To understand the basis for any
governmental action sanctioning torture, whether in tort or in
criminal law, one must not only understand the legal issues
involved, but also the societal and historical events which
gave rise to those legal remedies. Modern international law
universally condemns torture--as it rightly should--for both
practical and theoretical reasons. This is one happy instance
where law and morality are essentially congruent. Because of
this need to understand both the legal realities, which result
from the rejection of torture as a viable method of
governmental action, and the historical backdrop thereto, my
comments will first discuss the law pertaining to torture,
followed by a brief look at the philosophy, history, and
theory of medieval torture, and then conclude with a
discussion of contemporary events that implicate or directly
involve the modern practice of torture.
There are two statutes in American law with
which I hope you are familiar: the Alien Tort Claims Act
("ATCA")
1 and the Torture
*502
Victim's Protection Act of 1991 ("TVPA").
2
The TVPA and ATCA are two wonderful American laws. These laws
grant persons, not even necessarily United States citizens, a
cause of action in tort in the United States for torts that
violate international law--such as torture. When I think of
the ATCA and the TVPA, I can only imagine that Attorney
General Ashcroft is throwing his hands in the air in
frustration because until September 11th, the United States
could afford to say, we don't torture, we don't torture, we
don't torture. Since facing the reality of domestic terrorism,
the United States is asking itself, should it torture, should
it torture, and it should not. These laws illustrate the
political difficulties of whether or not the international
community-- especially the United States--will in fact respect
what is the jus cogens norm
3--namely, the norm
against torture as a non-derogable international law.
4
The ATCA and the TVPA create a private
right of action in the United States both for United States
nationals under the TVPA and for foreign nationals under the
ATCA. The ATCA is a jurisdictional statute.
5
It was enacted as a part of the first judiciary act of the
United States in 1789. The ATCA provides that: "The district
courts shall have original jurisdiction of any civil action by
an alien for a tort only, committed in violation of the law of
nations or a treaty of the United States."
6
The legislative history of the ATCA is
unknown. The statute itself remained relatively dormant until
Filartiga v. Pena-Irala. In Filartiga, an alien, Filartiga,
successfully sued Pena-Irala, a non-citizen living in the
United States, in a United States court, for torturing
Filartiga's son to death in Paraguay.
7
The plaintiff succeeded on his claim, despite defendant's
deportation to Paraguay prior to trial, because the court
determined that torture is a violation of the law of nations,
and thus was a valid basis for an
*503 ATCA claim.
8 The court noted that
although the ATCA traces its origins to the Judiciary Act of
1789, the evolution of international law since that time
requires courts to interpret and apply current international
law to ATCA claims.
9 Filartiga was the
first modern case to litigate the ATCA.
The ATCA does not facially create an
independent substantive cause of action. Rather, it grants
jurisdiction in the United States to adjudicate torts in
violation of the law of nations.
10 Since the ATCA does
not permit United States citizens to sue, it deflects any
criticism that the statute demonstrates partiality. Defendants
may, however, be of any other citizenship.
Filartiga has since inspired many
cases--including class actions--either directly litigating
ATCA claims, or at least mentioning them.
11
This issue is important enough that the Supreme Court has
directly addressed the ATCA in at least two contemporary
cases.
12 While in both of
those cases, the Supreme Court did not question the legality
of the ATCA under international law, it did deny plaintiffs
access to the federal courts based on the defendants'
sovereign immunity.
13
Not only has the Supreme Court not outright
rejected the use of the ATCA to litigate claims before the
American courts, Congress has expressed its approval of the
use of the ATCA by enacting the TVPA. The TVPA extends to
United States citizens a remedy for torture and extrajudicial
killing that had previously been available only to aliens.
14
While the TVPA is not jurisdictional like the ATCA,
*504
it creates a substantive cause of action in
tort.
15
"Private" torture may be recognized as a violation of the TVPA
where the torture occurred under "color of law" .
16
Like the ATCA, the TVPA requires exhaustion of local remedies.
17
Additionally, the TVPA subjects claims to a ten-year statute
of limitations.
18 This ten-year
statute of limitations was also applied to the ATCA,
19
although the ATCA itself is silent as to any limitation.
There are eight distinct domestic obstacles
to using these private remedies against those who violate the
law of nations; all of these obstacles result from current
interpretation of United States law.
