Entangling Intentionally: Reflections on Torture and Structure.

• Author: Cakal, Ergun

Torture, as structural violence, can be inflicted slowly, routinely, and undramatically. It implicates, instrumentalizes, and entangles both individual and institutional agents, and must be viewed as emerging from a complex apparatus responsible for its instigation and infliction. Failing this, we fail to attend to torture's totality, particularly for the purposes of its socio-legal analysis. Leaving directness or explicitness of torturous acts of the individual behind (although equally important), a focus on the insidious and structural is warranted. This requires looking beyond individual and toward institutional logics, thus turning to systemic and systematic aspects. This article will discuss the implications emerging from such doctrinal individual centricity, as epitomized by the element of intentionality, a constitutive element of torture under Article 1 of the UN Convention against Torture. Then, it will endeavor to shift perspective from perpetrating individuals to perpetrating institutions, taking the denial of health care in Egyptian prisons as a case study through which to illustrate these dynamics.

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Torture is often systemically produced and inflicted slowly, routinely, and undramatically. This production implicates, instrumentalizes, and entangles both individual and institutional agents, and must be viewed as emerging from a complex apparatus responsible for torture's instigation and infliction. Failing this, we fail to attend to torture's totality, particularly for the purposes of its socio-legal analysis. Leaving directness or explicitness of torturous acts of the individual behind (although equally important), a focus on the insidious and structural is warranted. This requires looking beyond the individual toward institutional logics, thus turning to its systemic and systematic aspects. (1) Intentionality, a constitutive element of torture's definition, (2) informs a conventional understanding that emphasizes torture as direct, deliberate, explicit, and individual over the institutional and environmental dynamics underpinning torture's production. Intentionality also introduces requirements related to knowledge and control in how the law defines and differentiates orbiting categories of harm.

By fixing their focus on the intention of the individual perpetrator, I contend, legal assessments as to whether specific harms violate the prohibition against torture and other ill-treatment turn away from broader factors. This crucially leads to obfuscating the gravity and totality of the wrong in question and disappearing commensurate responsibility. When the prisoner in need of medical attention is left to suffer (and, as has often been the case in Egypt, to die), this is usually (and unduly) characterized as an act lacking intention or purpose under Article 1 of the UN Convention against Torture (UNCAT) (3) and therefore considered neglectful and to thus fall short of torture. When the judge dubiously undersigns an ill-conceived retrial or the fourth extension of a political opponent's detention, returning them to harmful conditions of confinement, there is a refrain from ascribing the required intention or purpose to color the judge's actions as complicit in the ensuing punitive harms. Such a blinkered focus on individual intention therefore serves to obscure the full range of political and institutional connections and culpabilities at play.

The evidence for these claims is, admittedly, contextual and circumstantial rather than direct. Situating individual actors (police, prosecutors, judges, and prison officials) in their institutional, social, and political contexts, I argue, enables us to move beyond the characterizations of torture as products of individual and deliberate decisions born out of dysfunction and a predisposition for deviant violence, and toward a more complete and potent understanding. Adopting an ecological orientation, this article advances by foregrounding the full range of systemic or situational factors to show that torture is not the result of the pathological dispositions of a few deviant apples acting out their own individual pathologies. Rather, torture is to be viewed as the product of the entire orchard, as "the interconnected practices that nourish, nurture and otherwise facilitate the likelihood of a toxic harvest--again and again, and with seasonal variations" (Cakal et al. 2020). Drawing on critical theory, this article critiques doctrinal disconnects between the systemic, systematic, and the specific. It works toward connecting these dynamics through (1) complicating and dismantling false boundaries between intention, purpose, and neglect (or disregard); (2) establishing systematicity of the institutional and structural dynamics (connections, continuities, and complicity), which facilitate torture's prevalence; and in turn (3) reading and deducing official intention and purpose from the systemic and systematic.

I proceed in distinct halves, the first being doctrinal and the second being critical and contextual. I will first provide an overview of intentionality in its doctrinal understandings: the discourse around drafting and interpreting the element of intention, and the use of circumstantial and contextual factors in assessing intentionality. Following this, I will change tact and problematize the doctrinal construction of the intentional individual agent of the state with the aid of critical scholarship around eventness, slow death, letting die, and law's irresponsibility as they pertain to the denial of health care in Egyptian prisons.

Travaux Preparatoires, Commentaries, and Communications

In this section and the next, I will review the doctrinal understandings of intentionality under the UNCAT and more broadly. The point of departure for such an exercise is the definition of torture under international law as found in Article 1, which requires a purposeful and intentional state-sanctioned act causing severe harm. An act inflicting severe pain for a state-centric purpose in an official capacity would therefore constitute ill-treatment rather than torture if it is not intentional. For example, harsh conditions of detention, such as those resulting from overcrowding and poor sanitation, may cause prisoners severe pain or suffering, but absent evidence of intention only amount to a form of ill-treatment other than torture. Results of "poor policies" are thereby often associated with a lack of "intention to inflict suffering" (UN Special Rapporteur on Torture 2015, [section]51). Intentionality thus functions as a determinative aggravating factor differentiating between torture and orbiting forms of cruel, inhuman, or degrading treatment or punishment under the UNCAT (Nowak 2006, 836).

Given difficulties proving intent in systemic violations, these harms have become more readily associated with and tried not as torture but other forms of ill-treatment (i.e., inhuman and degrading treatment), as "not deliberate but rather the result of organizational failings or inadequate resources" (European Committee for the Prevention of Torture 1992, [section]44). States, as shown in the case of an inquiry conducted on Brazil by the UN Committee against Torture (CAT), have also demonstrated an interest in sustaining such associations in objecting to "equat[ing] torture with problematic conditions of detention" (CAT 2009, [section]249). To be sure, an absolute prohibition applies equally to torture as to other forms of ill-treatment. Yet why then do we still insist that certain acts are torture and not ill-treatment and vice versa? A common response is that the ways in which we understand, assess, and define (or name) acts of state violence carry with them an irrefutable normative or symbolic force, vying for stronger degrees of attention and condemnation in short supply. Adjudication is a single though significant naming process in which the contestation around these terms plays out. All governments, not only Brazil but established liberal democracies, lend their weight to maintaining a high torture threshold.

That torture need be exceptional is often attributed, in contemporary discourse, to the decision of the European Court of Human Rights (ECtHR) in Ireland v. United Kingdom, which associated torture with a "special stigma." (4) The ECtHR, in that case, downgraded to inhuman and degrading treatment the "five techniques" in question from an earlier European Commission of Human Rights finding of torture. The ECtHR's ruling has had profound repercussions for the politics of naming torture and, in the proceeding decades, sustained a deep-seated contestation about what warrants the label of torture. From 1978 to 1996, until Aksoy v. Turkey, for example, the ECtHR did not specifically label any of its findings as torture. (5) This contestation is evident in the contemporary difficulties of recognizing certain practices as torture (as opposed to the orbiting categories of ill-treatment), including domestic violence, denial of reproductive rights, prolonged solitary confinement, and the death row phenomenon. Naming and characterization thus serve as signifiers of power and effective limits to state power. Violations of categories orbiting torture are something states begrudgingly live with, but not torture. There are broader political consequences flowing from this naming, which presents a central justification for tending to this question of intention.

Compared to the depth of discussion about other constitutive elements such as severity of pain and official capacity, the dimensions of intentionality have remained relatively and unduly overlooked in the scholarship on torture. There seems to have been an expectation, in the drafting and in commentary immediately following the drafting of the UNCAT, that the element of intentionality would prove relatively unproblematic and uncontroversial. When referring to this history, Boulesbaa (1999, 20) states the...