concerning torture warrants that have just been made in the comparison between these and surveillance and interception warrants, the inevitable conclusion is that the practice of torture could not be contained under a system of legalised torture warrants and the consequences of its not being contained would be horrific. Moreover, as noted above, and argued by Luban, Waldron and others, the damage to liberal institutions would be incalculable. Finally, the benefits of a system of legalised torture warrants over the longer term are likely to be slight; and certainly easily outweighed by the costs. So Dershowitz is entirely misguided in his advocacy of torture warrants. Indeed, as repeatedly mentioned above, we have the example of Israel’s use, or rather abuse, of this system to provide specific empirical evidence against the introduction of torture warrants.

So torture warrants are highly undesirable, indeed a threat to liberal democratic institutions. Moreover, torture warrants are unnecessary. As has been argued above, there may well be one-off emergencies in which the use of torture is morally justifiable. In those cases, the relevant public officials must bite the bullet and do what is morally required, e.g., torture the terrorist to save thousands of innocent people. In such an emergency, the military or police officers involved will need to break the law on this one occasion. But in itself this is a small price to pay; and a price the police, the military and the politicians have shown themselves only too willing to pay in situations that are far from emergencies.

One final matter. What should be done to the military officer, police officer, or other public official who tortures the terrorist if – after saving the city – their crime is discovered? Quite clearly he (or she) should resign or be dismissed from their position; public institutions cannot suffer among their ranks those who commit serious crimes. Further, the public official in question must be tried, convicted, and sentenced for committing the crime of torture. [ 21 ] Obviously, there are (to say the least) mitigating circumstances, and the sentence should be commuted to, say, one day in prison. Would public officials be prepared to act to save thousands of innocent lives, if they knew they might lose their job and/or suffer some minor punishment? Presumably many would be prepared to so act in these circumstances. On the other hand, perhaps many public officials would never set aside their interest in keeping their jobs and avoiding minor punishments in order to save innocent lives. If so, this is not a consideration in favour of legalising torture. For surely the consequences of setting up a legalised torture chamber and putting such self-interested and uncaring persons in charge of it are likely to be horrendous

• Allhoff, Fritz, 2003, “Terrorism and Torture,” International Journal of Applied Philosophy , 17 (1): 105–18.
• –––, 2012, Terrorism, Ticking Time-Bombs and Torture , Chicago: University of Chicago Press.
• Allhoff, Fritz (ed.), 2008, Physicians at War: The Dual Loyalties Challenge , Dordrecht: Springer.
• Arnold, M., 1984, The Testimony of Steve Biko , London: Smith.
• Arrigo, Jean Maria, 2004, “A Utilitarian Argument against Torture Interrogation of Terrorists,” Science and Engineering Ethics , 10: 543–72.
• Bagaric, Mirko, and Clarke, Julie, 2007, Torture: When the Unthinkable is Permissible , Albany: State University of New York Press.
• Baldwin, John, 1993, “Police Interview Techniques,” British Journal of Criminology , 33 (3): 325–352.
• Beccaria, Cesare, 1964 [1764], On Crimes and Punishments , J. Grigson (trans.), Oxford: Oxford University Press.
• Bentham, Jeremy, 1804, “Of Torture,” Box 74.b, Bentham MSS, University College London Library.
• Bernstein, J. M., 2015, Torture and Human Dignity: An Essay on Moral Injury , Chicago: Chicago University Press.
• Brecher, Bob, 2008, Torture and the Ticking Bomb , Oxford: Blackwell.
• Bufacchi, V., and Jean Maria Arrigo, 2006, “Torture, Terrorism and the State: A Refutation of the Ticking Bomb Argument,” Journal of Applied Philosophy , 23: 355–73.
• Bybee, Jay S., 2002, “Memorandum for Alberto R. Gonzales Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. 2340–2340A,” Washington, D.C.: US Department of Justice.
• Clucas, B., G. Johnstone and T. Ward (eds.), 2009, Torture: Moral Absolutes and Ambiguities , Baden-Baden: Nomos.
• Davis, Michael, 2005, “ The Moral Justification of Torture and other Cruel, Inhuman, or Degrading Treatment,” International Journal of Applied Philosophy , 19 (2): 161–78.
• Dershowitz, Alan M., 2003, Why Terrorism Works: Understanding the Threat, Responding to the Challenge , Melbourne: Scribe Publications.
• –––, 2004, “Tortured Reasoning,” in Torture: A Collection , Sanford Levinson (ed.), Oxford: Oxford University Press.
• Feitlowitz, Marguerite, 2011, A Lexicon of Terror: Argentina and the Legacies of Torture , 2nd edition, Oxford: Oxford University Press.
• Gaeta, Paola, 2004, “May Necessity be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?” Journal of International Criminal Justice , 2: 785–94.
• Greenberg, Karen J., and Joshua L. Dratel (eds.), 2005, The Torture Papers: The Road to Abu Ghraib , Cambridge: Cambridge University Press.
• Gross, Michael, 2009, Modern Dilemmas of Modern War: Torture, Assassination and Blackmail in an Age of Asymmetric Conflict , Cambridge: Cambridge University Press.
• Hill, Daniel, 2007, “Ticking Bombs, Torture and the Analogy with Self-defence,” American Philosophical Quarterly , 44: 395–404.
• Human Rights Watch, 2009, Broken System: Dysfunction, Abuse and Impunity in the Indian Police , August 4, 2009, 1-56432-518-0 [ Available online in PDF ]
• Hunsinger, George, 2008, “Torture is the Ticking Time-Bomb: Why the Necessity Defence Fails,” Dialogue: A Journal of Theology , 47(3): 228–39.
• Ignatieff, Michael, 2005, “Moral Prohibition at a Price” in Kenneth Roth and Minky Worden (eds.) Torture: Does it Make us Safer? Is it Ever OK? , New York: The New Press.
• Independent Commission on the Los Angeles Police Department (1991), Report of the Independent Commission on the Los Angeles Police Department , Los Angeles, CA: City of Los Angeles. [ Available Online ]
• Juratowitch, Ben, 2008, “Torture is Always Wrong,” Public Affairs Quarterly , 22(2): 81–90.
• Kamm, F. M., 2011, Ethics for Enemies: Terror, Torture and War , Oxford: Oxford University Press.
• Kaufman, Whitley, 2008, “Torture and the ‘Distributive Justice’ Theory of Self-Defense: An Assessment,” Ethics and International Affairs , 22(1): 93–115.
• Kershnar, Stephen, 2005, “For Interrogational Torture,” International Journal of Applied Philosophy , 19(2): 223–241.
• –––, 2011, For Torture: A Rights-based Account , Lanham, MD: Lexington Books.
• Kleinig, John, 2006, “Ticking Bombs and Torture Warrants”, Deakin Law Review , 10(2): 614–27.
• Landau, M., 1987, Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Jerusalem: Israeli Government Press Office.
• Lauritzen, Paul, 2013, The Ethics of Interrogation: Professional Responsibility in an Age of Terror , Washington, D.C.: Georgetown University Press.
• Levinson, Sanford, (ed.), 2004, Torture: A Collection , Oxford: Oxford University Press.
• Luban, David, 2005, “Liberalism and the Unpleasant Question of Torture,” Virginia Law Review , 91 (6): 1425–61.
• –––, 2014, Torture, Power and Law , New York: Cambridge University Press.
• Machan, Tibor R., 1990, “Exploring Extreme Violence (Torture),” Journal of Social Philosophy , 21: 92–7.
• Matthews, Richard, 2008, The Absolute Violation: Why Torture Must be Prohibited , Montreal: McGill-Queen’s University Press.
• Mayerfield, Jamie, 2008, “In Defence of the Absolute Prohibition on Torture,” Public Affairs Quarterly , 22(2): 109–28.
• McMahan, Jeff, 2008, “Torture in Principle and in Practice,” Public Affairs Quarterly , 22 (2): 111–128.
• Mendez, Juan E., 2005, “Torture in Latin America,” in Kenneth Roth and Minky Worden (eds.) Torture: Does it Make us Safer? Is it Ever OK? , New York: The New Press.
• Miller, Seumas, 2005, “Is Torture Ever Morally Justified?” International Journal of Applied Philosophy , 19(2): 179–92.
• –––, 2010, The Moral Foundations of Social Institutions: A Philosophical Study , New York: Cambridge University Press.
• –––, 2009, Terrorism and Counter-terrorism: Ethics and Liberal Democracy , Oxford: Blackwell.
• Miller, Seumas and John Blackler, 2005, Ethical Issues in Policing , Aldershot: Ashgate.
• Murton, T. and Hyams, J., 1969, Inside Prison, USA , New York: Grover Press.
• Nagle, F., 1978, Report of the Royal Commission into New South Wales Prisons , Volumes 1, 2 & 3, Sydney: Government Printer.
• National Commission on Truth and Reconciliation, 1993, Report of the Chilean National Commission on Truth and Reconciliation , Notre Dame: University of Notre Dame Press.
• Parks, Bernard, 2000, Board of Inquiry into the Rampart Area Corruption Incident Public Report , Los Angeles, CA: Los Angeles Police Department. [ Available online .]
• Public Committee Against Torture in Israel [PCATI], 2003, Back to a Routine of Torture: Torture and Ill-treatment of Palestinian Detainees during Arrest, Detention and Interrogation , September 2001–April 2003. [ Available online ]
• Rampart Independent Review Panel, 2000, Report to Los Angeles Board of Police Commissioners Concerning the Operations, Policies and Procedures of Los Angeles Police Department in the Wake of the Rampart Scandal , Los Angeles, CA: City of Los Angeles. [ Available online ]
• Rodin, David, (ed.), 2007, War, Torture and Terrorism: Ethics and War in the 21st Century , Oxford: Blackwell.
• Roth, Kenneth and Minky Worden, eds., 2005, Torture: Does it Make us Safer? Is it Ever OK? A Human Rights Perspective , New York: The New Press.
• Rejali, Nicholas, 2007, Torture and Democracy , Princeton: Princeton University Press.
• Schauer, Frederick, 2003, Profiles, Probabilities and Stereotypes , Harvard: Belknap Press.
• Segev, Re’em, 2008, “Response to Whitley Kaufman: The Distributive Justice Theory of Self-Defense,” Ethics and International Affairs , 22(1): 93–115.
• Shue, Henry, 1978, “Torture,” Philosophy and Public Affairs , 7: 124–43
• –––, 2016, Fighting Hurt: Rule and Exception in Torture and War , Oxford: Oxford University Press.
• Skerker, Michael, 2010, An Ethics of Interrogation , Chicago: University of Chicago Press.
• Stannard, B., 1988, “How We Got Finch,” The Bulletin Magazine , November 22, 1988.
• Steinhoff, Uwe, 2006, “Torture: The Case for Dirty Harry and Against Alan Dershowitz,” Journal of Applied Philosophy , 23(3): 337–353.
• –––, 2010, “Defusing the Ticking Social Bomb Argument: The Right to Self-defensive Torture,” Global Dialogue , 12 (1) (Winter/Spring 2010). [ Available online ]
• –––, 2013, On the Ethics of Torture , New York: State University of New York Press.
• Sussman, David, 2005, “What’s Wrong with Torture?”, Philosophy and Public Affairs , 33: 1–33.
• Thiessen, Marc, 2010, Courting Disaster: How the CIA Kept America Safe and How Barack Obama Is Inviting the Next Attack , Washington, D.C.: Regnery Publishing.
• Truth and Reconciliation Commission, 1998, The Truth and Reconciliation of South Africa Report , 2, Cape Town: Juta Press.
• Twining, William and Barrie Paskins, 1978, “Torture and Philosophy,” Proceedings of the Aristotelian Society (Supplementary Volume), 52: 143–194.
• Twining, W. L., and P. E. Twining, 1973, “Bentham on Torture,” Northern Ireland Legal Quarterly , 24: 307–56.
• United Nations General Assembly, 1984, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, General Assembly resolution 39/46 of 10. [ Available online ]
• Verma, Arvind, 2011, The New Khaki: The Evolving Nature of Policing in India , Boca Raton: CRC Press.
• Waldron, Jeremy, 2005, “Torture and Positive Law: Jurisprudence for the White House,” Columbia Law Review , 105(6): 1681–1750.
• –––, 2010, Torture, Terror and Trade-Offs: Philosophy for the White House , Oxford: Oxford University Press.
• Walzer, Michael, 1973, “Political Action: The Problem of Dirty Hands,” Philosophy and Public Affairs , 2: 160–80.
• Wickersham, George, 1931, Report of the National Commission of Law Enforcement and Observance .
• Wisnewski, Jeremy J., 2008, “Unwarranted Torture Warrants: A Critique of the Dershowitz Proposal,” Journal of Social Philosophy , 39(2): 308–21.
• –––, 2009, “Hearing a Still-Ticking Bomb Argument: A Reply to Bufacchi and Arrigo,” Journal of Applied Philosophy , 26: 205–9.

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• Final Report of the Independent Panel to Review DoD Detention Operations [PDF]
• Stanford Prison Experiment
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Library of Congress Catalog Data: ISSN 1095-5054

Understanding and Preventing Torture: a Review of the Literature

• Published: 04 August 2023
• Volume 24 , pages 319–338, ( 2023 )

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A Correction to this article was published on 23 September 2023

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This article reviews the social scientific literature on the causes of and prevention of torture, analyzes its successes and failures, and proposes a way forward. Many researchers have adopted a rational-actor, principal-agent framework, which fails to fully account for the multiple and often irrational motives of actors who work within complex bureaucracies. Researchers have also tended to follow the lead of practitioners, critiquing their approaches at prevention but not providing their own evidence-based recommendations. Future research should examine the role of irrational motives, multiple actors, and complex bureaucracies in causing torture to happen, at the level of individuals, governmental institutions, and nation-states. The lessons from this research can help advocates better convince individual actors that torture is unethical and ineffective, better direct interventions into the structure of complex bureaucracies, and better direct international advocacy, providing other solutions besides “naming and shaming” campaigns.

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Unintended Consequences: The Effect of Advocacy to End Torture on Empowerment Rights Violations

Does terror cause torture a comparative study of international public opinion about governmental use of coercion.

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23 september 2023.

A Correction to this paper has been published: https://doi.org/10.1007/s12142-023-00704-5

Adams GB, Balfour DL, Reed GE (2006) Abu Ghraib, administrative evil, and moral inversion: The value of “putting cruelty first”. Public Adm Rev 66:680-693.

Article   Google Scholar  

Allendoerfer MG, Murdie A, Welch RM (2020) The path of the boomerang: Human rights campaigns, third-party pressure, and human rights. Int Stud Q 64:111-119.

Amnesty International (2023) Torture. https://www.amnesty.org/en/what-we-do/torture/ . Accessed 10 July 2023.

Arnon D, Haschke P, Park B (2023) The right accounting of wrongs: Examining temporal changes to human rights monitoring and reporting. BJPoIS 53:163-182.

Google Scholar  

Arrigo JM, Bennett R (2007). Organizational supports for abusive interrogations in the “War on Terror”. PAC 13:411-421.

Arsenault EG, Chiang C (2020) The U.S. Department of Defense and its torture program. Armed Forces Soc 46:191-213.

Barnes J (2017) A genealogy of the torture taboo. Routledge, New York.

Book   Google Scholar  

Basoglu M (ed) (2017) Torture and its definition in international law: An interdisciplinary approach. Oxford, New York.

Beger A, Hill D (2019) Examining repressive and oppressive state violence using the Ill-Treatment and Torture data. Confl Manag Peace Sci 36:626-644.

Berlin MS (2021) Does criminalizing torture deter police torture? Am J Pol Sci, online first.

Blakeley R (2007) Why torture? Rev Int Stud 33:373-394.

Bohara AK, Mitchell NJ, Nepal M, Raheem N (2008) Human rights violations, corruption, and the policy of repression. Policy Stud 36:1-18.