20
The more pertinent and relevant discussion focuses on how to
meet and overcome these various obstacles.
1. Jurisdictional Requirements
Personal jurisdiction and subject matter
jurisdiction present the first obstacle to finding liability
under the ATCA. For example, in the case of An v. Chun,
21
Young-Kae An sued General Doo-Whan Chun, General Tae Woo Roh,
and several other military leaders of Korea, alleging that
they tortured his father to death.
22 The case, though
factually similar to Filartiga, was dismissed due to a lack of
personal jurisdiction over the defendants.
23
Though the defendants did occasionally visit the United
States, their visits as government employees were not
sufficient to trigger general jurisdiction.
24
One
*505
defendant did visit the United States at
least once on vacation but that was not considered a
sufficient "minimum contact" for specific jurisdiction.
25
What might appear to be a debilitating
jurisdictional obstacle, however, need not always block a
foreign plaintiff from successfully obtaining jurisdiction
over a defendant in the United States. An should be contrasted
with Wiwa v. Royal Dutch Petroleum Co.,
26
where New York found it had jurisdiction over a foreign
petroleum company, despite the availability of an arguably
more convenient forum in England.
27
Exhaustion presents the second obstacle to
a plaintiff's ATCA/TVPA claim. Plaintiffs making claims under
the TVPA--and possibly also under the ATCA--must have first
exhausted their local remedies.
28 In practice,
however, the realities of lawless regimes indicate that the
requirement of exhaustion of local remedies will not be
problematic for litigants.
29 This obstacle is
more theoretical than practical.
Comity is a third obstacle that a plaintiff
is likely to face.
30 International
comity has been defined as "the recognition which one nation
allows within its territory to the legislative, executive or
*506
judicial acts of another nation."
31
Comity is a discretionary doctrine, often invoked by the forum
jurisdiction upon its concluding that principles of fairness
or judicial economy indicate that a foreign court would be a
more appropriate forum for the cause of action.
32
Forum non conveniens is a discretionary
jurisdictional defense.
33 A precondition for
a finding of forum non conveniens is the existence of a
foreign forum with jurisdiction to adjudicate.
34
If such a forum exists and would not refuse the suit for
discretionary reasons, the court must then balance "any public
interests at stake"
35 with the interests
of the plaintiff and defendant.
36 Ordinarily the
plaintiff's choice of forum will be respected,
37
but compelling circumstances can cause a court to reject a
plaintiff's claim because of inconvenience either to the
court, to the defendant, or to both. Essentially, the inquiry
of the court is whether the choice of forum by the plaintiff
is oppressive to the defendant.
38 If not, and if
there are no compelling issues of judicial economy, the
plaintiff's choice of forum will be respected. Thus I would
argue forum non conveniens is a more objectively predictable
obstacle than comity.
In Wiwa, an Anglo-Dutch company was sued in
the United States for a tort in Nigeria; the forum non
conveniens objection was accepted at trial, but rejected on
appeal.
39 The appellate court
considered the substantive English law and balanced the
interests of the United Kingdom, the United States, Nigeria,
the plaintiffs, and the defendants in determining whether to
sustain the defendants' forum non conveniens objection.
40
Before sustaining the objection, the trial court first had to
find it had jurisdiction over the matter; to support its
finding of jurisdiction, the trial court pointed to the fact
that the defendants were listed on the New York Stock
*507
Exchange, and that they organized ancillary
activities in the United States.
41
In terms of forum non conveniens, the Court
of Appeals pointed out that although such a determination is
generally at the discretion of the trial court, the trial
court had failed to adequately consider two interests: (1) the
fact that two of the plaintiffs were United States residents;
and (2) the policy interest, implicit in federal statutory
law, to provide foreigners with a forum for adjudicating
claims of violations of the law of nations.
42
In other words, the United States' commitment to the rule of
law is so important that when balancing competing interests,
it may tip the balance in favor of adjudication in the United
States.
Plaintiffs seeking recovery in United
States courts should consider whether the act of state
doctrine will be applied by the court to "preclude[ ] the
courts of [the United States] from inquiring into the validity
of the public acts [of] a recognized foreign sovereign power
committed within its own territory."
43
Historically, the act of state doctrine was based on notions
of comity.
