Do you understand the process? The harrow begins to write; when it has finished writing the first draft on the man's back, the cotton layer rolls and slowly heaves the body to one side in order to make more room for the harrow. In the meantime the places where the wounds have been inscribed settle against the cotton, which, because of its special preparation, immediately stops the bleeding and clears the way for the script to sink in more deeply. Here, as the body continues to turn, the serrated edge of the harrow tears the cotton from the wounds, flings it into the pit, and the harrow gets back to work. And so it goes on writing, more and more deeply, for twelve hours. During the first six hours the condemned man lives almost as he did before, except that he is in pain. (1)
The torture debate is seriously misguided. It has transformed torture from a universally condemned crime to a regrettable but sometimes necessary state function. This Article attempts to put torture back to where it should have remained, namely, among other universally prohibited acts such as genocide and crimes against humanity. To define torture we need look no further than iconographic images of torture, such as the following rendering of Kafka's Harrow:
Yet, despite the power of an image like this, torture receives countless further nuanced analyses.
The United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment defines torture as:
Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person, information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. (3) Torture seems to involve any number of elements that cry out for definition and differentiation: severe pain, physical pain, suffering, mental pain, mental suffering, cruel treatment, inhuman treatment, and degrading treatment. Yet, participants in the debate should resist this lure, which proves difficult to do. Lawyers and philosophers have dominated the torture debate. This should not be surprising since both are heavily invested in the distinction drawing business. Find a distinction; argue a case. Find a distinction; publish an article. Yet, these distinction-infested debates have hindered rather than moved the torture debate forward. (4) Participants in the torture debate have fallen into a definitional distinction trap. Does torture include physical and mental pain? Is there a difference between torture and cruel, inhuman, or degrading treatment? Does a torture prosecution require a showing of general or specific intent? These questions raise interesting academic issues. However, they only muddy the waters of the torture debate.
The torture debate also manifests a flawed view of international criminal law. International criminal law is not national criminal law writ large. Using national law as a model has disastrous consequences for international criminal law. For example, intent plays a very different role in international criminal law than it does in national criminal law. Overall, international crimes lack nuanced particularity. International criminal law represents the international community's attempt to provide a focus on the grave breaches, the systematic and widespread atrocities, clearly reprehensible acts, etc. Making fine-tuned distinctions steers attention away from the big picture.
Keeping the focus on the big picture does not imply throwing away all distinctions. It is how best to make use of those distinctions that is in question. International criminal law does not consist of a conceptual pie that divides neatly into finely grained, detailed, distinct slices. Instead, international criminal law focuses on a set of egregious, central, core wrongs, and injustices. A crime consists of a "mental" component (the mens rea) and an act (the actus reus). At this stage, let us focus on criminal acts. The core actus reus of the international crime of genocide, for example, is killings. The core actus reus of torture, as argued below, is pain. (5) However, finding a better way of interpreting the claim that the basic act of torture consists of the infliction of pain can help avoid the definitional trap. The strategy is to start with those acts, as represented by, for example, the image of Kafka's Harrow, that almost everyone would agree constitute torture. Then, other acts are evaluated according to how closely they visually and conceptually resemble the core act of torture as represented by the iconographic image.
The infliction of pain lies at the heart of the wrongfulness of torture. The "severe pain" referred to in the Torture Convention is Inquisitorial pain, that is, the brutal pain similar in kind to that inflicted on victims during the Middle Ages and depicted in Medieval engravings of the rack (see illustration below). Refined legal or philosophical distinctions impede rather than move the torture debate forward. As this Article demonstrates, the following icon of the rack used during the Inquisition will do better than Kafka's imaginary Harrow.
Part II introduces this novel iconographical approach to torture, whereby the rack of the Inquisition serves as the icon for determining which acts constitute torture. Part IIA shows how icons serve as moral and legal templates for evaluating purported harms. Holocaust icons help to determine which acts qualify as acts of genocide. Similarly, the icon of the Inquisition's rack should serve as an icon for assessing what acts qualify as torture. Yet, not every icon is created equal. Some icons, such as the Chinese practice of death by a thousand cuts, should be rejected as inappropriate. Part IIB demonstrates how to use the iconographical method to determine whether certain acts of neglect qualify as child abuse.
Part III examines the actus reus and mens rea elements of the crime of torture. Part IIIA defends the claim that, just as killing constitutes the core act of the crime of genocide, so pain makes up the core act of torture. This section shows how an iconographic approach helps to undermine some troublesome categories of acts that allegedly do not rise to the level of torture, including psychological pain and mental suffering as well as cruel, inhuman, and degrading treatment. Part IIIB defends the claim that the institutional intent of the state is the mens rea element of torture. It further rejects attempts to establish specific intent as the mens rea of torture. Finally, Part IV, building on the previous claims, makes arguments for treating torture as a universal prohibition without any exceptions.
According to the anthropologist Clifford Geertz, the law is "part of a distinctive manner of imagining the real." (7) Images play a crucial role in law. Images, models, metaphors, and exemplars also have played and play an important role in science. Not only propositions but also certain kinds of pictures used in science can have truth-value. (8) The billiard-ball model of gas, the double-helix model, the solar system model of the atom--all of these models proved crucial to science. (9)
Icons are symbolic, pictorial, paradigmatic representations. (10) They are, in part, short hands for descriptive and prescriptive statements. These statements include both descriptions of historically situated events and historical narratives that tie together similar events. Moreover, the statements also are prescriptive that is, moral judgments of condemnation. Yet, these icons are more than just statements. They have a critical emotive content. They represent and trigger a deep-seated moral revulsion. A photograph of a mass grave provides a paradigmatic example of an icon that typically provokes a universal condemnation. The short hand feature of icons is not just a convenience; it marks a virtue of icons. A demand to spell out the statements connected with an icon represents a moral failing. The need to persuade someone of the immorality of mass graves indicates something amiss. This is not to say that there is never a need to defend or expand upon an icon through commentary, but we also need to recognize how deeply embedded some icons are and should be in our moral fabric.
Icons are akin to paradigms (basic standards of judgment). Theorists of justice have difficulties agreeing on paradigms. (11) Theorists of injustice should not have the same difficulties. It would be odd indeed to publish a book on the pros and cons of genocide, a paradigm of injustice if ever there was one. Paradigms, in general, anchor interpretations but are themselves not immune to interpretation and reinterpretation. (12) Paradigms of injustice, however, are more deeply embedded than other ones.
Icons are pictorial in the way that some examples of photojournalism have become iconic. Nick Ut won a Pulitzer Prize for his photo of a screaming girl (Phan Thi Kim Puc) being burned alive from napalm during the Vietnam War. (13) There has been a longstanding dispute about the efficacy and ethics of photojournalism. (14) In an earlier work, Susan Sontag warned of the public becoming anesthetized by these images (15) but later made a much more sympathetic case for them. (16) The use of icons in law avoids these controversies since they do not involve a public display of the images but a judicial and moral use of them.
Academic debates also use images or icons. Images play a role in law. (17) These images and icons, as argued...