Bueno de Mesquita B, Downs GW, Smith A, Cherif FM (2005) Thinking inside the box: A closer look at democracy and human rights. Int Stud Q 49:439-457.

Carver R, Handley L (2016) Does torture prevention work? University of Liverpool Press, Liverpool.

Carver R, Handley L (2020) Evaluating National Preventive Mechanisms: A conceptual model. J Hum Rights Prac 12:387-408.

Celermajer D (2018) The prevention of torture: An ecological approach. Cambridge University Press, Cambridge.

Chandler D (2000) Voices from S-21: Terror and history in Pol Pot’s secret prison. University of California Press, Berkeley.

Cheesman N (2022). Torture in Thailand at the limits of law. Law Soc Inq, online first: 1-26.

Chilton AS, Versteeg M (2015) The failure of constitutional torture prohibitions. J Leg Stud 44:417-52.

Cingranelli DL, Filippov M (2018) Are human rights practices improving? Am Polit Sci Rev 112: 1083-1089.

Cingranelli DL, Richards DL (2010). The Cingranelli and Richards (CIRI) Human Rights Data Project. Hum Rights Q 32:401-424.

Cingranelli D, Mark S, Gibney M, Haschke P, Wood R, Arnon D (2019) Human rights violations and violent internal conflict. Soc Sci 8:41.

Clark AM (2018) Laws, talk, and human rights: The impact of treaty ratification, UN criticism, and democratic change on torture. J Hum Rights 17:18-435.

Clark AM, Sikkink K (2013) Information effects and human rights data: Is the good news about increased human rights information bad news for human rights measures? Hum Rights Q 35:539-568.

Clark AM, Sikkink K (2016) Response to David L Richards. Hum Rights Q 38:493-496.

Cole WM (2012). Human rights as myth and ceremony? Reevaluating the effectiveness of human rights treaties, 1981-2007. Am J Sociol 117:1131-1171.

Cole WM (2015) Mind the gap: State capacity and the implementation of human rights treaties. Int Organ 69:405-441.

Cole WM (2016) Managing to mitigate abuse: Bureaucracy, democracy, and human rights, 1984 to 2010. Int J Comp Sociol 57:69-97.

Cole WM, Ramirez FO (2013) Conditional decoupling: Assessing the impact of national human rights institutions, 1981 to 2004. Am Sociol Rev 78:702-725.

Collard M (2019) Torture as state crime: A criminological analysis of the transnational institutional torturer. Routledge, New York.

Conrad CR (2014) Divergent incentives for dictators: Domestic institutions and (international promises not to) torture. J Conflict Resolut 58:34-67.

Conrad CR, DeMeritt JHR (2014) Unintended consequences: The effect of advocacy to end torture on empowerment rights violations. In: Lightcap T, Pfiffner JP (eds) Examining torture: Empirical studies of state repression. Palgrave MacMillan, New York, pp 159-183.

Conrad CR, Haglund J, Moore WH (2014) Torture allegations as events data: Introducing the Ill-Treatment and Torture (ITT) dataset. J Peace Res 51:429-438.

Conrad CR, Hill DW, Moore WH (2018) Torture and the limits of democratic institutions. J Peace Res 55:3-17.

Conrad CR, Moore WH (2010). What stops the torture? Am J Pol Sci 54:459-476.

Conrad CR, Ritter EH (2013) Treaties, tenure, and torture: The conflicting domestic effects of international law. J Polit 75:397-409.

Creamer CD, Simmons BA (2019) Do self-reporting regimes matter? Evidence from the Convention Against Torture. Int Stud Q 63:1051-1064.

Crelinsten RD (2003) The world of torture: A constructed reality. Theor Criminol 7(3):293-318.

d’Ambruoso WL (2015) Norms, perverse effects, and torture. International Theory 7:33-60.

d’Ambruoso WL (2022) American torture from the Philippines to Iraq: A recurring nightmare. Oxford, New York.

Davenport C (2007) State repression and political order. Ann Rev Polit Sci 10:1-23.

Davenport C (2020) Introducing DyoRep: A database of perpetrator-victim dyads within repressive spells. J Hum Rights 19:117-137.

DeMeritt JHR, Conrad CR (2019) Repression substitution: Shifting human rights violations in response to UN naming and shaming. Civ Wars 21:128-152.

DiBlasi L (2020) From shame to new name: How naming and shaming creates pro-government militias. Int Stud Q 64:906-918.

Dreher A, Gassebner M, Siemers LH (2010) Does terrorism threaten human rights? Evidence from panel data. J Law Econ 53:65-93.

Drohan B (2017) Brutality in an age of human rights: Activism and counterinsurgency at the end of the British empire. Cornell, Ithaca, New York.

Du Bois L (1990) Torture and the construction of an enemy: The example of Argentina 1976-1983. Dialect Anthropol 15:317-328.

Eck C, Fariss CJ (2018) Ill-treatment and torture in Sweden: A critique of cross-case comparisons. Hum Rights Q 40:591-604.

Einolf CJ (2007) The fall and rise of torture: A comparative historical analysis. Sociol Theor 25:101-121.

Einolf CJ (2014) America in the Philippines, 1899-1902: The first torture scandal. Palgrave-Macmillan, New York.

Einolf CJ (2021) How torturers are made: Evidence from Saddam Hussein’s Iraq. J Hum Rights 20:381-395.

Einolf, CJ (2022) How torture fails: Evidence of misinformation from torture-induced confessions in Iraq. J Glob Secur Stud 7(1).

Evans MD, Modvig J (eds) (2020). Research handbook on torture: Legal and medical perspectives on prohibition and prevention. Edward Elgar, Cheltenham, UK.

Fariss CJ (2014) Respect for human rights has improved over time: Modeling the changing standard of accountability. Am Polit Sci Rev 108:297–318.

Fariss CJ (2018) The changing standard of accountability and the positive relationship between human rights treaty ratification and compliance. Brit J Polit Sci 48:239-271.

Fariss CJ, Dancy G (2017) Measuring the impact of human rights: Conceptual and methodological debates. Annu Rev Law Soc Sci 13:273-94.

Farrell M (2020) The ticking bomb scenario: Evaluating torture as an interrogation method. In: Evans MJ, Modvig J (eds), Research handbook on torture: Legal and medical perspectives on prohibition and prevention. Edward Elgar, Cheltenham, UK.

Gilligan MJ, Nesbitt NH (2009) Do norms reduce torture? J Leg Stud 38:445-470.

Goodare J (2016) The European witch-hunt. Routledge, New York.

Gregory S, Timerman D (1986) Rituals of the modern state: The case of torture in Argentina. Dialect Anthropol 11:63-71.

Hafner-Burton EM (2008) Sticks and stones: Naming and shaming the human rights problem. Int Organ 62:689-716.

Hafner-Burton E (2013) Making human rights a reality. Princeton University Press.

Hafner-Burton EM, Ron J (2009) Seeing double. World Polit 61:360-401.

Hafner-Burton EM, Tsutsui K (2005) Human rights in a globalizing world: The paradox of empty promises. Am J Sociol 110:1373–1411.

Hafner-Burton EM, Tsutsui K (2007) Justice lost! The failure of international human rights law to matter where needed most. J Peace Res 44:407-425.

Hajjar L (2008) Sovereign bodies, sovereign states and the problem of torture. In: Falk R, Elver H, Hajjar L (eds) Human rights: Critical concepts in political science, volume II, pp 228-261. Routledge, New York.

Haritos-Fatouros M (2003) The psychological origins of institutionalized torture. Routledge, New York.

Haschke P (2018) Human rights in democracies. Routledge, New York.

Haschke P, Arnon D (2020) What bias? Changing standards, information effects, and human rights measurement. J Hum Rights 19:33-45.

Hassner RE (2020) What do we know about interrogational torture? International Journal of Intelligence and Counterintelligence 33:4-42.

Hathaway OA (2002). Do human rights treaties make a difference? Yale Law J 111:1935–2042.

Hatz S (2021) What shapes public support for torture, and among whom? Hum Rights Q 43:683-698.

Hendrix C, Wong WH (2013) When is the pen truly mighty? Regime type and the efficacy of naming and shaming in curbing human rights abuses. Br J Polit Sci 43:651-672.

Heurich SJ, Vaughn MS (2009) Ill-treatment and torture at Abu Ghraib prison: Irrational policy implementation and administrative breakdown. Crim Justice Stud 22:181-201.

Hill DW (2010) Estimating the effects of human rights treaties on state behavior. J Polit 72:1161–74.

Hill DW, Jones ZM (2014) An empirical evaluation of explanations for state repression. Am Polit Sci Rev 108:661-687.

Hollyer JR, Rosendorff P (2011) Domestic politics and the accession of authoritarian regimes to human rights treaties. Q J Polit Sci 6:275–327.

Houck SC, Repke MA (2017) When and why we torture: A review of psychology research. Transl Issues Psychol Sci 3:272-283.

Huggins MK (2002). State violence in Brazil: The professional morality of torturers. In: Rotker S (ed) Citizens of fear: Urban violence in Latin America, Rutgers Princeton, New Jersey, pp 141-151.

Huggins MK (2005) Torture 101: Lessons from the Brazilian case. J Third World Stud 22:161-173.

Huggins MK (2012) State torture: Interviewing perpetrators, discovering facilitators, theorizing cross-nationally – proposing “Torture 101”. State Crime J 1:45-69.

Huggins MK, Haritos-Fatouros M, Zimbardo PG (2002) Violence workers: Police torturers and murderers reconstruct Brazilian atrocities. University of California, Berkeley.

Jackson JL, Hall SL, Hill DW (2018). Democracy and police violence. Res Politics 5:1-8.

Jones ZM, Lupu Y (2018) Is there more violence in the middle? Am J Pol Sci, 62:652-667.

Kahn-Nisser S (2021) For better or worse: Shaming, faming, and human rights abuse. J Peace Res 58:479-493.

Kanavou AA, Path K (2017) The lingering effects of thought reform: The Khmer Rouge S-21 personnel. J Asian Stud 76(1): 87-105.

Kearns EM, Young JK (2020) Torture logic: Why some Americans support the use of torture in counterterrorism. Columbia University Press, New York.

Keith LC (2002) Constitutional provisions for individual human rights (1977-1996): Are they more than mere “window dressing?” Polit Res Q 55:111-143.

Keith LC, Tate CN, Poe SC (2009) Is the law a mere parchment barrier to human rights abuse? J Polit 71:644–60.

Kelly T (2011) This side of silence: Human rights, torture, and the recognition of cruelty. University of Pennsylvania, Philadelphia.

Kelly T (2019). The struggle against torture: Challenges, assumptions and new directions. J Hum Rights Prac 11:324-333.

Kenny PD (2010). The meaning of torture. Polity 42: 131-155.

Kraft RN (2014) Violent accounts: Understanding the psychology of perpetrators through South Africa’s Truth and Reconciliation Commission. New York University Press, New York.

Krommendijk, J (2015) The domestic effectiveness of international human rights monitoring in established democracies: The case of UN human Rights treaty bodies. Rev Int Organ 10:489-512.

Laguardia F (2017) Deterring torture: The preventive power of criminal law and its promise for inhibiting state abuses. Hum Rights Q 39:189-212.

Leo R (2009) Police interrogation and American justice. Harvard, Cambridge, Massachusetts.

McCoy AW (2012) Torture and impunity: The U.S. doctrine of coercive interrogation. University of Wisconsin Press, Madison.

Midlefort HCE (1972) Witch hunting in southwestern Germany, 1562-1684: The social and intellectual foundations. Stanford, Berkeley, California.

Miles SH (2020) The torture doctors: Human rights crimes and the road to justice. Georgetown University, Washington, DC.

Milgram S (1973) Obedience to authority: An experimental view. Harper and Row, New York.

Miller P, Gronke P, Rejali D (2014) Torture and public opinion: The partisan dimension. In: Lightcap T, Pfiffner JP (eds), Examinng torture: Empirical studies of state repression. Palgrave Macmillan, New York.

Moore WH (2010) Incarceration, interrogation, and counterterror: Do (liberal) democratic institutions constrain Leviathan? PS: Polit Sci Polit 43:421-424.

Murdie AM, Davis DR (2012). Shaming and blaming: Using events data to assess the impact of human rights INGOs. Int Stud Q 56:1–16.

Neumayer E (2005) Do international human rights treaties improve respect for human rights? J Conflict Resolut 49:925–53.

Newbery S (2016) Interrogation, intelligence and security: Controversial British techniques. Manchester University Press, Manchester UK.

Nowak M (2018). Torture: An expert’s confrontation with an everyday evil. University of Pennsylvania Press, Philadelphia.

Nowak M, Birk M, Molina G (eds) (2019) The United Nations Convention Against Torture and its Optional Protocol: A commentary, second edition. Oxford, New York.

Osiel MJ (2001) Constructing subversion in Argentina’s Dirty War. Representations 75:119-158.

Parry J (2010) Understanding torture: Law, violence, and political identity. University of Michigan Press, Ann Arbor.

Piazza JA (2017). Repression and terrorism: A cross-national empirical analysis of types of repression and domestic terrorism. Terror Polit Violence 29:102-118.

Piazza JA, Walsh JI (2009) Transnational terror and human rights. Int Stud Q 53:125-148.

Rejali D (2007) Torture and democracy. Princeton University Press, Princeton, New Jersey.

Rejali D (2020) The field of torture today: Ten years on from Torture and democracy. In: Barela SJ, Fallon M, Gaggioli G, Ohlin JD (eds), Interrogation and torture: Integrating efficacy with law and morality. Oxford University Press, New York, pp 71-108.

Chapter   Google Scholar  

Reyes-Quilodran C, Cottam M (2018) Explaining torture: A case study. Int J of Criminol 7:206-223.

Richardot S (2014). “You know what to do with them”: The formulation of orders and engagement in war crimes. Aggress Violent Behav 19:83-90.

Richards DL (2016) The myth of information effects in human rights data: Response to Ann Marie Clark and Katherine Sikkink, Hum Rights Q 38:477-492.

Richards DL, Webb A, Clay KC (2015) Respect for physical-integrity rights in the twenty-first century: Evaluating Poe and Tate’s model 20 years later. J Hum Rights 14:291-311.

Rubin MA, Morgan RK (2021) Terrorism and the varieties of civil liberties. J Glob Secur Stud 6(3).

Shapiro D (2003) The tortured, not the torturers, are ashamed. Soc Res 70:1131-1148.

Sharma M, Massagé I, McDonald K (2012) Lawyers’ intervention at pretrial stage helps to prevent torture, illegal detention and other human rights violations: Experiences of Advocacy Forum – Nepal. J Hum Rights Prac 4:253-272.

Sigvardsdotter E, Marjan Vaez A, Hedman R, and Saboonchi F (2016) Prevalence of torture and other war-related traumatic events in forced migrants: A systematic review. Torture J 26:41-73.

Simmons BA (2009) Mobilizing for human rights: International law in domestic politics. Cambridge University Press, Cambridge, UK.

Suh CS (2019) More than words: Professional legal activism and the prevention of torture in South Korea. Hum Rights Q 41:646-671.

Taussig M (1984) Culture of terror – space of death. Roger Casement’s Putumayo Report and the explanation of torture. Comp Stud in Soc and His 26:467-497.

Taylor F (2020) The torture machine: Racism and police violence in Chicago. Haymarket, Chicago.

Thomson M, Bernath B (2020). Preventing torture: What works? In: Barela SJ, Fallon M, Gaggioli G, Ohlin JD (eds) Interrogation and torture. Oxford University Press, New York, pp 471-492.

United Nations General Assembly (1984) Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. United Nations Treaty Series 1465:85.

United Nations High Commissioner for Refugees (2023) Global Appeal 2023. https://reporting.unhcr.org/globalappeal . Accessed 10 July 2023.

Viola L (2017) Stalinist perpetrators on trial: Scenes from the great terror in Soviet Ukraine. Oxford University Press, New York.