44 As such, it was and
possibly still is a discretionary remedy. However, recently
the act of state doctrine has been viewed as grounded in
notions of separation of powers,
45 which might
indicate it is not discretionary. The act of state doctrine
evinces a desire to avoid embarrassing foreign powers or risk
causing hostile confrontations with foreign powers. In
substantive terms, the act of state doctrine arises where the
relief sought or the defense interposed requires a court in
the United States to declare invalid the official act of a
foreign sovereign performed in its own territory.
46
In determining the applicability of this doctrine, the court
should also consider whether the foreign sovereign acted in
the public interest.
47 A mere commercial
act is less likely than a sovereign act to be designated an
"act of state" .
48
*508
The act of state doctrine is no shield for
illegal activity. An act by a state official in violation of
the state's laws, or the law of nations, is not an "act of
state",
49 either a priori,
because the acts are illegal, or a fortiori, if the act of
state doctrine is interpreted as a discretionary outgrowth of
comity. Furthermore, because the use of the doctrine
represents a refusal of the court's usual duty to adjudicate
cases before it, judicial review of the application of the act
of state doctrine is not deferential.
50
6. Political Question Doctrine
As a part of domestic United States law,
the political question doctrine may also present a significant
challenge to the plaintiff. For example, in Kadic v. Karadzic,
51
Radovan Karadzic, purported head of state of the Republic of
Srpska, resisted trial in the United States based on head of
state immunity; he also argued that his presence in the United
States was incidental to his political functions,
52
and that the trial was thus political rather than legal. In
other words, Karadzic invoked the "political question"
doctrine as his last defense against standing trial in the
United States.
53
There were two central issues in Karadzic:
(1) presuming Karadzic was the head of a de facto state, under
what circumstances may such a foreign head of state be sued in
the United States;
54 and (2) whether the
executive or legislative branch--rather than the
judiciary--should determine if the claims presented in the
action
*509
were "political", as Karadzic argued.
55
The court found that Karadzic's presence within the United
States was a valid basis for jurisdiction.
56
Even if Srpska was a de facto state, the court carefully
pointed out that it was not yet so recognized. Therefore,
Karadzic had no head-of-state immunity by virtue of his
position within a recognized government, friendly to the
United States.
57
Though Srpska was not recognized as a
state, it had several attributes of statehood (territory,
population, and functioning government)
58
and may even have had some de facto recognition. Despite these
factual and legal questions, neither political question nor
sovereign immunity was found in Kadic.
59
While the political question doctrine
itself does not present an insurmountable obstacle to the
plaintiff, the related issue of immunity may present the
plaintiff's most serious obstacle. The historical basis of
sovereign immunity was in principles of "grace and comity,"
not the Constitution.
60
The issue of sovereign immunity encompasses
two distinct types of immunity: (1) immunity of the state
itself--sovereign immunity; and (2) immunity of the state's
agents--official immunity. Ministers and heads of state enjoy
absolute immunity during their terms of office.
61
Though official immunity is not a valid defense against an
ATCA/TVPA claim where the act committed by the official was
illegal under the law of the state,
62 trying former heads
*510
of state can still present a challenge.
63
However, official immunity did not prevent the United States
from successfully trying Manuel Noriega, the former dictator
of Panama, for drug trafficking,
64 perhaps in part
because the United States never recognized the legitimacy of
the Noriega government.
Suits against foreign states themselves are
generally barred by sovereign immunity, unless that state has
waived such immunity.
65 In Sampson v.
Federal Republic of Germany, the court held Germany to be
immune under the Foreign Sovereign Immunity Act (FSIA) when
sued for compensation by an individual, Sampson, who had been
interned in a concentration camp and forced to work during
World War II.
66 Sampson, a pro se
litigant, argued for an implied waiver of immunity for acts in
violation of jus cogens. However, the court held that there is
no implied waiver of immunity under the FSIA for acts in
violation of jus cogens.
67
The general rule both within the United
States and internationally is that a state is immune for its
sovereign acts, but not for its commercial acts.
68
For example, when a Liberian (neutral) vessel was attacked by
the Argentine Air Force outside the zone of exclusion during
the Falklands War, Argentina was immune from liability under
the ATCA for the resulting property damage because the action
did not amount to a commercial act.
