Torture, Psychoanalysis and Human Rights

Monica Luci

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781317439233
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Human Rights
• Index: Politics & International Relations

Torture, Psychoanalysis and Human Rights contributes to the development of that field of study called 'psycho-social' that is presently more and more committed to providing understanding of social phenomena, making use of the explicative perspective of psychoanalysis. The book seeks to develop a concise and integrated framework of understanding of torture as a socio-political phenomenon based on psychoanalytic thinking, through which different dimensions of the subject of study become more comprehensible.

Monica Luci argues that torture performs a covert emotional function in society. In order to identify what this function might be, a profile of 'torturous societies' and the main psychological dynamics of social actors involved – torturers, victims, and bystanders– are drawn from literature. Accordingly, a wide-ranging description of the phenomenology of torture is provided, detecting an inclusive and recurring pattern of key elements. Relying on psychoanalytic concepts derived from different theoretical traditions, including British object relations theories, American relational psychoanalysis and analytical psychology, the study provides an advanced line of conceptual research, shaping a model, whose aim is tograsp the deep meaning of key intrapsychic, interpersonal and group dynamics involved in torture.

Once a sufficiently coherent understanding has been reached, Luci proposes using it as a groundwork tool in the human rights field to re-think the best strategies of prevention and recovery from post-torture psychological and social suffering. The book initiates a dialogue between psychoanalysis and human rights, showing that the proposed psychoanalytic understanding is a viable conceptualisation for expanding thinking of crucial issues regarding torture, whichmight be relevant to human rights and legal doctrine, such as theresponsibility of perpetrators, the reparation of victims and the question of 'truth'.

Torture, Psychoanalysis and Human Rights is the first book to build a psychoanalytic theory of torture from which psychological, social and legal reflections, as well as practical aspects of treatment, can be mutually derived and understood. It will appeal to psychoanalysts, psychoanalytic psychotherapists and Jungians, as well as scholars of politics, social work and justice, and human rights and postgraduate students studying across these fields.

Part 1
The phenomenon of torture

1
Torture: What is it?

A definition of the field of inquiry

Torture seems to be an elusive subject of knowledge: its nature seems to be multifaceted, its aims manifold, and the contexts and forms of its practice diverse in space and time (Innes, 1998). Legal, philosophical and historical languages may all attribute different meanings to the same word, addressing a range of different related issues. However, the persistence of torture in the world and the impossibility so far of eradicating it make it important to recognize the necessity of narrowing a definition in order to gain a deep insight into the phenomenon (Matthews, 2008: 31).

With this purpose in mind, we need to position ourselves at intermediate distance from our subject of study, neither too close nor too far, not being distracted by the details of a too deep analysis but remaining sensitive to core distinctions. In this chapter, the attempt will be to define the field of inquiry, looking at the ‘what’, ‘who’ and ‘why’ of torture in contemporary legal definitions and in other essays on contemporary state torture. The aim is to draft a definition of the phenomenon, which will be further investigated into in the following chapters.

Torture in international law

The prohibition of torture is absolutely and fundamentally embedded within international law. It is deemed a peremptory norm or jus cogens, meaning that it cannot be abrogated by treaty law or other rules of international law, pursuant to the Vienna Convention on the Law of Treaties.¹ However, what we mean by ‘torture’ may be controversial, because there is no single definition existing under international law.

The international legislation about human rights defines the notion of torture in three main international conventions. The first instrument providing a comprehensive and clear definition of torture was the 1975 UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Article 1 Point 1 of this Declaration states:

torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed or is suspected of having committed, or intimidating him or other persons. It does not include pain or suffering arising only from, inherent in or incidental to, lawful sanctions to the extent consistent with the Standard Minimum Rules for the Treatment of Prisoners.

In Point 2,

Torture constitutes an aggravated and deliberate form of cruel, inhuman or degrading treatment or punishment.

In 1984, the UN General Assembly adopted the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment that entered into force in June 1987. Its definition of torture has become customary in international law. In Article 1 torture is defined as,

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.

Another relevant definition of torture is the one contained in the 1985 Inter-American Convention to Prevent and Punish Torture. Article 2 reads:

For the purposes of this Convention, torture shall be understood to be any act intentionally performed whereby physical or mental pain or suffering is inflicted on a person for purposes of criminal investigation, as a means of intimidation, as personal punishment, as a preventive measure, as a penalty, or for any other purpose. Torture shall also be understood to be the use of methods upon a person intended to obliterate the personality of the victim or to diminish his physical or mental capacities, even if they do not cause physical pain or mental anguish.