Von Staden A (2022) The conditional effectiveness of soft law: Compliance with the decisions of the Committee Against Torture. Hum Rights Rev 23:451-478.

Wahl R (2017) Just violence: Torture and human rights in the eyes of the police. Stanford, California.

Walsh, J. I., and Piazza, J. A. (2010). Why respecting physical integrity rights reduces terrorism. Comp Polit Stud 43(5), 551-577.

Welch R (2017) National Human Rights Institutions: Domestic implementation of international human rights law. J Hum Rights 16:96-116.

Wolfendale J (2020) The making of a torturer. In: Knittel SC, Goldberg ZJ (eds) The Routledge international handbook of perpetrator studies. Routledge, New York.

Wood RM, Gibney M (2010) The Political Terror Scale (PTS): A re-introduction and a comparison to CIRI. Hum Rights Q 32:367-400.

Wu W, Vander Beken T, Police torture in China and its causes: A review of the literature. Aust N Z J Crimonol 43:557-579.

Zartner D, Ramos J (2011) Human rights as reputation builder: Compliance with the Convention Against Torture. Hum Rights Rev 12:71-92.

Zech ST (2017) Counter-terrorizing: The use of torture in Peru’s counterterrorism campaign. Terror Polit Viol 29:254-276.

Zhou Y, Kiyani G, Crabtree C (2022) New evidence that naming and shaming influences state human rights practices. J Hum Rights.

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Einolf, C.J. Understanding and Preventing Torture: a Review of the Literature. Hum Rights Rev 24 , 319–338 (2023). https://doi.org/10.1007/s12142-023-00696-2

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Confronting Torture: Essays on the Ethics, Legality, History, and Psychology of Torture Today

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This book gathers fourteen essays on torture, addressing its complexities from the perspectives of psychology, history, philosophy, law, and cultural commentary. It appears in the wake of the American “War on Terror,” and the apparent evaporation of a broad consensus in international law, the U.S. legal community, and public thinking that torture is never an acceptable act, even in war. The chapters of the book seek to understand the historical and cultural roots of torture; to assess its impacts on survivors, their societies, and those who engage in it or with its victims; to consider philosophical arguments about its justification; and to consider how law and lawyers should confront the problem of torture. While there is no single message or thesis running throughout the book, all of the chapters seek to bring out the complexity of torture as a social, psychological, legal and ethical problem. The introductory chapter, by torture survivor Albie Sachs, who went on to become a justice on the Constitutional Court of South Africa, demonstrates many of the challenges that torture creates for a society, and for conceiving justice in the wake of torture. Many of the subsequent chapters address the possibilities and difficulties for law and social institutions to respond effectively to torture by creating legal frameworks and structural barriers to guard against the temptations that torture offers. While none of the chapters defend using torture, many grapple with the difficulties of explaining convincingly why ethics absolutely prohibits torture.

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Torture and Dignity

An essay on moral injury.

J. M. Bernstein

408 pages | 6 x 9 | © 2015

Philosophy: American Philosophy , Ethics , General Philosophy , Philosophy of Society

Political Science: Political and Social Theory

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“For many years now Bernstein has been a leading voice in the evolving critical theory tradition, turning out impressive and influential work on Lukács, Adorno, the relation between art and philosophy, and social critique. Torture and Dignity is his most ambitious and systematic book. Taking his bearings from what are the clearest, most unambiguous cases of moral injury—torture and rape—he aims to develop a general account of the nature of moral wrong, and he does so without engaging the conventional (and, he argues, thoroughly misleading and distorting) problem of convincing the moral skeptic to refrain from such harm. What results is a book that is lucidly written, original, passionate, and compelling, with many moments of real brilliance. His ability to develop out of such a ‘negative ethics’ a positive account of our dependence on each other is no less valuable and challenging. The book is a major achievement.”

Robert B. Pippin, author of Interanimations: Receiving Modern German Philosophy

“There is a lot we can learn from topics most of us would rather avoid thinking about. Here, Bernstein does much of the difficult work for us, bringing rape and torture into the general discussions of human dignity, moral injury, and the nature of persons. A much-needed book, and brilliantly argued.”—

Linda Martín Alcoff, author of The Future of Whiteness

“This book has two topics, dignity and torture—each of which has assumed great importance in the last twenty years. Bernstein contrasts torture with the rule of law and human dignity with violation and degradation. I cannot imagine a better account of the affront to dignity posed by the terrible practice of torture.”

Jeremy Waldron, author of Torture, Terror, and Trade-Offs: Philosophy for the White House

“ Torture and Dignity raises a number of important issues in moral philosophy and moral practice in a way that is original and highly engaging. Bernstein is a brilliant writer whose passion and conviction come across vividly and persuasively in a breadth of styles and approaches, which is so unusual in contemporary ethics. In this work we see a philosopher engaged in analysis and argument, but also with literature, phenomenology, memoir, law, the history of ideas, and public policy.”

Robert Stern, author of Understanding Moral Obligation: Kant, Hegel, Kierkegaard

"Bernstein (New School for Social Research) presents a strong case for moving ethical inquiry in a new direction... Bernstein's presentation is clear, original, and persuasive... Highly recommended."

L. J. Alderink | Choice

"Bernstein’s moral instincts strike as sound, and his novel ideas pertaining to embodiment, trust, and love — and their relation to dignity — strike as insightful contributions to moral psychology."

Craig Duncan | Notre Dame Philosophical Reviews

“A complex and enigmatic discussion of torture and rape.”

Philosophy in Review

Table of Contents

The torture letters.

Laurence Ralph

Provisional Authority

Beatrice Jauregui

Confronting Torture

Scott A. Anderson

Executing Freedom

Daniel LaChance

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University of Notre Dame

Notre Dame Philosophical Reviews

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On the Ethics of Torture

Uwe Steinhoff, On the Ethics of Torture , SUNY Press, 2013, 191pp., $24.95 (pbk), ISBN 9781438446226.

Reviewed by Gregory Fried, Suffolk University

Torture is a problem from hell. Confronting torture seriously means weighing some of our most cherished principles and traditions against threats that once might have seemed fantastical but after 9/11 no longer do. On the one hand is a long-standing taboo against torture as a profound violation of human dignity. Deeply influential institutions, such as the Catholic Church, [1]  have taken an absolutist stand against torture, and the United Nations Convention against Torture, to which the United States is a signatory, allows "No exceptional circumstances whatsoever" to undermine a total ban on the practice. [2]  On the other hand are harrowing scenarios, some hypothetical but others now all too real, which pinion us with a desperate need for life-saving information.

Into this hell steps an important book by Uwe Steinhoff,  On the Ethics of Torture . This book is rather odd in  tone . Steinhoff makes the case for torture in certain limited circumstances, and he evidently has become indignant with some absolutist opponents of torture, who have accused him of "careless philosophizing" about torture scenarios (ix) and of undermining ethical discourse (chapter 7). In response, Steinhoff frequently treats the arguments of his opponents with scorn and sarcasm. Furthermore, in philosophical  style , this book trades heavily on what has become an epidemic in contemporary applied ethics: extravagant hypotheticals. Steinhoff litters his arguments with often gleefully graphic examples involving weapons that cause excruciating pain, disintegration guns, and vaginas that kill. Even making allowances, I find this rather hard to take; perhaps that is a merely aesthetic reaction, but I will return to it after treating Steinhoff's main argument.

That argument is indeed important, one that any absolutist opponent of torture (including myself [3] ) should take seriously. The core thesis is blisteringly simple: "torture is justifiable in certain narrowly circumscribed circumstances, in particular in certain self-defense situations" (ix). Steinhoff convincingly insists that his limited defense of torture is not based on consequentialist considerations. Quite the contrary, Steinhoff calls himself a "threshold deontologist" (44, 77); he supports deontological principles until a threshold of unacceptable consequences overrides the principle in question. This is not unusual for a deontologist (think of the Kantian who would lie to the Nazi hunting Jews), [4]  and Steinhoff is still justified in calling himself one, because (echoing Ronald Dworkin) taking rights seriously means allowing rights to trump utility  most  if not  all  of the time (43). What Steinhoff opposes is  absolutism  about acts. This is where the extravagant hypotheticals come in: to demonstrate that for any act you might think of as always absolutely wrong, we can conjure a  conceivable  scenario in which a reasonable person would have to allow that act.

This is not the first book to make a right-based defense of torture, [5]  but it makes the case powerfully and rebuts in detail the major anti-torture authors, such as David Luban, Henry Shue, David Sussman, and Jeremy Waldron. Steinhoff defines torture as "the knowing infliction of continuous or repeated extreme physical suffering for other than medical purposes" (7), defining "extreme" as anything roughly equivalent to "drilling on the unprotected nerve of a tooth" (9). Steinhoff discounts short "shocks" of pain, and he is skeptical about counting psychological pain a torture (9). This excludes much often considered torture: exposure to phobias, mock executions, and the like, as well as some practices that mix the physical and psychological, such as sleep or sensory deprivation, and exposure to temperature extremes. For the sake of argument, though, we should grant Steinhoff's restrictive definition, because if he can succeed on its basis, that is decisive enough. We can quibble another time about its parameters.

Self-defense is the heart of Steinhoff's argument: "People have a right to defend themselves or others against wrongful aggression, in particular if the aggression is life-threatening" (11). This premise is not consequentialist; it is about the  right  to defend oneself and others against unjust attack. Some might object to a right to self-defense (a pacifist might believe that death is preferable to acts of violence), but Steinhoff argues well that even Kant's deontology supports a  prima facie  right to self-defense, and so also a  duty  for a legitimate government to uphold that right in protecting its citizens against aggression (133).

Steinhoff's next move is to show that interrogative torture -- never punitive or sadistic torture (7) -- may be necessary for self‑defense. Here Steinhoff is on most solid ground with real-life "Dirty Harry" examples, the Daschner and Mook cases, where German police captured kidnappers who then refused to reveal where their respective victims were hidden and presumably in grave danger.  In the Daschner case, the kidnapper was threatened with torture and gave up the location of the child, who had already been murdered, but the police did not know that.  In the Mook case, the child, who had been imprisoned in a wooden box, was saved when the kidnapper revealed the location after a beating (which we can take as a case of torture for the sake of argument).  In each case, the police tortured the kidnappers and obtained information about where the child was hidden. Tragically, the Daschner child was already dead, but the Mook child was saved. Steinhoff reasonably asks why interrogational torture in such cases would be wrong, where there is no other credible option and the torture is both necessary and proportional. If we may use lethal force in self‑defense, why not torture? Also, if torture is the only option, it does not matter that torture sometimes fails or has a low chance of success; a victim of attempted rape, armed only with a sharp pencil, would still have a right to self-defense with that.

Absolutists have often argued that torture is worse than killing in self‑defense, but Steinhoff finds this unconvincing. To see why, we need to step back from torture and consider other horrible things we sometimes think are right if we take seriously the right to self‑defense against unjust assault. Violence, including killing, can be horrific (19), as is torture, but may still be right if necessary to save a victim of unjust attack. This is partly a function of nomenclature: We don't call justifiable violence "assault" or justifiable killing "murder," we call them "self-defense." There is no such terminological distinction for inflicting justifiable pain; it is all called  torture . Steinhoff asserts that given the choice, for oneself or a loved one, between being killed or being tortured, we would generally choose torture. True, as torture's duration and intensity increase, it is more and more likely to cause lasting physical or psychological damage, as studies have shown. "In contrast to this," Steinhoff counters with characteristic sarcasm, "empirical studies show that not 20, not 30, not 98, but  100 percent  of those who have been killed are dead" (23). Now, this is from the perspective of the  target  of the act, not the  actor , and there are deeper complexities at work that I cannot address here, but Steinhoff makes the cogent claim that killing is  usually  worse than  most forms of torture. Killing ends everything forever, torture may be survived, so if we accept the former in self‑defense, then we must accept the latter.

This core argument does a lot of work for Steinhoff. Absolutists often argue that torture is a horror because it breaks the will. As Steinhoff points out, torture does not always do so, but even when it does, so do many things we consider acceptable in collective self-defense, such as plea-bargaining with criminals and coercive detention (65). Anti-torture absolutists also argue that torture impermissibly targets someone who is defenseless, but other permissible forms of self-defense can do that, argues Steinhoff (93-4). Consider artillery out of enemy range, or a police sniper targeting an unarmed kidnapper about to push a child off a roof. But can there be self-defense if the defenseless target of torture is no longer a threat? Steinhoff reasonably answers by defining an active attack as follows:

one completes one's action x at the last point where one could have prevented the intended effect from coming about. Thus the terrorist [in a ticking bomb scenario] and the kidnapper are engaged in their attack on the child or the persons to be killed in the explosion for as long as they refuse to give the life-saving information. (37)

Even in captivity, the terrorist or kidnapper is still  acting , still  attacking . The rights of innocents trump the rights of aggressors.

While Steinhoff defends torture in self-defense, he argues adamantly against its institutionalization, such as by the "torture warrants" advocated by Alan Dershowitz: We do not need institutionalization because such cases are rare enough (64) that its hypothetical benefits "are not worth the risks" (67); I will return to this problematic point later. Steinhoff's argument for the  legalization  of torture under necessity statutes, but against its  institutionalization , links to his refutation of what he calls the "ticking  social  bomb" objection to torture, made by Shue and others, that if we allow torture in rare and limited cases, it will spread and corrupt a society's institutions. Against this threat of the inevitable "metastatic growth" of torture (66), Steinhoff points to the 1988 Mook case: torture helped rescue a buried child, yet Germany suffered no slide into generalized torture (58). For Steinhoff, the principle that "hard cases make bad law" actually supports limited use of torture because the absolutist anti-torture position "shields an aggressor from necessary and proportionate defensive measures by or on behalf of the victim . . . [and therefore] actually  aids and abets  the aggressor and violates the rights and the human dignity of the victim" (60). In a contest between the rights of an innocent victim and an unjustified aggressor, the victim's should triumph -- as they do when we kill aggressors in self-defense, or imprison them for crimes, despite the otherwise presumptive rights to life or to liberty.

These are the key elements of Steinhoff's self-defense argument for torture, and they are enough to move an anti-torture absolutist such as myself. But how far?

There are several serious problems with Steinhoff's argument. The first of these has to do with the  scope  of self-defense. Self-defense, understood broadly to include other-defense, has long stood as the bedrock justification for  jus   ad bellum , justice in going to war. Steinhoff's examples touch on  private  self‑defense, using torturous pain against an attacker when you cannot call on police aid, and  police  defense against criminal threats within a state. But what about a nation's  military  self‑defense against foreign aggression?

Steinhoff wants to argue that the circumstances that justify torture because of the dire need for life-saving information, such as kidnappings or ticking bombs, are exceedingly rare. But these are cases  within  states, not  between  states (or significant non‑state actors) at war. In wartime, the number of enemies with potentially life-saving information rises dramatically: field officers with knowledge of impending attacks; civilian leaders with knowledge of overall strategic plans; scientists with knowledge of weapons systems; and so on. May they be tortured when captured? Steinhoff insists that his interest in torture "was aroused by the German Daschner case, that is, by a child-kidnapping case, not by the 'terrorist threat' the American debate is obsessed with" (x). He derides the American obsession with "'the war on terrorism' and the silly and often racist 'us-versus-them' ideology that accompanies it" (x), and he deplores Abu Ghraib. Steinhoff concludes that if

torturing an Islamic terrorist is justified to avert the explosion of a ticking bomb that would kill thousands of innocent Americans or Israelis, it then is obviously also justified to torture a Christian or Jewish  state terrorist  if by doing so one can avert a more of less indiscriminate bombing campaign by the American or Israeli air force that would (once again) kill thousands of innocent Palestinians, Iraqis, or Afghans. (x; my emphasis)

But this is precisely the problem. The ticking bomb scenario straddles police and military action for self‑defense, because a domestic  or  a foreign enemy might plant it. Steinhoff wants to argue against the institutionalization of torture because "The ticking bomb case or the Dirty Harry [kidnapping] case is a very rare case," and so "it is safe to assume that all the torture that happened or happens in Abu Ghraib, Afghanistan, and Guantanamo simply has nothing to do with ticking bombs or hostages who are about to die" (64). He says the latter are  exceptions . Yet his own example that preventing an "indiscriminate bombing campaign" would justify torturing a "state terrorist" (presumably he means a civilian or military commander with information that might impede such an campaign) shows that  in war  such scenarios are far from " enormously rare " (67). Indeed, they may well be the norm, given how vital wartime intelligence and how devastating an enemy attack can be. So the "state terrorist" will not be a rare individual but rather may be hundreds, thousands, or more. If they possess decisive military intelligence as offenders in an unjust war, then by Steinhoff's own argument, even in custody they are  still actually attacking  and thereby violating the rights of the victim community.

