TABLE OF CONTENTS I. INTRODUCTION II. THE LIVES OF ANIMALS III. THE LIVES OF PRISONERS IV. THE REVELATIONS OF ABU GHRAIB A. The System Works B. Have We Descended to the Level of Saddam Hussein? C. Enlightened Self-Restraint V. CONCLUSION ABSTRACT
In this Article, Professor Brower suggests that the images depicting inhuman treatment of detainees at the Abu Ghraib prison contain timely lessons about the function and the importance of legal personality. To illustrate this thesis, the Author first identifies animals as a population condemned to an existence bereft of the protections that accompany legal personality. Next, the Author describes the chilling similarities between the treatment of animals and the treatment of prisoners in Iraq and in the so-called "Global War on Terror." Finally, the Author discusses three potential lessons for a nation widely perceived to have retreated from its commitment to the rule of law.
The prisoner of war does not belong to our tribe. We can do what we want with him. We can sacrifice him to our gods. We can cut his throat, tear out his heart, throw him on the fire. There are no laws when it comes to prisoners of war. (1) I. INTRODUCTION
The sickening images appeared in April (2) and became notorious in May 2004. (3) Photographs documenting inhuman treatment of Iraqi prisoners by U.S. military personnel unleashed a torrent of questions: How did the mistreatment start? (4) Was it isolated or widespread? (5) Does it rise to the level of torture? (6) Who bears responsibility? (7) Why do women appear so prominently as tormentors? (8) How will the pictures affect our nation's strategic interests? (9) Have we blown the scandal out of proportion? (10) Whatever their merit, these questions fail to recognize the pictures as a well-timed revelation about the function and the importance of law.
Properly viewed, the images of captivity at Abu Ghraib do not merely depict brutality. The images provide a terrifying glimpse of life outside the protection of legal rights. Drawing on the work of a Nobel laureate, Part II of this Article explores this theme by describing animals as a population condemned to live without legal rights. Part III identifies the striking similarities between the lives of animals and the lives of prisoners captured on film at Abu Ghraib. By revealing a human population doomed to live, for however long, like beasts, the snapshots offer fresh insight into the function and importance of legal rights. Part IV discusses the significance of this revelation for a nation widely perceived to have retreated from its commitment to the rule of law.
THE LIVES OF ANIMALS
When studying public international law, students often struggle to understand the concept of "international legal personality," the capacity to hold and assert rights at the international level. (11) Because abstract definitions rarely provide enlightenment, the Author frequently draws on a concrete example from domestic law: animals have no rights. (12) You can buy them and sell them. You can slaughter them, devour them, and parade around in their skins. Because they have no legal personality, animals lack the right and the capacity to object to such outrages. (13) They must depend on our goodwill. Students generally meet this discourse with ripples of nervous laughter, signaling their appreciation for the grave situation of any living being forced to exist without the protection of legal rights.
One could, however, describe the lives of animals even more forcefully. For example, when invited to give a lecture on the topic of her choice, the title character in Elizabeth Costello addresses her audience on "the subject of animals." (14) At the outset, she reminds her listeners that "Germans of a particular generation" still stand "a little outside humanity" not because "they waged an expansionist war," but because they crossed the line between "the ordinary ... cruelty of warfare" and "a state that we can only call sin." (15)
"They went like sheep to the slaughter." "They died like animals." "The Nazi butchers killed them." Denunciation of the camps reverberates so fully with the language of the stockyard and slaughterhouse that it is barely necessary for me to prepare the ground for the comparison I am about to make. The crime of the Third Reich was ... to treat people like animals.... By treating fellow human beings ... like beasts, they had themselves become beasts. (16) Even those Germans who did not actively participate in such crimes found no shelter behind the mantle of innocence. (17) To the contrary, their "willed" and incredible ignorance of the camps became the badge of guilt for an entire generation. (18) Costello unveils the modern relevance of her observations:
Let me say it openly: we are surrounded by an enterprise of degradation, cruelty and killing which rivals anything that the Third Reich was capable of, indeed dwarfs it. in that ours is an enterprise without end, self-regenerating, bringing rabbits, rats, poultry, livestock ceaselessly into the world for the purpose of killing them. (19) Costello anticipates the justification for condemning genocide while tolerating the slaughter of animals: people have the capacity to reason, whereas animals do not. (20) In her view, however, reason constitutes a "tendency in human thought" designed, inter alia, to justify the performance of cruel experiments on animals. (21) To drive this point home, Costello recounts the work of a German psychologist involving a chimpanzee named Sultan. (22)
Sultan is alone in his pen. He is hungry: the food that used to arrive regularly has unaccountably ceased coming. The man who used to feed him ... stretches a wire over the pen three metres above ground level, and hangs a bunch of bananas from it. Into the pen he drags three wooden crates.... Sultan knows: Now one is supposed to think.... But what must one think? One thinks: Why is he starving me? One thinks: What have I done? Why has he stopped liking me? One thinks: Why does he not want these crates any more? But none of these is the right thought.... The right thought ... is: How does one use the crates to reach the bananas? Sultan drags the crates under the bananas, piles them one on top of the other, climbs the tower he has built, and pulls down the bananas. He thinks: Now will they stop punishing me? The answer is: No.... As long as Sultan continues to think the wrong thoughts, he is starved. (23) Costello finishes her lecture: "I return ... to the places of death all around us, the places of slaughter to which ... we close our hearts. Each day a fresh holocaust, yet ... [w]e do not feel tainted. We can do anything, it seems, and come away clean." (24) Later, she tells her son that humans treat animals "like prisoners of war." (25) Costello observes that people had a war with animals that was won only after the invention of guns. (26) Although victory has allowed humans to cultivate a thin layer of compassion toward their prisoners, "a more primitive attitude" flows below the surface. (27)
Narrowly, Costello's thesis lends itself to criticism: few would view animals as prisoners of war and still fewer could accept their slaughter as the moral equivalent of a perpetual holocaust. (28) More broadly, however, Costello hits the mark at least four times. First, because animals live without the protection of legal personality, humans can mistreat them, more or less, with impunity. Second, the worst human rights atrocities involve the treatment of people like animals; in other words, they involve the obliteration, temporary or permanent, of legal personality. Third, the perpetrators of inhuman treatment simultaneously reduce themselves to the level of beasts, tainting themselves with a moral stain that persists for generations. Fourth, enemy prisoners cannot rely on our compassion; only the law can provide credible guarantees of humane treatment.
THE LIVES OF PRISONERS
Most discussions of Abu Ghraib focus, in one way or another, on the images and vocabulary of sex: (29) "sexual humiliation," (30) "pornography," (31) "perversion," (32) and the special offensiveness of these concepts to Arabs raised in the Islamic faith. (33) Virtually no one has recognized that the images and descriptions of Abu Ghraib equally recall the treatment of animals in stockyards, in kennels, and on safaris.
Consider the accounts of prisoners brought, hooded, into the cellblock where the abuses occurred. (34) Guards used open blades to cut away prisoners' jumpsuits, from their necks to their thighs. This action represents a symbolic slaughter that created a sense of mortal terror among detainees. (35) Having obscured their faces and removed their clothing--eliminating two highly distinctive human characteristics (36)--guards "branded" the prisoners like cattle, drawing words and symbols on their legs or buttocks. (37) According to several accounts, guards forced prisoners to crawl like dogs on their hands and knees, (38) to bark on command, (39) and to follow their captors on leashes (40) or strings. (41) At other times, crawling prisoners served as "donkeys" (42) or "riding animals," (43) forced to bear fellow prisoners (44) or guards (45) on their backs. To complete the picture, Staff Sergeant Ivan Frederick reportedly forced one male detainee to masturbate near the open mouth of another male detainee, then remarked: "Look at what these animals do if you leave them alone for two seconds." (46)
To maintain discipline, guards reportedly placed "unruly prisoners" in "shipping containers used to house prison dogs." (47) In other cases, guards left prisoners in their cells for days without clothes or bedding, "as if [they] were dogs." (48) Mimicking the techniques often used for training pets, interrogators "drip-fed" small rewards to encourage "cooperation" and good behavior. (49) Again, to complete the picture, for readers of Elizabeth Costello the iconic photo of a hooded and...