69
The exceptions to the FSIA provide the only
means of obtaining jurisdiction in the United States over a
foreign sovereign.
70 The general rule of
the FSIA is that foreign states are immune from suit
*511
in the United States.
71
There are several exceptions to the general grant of immunity,
which can be categorized as either based on waivers of
immunity or on the commission of commercial acts.
72
The FSIA permits suit against a state where
the state has waived its immunity.
73 Waiver may be
implied, but implied waivers are strictly construed.
74
For example, in determining the Sampson case, where there was
no implied waiver of immunity under the FSIA just because the
actions taken were in violation of jus cogens,
75
the court held that declarations by Germany of her desire to
compensate compulsory laborers were not sufficient to waive
Germany's sovereign immunity.
76 Clearly, direct
evidence of intent to waive must be presented to successfully
argue that a state has impliedly waived her immunity.
The FSIA also provides for liability for
purely commercial acts.
77 Though claims are
permitted where a tortious act either occurred in the United
States or has a direct effect in the United States,
78
mere financial effects may not be sufficient to support a
finding of "direct effects" under the FSIA.
79
As to the procedure of arguing the
applicability of FSIA immunity, the initial burden of proof is
on the defendant state to demonstrate that it is immune,
80
but it is the plaintiff's burden of production to demonstrate
that one of the exceptions to the general rule of immunity
applies.
81
The Anti-Terrorism and Effective Death
Penalty Act of 1996 (AEDPA) amended the FSIA to permit claims
against states which are considered by the United States to be
sponsors of state terrorism.
82 It creates a
privately enforceable cause of action in tort
*512
in cases of extra-judicial killing and
aircraft hijacking.
83 Thus, "foreign
states that have been designated as state sponsors of
terrorism are denied immunity from damage actions for personal
injury or death resulting from aircraft sabotage."
84
The victim (or the claimant) must be a United States national
85
and the tort must have occurred in the territory of a
so-designated foreign state.
86
An obvious use of the AEDPA is against
hijackers. For example, the relatives of the victims of the
Lockerbie disaster
87 used the AEDPA to
sue the government of Libya.
88 However, the AEDPA
may be a violation of international law because of the
international law doctrine of sovereign equality.
89
Sovereign equality holds that one state may not impose its
will upon another sovereign.
90
The last issue a plaintiff must consider
relates to the different burdens of proof applicable in this
area of law. These burdens are used to resolve doubtful cases
and thus have great practical importance. A brief list of
relevant burdens of proof under the various claims and
defenses follows:
(A) The plaintiff is held to have
presumptively exhausted all local remedies; therefore, the
burden of proof is on the defendant to show that the plaintiff
has not in fact exhausted all local remedies.
91
*513
(B) The defendant must prove any immunity
asserted.
92 Though state
defendants are presumed immune under the FSIA, they bear the
burden of proving that none of the FSIA exceptions to
sovereign immunity apply.
93
(C) The plaintiff bears the burden of
proving that both subject matter and personal jurisdiction
exist.
94
(D) The party asserting the applicability
of the act of state doctrine must also bear the burden of
proof as to its applicability.
95 Thus, some burdens
of proof reduce, to some extent, the impact of the procedural
obstacles a plaintiff faces in prosecuting a private law
action.
Law can only be understood within the
presumptions upon which it is founded. These first
presumptions are the province of philosophy. Understanding and
changing those presumptions is the most effective way to
effect systematic change. Thus I would like to direct your
attention to a methodology that might permit you to pose and
perhaps even answer fundamental questions. I will attempt to
analyze torture from the perspective of Michel Foucault.
Foucault was a brilliant and prolific French scholar who died
in 1984, at the age of fifty-seven. Foucault is one of the
best contemporary theorists. His work, although cut off in the
middle, is nonetheless voluminous. I would like to try to
undertake a brief inquest into torture using Foucault's
methodology, as I think his method reveals where the efforts
at resistance against power would be most effective.
Foucault's life work was an attempt, I
think successful, to construct an archaeology of power and
knowledge.
96 Foucault saw power
and knowledge as intimately related: he would refer to them
*514
occasionally as power-knowledge,
97
perhaps in emulation of the continuous theory of space-time.
The center of Foucault's study of power-knowledge, however,
was the body.
98 He was focusing his
attention on power-knowledge: the body as both vector and
victim of power was the center of this focus.