Steinhoff relies on the very rarity of examples of  police  torture in Germany, a nation that has not suffered military attack or been (substantially) at war for nearly 70 years, to show that legalized self-defensive torture need not metastasize (72-3). But if torture against state (or quasi-state) terrorists is justified, as Steinhoff himself admits and as self-defense at the national level would require, that will justify torture on a much larger scale, and normalization and institutionalization seem inevitable. That is precisely what happened in the American case. When Bush's Office of Legal Counsel justified torture against some terrorists, fearing other massive attacks against civilians after 9/11, [6]  the practices, we now know, did metastasize institutionally across theaters of the world‑wide "War on Terror." [7]  This is rather powerful evidence. It does no good, as Steinhoff attempts, to say that "the torture in Guantanamo is not self‑defensive nor an instance of a justifying emergency" (157) and may not be used against terrorists for "fishing expeditions" in order "to find out more about their networks" (158), because one can simply say that the American torture regime was botched. If, as Steinhoff admits, "state terrorists" (i.e., large-scale aggressors) may be tortured to prevent bombing campaigns, then when there  is  good reason to believe that captured aggressors have vital information that could save lives, then they may justly be tortured, and America's criminal and incompetent torture regime is not an argument against  properly employed  wartime torture any more than a botched or disproportional attempt at more conventional self-defense would refute self-defense in general.

A second problem arises from Steinhoff's argument from necessity. He allows that in very rare cases, it might be right to torture an innocent. Steinhoff concocts the unfortunately plausible case of a sadistic but truthful soldier who gives a captured father the choice "to either waterboard his son for 30 minutes or to have him executed" (42). For Steinhoff, the right choice is clear: torture the child. If so, then Steinhoff must "bite the bullet" and ask, what about a ticking-bomb terrorist: if he won't break, may we torture his innocent child in front of him? Steinhoff argues that this would not be justified because "there is no evidence that would suggest that torturing a person by torturing somebody he deeply cares for is more effective in retrieving the vital information than torturing the first person himself" (42). This strikes me as a cop-out, given Steinhoff's argument. He frequently resorts to fantastical thought experiments to demonstrate that certain ethical outcomes are at least conceivable and therefore undermine absolutist prohibitions. Well, isn't it conceivable that a terrorist might have congenital analgia, the inability to feel pain, but still feel deeply about his child? Or what if time were very short and the stakes very high -- say, a nuclear bomb planted in a city? Steinhoff is willing to sacrifice some innocents for thousands or millions of other innocents. As he says: "You do the math" (52). Horrendously, this is not conjectural: John Yoo, formerly of the Bush administration's Office of Legal Counsel, has argued that the president has the authority to order the crushing of the testicles of a terrorist's child. [8]

And this brings us to my third reservation about Steinhoff's argument: its heavy reliance on hypotheticals. Thought experiments have done yeoman's work in philosophy ever since the tale of the ring of Gyges in Plato's  Republic . There clearly is a place for them in testing our moral intuitions, yet they have been taken too far down the trolley track in contemporary ethical theory. At issue here is  modality : the meaning of the possible for making sense of ethical life. Let me suggest two modes of the possible. One is the  merely conceivable , which involves science fiction elements or extraordinarily rare circumstances, things that are not logically impossible or outright violations of the laws of nature. The other mode is the  genuinely plausible , scenarios that are either actually possible (because they have happened) or feasible given a reasonable construal of existing realities. I would like to narrow the use of  hypothetical  to the latter set of  plausible  cases and coin a new term,  hyperthetical , for the merely conceivable.

I will grant that hypertheticals, such as the ring of Gyges or "philosophical zombies" (a recent craze in philosophy of mind) may be useful in testing our intuitions, ethical and otherwise, but they have limited value for thinking about what is right to do in the world we actually inhabit; indeed, they may  impede  good ethical judgment. At issue is the status of  acts  we would normally consider anathema. For  any  such taboo act -- rape, torture, child abuse -- it is possible to imagine a  hyperthetical  that would make us say, "Well, gosh, in a case like  that , I guess we would have to allow it." Steinhoff does just this for rape in the case of "Innocent Jenny" attacked by "Serial Killer," who both happen to be naked: "Jenny, who is a doctor, is currently treating her vaginal infection with a potent new ointment, which has the side-effect of killing any man whose penis is exposed to it long and severely enough" (149). In Steinhoff's scenario, Jenny and Killer struggle, and she manages to force his penis into her vagina while he says "No," thereby justifiably raping him to death in self-defense.

If this is not a  hyperthetical , I don't know what is. The point is this: to say that there are some things we should not do because they are wrong does not mean it is  inconceivable  that there might be extraordinary exceptions. The threshold of exception may be higher or lower depending on the act in question, with lying at the low end and things like killing and torture at the high end.

The reality is that the question of torture is part of an ongoing debate with real practical consequences, and Steinhoff owes us a fuller story about what his argument justifies. A kidnapped child buried alive is now sadly a plausible  hypothetical , but as we move along the range of modality to  hyperthetical  scenarios, something dangerous happens. Here I want to make an Aristotelian or Burkean argument about the ethical habits of both citizens and state institutions. Such habits are fragile, as torture's explosion in the "War of Terror" demonstrates. Jane Mayer has written about how Brigadier General Patrick Finnegan, then dean at West Point, led a delegation to the producers of the TV show "24" (literally a "ticking" deadline), because it had convinced so many West Point cadets that torture is justified, especially as employed by the show's hero, Jack Bauer, in dealing with life-and-death emergencies. The delegation did not convince the producers to alter the program's message, and "24" has been one of the most popular shows with troops stationed abroad after 9/11. [9]  I know first hand how seriously the military takes this concern, because my father and I were invited to West Point to discuss torture with faculty and students in 2011, after our own book on the subject came out.

The point is an Aristotelian one: We cannot form a shared culture of ethical life on the basis of outlandish hypertheticals. Practical wisdom, Aristotle's  phronêsis,  depends on developing ethical judgment and decision-making around hypotheticals that are tied to circumstances that we can recognize and share as plausible touchstones for life as we live it, so that when an exception does occur, we can deal with it precisely as an exception. Hypertheticals, such as Naked Jenny, or torturing innocent children, have the effect of unhinging practical wisdom from the historical context that any robust community of shared norms must learn to inhabit. They are a Trojan Horse: by accepting a remote possibility as setting the standard for action, the everyday and ordinary are utterly transformed. This is why an institution like West Point depends on a code of honor and on absolutes such as the prohibition on torture: a  presumptive inconceivability  imbues both individuals and communities with the requisite ethical intuitions, even if in rare cases these may be up‑ended.

But after 9/11, is a nuclear bomb planted in a city still just a hyperthetical? Maybe not. Torture is a problem from hell.  It   tortures   us  by putting cherished principles on the rack and forcing us to give in to exceptions. Torture  is  in fact worse than killing in this sense: history matters ,  context matters, and at this time in our history, it is torture -- not killing, not rape, and certainly not disintegration ray guns and killer vaginas -- that threatens to overturn principles vital to the foundation of liberal democracy. This is no hyperthetical concern, given the spread of torture under Bush. I will cede to Steinhoff that there are conceivable and isolated  hypotheticals , such as the Mook case, and now, horrifyingly, the planted nuclear bomb, that could make torture justified in self‑defense. But just as Steinhoff calls himself a threshold deontologist, we should stand for a  threshold absolutism  on torture. We must insist on the wrongfulness of torture, even if we accept that there might be exceptional cases where the wrong may be excused. Consider the intuition that while we might give soldiers in a just war medals and a parade, we should recoil at doing this for torturers, even in something like the Mook case. Above all, we must never make such excuses  ex ante , as a matter of open law or secret policy, much less make torture permissible in war, where it will indeed metastasize. Here I disagree with Steinhoff about legalization: violations of such a foundational norm must seek pardon  ex post facto , not license  ex ante . It may seem paradoxical that the justified may still be wrong, but such paradoxes are a feature of the tragic in the human condition, and we must mark the outer limits of hell as best we can.

ACKNOWLEDGEMENTS

I am grateful for conversations with Charles Fried, Mandeep Minhas, and Jeppe von Platz, which helped me develop the ideas in this review; its faults are entirely my own.

[1]  See Pope John Paul II ,  Veritatis Splendor , section 80.

[2]  See Article 2.2 of the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .

[3]  Charles Fried and Gregory Fried,  Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror  (New York: W. W. Norton, 2010).

[4]  See Charles Fried,  Right and Wrong  (Cambridge: Harvard University Press, 1978), 10.

[5]   For example: Stephen Kershnar,  For Torture: A Rights-Based Defense  (Lanham, MD: Lexington Books, 2011).

[6]  For an account of the perceived threat level following 9/11 and the Bush administration, see Jack Goldsmith,  The Terror Presidency: Law and Judgment Inside the Bush Administration  (New York: W. W. Norton, 2009).

[7]  See  Inquiry into the Treatment of Detainees in U.S. Custody: Report of the Committee on Armed Services, United States Senate, November 20, 2008 .

[8]  For John Yoo’s remarks, see Sidney Blumenthal, “ Meek, mild and menacing ,”  Salon , January 12, 2006, retrieved May 5, 2014. 

[9]  See Jane Mayer, “ Whatever It Takes: The Politics of the Man Behind ‘24,’ ”  The New Yorker , February 19, 2007.

In Defense of Torture

NOTE: Please see my most recent thoughts on this and other controversial subjects here: Response to Controversy . —SH

Imagine that a known terrorist has planted a bomb in the heart of a nearby city. He now sits in your custody. Rather than conceal his guilt, he gloats about the forthcoming explosion and the magnitude of human suffering it will cause. Given this state of affairs—in particular, given that there is still time to prevent an imminent atrocity—it seems that subjecting this unpleasant fellow to torture may be justifiable. For those who make it their business to debate the ethics of torture this is known as the “ticking-bomb” case.

While the most realistic version of the ticking bomb case may not persuade everyone that torture is ethically acceptable, adding further embellishments seems to awaken the Grand Inquisitor in most of us. If a conventional explosion doesn’t move you, consider a nuclear bomb hidden in midtown Manhattan. If bombs seem too impersonal an evil, picture your seven-year-old daughter being slowly asphyxiated in a warehouse just five minutes away, while the man in your custody holds the keys to her release. If your daughter won’t tip the scales, then add the daughters of every couple for a thousand miles—millions of little girls have, by some perverse negligence on the part of our government, come under the control of an evil genius who now sits before you in shackles. Clearly, the consequences of one person’s uncooperativeness can be made so grave, and his malevolence and culpability so transparent, as to stir even a self-hating moral relativist from his dogmatic slumbers.

I am one of the few people I know of who has argued in print that torture may be an ethical necessity in our war on terror. In the aftermath of Abu Ghraib, this is not a comfortable position to have publicly adopted. There is no question that Abu Ghraib was a travesty, and there is no question that it has done our country lasting harm. Indeed, the Abu Ghraib scandal may be one of the costliest foreign policy blunders to occur in the last century, given the degree to which it simultaneously inflamed the Muslim world and eroded the sympathies of our democratic allies. While we hold the moral high ground in our war on terror, we appear to hold it less and less. Our casual abuse of ordinary prisoners is largely responsible for this. Documented abuses at Abu Ghraib, Guantanamo Bay, and elsewhere have now inspired legislation prohibiting “cruel, inhuman or degrading” treatment of military prisoners. And yet, these developments do not shed much light on the ethics of torturing people like Osama bin Laden when we get them in custody.

I will now present an argument for the use of torture in rare circumstances. While many people have objected, on emotional grounds, to my defense of torture, no one has pointed out a flaw in my argument. I hope my case for torture is wrong, as I would be much happier standing side by side with all the good people who oppose torture categorically. I invite any reader who discovers a problem with my argument to point it out to me. I would be sincerely grateful to have my mind changed on this subject.

Most readers will undoubtedly feel at this point that torture is evil and that we are wise not to practice it. Even if we can’t quite muster a retort to the ticking bomb case, most of us take refuge in the fact that the paradigmatic case will almost never arise. It seems, however, that this position is impossible to square with our willingness to wage modern war in the first place.

In modern warfare, “collateral damage”—the maiming and killing innocent noncombatants—is unavoidable. And it will remain unavoidable for the foreseeable future. Collateral damage would be a problem even if our bombs were far “smarter” than they are now. It would also be a problem even if we resolved to fight only defensive wars. There is no escaping the fact that whenever we drop bombs, we drop them with the knowledge that some number of children will be blinded, disemboweled, paralyzed, orphaned, and killed by them.

The only way to rule out collateral damage would be to refuse to fight wars under any circumstances. As a foreign policy, this would leave us with something like the absolute pacifism of Gandhi. While pacifism in this form can constitute a direct confrontation with injustice (and requires considerable bravery), it is only applicable to a limited range of human conflicts. Where it is not applicable, it seems flagrantly immoral. We would do well to reflect on Gandhi’s remedy for the Holocaust: he believed that the Jews should have committed mass suicide, because this “would have aroused the world and the people of Germany to Hitler’s violence.” We might wonder what a world full of pacifists would have done once it had grown “aroused”—commit suicide as well? There seems no question that if all the good people in the world adopted Gandhi’s ethics, the thugs would inherit the earth.

So we can now ask, if we are willing to act in a way that guarantees the misery and death of some considerable number of innocent children, why spare the rod with known terrorists? I find it genuinely bizarre that while the torture of Osama bin Laden himself could be expected to provoke convulsions of conscience among our leaders, the perfectly foreseeable (and therefore accepted) slaughter of children does not. What is the difference between pursuing a course of action where we run the risk of inadvertently subjecting some innocent men to torture, and pursuing one in which we will inadvertently kill far greater numbers of innocent men, women, and children? Rather, it seems obvious that the misapplication of torture should be far less troubling to us than collateral damage: there are, after all, no infants interned at Guantanamo Bay. Torture need not even impose a significant risk of death or permanent injury on its victims; while the collaterally damaged are, almost by definition, crippled or killed. The ethical divide that seems to be opening up here suggests that those who are willing to drop bombs might want to abduct the nearest and dearest of suspected terrorists—their wives, mothers, and daughters—and torture them as well, assuming anything profitable to our side might come of it. Admittedly, this would be a ghastly result to have reached by logical argument, and we will want to find some way of escaping it. But there seems no question that accidentally torturing an innocent man is better than accidentally blowing him and his children to bits.

In this context, we should note that many variables influence our feelings about an act of physical violence. The philosopher Jonathan Glover points out that “in modern war, what is most shocking is a poor guide to what is most harmful.” To learn that one’s grandfather flew a bombing mission over Dresden in the Second World War is one thing; to hear that he killed five little girls and their mother with a shovel is another. We can be sure that he would have killed many more women and girls by dropping bombs from pristine heights, and they are likely to have died equally horrible deaths, but his culpability would not appear the same. There is much to be said about the disparity here, but the relevance to the ethics of torture should be obvious. If you think that the equivalence between torture and collateral damage does not hold, because torture is up close and personal while stray bombs aren’t, you stand convicted of a failure of imagination on at least two counts: first, a moment’s reflection on the horrors that must have been visited upon innocent Afghanis and Iraqis by our bombs will reveal that they are on par with those of any dungeon. If our intuition about the wrongness of torture is born of an aversion to how people generally behave while being tortured, we should note that this particular infelicity could be circumvented pharmacologically, because paralytic drugs make it unnecessary for screaming ever to be heard or writhing seen. We could easily devise methods of torture that would render a torturer as blind to the plight of his victims as a bomber pilot is at thirty thousand feet. Consequently, our natural aversion to the sights and sounds of the dungeon provide no foothold for those who would argue against the use of torture.

