ABSTRACT
After centuries of practising torture in different forms, for various purposes and under the veil of diverse justifications, humankind, indirectly represented by the UN General Assembly, finally decided to draw up a prohibition of the practice of torture in a dedicated legal document – the Convention against Torture (CAT), which was followed by an Optional Protocol (2002) to ensure implementation. Why did this process of outlawing the use of torture work in 1984 and not earlier or indeed later? What were the factors that fostered agreement among states to outline a stricter ban on the use of torture? What role did scientific knowledge and normative beliefs play in the process of norm building? And what was the nature of the coalitions that actors formed? Some suggest that humanity matures, evolves, becomes civilised and this evolution explains the creation of new norms of state behaviour.1 Studies of torture in medical journals, social and historical accounts, reveal that humanity (or at least some authoritative parts of it) indeed evolves, if only to invent newer and more ingenious ways to break down the human body and spirit without physically killing an individual.2 Sparing the reader gruesome tales of death, survival and the continuation of life in trauma and pain, I present a review of processes and campaigns by means of which I aim to reconstruct the historical development of the norm postulating a complete ban on the use of physical and psychological torture. In the context of this process, I search for patterns of interactions between scientific knowledge and normative beliefs, as well as for an improved understanding of the ways in which different actors make use of the latter in their campaign for new norms. My account of the processes leading up to the creation of the behavioural norm that prohibits torture will begin with a brief examination of the failed attempts to ban the practice. The latter holds clues and recurring themes that are of great importance to our understanding of the underlying nature of torture as well as the type of prohibition needed to make torture
as morally unjustifiable as slavery or genocide, for example. The failures of previous campaigns to outlaw torture can indicate what makes some campaigns successful while others remain insufficient to make the needed difference. I will track the changing purpose and justification for the use of torture from early human societies, through the times of Ancient Greece and Rome and the European Enlightenment. I will then draw attention to a period of European history (nineteenth century) when according to historical accounts, judicial torture came to be outlawed in Europe,3 before it was brought back to life during the two World Wars, and the Cold War. The end of the Second World War, infamous for its atrocities, marked the beginning of a new normative era where human dignity and integrity acquired a prominent place and an ever-increasing importance in international politics. Medical and psychological research conducted with concentration camp survivors of the Second World War, in seeking appropriate methods of rehabilitation and compensation, began to show the width and depth of problems experienced by survivors of torture and other cruel, inhuman, degrading treatment and punishment.4 A number of authoritarian regimes came to power in Central and South America in the 1970s, during the peak of the Cold War when the Soviets were determined to withstand any political opposition at home, and torture was one way of achieving this political agenda. In this hostile and violent political climate Amnesty International (AI) embarked on a worldwide campaign against torture, which eventually led to the creation of CAT. The driving force behind this normative campaign was the consistent effort of Amnesty International to concentrate political attention on the problem of torture, starting in the early 1970s. The work of this normative movement was supplemented by other more technical campaigns concerned with the consequences of torture, with the involvement of medical professionals in this inhumane practice, with the definition of torture in unequivocal technical terms. The interplay of normative ideas and scientific knowledge, in this case study, created a solid foundation for a successful normative campaign, one which left very little room for manoeuvre to states who were unwilling to bind their behaviour with a new norm. The overview of the history of torture reveals the dynamic of its use and the failures of previous campaigns to outlaw it, which can afford valuable insights as to what went wrong and why. Thus, by the end of this chapter, there will be not one but two types of proof of what circumstances aid and hinder the evolution of behavioural norms. One of the central debates in this campaign has focused on constructing a comprehensive definition of torture. Since part of this chapter, however, is dedicated to the study of how the legal definition of torture was arrived
at, adopting the current legal definition might result in circular reasoning. Accordingly, a working definition of torture will be employed up until the moment when I consider the construction of the current legal definition of this practice. In its first report on torture published in 1973, Amnesty International cited the following explanation of what its campaign considered torture to be: ‘Torture is the systematic and deliberate infliction of acute pain in any form by one person on another, or on a third person, in order to accomplish the purpose of the former against the will of the latter.’5 Although the above definition is a clear depiction of the contemporary practice of torture, it by no means represents the limits of the use to which torture has been put through the ages.
