Research Handbook On Torture: Legal And Medical Perspectives On Prohibition And Prevention
Editors: Malcolm D. Evans & Jens Modvig
Publisher: Edward Elgar Publishing, 2020. 608 pages.
Reviewer: John T. Parry ǀ January 2022
The Research Handbook on Torture is a staggeringly valuable collection of essays that more than satisfies the promise of its title. The primary task of this review, therefore, is to stress at the outset how incredibly valuable this book will be to anyone who works on the legal and medical issues that torture generates. Edited by Sir Malcolm Evans, who has written extensively about torture and until recently chaired the U.N. Subcommittee on Prevention of Torture, and Dr. Jens Modvig, who has been a member and chair of the U.N.’s Committee Against Torture as well as secretary general of the International Rehabilitation Council for Torture Victims, the Research Handbook’s 27 chapters provide detailed analysis and assessment of most of the significant issues that bear on preventing and remedying torture. The book’s scope and ambition are thus broader than the other excellent but more focused collection that also appeared in 2020 (Barela et al., 2020). Together, these books provide comprehensive accounts of the law, practice, and medical consequences of interrogation and torture.
The introduction, by Evans and Modvig, provides an essential guide to the themes and organization of the book. They explain the different ways that the first group of 16 chapters addresses legal issues such as necessity claims, prevention, criminal law responses, and immunities from punishment. The next group of 7 chapters addresses a broad range of medical perspectives on torture. The final 3 chapters generalize, closing with Barbara Bernath’s reflections on torture prevention. This review cannot hope to say very much about each of these chapters, except to say that every one of them is rich and informative to put readers on notice of the wealth of information, analysis, and citations that this volume provides.
Michelle Farrell’s “The ticking bomb scenario: evaluating torture as an interrogation method” is a powerful discussion of the ever-present ticking bomb hypothetical. I’ll spend a bit of time of this chapter because Farrell’s analysis arguably provides an overall theoretical justification and structure for the entire collection. Farrell starts with the difficult question of whether to discuss possible exceptions to torture at all, noting the valid concern that doing so risks inviting endless hypotheticals designed to justify some kind of exception. Here, of course, Farrell invokes Žižek’s concern about legitimizing the debate over torture and the consequences of letting “the genie out of the bottle” (Žižek, 2002: 104). Against this objection, Farrell points to the facts that torture is already “practiced widely,” “concealed and denied,” and “justified publicly with reference to necessity” (p. 12).
Farrell therefore turns specifically to showing “how the ticking bomb hypothetical inhibits understanding of the practice of torture and how it operates to neutralize the ideology of torture” (p. 14). Discussing the hypothetical draws our focus to specific fact patterns (almost always made up and carefully constructed to make us consider torture) and to specific justifications or refusals to torture. When we take the hypo seriously, we ignore the actual practice and effect of torture which, Farrell argues, “is not about information and is not a method of interrogation. Torture is about the subjugation, pacification or correction of those constructed as not fully human, barbarians or sinners” (p. 15). The rest of the chapter more specifically addresses the perniciousness of discussing torture in terms of efficacy, the recognition of torture as a form of dehumanizing violence (not interrogation), and the continuation of torture as an imperial “instrument of the civilising mission” (p. 15).
A few more comments will suggest the shape of Farrell’s convincing analysis. Farrell demonstrates that the question, ‘does torture work?’ is both misleading and revealing. A person who possesses relevant knowledge may say something under coercion that is truthful and also useful to the interrogators. Yet nearly everyone with experience in interrogation also concedes that there are far better ways to interrogate suspects of any kind. But this is where the ticking bomb hypo does its work: what if those better ways are not working in this specific set of circumstances that are carefully circumscribed for the purpose of gaining a concession that will allow torture? Farrell convincingly shows (and also provides citations to many of the long line of writers who have attempted a similar defusing) that gaining a specific bit of evidence is not why we torture and is not proof of torture’s efficacy. Instead, the reason why we torture, and the real way that torture works—consistently and all too effectively—is precisely as a form of domination and subjugation, most commonly of people constructed or defined as others, lesser, or somehow deserving of pain.
At the end of her chapter, Farrell includes a long section that uses the example of French torture in Algeria to prove her point about how torture as subjugation typically translates into imperialism. She demonstrates that France’s civilizing mission provided the logic for an argument that “[t]orture was necessary in defence of France, of civilisation, of Christian values,” and indeed that “[t]orture was part of the process of creating new human subjects” (p. 39). Critically, the modern ticking bomb hypothetical emerged from the French debate over torture as a way to conceal the underlying purpose of torture in the modern west. Farrell makes clear, of course, that France is but one example. For additional discussion of France, as well as Israel, Spain, the United Kingdom, and the United States, see, e.g., my 2010 monograph (Parry, 2010) or Darius Rejali (2007).