To demonstrate just how abstract the torments of the tortured can be made to seem, we need only imagine an ideal “torture pill”—a drug that would deliver both the instruments of torture and the instrument of their concealment. The action of the pill would be to produce transitory paralysis and transitory misery of a kind that no human being would willingly submit to a second time. Imagine how we torturers would feel if, after giving this pill to captive terrorists, each lay down for what appeared to be an hour’s nap only to arise and immediately confess everything he knows about the workings of his organization. Might we not be tempted to call it a “truth pill” in the end? No, there is no ethical difference to be found in how the suffering of the tortured or the collaterally damaged appears.

Opponents of torture will be quick to argue that confessions elicited by torture are notoriously unreliable. Given the foregoing, however, this objection seems to lack its usual force. Make these confessions as unreliable as you like—the chance that our interests will be advanced in any instance of torture need only equal the chance of such occasioned by the dropping of a single bomb. What was the chance that the dropping of bomb number 117 on Kandahar would effect the demise of Al Qaeda? It had to be pretty slim. Enter Khalid Sheikh Mohammed: our most valuable capture in our war on terror. Here is a character who actually seems to have stepped out of a philosopher’s thought experiment. U.S. officials now believe that his was the hand that decapitated the Wall Street Journal reporter Daniel Pearl. Whether or not this is true, his membership in Al Qaeda more or less rules out his “innocence” in any important sense, and his rank in the organization suggests that his knowledge of planned atrocities must be extensive. The bomb has been ticking ever since September 11th, 2001. Given the damage we were willing to cause to the bodies and minds of innocent children in Afghanistan and Iraq, our disavowal of torture in the case of Khalid Sheikh Mohammed seems perverse. If there is even one chance in a million that he will tell us something under torture that will lead to the further dismantling of Al Qaeda, it seems that we should use every means at our disposal to get him talking. (In fact, The New York Times has reported that Khalid Sheikh Mohammed was tortured in a procedure known as “water-boarding,” despite our official disavowal of this practice.)

Which way should the balance swing? Assuming that we want to maintain a coherent ethical position on these matters, this appears to be a circumstance of forced choice: if we are willing to drop bombs, or even risk that rifle rounds might go astray, we should be willing to torture a certain class of criminal suspects and military prisoners; if we are unwilling to torture, we should be unwilling to wage modern war.

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A Light that Burns to the Bone: Trauma and Banality in Jean Améry’s Essay on Torture

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The essay explores the epiphanic qualities of trauma in Jean Améry’s account of torture. For Améry, torture emerges as a site of revelation in which a fundamental gap is exposed between the two poles of human existence: the figural capacity to represent and raw, unmediated experience. Employing this critical distinction, Améry challenged Arendt’s notion of “the banality of evil” in a phenomenological analysis drawn from his own experience. The essay argues that although Améry manages to offer a phenomenological account of torture, it is not because of a successful conceptual distinction between the “real” and the “abstract,” but rather, and involuntarily, because of the reenactment of a traumatic repetition in his text. This essay exposes the conceptual deficiencies that underlie Améry’s phenomenological account of trauma, but at the same time it also argues that the “contamination” of Améry’s thought by trauma does not render his key conceptual distinctions invalid or self-defeating. Rather, his analysis ultimately sheds light on elusive aspects of the psychological motivations of Nazi perpetrators, aspects that remain outside the purview of the factual-historical account. By identifying torture as the “essence” of National Socialism, Améry lays emphasis on the calculated, illicit exercise of sovereign power in the hierarchical chain of Nazi officials. (NP)

In recent decades, the increasing role of survivors’ testimonies in Holocaust scholarship has posed persistent challenges to the practice of historiography as a factually accurate account of the past. The basic approach to the problem of Holocaust testimony first emerged in the Nuremberg trials, where the prosecution came to establish the guilt of Nazi perpetrators based on “objective” records and written documents rather than on the “subjective” testimonies of survivors and witnesses. Justice Robert Jackson, the chief prosecutor and architect of the Nuremberg trials, exemplified this approach when he wrote: [I]t seemed to me that witnesses, many of them persecuted and hostile to the Nazis, would always be chargeable with bias, faulty recollection, and even perjury. The documents could not be accused of partiality, forgetfulness, or invention, and would make the sounder foundation, not only for the immediate guidance of the tribunal, but for the ultimate verdict of history. 1

The Nuremberg trials thus focused on the war criminals and left out the story of the victims. As the historian Annette Wieviorka writes, “witnesses had not been called on to tell their stories, to move the judges or the public present at the trial, but essentially to confirm, comment on, and supplement the content of written documents” (Wieviorka, 67). This approach reflected a more general postwar tendency, in Israel and in the United States, to avoid the presentation of Holocaust testimonies in the public sphere. 2 The Eichmann trial, which took place in Jerusalem in 1961, marked a subtle shift in this state of affairs. The decision of the Israeli chief prosecutor, Gideon Hausner, to include the testimonies of Holocaust survivors in the trial brought the survivors into international public attention and helped secure their status as “bearers of history.” Wieviorka summarizes this transformation as follows: “with the Eichmann trial, the witness became an embodiment of memory [ un homme-mémoire ], attesting to the past and to the continuing presence of the past” (Wieviorka, 88). By creating a social demand for testimonies, the trial freed the victims to speak openly about their experiences and helped them attain dignity and public recognition. But in the aftermath of the Eichmann trial, the advent of survivor testimonies also posed significant challenges for Holocaust scholarship.

The testimonies in the Eichmann trial threw into relief a fundamental gap between the factual or historically “objective” account of the Holocaust and the “subjective” experience of those who survived it. Although we have come to know the minute details of the extermination process through the pioneering work of historians such as Raul Hilberg, Lucy Dawidowicz, and Saul Friedländer, survivor testimonies still defy our capacity to understand this event in terms of the lived experience of the victims. Giorgio Agamben called this discrepancy between fact and experience “the aporia of Auschwitz,” which is “the very aporia of historical knowledge: a non-coincidence between facts and truth, between verification and comprehension” (Agamben, Remnants , 12). The advent of survivor testimonies in the Eichmann trial marked a shift in the dominant conception of Holocaust representation, and in the following years two distinct conceptual frameworks emerged in Holocaust studies: one that places emphasis on the historiography of the “final solution,” striving to attain a better understanding of the events and objective processes that led to the mass extermination of Jews; and the other, which addresses the Holocaust from the point of view of the victims. Over the past fifty years, the disjunction between these two approaches has generated conflicts between “history” and “memory” in Holocaust studies: between historians, on the one hand, and psychoanalysts and literary scholars on the other (Hirsch and Spitzer, 400).

Undoubtedly, the seminal text in the polemics of “history” and “memory” in Holocaust scholarship is Hannah Arendt’s Eichmann in Jerusalem: A Report on the Banality of Evil (1963). Arendt was present at the trial as a reporter for the New Yorker, and she subsequently presented a critical evaluation of what she saw as the exaggerated role of witnesses in the judicial process. To begin with, Arendt objected to the way in which the trial was framed, in focusing on the victims rather than on the criminal himself: ‘‘Eichmann was on the stand from June 20 to July 24, or a total of thirty-three and a half sessions. Almost twice as many sessions, sixty-two out of a total of a hundred and twenty-one, were spent on a hundred prosecution witnesses who, country after country, told their tales of horror’’ (Arendt, 223). Shoshana Felman summarized the three fundamental objections that Arendt raised to the prosecution’s choice of witnesses in the following terms: first, the witnesses were not selected for their relevance to Eichmann’s crimes, but for the purposes of painting a larger picture of the Nazi persecution of Jews; moreover, the prosecution seemed to prefer witnesses of prominence—writers and public speakers—rather than “ordinary” people; and, finally, the prosecution’s choice of witnesses was guided by the sensational effects provided by their testimonies, illustrating an attempt to “[transform] testimony into a theatrical event that parasitizes the trial” (Felman, Juridical , 140–1).

Arendt objected to the prosecution’s attempt to construct an alternative historical narrative of the victims that emphasized Eichmann’s crimes against the Jewish people, rather than his crimes against humanity. The problem for her was that “at no point […] either in the proceedings or in the judgment, did the Jerusalem trial ever mention even the possibility that extermination of whole ethnic groups—the Jews, or the Poles, or the Gypsies—might be more than a crime against the Jewish or the Polish or the Gypsy people, that the international order, and mankind in its entirety, might have been grievously hurt and endangered”(Arendt, 275–6). Arendt sharply criticized the prosecution’s attempt to turn the Eichmann trial, by means of numerous testimonies, into a Jewish nationalist trial. Instead, as Felman notes, “she wanted [the trial] to tell the story of totalitarianism and of totalitarian crimes against humanity, rather than the story of the Jewish tragedy and of the crime against the Jewish people” (Felman, Juridical , 138). Arendt’s positions regarding the Eichmann trial drew much criticism, and some have even accused her of Jewish “self-hatred.” 3 The more substantial claims, however, addressed the gap between the “subjective” experience of the victims—which Arendt found so distasteful—and the “objective” factuality of the documentary-historical approach.

Because Arendt’s book was so controversial, it helped inaugurate a debate on the historical and legal value of survivor testimonies that later emerged in the writings of scholars such as Felman and Agamben (see also Laub, 75–92; Hartman, 133–172; Lacapra). This essay focuses on one of the early responses to Arendt, in which the encounter between “history” and “memory” was staged around the question of torture. Jean Améry, a survivor of three concentration camps, challenged Arendt’s notion of “the banality of evil” in his phenomenological analysis of Nazi torture—an analysis based on his first-hand experience. Certainly, the fact that experiences such as Améry’s were no longer taboo in public discourse helped him formulate and better define his own position vis-à-vis Arendt and the emerging literature of Holocaust testimony. The collection of his early essays on the Holocaust, entitled Jenseits von Schuld und Sühne (1966; the English title is At the Mind’s Limits ), thus aimed to portray the “subjective state of the victim” (Améry, 64). As Améry himself admits, this critical approach emerged in the aftermath of his failure to employ “objective” criteria when writing about the Holocaust: If in the first lines of the Auschwitz essay I had still believed that I could remain circumspect and distant and face the reader with refined objectivity, I now saw that this was simply impossible. Where the word “I” was to have been avoided completely, it proved to be the single useful starting point. I had planned a contemplative, essayistic study. What resulted was a personal confession refracted through meditation. […] Confessing and meditating, I arrived at an examination or, if you will, a phenomenological description of the existence of the victim (Améry, xiii).

The synthesis of testimony and phenomenological analysis remains one of the hallmarks of Améry’s thought, and with this critical perspective he sought to give expression to the authentic voice of a survivor and to distinguish it from the authoritative accounts of those who did not experience the Holocaust first-hand. As W. G. Sebald wrote, “what raised Améry’s work above the literary activity surrounding it was the way in which he tried to break through the silence imposed on him by [Nazi] terrorism, in the face of a situation where those who came after the Fascist regime, and were at most only indirectly affected themselves, were usurping the victims’ cause” (Sebald, 147–8). For Améry, Arendt would have been such a “usurper,” whose concept of “the banality of evil” was an attempt to explain Nazi crimes from an abstract perspective of a detached observer, a perspective that ultimately deemed itself more “objective” than the direct experience of the victims.

By presenting a phenomenological analysis drawn from his own experience, Améry challenged the assumption that survivor testimonies are unreliable because they are subject to “partiality, forgetfulness, or invention” (Jackson, xxxv). At the same time, his analysis also called into question Arendt’s dismissive assessment of survivor testimonies as an extraneous drama imposed upon the judicial process. But Améry’s insistence on the sphere of critical thought as a legitimate arena for the articulation of testimony stands in sharp contrast not only to the dispassionate “historical” approach in Holocaust studies, but also to attitudes shared by contemporary scholars who, in different ways, have insisted on the irreducible value of Holocaust survivor testimony. In contrast to Améry, writers such as Cathy Caruth, Dori Laub, and Giorgio Agamben have come to valorize the nonverbal “transmission” of experience and ultimately silence itself as a supreme testimonial act. Thomas Trezise rightly observes that despite their validation of Holocaust “memory,” these scholars’ attitudes have ultimately had a “silencing effect on Holocaust survivor testimony or alternative responses to it” (Trezise, 2–3). Améry’s approach is markedly different: he refuses to remain silent and insists on the testimonial act, not in order to reveal a latent core of historical truth, but to confront that which eludes figural representation and resists assimilation into an objective historical framework: the trauma of the victim.

Although Améry himself does not explicitly discuss trauma in his writings (and, in fact, insisted that he was not traumatized), his analysis of torture nevertheless sheds light on crucial aspects of an event whose reality exceeds the sum of its factual elements. Améry’s phenomenological analysis is oriented precisely to this traumatic “excess” in the experienced reality of the Holocaust. By analyzing the various elements that constitute the real—the objects of experience, rather than the psyche of the experiencing subject— he sought to produce an existential description of the “subjective state of the victim.” The question remains to what extent this endeavor was successful by Améry’s own standards: was he able to sublate his experience into a phenomenological analysis, or did some aspects of his thought remain “contaminated” by what Felman has called “occurrences that have not settled into understanding or remembrance”? (Felman, Testimony, 5) When we examine the persisting impact of trauma in Améry’s essay on torture, we therefore look “not only [at] the reality of the violent event but also [at] the reality of the way that its violence has not yet been fully known,” as Cathy Caruth wrote (Caruth, 6). In other words, Améry’s testimony begins where the phenomenological analysis fails. But this failure cannot simply be reduced to a nonverbal “transmission” of experience. Instead, the analysis of trauma in Améry’s essay on torture will uncover a fundamental failure to address the “reality” of torture, a failure that ultimately points to a void of experience rather than to any substantial affirmation of the real. The analysis of trauma in Améry’s essay will thus yield an alternative reading of the text, a reading that tells the story of the mental devastation suffered by the victims of the Nazis, and sheds light on the operation of sovereign power in National Socialism.

In his essay on torture, Améry’s analysis is framed by a fundamental dichotomy between the capacity to represent an event in discourse, thought, or imagination and the irreducible reality of lived experience. This dichotomy is not directly related to torture—at least not initially—but instead emerges out of the shock of “being there.” Thus, Améry describes his arrest by the Gestapo and subsequent incarceration at Fort Breendonk in terms of an incompatibility between representation and lived experience: That someone is carried away shackled in an auto is “self-evident” only when you read about it in the newspaper and you rationally tell yourself, just at the moment when you are packing fliers: well of course, and what more? It can and it will happen like that to me someday, too. But the auto is different, and the pressure of the shackles was not felt in advance, and the streets are strange, and although you may previously have walked by the gate of the Gestapo headquarters countless times, it has other perspectives, other ornaments, other ashlars when you cross its threshold as a prisoner. Everything is self-evident, and nothing is self-evident as soon as we are thrust into a reality whose light blinds us and burns us to the bone (Améry, Limits , 26).