Foucault's perspective on power is
interesting because it is an attempt to radically re-situate
discourse about power in order to influence the exercise of
power: it does this in two ways. First, he places the center
of the study of power upon the body. Second, Foucault insists
that we look at power not as a raw, undifferentiated,
instantaneous, mechanical manifestation of the state, but as a
continuous social relationship not only occurring over time
but also impacting all ranks in society.
99
Foucault once said, » Nous avons tous du
fascisme dans la tĂȘte. Mais nous avons tous pouvoir sur le
corps. «
100 I would translate
this as, "We all have a little fascism in our head. But we
also have all-power over our body."
101
This reflects his ontology, his conception of power. Power is
knowledge, and the mind and body are one. Foucault was working
toward liberation of the physical body by pointing out the
malleability of the assumptions and foundations of the body
politic.
102 Foucault, in my
opinion, was not at all a dualist: he saw the body and mind as
an integral whole.
103
*515
Foucault wanted us to change our perspective
on power from a dualistic, mechanistic, rationalist,
instrumentalist view--the view that allows power to be easily
exercised by distorting relations between humans, separating
them into categories, and disposing of them accordingly--to a
more monist and materialist perspective. However, he does not
center his discourse on monism versus dualism, or materialism
versus philosophical idealism, since that would simply
recreate the very intellectual mechanism from which he was
struggling to help us escape. Instead Foucault focuses on
power in all varieties of intricate, organic, and even
intimate relationships--with multiple subtle implications and
nuances that manifest pervasively throughout a society.
Likewise, he invites us to reconstruct our
focus on power in a similar manner. He would not just want us
to look at torture as a fist smashing a face. Rather, he would
want us to understand why this face, why this fist: who is
directing the fist? Why?
104 He would ask, who
is applying power, when, where, and how? He would look not
only at the rough visible aspects of power-- which had already
been thoroughly analyzed before Foucault but almost always
within a dualist rationalist perspective--but also at the
social implications, consequences, and causes thereof.
Foucault's perspective gives us a better understanding of the
outcomes of power--and also allows us to escape from
mechanistic dualism--by identifying the interstices of power,
where dualism creates false dichotomies, and exposing those
false dichotomies to attacks from the materialist perspective.
A genealogy of torture using Foucault's
methodology enables us to escape both dualism and
philosophical idealism, and forces us to place contemporary
events in their historic context and reveals much about our
own preconceptions. For example, this methodology would allow
us to evaluate whether electrocution is torture, cruel and
unusual; whether rape is torture;
105 and whether
non-state actors can torture. I don't propose to answer any of
those questions here, but I do think these are some of the
places where battle-lines could and should be drawn.
106A brief look at the history of torture in
Europe is necessary to fully understand what it is that modern
society purports to reject. When one looks at medieval Europe
and the types of torturous acts committed during that era,
what we expect to see, perhaps unconsciously or
semi-consciously, is the Inquisition. When we think of the
Inquisition, we usually envision arbitrary, capricious
violence, terrible violence, grounded thoroughly in death. But
was it really so? Actually, when we look at the history of
torture we discover that torture was applied according to
gradations of seriousness,
107 from the mere
threat of being tortured, to branding, to bodily injury, to
greater bodily injury, to bodily injury which would induce
death. When we look at the history of torture, we discover it
was not, in fact, an undifferentiated, raw, irrational fist.
Rather, it was an oper-rational exercise of crude but well
defined church-state power.
How did this rational instrument of
church-state power disappear? If torture was commonplace in
medieval Europe, even as recently as the 1600s, by the late
1800s it was effectively abolished. When an instrument of
church-state power exists for hundreds if not thousands of
years and suddenly disappears-- practically overnight--it
really is remarkable. The fact that society can change its
methods of distributing power, both radically and rapidly
under certain conditions, is the fulcrum which Foucault
attempts to illustrate and employ.
108 Foucault would
agree with Marx that social practice is malleable and would
point out its evolution is based on changes in productive
forces which in turn are
*517 reflected in changes to relations of
production.
109 The history of
torture bears that out: it is clear that the social practice
was malleable, and it changed rapidly as a consequence of
changes in productive forces.
The disappearance of torture is one mark of
the transition from the feudal mode of production to the
industrial mode of production. Why did this change occur?