With torture framed in this way, it’s natural for the book to turn toward prevention. The next chapter, Richard Carver and Lisa Handley’s “Effective torture prevention,” provides a groundbreaking analysis of different preventive measures and their efficacy, and they conclude that “torture prevention does indeed work” (p. 43). In particular, they identify “safeguards in place in the first hours and days after arrest” such as “promptly notifying the family of the arrest, informing the detainee of the right to a lawyer (which the detainee then exercises), and providing a medical examination shortly after detention” (p. 43) Also effective is actual investigation and prosecution of torturers, as well as monitoring. Carver and Handley take care to stress that “practice is far more important than law at reducing the incidence of torture,” and that “there is often a gap between practice and law” (p. 43). Although this finding is unlikely to surprise anyone, the empirical confirmation of this position is significant. Law in the books, it once again turns out, means little relative to law in action.
Carver and Handley devote an appropriate number of pages to explaining their methodology and results, as well as exploring the implications of their research. They also provide good examples of their findings through case studies of the United Kingdom, Turkey, and Argentina. All three countries have struggled with torture, and each has taken a different path reflected in the mix of protections for detainees and the necessity for political will to maintain anti-torture practices. But the authors also provide reason to hope, noting “a gradual decline in torture over 30 years in the 16 countries that we examined” (p. 61).
The next chapter, on “Fragility, states, and torture,” pairs well with Carver and Handley’s analysis. Tobias Kelly, Steffen Jensen, and Morton Koch Anderson bring an instructive and useful focus on the ways that the idea of state ‘fragility’ maps onto the incidence and nature of state violence. Importantly, this focus breaks free of linking torture to a lack of democracy, specific versions of the rule of law, limited development, or the strength of the state. Instead, Kelly, Jensen, and Koch ask us to recognize “the complex and contextual nature of torture and the methods we might use to fight it,” as well as to consider “expanding the places we think might be involved, and the ways in which we understand the drivers and motivations” of torture (p. 78).
The next several chapters address the legal and institutional structures that exist in international law and regional bodies for defining, prosecuting, and preventing torture. Moritz Birk and Manfred Nowak begin this part of the book with a valuable overview of the relevant prohibitions in the International Covenant on Civil and Political Rights, the Convention Against Torture (CAT), and the Optional Protocol to CAT, as well as the Convention on the Rights of the Child, Convention on the Rights of Persons with Disabilities, and the Convention on the Protection of All Migrant Workers and Members of Their Families. They highlight the work of various U.N. entities that help to put these prohibitions into practice. They conclude their chapter with a summary of regional agreements and entities in Europe, Africa, and the Americas. Birk and Nowak’s authoritative summary is valuable in its own right, but it also sets up a series of more detailed chapters on the international and regional bodies that they identify.
Christof Heyns, Carmen Rueda, and Danial du Plessis follow with an extensive and greatly useful discussion of the work of the U.N.’s Human Rights Committee. For me, the highlight of this chapter is their overview of the Committee’s jurisprudence on the definition of torture and cruel, inhuman, or degrading treatment or punishment and the application of this jurisprudence in specific contexts. Felice Gaer provides a similarly deep and learned overview of the work of the Committee Against Torture. Juan Méndez and Andra Nicolescu bring the international materials to a close with a deeply informed discussion and assessment of the work done by the Special Rapporteur on Torture. (For another valuable and equally informed discussion of the Special Rapporteur’s work, see Nowak (2018).)
Christine Bicknell’s chapter turns to “The Council of Europe and the European system.” She provides a nice overview of the European Court of Human Rights’ jurisprudence on torture and pays special attention to controversies about non-refoulement. Diego Rodríguez-Pinzón contributes a very informative chapter on the Inter-American human rights system. He includes extensive citations to cases from the Inter-American Court of Human Rights and to the work of the Inter-American Commission of Human Rights’ Rapporteurship on the Rights of Persons Deprived of Liberty in the Americas. Rodríguez-Pinzón also notes the concerns that exist about enforcement and funding of anti-torture efforts. Lawrence Murugu Mute rounds out the chapters on regional arrangements with a chapter on “Ensuring freedom from torture under the African Human Rights System.” Mute details the work of the African Commission on Human and Peoples’ Rights, the African Court on Human and Peoples’ Rights, and the Africa Committee on the Rights and Welfare of the Child, and he includes citations to numerous reports, resolutions, and other official documents. Mute also goes beyond the formal document to highlight the gap between legal prohibitions and the implementation of those prohibitions, and he advances several suggestions for closing the gap.