In this passage, the “objective” account of the incarceration as it appears in the newspaper report fails to capture the decisive experiential dimension in which the event takes place; namely, the Dasein of the prisoner. In its “self-evident” banality, the newspaper report promotes the false impression that factual knowledge of the event is interchangeable with, or equivalent to, the actual experience of the event. By the same token, the faculty of the imagination proves to be equally inadequate when it comes to addressing the reality of the arrest. Améry writes that “so many reports by former Gestapo prisoners had reached my ears that I thought there could be nothing new for me in this area. What would take place would then have to be incorporated into the relevant literature, as it were. Prison, interrogation, blows, torture; in the end, most probably death” (Améry, Limits , 25). In both cases, the experienced reality of the event shatters the abstract representational figure, both objective and imaginative, that was previously encountered in what Améry calls “the codified abstraction” of everyday reality (Améry, Limits , 26). In relation to this inherent abstractness of the everyday, J. M. Bernstein clarifies that Améry does mean to say that normally we encounter events, objects, and others through categories, concepts, habits, and practices that are indifferent to their sensuous uniqueness and affective charge because, normally, sensuous particularity and affective significance are not at issue in the encounter. Codified abstraction corresponds to the pragmatically interested way in which we routinely negotiate the world (Bernstein, 83).

In the reality of arrest and torture, ordinary objects are torn from their familiar, everyday context, but are not assimilated into a new conceptual or pragmatic framework. Instead, the experience of arrest involves a pervasive sense of estrangement from the ordinary and the quotidian. Améry notes that the Gestapo car is “different” [ anders ]; the streets are “strange” [ fremd ]; and the Gestapo headquarters, although familiar, presents at the moment of arrest “other perspectives” [ andere Perspektiven ] (Améry, Jenseits , 48). The strangeness of everyday objects reveals an unresolvable tension between the figural matrix of the ordinary and the irreducible singularity of “being there.” This strangeness carries the force of an iconoclastic revelation in which the very figure of the world is transformed. This is readily apparent from the epiphanic terms that Améry employs to describe the fracture in his own subjectivity: “a reality whose light blinds us and burns us to the bone” [ eine Wirklichkeit, deren Licht uns blind macht und bis ins Mark versehrt ] (Améry, Jenseits , 48). Significantly, the “reality” to which Améry refers is “blinding” and devoid of form. Belonging in the realm of raw, unmediated experience, it is inherently non-representable. The figural (or “objective”) representation, on the other hand, is inherently communicable, but is devoid of the experiential dimension of the “real.”

In her book on Améry, Magdalena Zolkos notes that “the unanticipated strangeness of place and materiality, which the subject of torture experiences, points to a traumatic wounding” that “comes to signify a moment of revelation and, thereby, also of an epistemic ‘grounding’” (Zolkos, 53; emphasis in the original). Although Zolkos is certainly right in pointing to the revelatory capacity of trauma in Améry’s essay, she goes on to ascribe its effect to a “temporal discontinuity,” with little textual evidence to support her claim. Indeed, the “temporal discontinuity” of trauma belongs in an external, pseudo-clinical assessment of Améry’s psychological state that remains divorced from the terms in which Améry himself understood and described his own condition. As we will see, Améry was highly suspicious of such a “clinical” conceit among critics of his work, but he nevertheless locates a seminal fracture in his own subjective life with what he perceives as an unmediated encounter with the “real,” an encounter that also carries an implicit “Jewish” resonance in its iconoclastic thrust.

This theological resonance, in which the non-representable “real” reveals itself once the false image of the world has been shattered, underlies Améry’s objection to Arendt’s notion of the “banality of evil” as an explanation for the psychological motivations of Nazi perpetrators. As he writes: “when an event places the most extreme demands on us, one ought not to speak of banality. For at this point there is no longer any abstraction and never an imaginative power that could even approach its reality” (Améry, Limits , 25–6). Améry argues that the conceptual framing of Nazism as “banality” places it squarely within the communicable realm of objective representation and imaginative construction, and removes it from the purview of the real. More importantly, however, the designation of Nazism as the “banality of evil” seems to exclude Nazis from the dimension of “being-there” when they committed their atrocities. Nazism as a form of banality would then imply that Nazis lacked a Dasein— that they were not authentically “there”—in which case they would be relieved not only of intentionality, but also of psychological responsibility for their crimes. Along these lines, Arendt has argued that there was no malicious intent on the part of Eichmann beyond personal advancement and loyalty to the Führer, which were not evil in themselves. The evil that he perpetrated was the result of the fact that Eichmann “never realized what he was doing”: He was not stupid. It was sheer thoughtlessness—something by no means identical with stupidity— that predisposed him to become one of the greatest criminals of that period. And if this is “banal” and even funny, if with the best will in the world one cannot extract any diabolical or demonic profundity from Eichmann, that is still far from calling it commonplace. […] such remoteness from reality and such thoughtlessness can wreak more havoc than all the evil instincts taken together (Arendt, 287–8).

Améry, of course, utterly rejects such a view of Nazi psychological motivations. Following Georges Bataille, he claims that Nazism was a form of sadism predicated on “the radical negation of the other.” Rather than a product of “thoughtlessness,” the evil perpetrated by the Nazis was intentional and involved the conscious wish on the part of the Nazi to “realize his own total sovereignty” through the destruction of other human beings (Améry, Limits , 35). Torture was no invention of National Socialism. But it was its apotheosis. The Hitler vassal did not yet achieve his full identity if he was merely quick as a weasel, tough as leather, hard as Krupp steel. No Golden Party Badge made of him a fully valid representative of the Führer and his ideology, nor did any Blood Order or Iron Cross. He had to torture , destroy, in order to be great in bearing the suffering of others. He had to be capable of handling torture instruments, so that Himmler would assure him his Certificate of Maturity in History; later generations would admire him for having obliterated his feelings of mercy (Améry, Limits , 30).

In contrast to Arendt’s claim that Nazi evil was mediated through the banality of a vast bureaucratic system in which crimes against humanity appeared as a matter of everyday office work, Améry refers in this passage to Heinrich Himmler’s Posen speech of October 4 th , 1943, in which he alluded to the very “real” dimensions of the extermination of Jews. In this context, it would be worthwhile to take a close look at the relevant part of Himmler’s speech that Améry alludes to: I am talking about the “Jewish evacuation”: the extermination of the Jewish people. […] And then along they all come, all the 80 million upright Germans, and each one has his decent Jew. They say: all the others are swine, but here is a first-class Jew. And none of them has seen it, has endured it. Most of you will know what it means when 100 bodies lie together, when there are 500, or when there are 1000. And to have seen this through, and—with the exception of human weaknesses—to have remained decent, has made us hard and is a page of glory never mentioned and never to be mentioned (Himmler).

Surprisingly, the same fundamental dichotomy between the “real” and the “abstract” representation recurs in Himmler’s speech to the SS officers. When Himmler calls for the obliteration of any feelings of mercy toward Jews, he mockingly refers to the “80 million upright Germans,” each with their own individual “first-class Jew” that they would like to spare; resulting, of course, in no extermination at all. It is only the SS elite, who have “seen it, [have] endured it” [ zugesehen, es durchgestanden ], who are able to extricate themselves from the abstractions of everyday life and carry out the difficult task of extermination. But what is the consequential “it” [ es ] that the SS officers have seen and endured? Precisely the non-representable “reality” to which Améry bears witness in his account of torture. Thus, both victim and perpetrator share the shattering revelation of the “real” out of the banality of the ordinary. Despite Améry’s insistence that “no bridge leads from the [martyred] to the [tormentors]” (Améry, Limits , 34), the encounter with the “real” forms a zone of continuity between the Jewish victim and the Nazi perpetrator. This is the “gray zone,” an area of contamination and ambiguity that, according to Primo Levi, belongs to “an infernal system such as National Socialism” that degrades its victims and “makes them resemble itself” (Levi, 40). To be sure, this zone of ambiguity by no means serves as a ground of identity between perpetrators and victims, 4 but in Améry’s case the conceptual framework and the language employed by the victim bears a stark resemblance to those of his tormentors. Paradoxically, Améry’s judgment of Arendt, that she “knew the enemy of mankind [ den Menschenfeind ] only from hearsay, saw him only through the glass cage” (Améry, Limits , 25) could apply—from the perspective of the Nazi perpetrator, and with reference to Jews—to Himmler’s “80 million upright Germans.”

The disturbing parallels in the conceptual and linguistic categories employed by Améry and his Nazi tormentors demonstrate the inherent difficulty for critical thought to extricate itself from “occurrences that have not settled into understanding or remembrance,” and that continue to haunt the survivors in the aftermath of the Holocaust. The problem does not lie in the philosophical validity of Améry’s arguments nor in his critique of Arendt, but rather in his inability to recognize the fateful similarities between his own account and the discourse of Nazi perpetrators. This failure, of course, does not imply any moral equivalence between perpetrator and victim, but it does point to the belated effect of traumatic events on critical thought. Thus, although Améry provides an important phenomenological description of torture, in doing so he also stages an “unwitting reenactment of an event that one cannot simply leave behind” (Caruth, 2). In critical literature, such an unconscious reenactment is generally understood as a symptom of trauma. Ruth Leys has succinctly summarized the effects of trauma on the psyche in the following terms:

Post-traumatic stress disorder is fundamentally a disorder of memory. The idea is that, owing to the emotions of terror and surprise caused by certain events, the mind is split or dissociated: it is unable to register the wound to the psyche because the ordinary mechanisms of awareness and cognition are destroyed. As a result, the victim is unable to recollect and integrate the hurtful experience in normal consciousness; instead, the victim is haunted or possessed by intrusive traumatic memories. The experience of the trauma, fixed or frozen in time, refuses to be represented as past, but is perpetually reexperienced in a painful, dissociated, traumatic present (Leys, 2).

Notably, Améry himself emphatically rejects such a designation of his mental state by arguing: “I […] am not ‘traumatized,’ but rather my spiritual and psychic condition corresponds completely to reality [ Realität ].” 5 The insistence on the term “reality” in the context of trauma, as well as the recurrence of the term in the torture essay (appearing in the German original either as “Realität” or “Wirklichkeit” ), where it is contrasted with the banality of the everyday (Améry, Jenseits , 48–9; 53), suggest that the “real” forms the locus of an epiphanic dimension of trauma in Amery’s thought. This “reality,” which is coextensive with torture, continues to be felt in the present, long after the event has ended. This is made abundantly clear in such statements as “whoever was tortured, stays tortured” (Améry, Limits , 34), and “it still is not over. Twenty-two years later I am still dangling over the ground by dislocated arms, panting, and accusing myself” (Améry, Limits , 36). In these cases, Améry seems to unwittingly articulate the reality of traumatic repetition, despite his explicit insistence to the contrary.

One of the remarkable aspects of Améry’s thought that emerge in light of these considerations is the way in which he was able to produce an incisive phenomenological analysis of torture while remaining oblivious to its psychological implications. This paradoxical coincidence of extreme awareness and extreme unawareness may be considered as one of the distinctive traits of Améry’s analysis of torture. In order to gain insight into the problematic status of trauma as a simultaneously repressed and epiphanic event in Améry’s analysis, we must begin by looking into its sublimated formulations in his discussion of the “real” in torture. After attempting to establish what “reality” comes to mean for Améry, we would be able to assess its relation to trauma. And nowhere do the essential aspects of this “reality” come out more vividly than in Améry’s analysis of the “loss of trust in the world.” Not much is said when someone who has never been beaten makes the ethical and pathetic statement that upon the first blow the prisoner loses his human dignity. I must confess that I don’t know exactly what that is: human dignity. […] I don’t know if the person who is beaten by the police loses human dignity. Yet I am certain that with the very first blow that descends on him he loses something we will perhaps temporarily call “trust in the world.” Trust in the world includes all sorts of things: the irrational and logically unjustifiable belief in absolute causality perhaps, or the likewise blind belief in the validity of the inductive inference. But more important as an element of trust in the world, and in our context what is solely relevant, is the certainty that by reason of written or unwritten social contracts the other person will spare me—more precisely stated, that he will respect my physical, and with it also my metaphysical, being. The boundaries of my body are also the boundaries of my self. My skin surface shields me against the external world. If I am to have trust, I must feel on it only what I want to feel.

At the first blow, however, this trust in the world breaks down. The other person, opposite whom I exist physically in the world and with whom I can exist only as long as he does not touch my skin surface as border, forces his own corporeality on me with the first blow. He is on me and thereby destroys me. It is like a rape, a sexual act without the consent of one of the two partners (Améry, Limits , 27–8).

It is no coincidence that Améry begins his account of “the first blow” by contrasting the reality of his own experience with the lofty words addressing the loss of human dignity in torture, uttered by “someone who has never been beaten” [ irgendein Ungeprügelter ]. The discourse of human dignity thus clearly belongs in the realm of abstraction that Améry identifies with the “historical” approach in Holocaust studies, practiced by those who experienced Nazi evil only second-hand, through the safe distance of the “glass cage.” For Améry, this notion of human dignity is based on a “blind belief” in the goodwill of others and their respect for one’s physical and metaphysical being. The first blow discloses a new reality: it “brings home to the prisoner that he is helpless.” Even when one contemplates torture and death in the cell, one does not anticipate these possibilities as “certainties” (Améry, Limits , 27). With the first blow, the victim realizes that the tormentors are allowed to do with him what they will, and this realization, as Ilit Ferber notes, shatters every possible framework in which the person exists: “world, time, others” (Ferber, 5). The brutal shattering of the “axes of [the subject’s] traditional frames of reference” (as Améry puts it in Limits , 19), occurs in the flash of an instant, disclosing a reality in which the premise of physical and mental integrity is revealed as an unfounded abstraction. For this reason, there is also no possibility of transcending the pain of torture, simply because any hope that the pain will be overcome, or that help is on the way, is equally banal and detached from reality. For Améry, “loss of trust in the world” implies a negative epiphany in which one’s own vulnerability is revealed to oneself, along with the unbridgeable gap by which this vulnerability is removed from the ordinary and quotidian.

Améry goes on to compare the reality of the first blow to rape, a sexual act in which the border between self and other is breached. This border is quite literally located on the level of skin surface, and once breached, the distinction between the external world and internal experience collapses, bringing about what the psychoanalyst Ghislaine Boulanger calls a “state of mindlessness” characteristic of trauma (Boulanger, 21–31). This definition corresponds to Améry’s own account, in which the tormentor “destroys” the victim’s subjective life by imposing his corporeality on the victim, thus completing “the transformation of the person into flesh” and rendering the tortured person into “a body, and nothing else beside that” (Améry, Limits , 33). Although Améry registers the traumatic absence of mental experience in torture, he locates this absence within the purview of a philosophical dichotomy between the “reality” of helplessness and the banality of a “loss of human dignity.” In Améry’s account, trauma itself is thus “rescued” from its inherent futility as a personal psychological disorder, not by being resolved in any way, but through its sublation into a philosophical scheme that addresses larger questions of “reality” and human existence.

We have already seen how Améry unwittingly exposed his phenomenological account to external influences by investing trauma with the epiphanic qualities of the “real.” In his description of “the first blow,” the conceptual framework implicitly appropriated is Freud’s theory of trauma. Améry’s insight that the “skin surface shields me against the external world,” and that the “real” is disclosed once this surface is breached, echoes Freud’s notion of the “stimulus barrier” in Beyond the Pleasure Principle . In this work, Freud posited the existence of a protective layer designed to shield the organism from exposure to excessive amounts of stimuli from the external world which would otherwise disrupt its internal psychic organization: We describe as ‘traumatic’ any excitations from outside which are powerful enough to break through the protective shield. It seems to me that the concept of trauma necessarily implies a connection of this kind with a breach in an otherwise efficacious barrier against stimuli. Such an event as an external trauma is bound to provoke a disturbance on a large scale in the functioning of the organism’s energy and to set in motion every possible defensive measure. At the same time, the pleasure principle is for the moment put out of action. There is no longer any possibility of preventing the mental apparatus from being flooded with large amounts of stimulus, and another problem arises instead— the problem of mastering the amounts of stimulus which have broken in and of binding them, in the psychical sense, so that they can then be disposed of (Freud, 23–4).

