"What we have seen has been terrible" public presentational torture and the communicative logic of state terror.

• Author: Rothenberg, Daniel
• Position: Torture: Paradigms, Practices, and Policies

INTRODUCTION

What we have seen has been terrible: burned corpses, women impaled and buried as if they were animals ready for the spit, all doubled up, and children massacred and carved up with machetes. The women too, murdered like Christ. (1)

Torture is one of the most disturbing crimes imaginable. It is not only the harm of the act that defines it as reprehensible, but the logic of power that motivates its practice. Torture is bound to the intimacy of human beings' essential physical nature and the fact that the body--as the common ground of all humanity--can be made to evoke pain that exists beyond words. International human rights law defines torture as one of the worst crimes it is possible to commit and there exists a universal prohibition on its practice under all circumstances. (2)

Following the tragic events of September 11th and the resulting "war on terrorism," the question of torture's legitimacy has been raised repeatedly in both scholarly writings and the popular press. (3) These considerations tend to focus on two interrelated issues, the factual question of whether torture is currently being used as a counter-terrorism strategy by the United States government and its allies, and the theoretical question of whether torture represents a justifiable policy in certain situations. (4) Alongside evidence that the world's dominant democratic state may be engaging in torture, there exists a growing number of scholars, as well as rising public opinion, supporting the legitimacy of the practice. (5) One of the most troubling aspects of the response to recent national security threats is the apparent ease with which core human rights principles--such as the universal prohibition on torture have been discarded by many who otherwise defend the value of essential rights. (6) Clearly these foundational concepts cannot be of great significance if they can be set aside when inconvenient to state interests. (7) In light of torture's universal prohibition and its status as a jus cogens crime, (8) affirming its legitimacy involves a critique of the value and efficacy of the human rights system.

This essay begins with a testimony describing the open display of corpses bearing the physical marks of torture. Throughout the world, state agents leave mutilated corpses in places where they will be discovered, in town squares, hung from trees, and placed along roads and well-worn paths. (9) This phenomenon--which I term "public presentational torture"--is especially common during wars, internal armed conflicts, and states of emergency. What is compelling and disturbing about public presentational torture is not only the terrible quality of the suffering evoked, but the use of brutality to influence others. The shocking nature of these acts merits broad and unproblematic condemnation and appears to be precisely the sort of crime that deserves universal prohibition. This practice is of special significance because it draws attention to torture's communicative nature as social policy, (10) an element of the crime that is often ignored by those who defend its practice. (11)

Those who support torture's legitimacy generally engage the issue through rational choice hypotheticals that balance the harm created by the act against the harm prevented by its judicious application, as seen in the commonly referenced "ticking bomb" scenario. (12) While the sensitivity and complexity of these arguments varies, they exhibit an understanding of torture as the extension of legitimate policy goals through the application of intense force. As such, debates regarding torture turn on its administration, mechanisms of limitation, authorization, and other issues that ensure the practice is tamed for use by a democratic state. (13) This essay argues that public presentational torture presents an important corrective to this argument by revealing that rational choice justifications are bound to torture's secrecy and by highlighting the act's essential communicative logic. This perspective helps explain torture's status as a jus cogens crime and elucidates the crime's universal prohibition. While the "ticking bomb" scenario reveals key aspects of the utilitarian concerns raised by the application of violence by the state, public presentational torture provides an alternate hypothetical that emphasizes the crime's threat to legitimate governance. It is only by understanding both faces of torture, the private, hidden harm experienced by the individual at the hands of the state and the public, communicative message of a government's willingness to intentionally violate the human body, that we can understand the true meaning of torture. If I am right, that the two faces are inseparable, then current debates over the legitimacy of torture take on a different cast.

This essay proceeds in three steps. In Part I, I introduce the idea of public presentational torture as a practice that reveals key elements of the logic of torture. To ground this point in actual practice, the essay reviews its use as a counterinsurgency strategy in Guatemala. Part II integrates this insight into existing theoretical understandings of torture, discussing the justification of the crime's universal prohibition within the vision of governance evoked by the human rights system. This section also argues that while human rights discourse may not have ended the crime, it has led to an acceptance of its illegitimacy so that actual torture is widely denied by states and performed in secret. Part III confronts the existing debate--absolute prohibition versus rational choice based legitimation--with my discussion of public presentational torture. The section reviews the "ticking bomb" scenario and suggests that public presentational torture provides a hypothetical that is equally stark and simple and that reveals key components of the logic of torture that are often overlooked. In this way, one thought experiment complements and completes the other. This argument modifies current debates and situates the practice of torture within a larger, more contextually sensitive and ultimately more realistic understanding of the crime. A brief conclusion with implications for future work follows.

1. PUBLIC PRESENTATIONAL TORTURE

   1. Defining the Term

      Throughout the world, the mangled bodies of victims bearing the signs of torture are purposefully displayed for political ends. (14) This practice is distinct enough to require some mode of special reference and may be termed "public presentational torture." Encountering these bodies is often a painful and overwhelming experience: their skin may be torn and burnt, their faces cut and swollen, their eyes gouged from their sockets, their fingernails removed, and their hands severed. (15) Some bodies are left with warning notes attached or messages carved into the skin. The practice is motivated by the shock, disgust, revulsion, and horror that arises from coming upon these corpses, or hearing the experience described by one's family, friends, and neighbors.

      While public presentational torture exists throughout the world, it has received limited specific attention. Where the practice occurs and is documented, it is typically categorized as torture, extrajudicial execution, or referenced by a non-legal term describing the state's use of violence for the purposes of intimidation. (16) Nevertheless, public presentational torture represents a distinct mode of political practice. The intentional display of corpses bearing signs of extreme physical violence elucidates the actual logic of torture, particularly its destabilizing potential as regards the principles of democratic governance.

      Public presentational torture tends to occur in those places where torture is common, yet the practice exhibits elements that are distinct from the dominant definition of the crime. (17) For example, publicly displayed bodies are sometimes mutilated after the victims are killed. (18) Where this is the case, there exists an open question: Has torture occurred? The immediate response, consistent with much current discussion of the issue would say no, this is not torture because no one suffered the direct harm that defines the crime. However, a more penetrating analysis of the phenomenon reveals that these acts not only represent torture, but that understanding them in this fashion highlights the brutal nature of the crime and helps elucidate its special status within the international human rights framework. (19)

   2. Comparing the Classic Definition of Torture with the Insights o fits Public Display

      Torture holds a special place within the international human rights system as one of the most severe and troubling state actions. The crime is of such significance that the international community has crafted a special treaty on the subject, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. (20) The internationally accepted definition of torture is found in Article 1 of the Torture Convention:

      For the purposes of this Convention, the term "torture" means 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. (21) In reviewing this definition, the crime of torture can be divided into four distinct components: actions, perpetrators, victims, and objectives. (22)

      Actions--Torture is a crime involving actions understood...