Justice in feudal society is very much by word of mouth.
Modern society, in contrast, has both the technical means and
economic surplus to literally afford to be less cruel; or more
exactly, to be cruel in highly-refined and subtle ways.
110
If we look at industrial societies, they fairly uniformly
reject torture. And if we look at feudal societies, even
contemporary feudal societies, they fairly consistently use
torture.
111 The reason why
feudal societies use such a rough instrument, such a blunt,
violent instrument is because they simply don't have other
instrumentalities of power. In contrast, modern society can
afford both economically and in terms of actuating power, to
distribute power in ways that appear more subtly--if they are
visible at all.
There are still remnants of such rough
instruments--for instance, police brutality. Though police
officers often kill people who don't need to be killed,
particularly in the United States, people tend to look the
other way.
112 Here, Foucault's
methodology would direct our attention to the instruments by
which the state propagates its ideology in order to encourage
us to ignore unpleasant facts which, if challenged, would
threaten the state's existence. When we study
*518
the differences of power between the
industrial and feudal systems of production, we see that
though the instrumentalities of the feudal system are
generally less refined and rougher, modern, industrial society
is also capable of deploying power in very crude ways that are
no less horrific: for example, no feudal despot ever had the
ability to napalm entire cities; only an industrial society
can engage in industrialized killing.
We have seen that in practice, medieval
torture, while violent, was also governed by an oper-rational
logic. Yet, the question remains as to the theory underlying
the practice. Was the practice of torture coherent with the
inner logic of medieval theories of man, the church, and the
state? While there was a theoretical explanation and
justification, to fully understand those ideas, one needs to
assume the mindset of zealous medieval prelates, who would
say, generally, well, what does it matter that we tortured you
to death, for we have saved your immortal soul.
113
The system was designed to deter dissent by punishing it, and
its practice was what I call a mixture of the interrogatory
phase and the punitive phase of law.
The system was the result of an
ontological dualism--which sees the spirit as divine and
immortal and the body as corrupt and wicked.
114
It was not merely oper-rational, i.e., following certain
procedures with a fair degree of predictability. It was also
self-consistent: if one accepted the system's presumptions,
one would be compelled to the same conclusions. And thus the
system was capable of rationalizing burning people to death
and just about anything else. But before we get
self-righteous, we should realize modern systems also use
dualism to burn people to death, only now
*519
using jet bombers instead of wooden stakes.
The faith of modernity was that progress would liberate
humanity, not that it would enable mass killing. The fact that
modern technology is often applied to mass killing is in this
sense a chilling one: it puts into question the last three
hundred years of human civilization. While most who have
experienced the wealth of industrialized society would reject
a return to feudalism, if the progress of such a society
carries with it a double edged sword, how should modern
society deal with those unintended consequences? That question
cannot be answered here but should be posed because it is a
key question to understanding contemporary society--one
element of which is the rise of persons like Alan Dershowitz
who are calling for a reintroduction of torture, a measure, in
my opinion, which most fascists would approve of.
115
Punishment and deterrence were central
concepts to medieval penology. Imprisonment as a punishment
was highly exceptional, and rehabilitation did not figure at
all into medieval concepts of criminality; as such, the idea
of repentance also did not figure as prominently in medieval
times as we tend to think today. After being punished,
generally corporally, one said one's penance and was then
forgiven. If prison was not the main form of medieval
punishment, what was? Medieval punishment was just
that--medieval. Branding was one common punishment, so that
others would know that the criminal was a thief; neither
maiming nor lashings were unusual. Such punishments required
fewer resources and carried lower information costs than
imprisoning criminals. Despite the natural revulsion most of
us have to these forms of punishment, they were not
necessarily crueler than current punishment.
116
Punishment in the industrial mode of
production is also distinguishable from punishment in the
feudal system by the fact that industrial societies at least
claim to not inflict violent, cruel and barbaric punishments,
but claim, rather, to seek to reform and rehabilitate the
"sick" criminal. Though this rehabilitative function has not
been taken very seriously in the United States since about
1980, most of the rest of the industrialized world does take
the rehabilitative function of penal law very seriously.