According to Freud, trauma is caused by a breach in the stimulus barrier, which results in the flooding of the psyche with excessive stimulation, effectively shattering the boundary between inside and outside and fracturing the unity and identity of the ego. Freud’s description of the ego’s failure to “bind” stimuli is particularly illuminating in this context, because it lays bare the conceptual infrastructure implicitly at work in Améry’s account of “the first blow,” and that ultimately also underlies his analysis of the Nazi regime itself. In Freudian theory, binding [ Bindung ] refers to the process leading to the formation of stable, homogenous unities or masses, chiefly exemplified by the establishment of the unity of the ego out of sporadic psychic energies (Laplanche and Pontalis, 50–2). 6 Ordinarily, the bound mass of the ego exerts an inhibitory or binding effect on other, “untamed” mental processes that involve an unpleasure affect. But in the case of trauma, the ego is no longer able to bind the destructive external quantities of excitation that have breached through the protective shield in order to master them and assimilate them into itself. Instead, the ego undergoes a painful process of unbinding [ Entbindung ],in which its stability and cohesion are compromised. This description of the traumatic process bears special relevance to Améry’s analysis of torture, shedding light on the fundamental correspondence between torturer and victim. Specifically, the process by which the torturer “binds” his ego to that of the victim—that is, the very process by which the torturer’s ego is consolidated and expanded through the act of torturing—is experienced by the victim as a traumatic “unbinding” of the ego.

Although Améry insists that “for the tortured, the torturer is solely the other” who remains unapproachable (Améry, Limits , 34), he nevertheless articulates an underlying economy in which both torturer and victim are implicated. From the torturer’s perspective, torture involves the unbridled desire of the ego to “[expand] into the body of his fellow man and [extinguish] what was his spirit,” ultimately resulting in a veritable “orgy of unchecked selfexpansion” (Améry, Limits , 35–6). For the victim, the unbinding of the ego in torture implies that “the flesh becomes total reality” (Améry, Limits , 33) 7 Despite the distinctly negative character of this form of “self-realization,” the victim nevertheless gains unmediated access to the “real,” broadly conceived in epiphanic terms. Here, then, the implicit advantage of victim over torturer is formulated existentially, rather than morally or intellectually. Whereas the torturer merely experiences a narcissistic expansion of his own ego in the process of “binding,” the victim’s ego is effectively shattered as it undergoes a traumatic “unbinding”; but it is precisely through such painful shattering of the ego that the true dimensions of human existence as such are revealed. Ranging from activities of the highest intellectual order to the most debased manifestations of “bare life,” 8 the victim becomes privy to the unresolvable gap between incompatible forms of experience and representation that underlie human existence. Améry puts it in a chilling, yet concrete imagery: “a slight pressure by the tool-wielding hand is enough to turn the other—along with his head, in which are perhaps stored Kant and Hegel, and all nine symphonies, and the World as Will and Representation—into a shrilly squealing piglet at slaughter” (Améry, Limits , 35).

Thus, despite his explicit intent to present a phenomenological account of the “real” in torture, Améry provides us with a psychological economy in which the traumatic shattering of the victim’s ego is transformed into the sudden, epiphanic emergence of the “real.” Since Améry consciously rejected the implications of trauma on his psyche, its effects are never theorized in his analysis, although they remain present in it as sporadic or incidental elements. Consequently, Améry fails to conceptualize the stakes involved in the phenomenological description of his own lived experience. In his analysis, he essentially describes the splitting of the tortured subject into two unequal parts: on the one hand, we have the “codified abstraction” of everyday existence which, in its ontological dimensions, is equivalent to the capacity to represent an event in thought and discourse. This aspect of human existence assumes lesser importance in Améry’s analysis, and is contrasted with the privileged term “reality,” essentially conceived as an unmediated experience of bare life. For Améry, torture is quite simply the “event” [ Ereignis ] in which “we truly stand face to face” with “reality.” 9 But in the examples that he provides, the description of this “reality” is overshadowed by the intrinsic relation to a shattered framework of an abstract or banal existence. The epiphanic moment that is continuously reenacted in Améry’s essay—on the theoretical as well as on the experiential level—is none other than the traumatic fracture of the ego.

Yet Améry fails to realize that in this traumatic moment there are no privileged terms. Rather, both banality and reality are equally necessary for the phenomenology of torture that he illustrates. In privileging the real and its correlates, Améry remains oblivious to the fundamental importance of a traumatic void between representation and experience, abstraction and reality, banality and torture, ego and bare life. This void is both the locus of the split within the subject, and the origin from which both components in the dichotomy derive their characteristic modes of being.

Améry, of course, assumes a gap between representation and experience, but in his analysis this gap only serves in a mediating role as a caesura or break between the quotidian state of “codified abstraction” and a mental state that “corresponds completely to reality.” Although the goal of Améry’s analysis is to uncover the “real” in torture, he continuously returns in his testimony to the same constitutive moment of shattering: the shattering of the abstract figure, of the everyday, of banality, of the ego, and so on. Without realizing it, the center of gravity of the “event” that he describes is not the “real,” but the void that both separates and conjoins the abstract and the real. In this sense, Améry’s use of terms such as “event” or “reality” is profoundly misleading, because such terms designate the most concrete experience as well as the most abstract of concepts. Améry’s case is exemplary not of an “event” that remains uninternalized and unassimilated into the psyche, but of the failure of the cognitive capacity to experience an event; a failure to bear witness. His testimony confirms Dori Laub’s observation that “what precisely made a Holocaust out of the event is the unique way in which, during its historical occurrence, the event produced no witnesses . Not only, in effect, did the Nazis try to exterminate the physical witnesses of their crime; but the inherently incomprehensible and deceptive psychological structure of the event precluded its own witnessing, even by its very victims” (Laub, 80; emphasis in the original). Améry’s insistence on the “reality” of the “event” does not expose the inner truth of torture. Rather, it demonstrates the inability of the victim to bear witness, and to come to terms with, the traumatic dissolution of his own psyche.

Up to this point, the analysis of trauma has exposed certain conceptual deficiencies that underlie Améry’s phenomenological account of torture: a willful suppression of trauma; an inability to acknowledge the shared “reality” of victim and perpetrator; and an insistence on the “redeeming” epiphanic qualities of the traumatic event. These conceptual deficiencies ultimately demonstrate the “contamination” of critical thought by “occurrences that have not settled into understanding or remembrance.” But the larger question that remains unanswered concerns the implications of these conceptual deficiencies for Améry’s critical response to Arendt’s notion of the “banality of evil.” Do the inconsistencies in the testimonial and phenomenological components of Améry’s essay preclude it from serving as an adequate response to Arendt? By no means. As we will see, Améry’s phenomenology of torture sheds light on some of the most elusive aspects of the Nazi regime, aspects that generally remain outside the purview of the factual-historical account. The “contamination” of Améry’s thought by trauma does not imply that his key conceptual distinctions are invalid or self-defeating. Rather, it means that his analysis contains blind spots that are significant in themselves to the overarching description of the psychological motivations of Nazi perpetrators. In order to understand how Améry’s analysis of the Nazi regime forms a critical response to Arendt, it must be considered in light of the foregoing analysis of trauma.

Let us return, then, to the terms in which Améry criticizes Arendt’s thesis of the “banality of evil.” Améry rejects Arendt’s claim that Nazi evil was unintentional, and argues instead that it involved a conscious wish on the part of the perpetrator to “realize his own total sovereignty.” In what follows, I would like to clarify what is at stake in this form of sovereignty, since it will emerge as the most decisive contribution of Améry to the field of Holocaust studies. As we have seen, Améry compares the traumatic experience of torture to rape in which the perpetrator reduces the victim “into flesh.” Améry points out that within the matrix of social relations, the other person initially appears as a “fellow man” [ Mitmensch ] who respects the physical, as well as the metaphysical boundaries of other people. He also mentions in this context “the expectation of help, the certainty of help” as “one of the fundamental experiences of human beings, and probably also of animals” (Améry, Limits , 28). Améry conceives of this fundamental force of “fellowship” along the lines of Freud’s notion of “binding,” as a process that leads to the formation of homogenous unities. For Freud, binding does not only imply the process by which the ego is formed, but it also carries distinct social and political implications as the emotional bond that ties individuals that constitute a social group, as well as the libidinal tie of identification with the political leader, be it the Father, the Chief, or the Führer (Borch-Jacobsen, 2). Psychic binding thus emerges as the constitutive element in the establishment of one’s “trust in the world,” even though in retrospect such trust appears as a mere projection of the ego.

If binding or “human fellowship” is the libidinal force underlying the social contract, then torture would constitute its radical unmaking. In torture, the victim experiences the transformation of the “fellow man” into a “counterman” or “anti-man” [ Gegenmensch ] who breaches social and ethical boundaries by imposing himself on the other person. As Améry indicates, this traumatic unbinding of the social ties in torture implies something far worse than a regression to a Hobbesian pre-social “state of nature,” a state of war of all against all. 10 For in a “state of nature” each individual at least has the opportunity to defend himself by whatever means available against the intrusion of others on his psyche, body, or property. But in torture, the victim remains helpless and cannot defend himself against the encroachments of the other: Certainly, if there is even a minimal prospect of successful resistance, a mechanism is set in motion that enables me to rectify the border violation by the other person. For my part, I can expand in urgent self-defense, objectify my own corporeality, restore the trust in my continued existence. The social contract then has another text and other clauses: an eye for an eye and a tooth for a tooth. You can also regulate your life according to that. You cannot do it when it is the other one who knocks out the tooth, sinks the eye into a swollen mass, and you yourself suffer on your body the counter-man that your fellow man became. If no help can be expected, this physical overwhelming by the other then becomes an existential consummation of destruction altogether (Améry, Limits , 28).

Helpless in the face of state-sponsored violence, the victim is exposed to a traumatic dimension of political power and social bonds in which the violence exercised by the perpetrator cannot be reciprocated or resisted. Instead, the dissolution of the social bonds in torture implies the exposure of the victim as bare life to the sovereign jouissance of his Nazi tormentors (Santner, 15). It is through such state of abandonment by the law that the victim is rendered, in a specific sense, “creaturely.” According to Eric Santner, the dimension of the creaturely designates “the threshold where life becomes a matter of politics and politics comes to inform the very matter and materiality of life” (Santner, 12). In Améry’s analysis of Nazi torture, this politicization of life—that is, the subjection of natural life to the mechanisms of power, which Michel Foucault defined as “biopolitics” (Agamben, Sacer , 119–120)—is put in the service of a project of total domination. Thus, Améry writes that his torturers “with heart and soul went about their business, and the name of it was power, dominion over spirit and flesh” [ Macht, Herrschaft über Geist und Fleisch ] (Améry, Limits , 35–6; Jenseits , 62–3). The terms employed by Améry suggest that the “realization” of total sovereignty by the Nazi torturers was nothing other than the reverse side of the victim’s negative “self-realization” as bare life.

At the same time, Améry also notes that the kind of sovereignty at stake in Nazi torture eludes conventional definitions: The dominion of the torturer over his victim has nothing in common with the power exercised on the basis of social contracts, as we know it. It is not the power of the traffic policeman over the pedestrian, of the tax official over the taxpayer […] It is also not the sacral sovereignty of past absolute chieftains or kings.” (Améry, Limits , 39–40).

Although the practice of torture is always necessitated by formal legal or political exigencies, Améry argues that such circumstances serve as mere pretexts for the exercise of raw, unmediated power, anticipating what Elaine Scarry will later call “the fiction of power.” 11 Améry asserts that this renegade form of power is “the essence of National Socialism” (Améry, Limits , 30), but he never clarified what is at stake in this elusive designation of sovereignty. He only mentions that “the power of the torturer, under which the tortured moans, is nothing other than the triumph of the survivor over the one who is plunged from the world into agony and death” [ der aus der Welt in Qual und Tod hinausgestoßen wird ] (Améry, Limits , 40; Jenseits , 70). 12 Thus, the fundamental premise of political power as practiced by the Nazi regime is formulated in terms of presence and absence of a world. Scarry puts it in the following formula: “the absence of pain is a presence of world; the presence of pain is the absence of world” (Scarry, 37). Significantly, the difference between torturer and victim is not conceived here in juridical terms (as the absence of certain legal rights), but in ontological terms (as the absence of world in a condition of bare life). This sovereign abandonment of the victim to his pain does not strictly belong in the realm of law, but in its suspension: the threshold of law and life known as the “state of exception.” The state of exception is not identical with a “state of nature,”that is, with “the chaos that precedes order” which necessitates the exercise of sovereign power (Agamben, 18). Rather, the exception is the threshold in which what belongs to the law and what lies outside it—the normal situation and chaos—enter into a complex and ultimately unresolvable relationship in which the distinction between law and life loses its meaning. Torture takes place in this zone of indistinction between law and life, and consequently the difference in the legal stature of torturer and tortured assumes the dimensions of an existential or “natural” superiority.

In this sense, Améry was probably one of the first thinkers to offer a phenomenological description of the operation of sovereign power in a state of exception. But in identifying torture as the “essence” of National Socialism, Améry has provided us with more than just a phenomenological account. He offers us a singular insight into the inner workings of sovereign power in the Nazi regime. While we are accustomed to think of sovereignty in the context of Nazism as a form of authority encapsulated in the figure of the Führer, 13 Améry’s analysis of torture reveals that the exercise of sovereign power in a state of exception permeated the entire hierarchical chain of Nazi officials, from the highest to the lowest ranks of the SS and the Gestapo, and beyond. Indeed, the exercise of sovereign power over bare life was “essential” for National Socialism, because it was the only political system that offered its adherents access to “real” power over life—a power that emanated from the authority of the Führer himself. The freedom to exercise this form of sovereign power on various scales—from the interrogation of prisoners to the management of entire concentration camps—presented itself as a constant temptation for those working in the service of the Nazi regime. Those who succumbed to this temptation and assumed sovereign power under such conditions, did so with “the good conscience of depravity” [ mit dem guten Gewissen der Schlechtigkeit ] (Améry, Limits , 31; Jenseits , 57). For Améry, this “depravity” marks the hidden appeal of Nazism. Far from being banal, Nazism implies the illicit freedom to exercise power at the expense of those abandoned by the law. In this, perhaps, it emerges as a quintessential form of evil.

Noam Pines, Department of Jewish Thought, University at Buffalo, SUNY, 705 Clemens Hall Buffalo, NY 14260, noampine{at}buffalo.edu

↵ 1 Jackson, xxxv–xxxvi. Shoshana Felman contrasts Jackson’s “documentary approach,” which was “particularly suitable to the exposure of the monstrous bureaucratic nature of the crime and of its alibis,” with the “testimonial approach” at work in the Eichmann trial that disclosed “the thought-defying magnitude of the offense against the victims, and was particularly suitable to the valorization of the victims’ narrative perspective.” See Felman, Juridical , 132–4.

↵ 2 For an overview of the reception of Holocaust testimony in the late 1940s and 1950s, see Mintz, 3–9.

↵ 3 Arendt’s book sparked a long-lasting controversy among Israeli, European, and American scholars and intellectuals. As Anson Rabinbach noted, “to varying degrees almost all her critics took up Arendt’s most controversial points: her characterization of Eichmann as a thoughtless and ‘banal’ cipher of totalitarian rule, her judgments of the behavior of the Jewish leaders and Zionist officials in Eastern Europe, her analysis of the legal charges against Eichmann, and her accusation that the court proceedings were, in effect, a ‘show trial.’” Rabinbach, 97. For a detailed overview of the divergent aspects emphasized by various critics of Arendt, see Cohen, 46–60.

↵ 4 In this context, Levi insists on the categorical distinction between perpetrator and victim: “I do know that I was a guiltless victim and I was not a murderer. I know that the murderers existed, not only in Germany, and still exist, retired or on active duty, and that to confuse them with their victims is a moral disease or an aesthetic affectation or a sinister sign of complicity; above all, it is precious service rendered (intentionally or not) to the negators of truth.” Levi, 48–9.

↵ 5 Améry makes this claim in an essay entitled “On the Necessity and Impossibility of Being a Jew” in Limits , 99. In the German original the sentence reads as follows: “Ich […] bin nicht ‘traumatisiert’, sondern stehe in voller geistiger and psychischer Entsprechung zur Realität da.” Jenseits , 175.