The next part of the Research Handbook focuses more closely on responding to torture. Malcolm Evans begins with a chapter (“The prevention of torture”) that is grounded in the premise that prevention is itself a response or remedy. And it is important to point out that this book emphasizes prevention at the beginning, middle, and end of the volume, thus underscoring the pressing need to orient the anti-torture project towards protection in addition to the more common lawyerly preoccupation with post-hoc remedies. Evans focuses specifically on the international and national systems for visiting places where people are detained and at risk of torture. Evans highlights the specific efforts of the European Committee for the Prevention of Torture and the U.N. Subcommittee for the Prevention of Torture. He also overviews the creation of National Preventive Mechanisms and the difficulties involved in establishing and maintaining them. Evans appropriately credits the achievements of these systems for visits but also concludes there is “much more to be done before the full potential of the preventive mechanisms which have been imagined and established by the international community is fully realised” (p. 287).
The next five chapters focus on legal remedies and related issues. Robert Cryer begins with an overview of the many ways that torture interacts with criminal law. Cryer’s chapter does not just catalog the various criminal prohibitions; he also provides important details. For example, he includes an extremely helpful discussion of the elements of torture as a crime against humanity and a war crime in the Rome Statute of the International Criminal Court. Matt Pollard, in turn, takes up the issue of excluding evidence obtained by torture. Here, as well, there are numerous international rules against this practice, and Pollard describes them, along with the related regional prohibitions. His chapter also contains an important assessment of controversies about the use of evidence derived from torture, as well as the use of statements and derivative evidence in civil proceedings.
Carla Firstman next provides a good discussion of “Torture and non-refoulement.” Again, we have an absolute prohibition in international law that coexists with implementation issues in various countries. Particularly important is her discussion of people who are threats in one country but who cannot be deported or extradited without facing a risk of torture. Lutz Oette follows with an assessment of universal jurisdiction over perpetrators of torture. Oette identifies, describes, and advocates for “a legal and institutional framework that fosters the effective exercise of extraterritorial jurisdiction” (p. 358). This chapter is nicely detailed and informative about the prospects for this framework, and Oette includes a critical assessment of the reluctance of some states to exercise jurisdiction, as well as the complicated history of the effort to establish universal civil jurisdiction over torture cases. The last of the legal chapters, by Lorna McGregor, assesses the role that foreign state immunities play in preventing complete remedies for torture. McGregor details the myriad obstacles that survivors of torture face when seeking remedies, including efforts to seek remedies against one country in the courts of another. The upshot of McGregor’s thoughtful analysis is the unfortunate but accurate conclusion that state, official, and diplomatic immunities conspire to prevent effective or complete remedies, with the potential for limited functional immunity for individuals in criminal cases being the only potential bright spot.
The next seven chapters assess significant medical perspectives on torture. Vivienne Nathanson leads off with a wonderfully informative discussion of “Torture and international medical ethics standards.” Nathanson first provides a short history of medical ethics codes and the move towards international standards after World War II. She overviews the various international developments from the Declaration of Helsinki in 1964 to the present. Nathanson next points out the continued violation of medical ethics standards in some contexts, but she also highlights the ways in which many medical professionals have protected their patients from state violence. She concludes with a powerful discussion of the intersection of medical ethics and hunger strikes. (For a powerful account of a well-known hunger strike, see Beresford (1987).)
José Quiroga and Jens Modvig follow with a discussion of “Torture methods and their health impact.” This harrowing chapter discusses specific methods of torture, such as beatings, electrical torture, asphyxiation, and burns, and details the specific health effects (physical and mental) of each method. Their chapter should be required reading for anyone tempted to endorse a policy of coercive interrogation. Next, Pau Pérez-Sales provides a thorough, deeply informative, and extraordinarily useful discussion of “Psychological torture.” This chapter is so rich in detail and nuance that I cannot summarize its themes; instead, I urge readers of this review to examine it for themselves.
Vincent Iacopino moves the discussion from the health impacts of torture to the “Medico-legal documentation of torture and ill treatment.” Iacopino stresses the importance of documentation in the face of concealment, indifference, and lack of accountability: “effective medico-legal documentation represents one of the most powerful ways to corroborate allegations of torture and ill treatment and achieve prevention, accountability, and redress for such crimes” (p. 456). He discusses the requirements of the Istanbul Protocol, including specific guidance for clinical evaluations, but he also points out the limitations of the Protocol and ongoing efforts to strengthen its standards. He closes by highlighting the work of Physicians for Human Rights, particularly that organization’s development of a standardized clinical evaluation form.
Nora Sveaass, Felice Gaer, and Claudio Grossman logically turn the discussion from documentation of torture to rehabilitation of its survivors. They frame their discussion around Article 14 of CAT, which specifically declares a “an enforceable right to . . . the means for as full rehabilitation as possible.” They also highlight the importance of General Comment 3 to CAT, which makes clear that this right to rehabilitation “extends both to victims of torture and victims of . . . ‘ill-treatment’”—thus erasing any efforts to use definitional games to avoid the responsibility to rehabilitate. Sveaass, Gaer, and Grossman provide a thorough and sensitive account of what these requirements mean in practice, including a clear recognition that rehabilitation is often a long-term and incomplete process, and all the more necessary for these reasons.