The concept of torture shall not include physical or mental pain or suffering that is inherent in or solely the consequence of lawful measures, provided that they do not include the performance of the acts or use of the methods referred to in this article.

Comparing conceptions of torture in international human rights law and international criminal law, both in doctrine and case law, Sir Nigel Rodley detects three props as central in our modern legal understanding of the concept of torture: 1) the intensity of pain or suffering inflicted; 2) the status of the perpetrator; 3) the question of purpose (Rodley, 2002). Similarly, in Interpretation of Torture in the Light of the Practice and Jurisprudence of International Bodies, the Office of the High Commissioner for Human Rights (OHCHR) detects four elements to be taken into account when qualifying an act as torture: 1) the nature of the act; the intention of the perpetrator; 3) the purpose; 4) the involvement of public officials or assimilated (OHCHR, 2011: 3).

The ‘what’: the pain or suffering inflicted

The issue of what constitutes torture refers to the kinds of practice used and the degree of pain or suffering caused. The OHCHR’s reference to the ‘nature of the act’ (the ‘what’), finds that the ‘legal definition of torture encompasses both acts and omissions that inflict severe pain or suffering’, and that this pain can be either physical or mental (2011: 3–4). Thus, the threat of torture or mock executions is comprised within this concept of mental suffering.²

Even if, for most legal instruments, pain and suffering must be ‘severe’, the distinction between torture and cruel, inhuman, or degrading treatment is not always clear. While the authorities suggest that pain intensity is not determinative in distinguishing between torture and other forms of ill-treatment, the intensity of force is still a substantial factor in certain situations. In case the force is used legally for a lawful purpose, and it is proportional and not excessive, it will generally not amount to cruel, inhuman or degrading treatment. The threshold for acceptable force is much lower in situations of powerlessness, such as in detention, or in other situations of direct control that similarly amount to deprivation of liberty. It is accepted that, in such a cindition, any form of physical or mental pressure or coercion constitutes at least cruel, inhuman or degrading treatment, regardless of the proportionality test (Nowak and McArthur, 2006).

Judicial attempts to interpret these concepts or to make clear distinctions have proved difficult. Rodley (2002) illustrates cases where the term ‘torture’ was referenced and others where this category was not used, although the treatment in question could have been similar, or even the same. To simply limit the discourse to the three conventions mentioned, in the 1984 United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) the reference to torture as an aggravated form of other ill-treatment is dropped and this Convention acknowledges that ‘there may be other under standings of torture that are wider than narrower’ (Rodley, emphasis in original, 2002: 476). No reference to the aggravated intensity of pain or suffering, nor to severity can be found in the Inter-American Convention to Prevent and Punish Torture (1985). No pain or suffering needs to be demonstrated where the methods used are ‘intended to obliterate the personality of the victim or to diminish his physical or mental capacities’ (Article 2). The international criminal tribunals (the International Criminal Tribunal for Rwanda and the International Criminal Tribunal for the former Yugoslavia) and the Rome Statute of the International Criminal Court dealt in several different ways with the issue of the requirement of aggravated intensity of pain or suffering to regard a crime as torture. Few cases address this distinction in the same way (see Rodley, 2002).

Despite the sometimes blurry, yet persistent, distinction between torture and other forms of ill treatment, it is clear that the UN Committee Against Torture (UNCAT) aims to guarantee the same safeguards and protection for both categories of ill-treatment: ‘Experience demonstrates that the conditions that give rise to ill-treatment frequently facilitate torture and therefore the measures required to prevent torture must be applied to prevent ill-treatment’.³ This proclamation by the UNCAT, represents a clear shift in the torture/CIDT distinction. States are now obligated to prevent torture and other forms of ill-treatment by applying the same UNCAT measures to all forms of ill-treatment, irrespective of varying levels of severity. Given this development and interpretation in international law, the choice of the word ‘severe’ must not be apprehended in a way that allows a dichotomous justification for ill-treatment in certain circumstances, while the prohibition of torture is absolute.