We have seen that medieval torture was not
nearly as one-dimensional as we may have thought, that it was
an oper-rational practice, and that the practice, however
violent, also had rationalizations and justifications in
theory--albeit ones rejected by modernity. How did this
widespread institution so suddenly and nearly completely
disappear from penal systems in the industrial world? We just
looked at explanations based on the mode of production, but
there are also practical reasons. Simply put, torture is
inefficient as a tool of social control and for getting
reliable information. Thus, torture disappeared for four main
reasons. The first reason is that since people who were
tortured would lie, it was an ineffective method of obtaining
information. Second, not only do victims lie, they also die.
And when they die, the victim is no longer providing the
police or the government with information.
The third reason I posit that torture has,
for the most part, been eradicated, and why today it is a jus
cogens norm, is because the victims of torture are wonderful
martyrs. These martyrs generate great sympathy. One such
victim was Stephen Biko,
117 a South African
activist who opposed the police state and the apartheid regime
of South Africa.
118 The police denied
having killed him while he was in prison, yet via the Truth
and Reconciliation Committee, it was revealed that he was
killed by the police while in prison.
119
He became a wonderful martyr. A final reason for the
disappearance of torture in industrialized societies is that
just as it creates martyrs, these martyrs motivate not only
the victims' families, but also their friends, distant
relatives, and people they never met to resist the system that
is trying to oppress.
In understanding the history of torture,
its theoretical underpinnings as well as the four main reasons
for its disappearance, one has an even greater appreciation
for the level of
*521
social change contemporary society has
achieved in this area of human rights. Yet, despite how far we
have come, clearly there is work left to be done.
Until September 11th, it cost nothing for
the United States to reject torture. Rejecting torture also
meshed with the tendency of the American people to idealize
and rationalize the fact that their government is the global
hegemon. The United States foreign policy elite do nothing to
discourage these tendencies. Foreign policy ignorance prevents
a lot of potential domestic dissent from even getting off the
ground. Many Americans fail to realize that the CIA had funded
Osama bin Laden and the Taliban
120 prior to the Bush
administration's declaration of the war on global terrorism,
which of course has those very same people as its primary
target. Layered on top of this almost unforgivable level of
disconnect is the massive reactionary wave which engulfed
American attitudes post-September 11th. An icon of the
American legal community, Alan Dershowitz, spoke out in favor
of torture warrants; according to a recent poll of Americans,
such use of torture would be accepted by many.
121
The ignorance of most Americans--cultivated by the foreign
policy elite--allows the American government to play dirty,
*522
hardball politics overseas all the time, and
the American people to rationalize and deny the fact that it
does so. This would whipsaw the establishment if those facts
ever came to light.
A cursory examination of a few
contemporary events demonstrates that for all the anti-torture
rhetoric apparent in American statutory and case law, there
are serious questions as to the commitment of the United
States government to securing the basic human right of all
persons to live free of torture. The actions of the United
States government must be assessed in the context of the
international jus cogens norm against torture.
Currently, in my opinion, the United
States is moving from a categorical rejection of torture in
all forms to a qualified rejection of torture. The TVPA
clearly defines torture as any form of coercion, including
mental coercion.
122 Yet recently
reported incidents allow one to speculate that the United
States itself is engaging in torture. There is a facility in
Afghanistan called "Hotel California" and two Afghan
prisoners, apparently under exclusive United States control,
died from blunt force trauma while in custody at that
facility.
123 From this, one
can fairly infer that the detained prisoners, who were
presumably being interrogated, were tortured. The detention
facilities run by the United States in GuantĂ namo Bay,
Cuba, are another example of persons accused of terrorism
dying while in U.S. custody. It was reported in August, 2002,
that a senior Taliban official died after being subjected to
severe torture while in custody at that facility;
124
another recent report from the detention facility stated that
the United States plans to construct a "death chamber" on the
base.
125
Recently, the Board of Immigration Appeals
(BIA) tried to reduce the United States' obligations under the
Convention against
*523 Torture.
126 Though in this
particular instance, the court intervened to overturn the
BIA's decision,
127 a decision
clearly in contravention to the Convention, it may be
indicative of a future trend. If the United States gradually
begins to accept small or insignificant amounts of torture, it
will likely generate even more enemies. To justify this
progression, the United States might try to draw on foreign
case law. In looking at the European Court of Human Rights,
one finds cases that arguably support finding exceptions to
international law's absolute prohibition of torture.