The next two chapters provide specific discussions of caring for torture survivors. Nimisha Patel stresses “the ripples of the harm of torture, at the individual, family and community levels,” and she points out the “problematic assumptions” and “limitations of the empirical literature” (p. 499). In one of the most powerful chapters in the book, Patel provides a deep assessment of the relevant literature and calls for further research specifically oriented, “not to serve academia and research teams, but to serve torture survivors and to facilitate their access to appropriate and effective care” (p. 529). Kristine Amris, Lester Jones, and Amanda Williams examine the treatment of “pain and pain-related disability” caused by torture (p. 538). This chapter, too, is deeply embedded in clinical research and similarly stresses the “urgent need for better evidence on outcomes of treatment of pain in torture survivors,” as against the persisting tendency to discount or pathologize the experience and suffering of survivors (p. 556).
The last three chapters close the book with brief but essential interventions into the discourse of torture. Yuval Ginbar admits the impossibility of providing statistics that would capture the widespread persistence of torture. For his part, however, he provides “three individual stories of torture in this century” (p. 561): the experiences of As’ad Abu Gosh, tortured by the Israeli Security Agency; Mainumby, a 10-year-old girl forced by Paraguayan authorities to carry a pregnancy to term despite the fact that she had been raped by her stepfather and wished to terminate the pregnancy; and Ruj, beaten and sexually tortured as part of the Thai army’s basic training. From these broadly representative accounts, Ginbar draws three lessons. First, most torture still involves straightforward methods such as beatings of people who “are neither dangerous terrorists not famous opposition politicians” (p. 566). Second, “our expanding understanding of the gender dimensions of torture” allows recognition of rape, forced pregnancy, and other sexual mistreatment as torture (p. 566). Third, prevention of torture requires a cultural shift away from dehumanization.
Tom Porteous underscores Ginbar’s discussion by stressing the ongoing gap between the absolute prohibition of torture under international law and its continued widespread use across the globe. Admitting that “[t]he prevalence of torture in the world today presents a bleak outlook,” Porteous sees some positive signs (p. 570). Returning in part to the question that concerned Kelly, Jensen, and Anderson, he reminds us that “in authoritarian states that rely on torture as a tool of political repression and control the only realistic path to ending torture is the dismantling of the repressive state trough political reform,” and that “to stop torture we need functioning democracies that take human rights seriously” (p. 570–71).
Barbara Bernath closes the volume with a concise and thoughtful set of “Reflections on torture prevention.” She discusses the work of her organization, the Association for the Prevention of Torture, and highlights the actual, on-the-ground effectiveness of torture prevention, as well as the powerful challenges that stand in the way. She stresses the point that “preventing torture is more than a series of legal measures; it is a mindset that promotes pragmatism to address risks and root causes, based on a multidisciplinary and cooperative approach” (p. 572). She concludes with the wisdom that “there is no panacea” (p. 577) against torture and that mutually reinforcing efforts and remedies hold out the most hope. Her realistic, but hopeful, conclusion calls to mind J. Jeremy Wisnewski’s claim that in the face of torture’s persistence, the only option is an equally persistent and multidimensional struggle against it (Wisnewski, 2010).
This review’s description of each chapter in this near-encyclopedic collection should make clear the significant contributions that the Research Handbook makes to understanding, discussing, and acting against torture. The necessity for this book is a sad reflection of our endemic inhumanity towards each other, but the existence of this book is a testament to our equally powerful capacity to act on our shared humanity.
References:
Barela, S. J., M. Fallon, G. Gaggioli & J. D. Ohlin (eds.). 2020. Interrogation and Torture: Integrating Efficacy with Law and Morality. Oxford University Press.
Beresford, D. 1987. Ten Men Dead: The Story of the 1981 Irish Hunger Strike. Atlantic Monthly Press.
Nowak, M. 2018. Torture: An Expert’s Confrontation with an Everyday Evil (Roger Kaminker trans.). University of Pennsylvania Press.
Parry, J. T. 2010. Understanding Torture: Law, Violence, and Political Identity. University of Michigan Press.
Rejali, D. 2007. Torture and Democracy. Princeton University Press.
Wisnewski, J. J. 2010. Understanding Torture. Edinburgh University Press.
Žižek, S. 2002. Welcome to the Desert of the Real: Five Essays on September 11 and Related Dates. Verso.
John T. Parry, Associate Dean of Faculty & Edward Brunet Professor of Law, Lewis & Clark Law School.