Ultimately, we can derive from the point debated that the ‘what’ of torture, is indisputably the pain or suffering inflicted.

The ‘who’: a public agent as perpetrator

In Article 1 of both the UNCAT and the UN Declaration on the Protection of All Persons, the perpetrator is identified in a ‘public official’. So, the typical torturer will be a law-enforcement official or member of the security or intelligence services, precisely seeking to obtain, in the course and in furtherance of his or her duties, information or confession. This is to exclude private acts for purely personal ends.

While the question of the involvement of a public official is usually straight forward, the recognition of the ‘other person acting in an official capacity’ (UNCAT) may be more problematic and delicate (OHCHR, 2011: 4). As such, the perpetrator may also be someone with no official status acting in collusion with, and to advance the purposes of public officialdom, often to shroud the responsibility of members of that officialdom. Conversely, the direct perpetrator of the torture may be acting in collusion with, and to advance the purposes of, civilian political authorities who prefer to turn a blind eye to the ‘excesses’ of law- enforcement or security officials. Since torture is normally committed in the dark and secret reaches of state power, it is likely that those involved may be able to conceal their responsibility, particularly in the light of their public functions. The UNCAT asserts that a state ‘bears inter national responsibility’ for the acts and omissions of individuals ‘acting in [an] official capacity or acting on behalf of the State’⁴ and is ‘obligated to adopt effective measures to prevent … other persons acting in an official capacity from directly committing, instigating, inciting, encouraging, acquiescing in or otherwise participating or being complicit in acts of torture as defined in the Convention.’⁵

Therefore, a public official has to be the perpetrator, directly or indirectly, for the violation of torture to be established.

The ‘why’: the purposive element

There is virtually uniform treatment of the factor of purpose as a, if not the, central component of the concept of torture. Rodley states:

Except in respect of crimes against humanity, as defined in Article 7 of the Rome Statute for the International Criminal Court … Every other instrument defining torture contains a reference to a purposive element: Article 1 of the UN Declaration and Convention against Torture, Article 2 of the Inter-American Torture Convention, and the Elements of Crimes concerning the war crime of torture under the ICC Statute in respect of international armed conflict (Article 8(2)(a)(ii).1) and of non-international armed conflict (Article 8(2)(c)(i).4).

(Rodley, 2002: 481)

In particular, the UNCAT (1984) does highlight very effectively the purposeful use of torture when inflicted as a means of obtaining information or confession, or as a punishment for a person’s pur ported act, or for intimidating or coercing a person, or due to discrimination of any kind. The OHCHR (2011) identifies the UNCAT list of different purposes for the commission of torture as a guideline, but noticing it is not exhaustive. Similarly, Koru and Hofstadter (2015) observe that, even though the purpose of torture can be categorized under headings, the content of these categories is not complete, and can be interpreted in a flexible manner. For example, an act that is inflicted on a person for the purpose of punishment can appear in various forms, such as beating, violent shaking, prolonged isolation, rape and sexual assault (Nowak and McArthur, 2008: 75).

Rodley comments (2002: 481–2) that even more explicit is the intention of the Inter-American Convention to target the purpose (to ‘obliterate the personality of the victim’, or ‘diminish his … mental capacities’, even in the absence of physical pain or mental anguish), as a characterizing feature of torture.

Torture in literature

The ‘what’: the torment

Torment, both physical and psychological, seems to be the essential concern of torture (Améry, 1980; Foucault, 1975; Innes, 1998; Korovessis, 1970; Millet, 1994; Peters, 1996; Scarry, 1985).

However, the relation between torture and pain is less obvious than it appears. Pain and stress generate reactions in humans that are better understood in terms of combinations of mental and physical processes. The body-mind dichotomy should be dropped in order to properly understand the experience of human pain. Améry (1980), who experienced torture, movingly describes the essence of pain:

The pain was what it was. Beyond that there is nothing to say. Qualities of feeling are as incomparable as they are indescribable. They mark the limit of the capacity of language to communicate.

(Améry, 1980: 33)

In torture, the elaborate and highly articulate sensory system is assaulted with the deliberate intention of triggering pain mechanisms. As Melzack and Wall (1983:...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• CONTENTS
• Acknowledgments
• Introduction
• PART 1 The phenomenon of torture
• PART 2 A psychoanalytic understanding of torture
• PART 3 Implications for human rights
• Index