↵ 6 For an important discussion of binding in a social-political context, see also Borch-Jacobsen, 4–5.

↵ 7 In German the sentence reads: “Sein Fleisch realisiert sich total in der Selbstnegation.” Jenseits , 60.

↵ 8 In line with Améry’s description, Giorgio Agamben describes “bare life” as a life “exposed and threatened on the threshold in which life and law, outside and inside, become indistinguishable.” See Agamben, Sacer , 28.

↵ 9 The German original reads: “In Wahrheit stehen wir dem Ereignis und damit der Wirk-lichkeit nur in seltenen Momenten unseres Lebens Aug in Auge gegenuber.” Jenseits , 49. In English: “Only in rare moments of life do we truly stand face to face with the event and, with it, reality.” Limits , 26.

↵ 10 As Borch-Jacobsen observes, Freud already implied the dissolution of the social bonds and the regression into a “state of nature” of civil war as the outcome of the “unbinding” of emotional ties to the leader in his Group Psychology and the Analysis of the Ego . See Borch-Jacobsen, 2.

↵ 11 In her seminal study on pain, Scarry writes that “the idea that the need for information is the motive for the physical cruelty arises from the tone and form of the questioning rather than its content: the questions, no matter how contemptuously irrelevant their content, are announced, delivered , as though they motivated the cruelty, as if the answers to them were crucial. […] It is crucial to see that the interrogation does not stand outside an episode of torture as its motive or justification: it is internal to the structure of torture, exists there because of its intimate connections to and interactions with the physical pain.” Scarry, 28–9.

↵ 12 In this passage Améry clearly anticipates Scarry’s notion of the “unmaking of the world” in the victim’s experience of pain and torture. In light of passages such as these, Améry’s absence from the phenomenology of torture that Scarry proposes in The Body in Pain is made all the more conspicuous.

↵ 13 Such an account of the absolute authority of the Führer’s words emerges, for example, in Eichmann’s testimony. See Arendt, 135–150.

• Works Cited
• Agamben Giorgio
• Giorgio Agamben
• Arendt Hannah
• Bernstein J.
• Borch-Jacobsen Mikkel
• Boulanger Ghislaine
• Caruth Cathy
• Cohen Richard I
• Felman Shoshana
• Felman Shoshana ,
• Ferber Ilit
• Freud Sigmund
• Hartman Geoffrey
• Himmler Heinrich
• Hirsch Marianne ,
• Spitzer Leo
• Jackson Robert
• LaCapra Dominick
• Laplanche Jean ,
• Pontalis Jean-Bertrand
• Rabinbach Anson
• Scarry Elaine
• Trezise Thomas
• Wieviorka Annette
• Zolkos Magdalena

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Essay on Torture for Children & Students (1393 Words)

June 6, 2018 by Study Mentor Leave a Comment

The idea of torture knows no limits. Its limit depends upon the mindset and thinking of the one holding the reins of power. It is not even a concept which is limited to any age group.

Torture is not just a physical expression but it has various forms such as, mental, sexual, etc. one can never fully understand the pain of the one who has borne the torture.

If we are to date back to the history of torture, we will realize that it has existed from the times of slavery, rather from before that. The idea of torturing the other person must have come to someone’s mind for them to initiate the practice of slavery.

Man is a social being. True. But man is also a very selfish being and this selfishness can stoop down to levels still unknown to humankind. We call ourselves very civilized and sensible beings but internally we are very crude. For fulfilling our personal needs and motives we can even harm the innocent.

What we need to understand is how this concept came into being and for that we need to define this concept first. Different people understand this concept in different light. It is a subjective concept which changes shades of darkness from one mindset to another.

Torture is basically the act of inflicting pain or severe punishment on someone, forcing them to do a particular act or simply abusing them with harsh words. All these are various forms of torture. This word has its origin in Latin, where ‘torquere’ meant ‘to twist’.

Torture can be inflicted by various tasks. Some consider slavery torturous, whereas others find the labour class to be working under torturous conditions. On a light note, those of you who are not enjoying this article, may find it torturous. If this is the case then you have understood the concept near perfect.

On a serious note, talking historically, slavery is the one of the worst forms of torture that human beings have practiced and seen. It reduced the under privileged or rather unprivileged masses into mere servants of the upper classes, just cause the latter belonged to a presumed privileged race.

Racism ruled the society back in those times and logic had no place in terms of social customs and practices. Humans did not consider the humane needs of those whom they took as their slaves. This was torture.

This sort of torture is not only limited to humans. Even animals are not spared from this. We do testing of chemicals and products on animals just to see the side effects. This act of keeping animals in cages and experimenting on them is really just a way of torturing them.

Animal testing has been banned by many brands and they work for the protection of animal rights. Nowadays it is in fashion to stand up for the rights of those who cannot stand for themselves, like the animals.

Torture does not limit itself to this. One of the goriest instances of torture have been historically witnessed in the Nazi camp of Adolf Hitler. He hated Jews so much that he constructed concentration camps at various places in Germany, then called Deutschland.

These camps contained Jews in large numbers and they were either shot head faced or killed in gas chambers. These chambers were a specialty of Hitler’s genocide practices.

These were air tight places which would be packed with people. Release of ‘Zyklon B’ would then lead to extermination of the Jews in those gas chambers. Torture is of different degrees but stripping humans of their dignity is the most severe form of torture.

When we look at the earlier essay on sexual harassment, we do realize that sexual harassment is also a form of torture. One act of torture can and often does lead to another agony. This leads to building up of either depression or revenge in the tortured person.

Most often it is the former but in some cases, it has been the latter too. Taking an instance from mythology, when Duryodhan stripped Panchaali in the courtroom full of people, she faced humiliation cause of the torture that was laid upon her. This created bitter feelings in her for the Kauravs and she pledged not to brush her hair until she washed them with Duryodhan’s blood.

So, we see how torture can lead to bitter moments and given an opportunity can change power dynamics too. It has been proven from mythological times to the second world war to current days, where the meaning of torture has changed altogether.

When we talk of torture, we really put focus on and pity the sufferers but we never look as to why does someone torture others? Is it to obtain sadistic pleasure out of it? Or some other reason? There has not been any specific research on this but the reasons to torture masses or even specific people are always contextual.

We cannot ignore the context in which the incident took place. Context always justifies the situation or action as wrong or right. We cannot afford to understand any action in its absolute terms, irrespective of the context.

Talking of torture, police custody in India is another sphere where torture is practised, at times to gather the truth of the situation and mostly to gather false testimony from innocents. Corruption has risen to such levels, as shown in Jolly LLB 2 (Bollywood Movie) where, an innocent person is tortured and made to confess that he is a terrorist. This further has an effect on the rest of his life.

One of the rare spheres where torture yields good results is the military sphere. Terrorists like Ajmal Kasab, are kept under strict vigilance and often it has been the tool of torture which has yielded important information from these terrorists.

Torturing someone is an act which feeds off the fear of the tortured. They are made into believing that they will be harmed if they do not give the required information or confess certain things. Torture also brainwashes people and makes them numb to the feelings of joy or sadness.

This example is often found in war prisoners. Talking of war prisoners, I get reminded of one of the deadliest crises of the world; the Korean crisis of 1951.

North Korea as a nation is practicing modern day torture on its citizens. It does not provide them any right to revolt or even voice their opinions. Citizens of North Korea do not have right to freedom of speech or right to freedom of expression.

They live under a very authoritarian regime, which grants them no rights but expects them to perform all their duties on time. There are severe punishments for those who disobey the state laws or even try to voice an opinion contrary to that of the state.

If we really believe that hitting someone or abusing them physically or by words, alone consists of torture; then you were wrong. Refusing to provide people something that they deserve and on top of that, to subject them to inhumane conditions is torture.

Taking a slight variation here, I would like to take an example of India. Considering the recent chain of events in India, there have been legislation’s which are anything but progressive.

We have BJP led government, which is superseded by the Hindutva ideology. We are not disregarding the work done by this government in foreign relations and other spheres but we need to look at its role critically and not blindly follow any party or government.

Developments like demonetization, banning beef in India, Dadri lynching are examples of various types of torture that the government is inflicting upon its citizens. Demonetization   was an economic torture since the policy claimed at removing black money but did not succeed in its aim.

Beef ban is a cultural torture, especially for communities which consume beef as a staple diet. This ban disallows them from practicing their food practices and cultural rituals. It is termed as torture because it is against the values of constitution, since latter is supposed to live up to the spirit of a “secular” nation.

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Vatican Document Casts Gender Change and Fluidity as Threat to Human Dignity

The statement is likely to be embraced by conservatives and stir consternation among L.G.B.T.Q. advocates who fear it will be used as a cudgel against transgender people.

By Jason Horowitz and Elisabetta Povoledo

Reporting from Rome

The Vatican on Monday issued a new document approved by Pope Francis stating that the church believes that gender fluidity and transition surgery, as well as surrogacy, amount to affronts to human dignity.

The sex a person is assigned at birth, the document argued, was an “irrevocable gift” from God and “any sex-change intervention, as a rule, risks threatening the unique dignity the person has received from the moment of conception.” People who desire “a personal self-determination, as gender theory prescribes,” risk succumbing “to the age-old temptation to make oneself God.”

Regarding surrogacy, the document unequivocally stated the Roman Catholic Church’s opposition, whether the woman carrying a baby “is coerced into it or chooses to subject herself to it freely.” Surrogacy makes the child “a mere means subservient to the arbitrary gain or desire of others,” the Vatican said in the document, which also opposed in vitro fertilization.

The document was intended as a broad statement of the church’s view on human dignity, including the exploitation of the poor, migrants, women and vulnerable people. The Vatican acknowledged that it was touching on difficult issues, but said that in a time of great tumult, it was essential, and it hoped beneficial, for the church to restate its teachings on the centrality of human dignity.

Even if the church’s teachings on culture war issues that Francis has largely avoided are not necessarily new, their consolidation now was likely to be embraced by conservatives for their hard line against liberal ideas on gender and surrogacy.

The document, five years in the making, immediately generated deep consternation among advocates for L.G.B.T.Q. rights in the church, who fear it will be used against transgender people. That was so, they said, even as the document warned of “unjust discrimination” in countries where transgender people are imprisoned or face aggression, violence and sometimes death.

“The Vatican is again supporting and propagating ideas that lead to real physical harm to transgender, nonbinary and other L.G.B.T.Q.+ people,” said Francis DeBernardo, the executive director of New Ways Ministry, a Maryland-based group that advocates for gay Catholics, adding that the Vatican’s defense of human dignity excluded “the segment of the human population who are transgender, nonbinary or gender nonconforming.”

He said it presented an outdated theology based on physical appearance alone and was blind to “the growing reality that a person’s gender includes the psychological, social and spiritual aspects naturally present in their lives.”

The document, he said, showed a “stunning lack of awareness of the actual lives of transgender and nonbinary people.” Its authors ignored the transgender people who shared their experiences with the church, Mr. DeBernardo said, “cavalierly,” and incorrectly, dismissing them as a purely Western phenomenon.

Though the document is a clear setback for L.G.B.T.Q. people and their supporters, the Vatican took pains to strike a balance between protecting personal human dignity and clearly stating church teaching, a tightrope Francis has tried to walk in his more than 11 years as pope.

Francis has made it a hallmark of his papacy to meet with gay and transgender Catholics and has made it his mission to broadcast a message for a more open, and less judgmental, church. Just months ago, Francis upset more conservative corners of his church by explicitly allowing L.G.B.T.Q. Catholics to receive blessings from priests and by allowing transgender people to be baptized and act as godparents .

But he has refused to budge on the church rules and doctrine that many gay and transgender Catholics feel have alienated them, revealing the limits of his push for inclusivity.

“In terms of pastoral consequences,” Cardinal Víctor Manuel Fernández, who leads the Vatican’s office on doctrine, said in a news conference Monday, “the principle of welcoming all is clear in the words of Pope Francis.”

Francis, he said, has repeatedly said that “all, all, all” must be welcomed. “Even those who don’t agree with what the church teaches and who make different choices from those that the church says in its doctrine, must be welcomed,” he said, including “those who think differently on these themes of sexuality.”

But Francis’ words were one thing, and church doctrine another, Cardinal Fernández made clear, drawing a distinction between the document, which he said was of high doctrinal importance, as opposed to the recent statement allowing blessings for same-sex Catholics. The church teaches that “homosexual acts are intrinsically disordered.”

In an echo of the tension between the substance of church law and Francis’ style of a papal inclusivity, Cardinal Fernández said on Monday that perhaps the “intrinsically disordered” language should be modified to better reflect that the church’s message that homosexual acts could not produce life.

“It’s a very strong expression and it requires explanation,” he said. “Maybe we could find an expression that is even clearer to understand what we want to say.”

Though receptive to gay and transgender followers, the pope has also consistently expressed concern about what he calls “ideological colonization,” the notion that wealthy nations arrogantly impose views — whether on gender or surrogacy — on people and religious traditions that do not necessarily agree with them. The document said “gender theory plays a central role” in that vision and that its “scientific coherence is the subject of considerable debate among experts.”

Using “on the one hand” and “on the other hand,” language, the Vatican’s office on teaching and doctrine wrote that “it should be denounced as contrary to human dignity the fact that, in some places, not a few people are imprisoned, tortured, and even deprived of the good of life solely because of their sexual orientation.”

“At the same time,” it continued, “the church highlights the definite critical issues present in gender theory.”

On Monday, Cardinal Fernández also struggled to reconcile the two seemingly dissonant views.

“I am shocked having read a text from some Catholics who said, ‘Bless this military government of our country that created these laws against homosexuals,’” Cardinal Fernández said on Monday. “I wanted to die reading that.”

But he went on to say that the Vatican document was itself not a call for decriminalization, but an affirmation of what the church believed. “We shall see the consequences,” he said, adding that the church would then see how to respond.

In his presentation, Cardinal Fernández described the long process of the drafting of a document on human dignity, “Infinite Dignity,” which began in March 2019, to take into account the “latest developments on the subject in academia and the ambivalent ways in which the concept is understood today.”

In 2023, Francis sent the document back with instructions to “highlight topics closely connected to the theme of dignity, such as poverty, the situation of migrants, violence against women, human trafficking, war, and other themes.” Francis signed off on the document on March 25.

The long road, Cardinal Fernández wrote, “reflects the gravity” of the process.

In the document, the Vatican embraced the “clear progress in understanding human dignity,” pointing to the “desire to eradicate racism, slavery, and the marginalization of women, children, the sick, and people with disabilities.”

But it said the church also sees “grave violations of that dignity,” including abortion, euthanasia, the death penalty, polygamy, torture, the exploitation of the poor and migrants, human trafficking and sex abuse, violence against women, capitalism’s inequality and terrorism.

The document expressed concern that eliminating sexual differences would undercut the family, and that a response “to what are at times understandable aspirations,” will become an absolute truth and ideology, and change how children are raised.

The document argued that changing sex put individualism before nature and that human dignity as a subject was often hijacked to “justify an arbitrary proliferation of new rights,” as if “the ability to express and realize every individual preference or subjective desire should be guaranteed.”

Cardinal Fernández on Monday said that a couple desperate to have a child should turn to adoption, rather than surrogacy or in vitro fertilization because those practices, he said, eroded human dignity writ large.

Individualistic thinking, the document argues, subjugates the universality of dignity to individual standards, concerned with “psycho-physical well-being” or “individual arbitrariness or social recognition.” By making dignity subjective, the Vatican argues, it becomes subject to “arbitrariness and power interests.”

Jason Horowitz is the Rome bureau chief for The Times, covering Italy, the Vatican, Greece and other parts of Southern Europe. More about Jason Horowitz

Elisabetta Povoledo is a reporter based in Rome, covering Italy, the Vatican and the culture of the region. She has been a journalist for 35 years. More about Elisabetta Povoledo