128
Perhaps equally disturbing is the United
States' willingness to extradite prisoners held in the United
States or those locations under United States control to
countries that do torture.
129 Because the norm
against torture is a jus cogens norm, extradition of a person
to a country that tortures is itself a violation of the
Convention Against Torture.
130 No state is
required to remedy a violation of a jus cogens norm, but every
state is obligated to obey it.
131 The
administration's willingness to extradite prisoners to
countries that torture illustrates its flagrant disrespect for
and clear operation outside of international law norms.
132
Acts of aggression committed by the United
States in violation of
*524 international law also raise the question
whether the United States is committed to the rule of law in
international affairs. From an international law perspective,
it is relatively clear that the war waged by the United States
against Iraq constituted a criminal act.
133
United Nations Resolution 1441 did not, on its own terms,
authorize the use of force against Iraq;
134
force was nonetheless used. The Nuremberg trials determined
that planning, plotting and executing wars of aggression
constitutes a crime against peace.
135 It is at least
arguable that since Iraq holds a vast amount of the world's
oil supply,
136 the war waged by
the United States against Iraq amounts to a war of aggression,
motivated by the United States' desire to reduce the price of
oil by controlling its production. One can ask whether the
Bush administration's acts should be characterized as crimes
against the peace.
Violations of an individual's rights under
international law provide yet another example of United
States' lawlessness. In the case of Robert LaGrand, LaGrand, a
German national, was awaiting execution in the United States
on the charge of capital murder. Prior to execution of the
death sentence, the International Court of Justice ruled that
the United States could not execute him as Texas had violated
his right under the Vienna Convention to access the German
consulate.
137 The United States
chose to ignore the Court's ruling against it, and summarily
executed LaGrand. As a result, his execution was illegal as a
flagrant violation of international law.
These instances do not stand alone. The
United States has also
*525 either conferred with or signed treaties
that it later refused to effectuate or to enforce; two
excellent examples of this are the United States' respect--or
lack thereof--for the International Criminal Court
138
and the Kyoto protocol.
139When we were young, we all had a tendency
to see the world in simplistic terms: the "heroes" always
defeated the "villains" . However, as adults, we know these
simplistic descriptions of reality are almost never accurate.
This discussion attempts to present a complex yet accurate
description of the objective reality of this area of law, with
the hope that it might have some humanizing influence on
American foreign policy. It is our collective responsibility,
as members of an increasingly global society, to look in the
mirror and, with candor, see our own errors and mistakes. Then
we must take the courageous next step and begin the arduous
process of correcting those mistakes. The law, with all its
faults and flaws, may be the best way to do that.
Notes:
Although the standard of
review of a district court's decision to abstain is often
described as an abuse-of-discretion standard, we have noted
that in the abstention area that standard of review is
somewhat more rigorous. Because we are considering an
exception to a court's normal duty to adjudicate a controversy
properly before it, the district court's discretion must be
exercised within the narrow and specific limits prescribed by
the particular abstention doctrine involved.... Thus,...there
is little or no discretion to abstain in a case which does not
meet traditional abstention requirements.
120. Sara
N. Scheideman, Standards of Proof in Forcible Responses to
Terrorism, 50 Syracuse L. Rev. 249, 253-54 (2000).
While currently perceived as
embodying the terrorist threat, the United States once relied
on bin Laden as a trusted partner in the strategy of Cold War
containment. Beginning in 1979, the CIA joined with bin Laden
to fight a covert war against Moscow's occupation of
Afghanistan. Bin Laden ran Maktab al-Khidmar--known as the
MAK--which funneled money, arms and fighters from Egypt,
Pakistan, Lebanon, Syria, and Palestinian refugee camps into
the Afghan war. MAK was nurtured by Pakistan's Inter-Services
Intelligence Agency, which in turn was the CIA's primary
vehicle for undertaking covert operations against the Soviet
Union. Despite warning signs that his activities were no
longer purely anti-Soviet, the CIA's confidence in bin Laden
continued during the 1980s.
Osama bin Laden was also
"good" when, supported by the CIA, he acted as a freedom
fighter against communism in Afghanistan. The Taliban were
also supported as friends when the U.S. strategy towards the
country changed after Afghanistan was identified as a possible
pipeline route for the oil due to come from Central Asian
States.
Id.