Session 2:  Torture
Chair: John Parry


Torture: Ticking Bombs and Slippery Slopes
John Janzekovic
Faculty of Arts and Social Sciences, School of Social Sciences, University of the Sunshine Coast, Queensland, Australia

Ticking Bomb scenarios are challenged by many detractors who dismiss the scenarios as unrealistic, even a fantasy, that governments and others use to justify torture.   This paper argues that Ticking Bomb scenarios cannot be dismissed so easily, and that the justification or otherwise of torture requires a much more fundamental exploration of what it means to be part of a civil and moral society.    Alan Dershowitz and Miko Bagaric propose that torture is a reality that even democratic societies engage in so some form of torture legalisation, perhaps in the form of a ‘torture warrant’, is required to at least try to limit the practice.   Dershowitz helpfully suggests that a torture warrant supplemented by stainless steel needles inserted under nails may satisfy some of the legal requirements and at the same time provide the required incentive for a captured bomb maker to reveal where and when the next device will explode.   This approach to legalise torture under some specific circumstances attempts to limit the speed at which humanity is hurtling down the torture slippery slope but the underlying suppositions are misplaced because the damage limitation and associated lesser of two evils arguments are morally flawed, short sighted and dangerous.  
Complicity to torture extends much further than a particular government and its citizens.   External parties who condone torture (lite or standard versions) outright, those who provide a ready vehicle for torture by the practice of ‘extraordinary rendition’, and those who turn a blind eye to torture are all complicit in the act of torture.    Complicity to torture includes governments that selectively proclaim “...we do not torture...” but then support others who outsource torture to states that have no such moral or legal qualms.
It is not beyond the realms of possibility that some information obtained by torture is accurate, timely and useful (even if only carefully sterilised stainless steel needles are used) but this still challenges the morality of torture itself.   Torture is an abomination that devalues and diminishes us all.   Societies that overtly or covertly encourage torture as the ultimate interrogation method do so at the cost of human honour and civilised behaviour.   The practice of torture encourages reciprocity, undermines credibility, martyrises the tortured, and damages the fundamental integrity of both democratic and authoritarian style states alike.   There will be a cost in human lives, perhaps many human lives, if one takes the position that torture is unacceptable under any circumstances but good and decent humanity is not so frail that it cannot recover from the evil realities of the ticking bomb.   Good and decent humanity will take much longer to recover if it takes the torture path and ultimately the cost in human lives will be much greater.  

Torture After Nuremberg: U.S. Law and Practice
Elizabeth Rapaport
Deparyment of Law & Philosophy, University of New Mexico, Mexico

The proposed conference paper has three objectives:   (1) To trace the genealogy of the definition of torture in US law, arguing that from the Cold War to the GWOT, US law has permitted torture lite;  (2) argue that torture lite is torture; (3) argue that much criticism of the George W. Bush Administration, particularly by Clinton and G.W.H Bush officialdom, is apologetic, leading away from rather than toward more fundamental critique of the post-Nuremburg dispensation.
The new international legal order proclaimed at Nuremburg prominently included a ban on torture as an instrument of state policy.  Nonetheless, the U.S. and other liberal democracies never renounced the use of torture in national security interrogations.  In the service of its practice, U.S. international agreements and domestic torture law were crafted to accommodate torture on the part of the national security apparatus.  The excesses of the George W. Bush Administration should not be allowed to obscure the status quo ante:  Torture has been accommodated in both law and practice from the Cold War to the Global War on Terrorism (GWOT).  Pre- 9-11 law, like more recent legislation, accommodated the use of modern interrogation torture doctrine developed by the CIA.  These practices are misleadingly denominated “torture lite.”   Torture lite was not developed to diminish or limit suffering but rather to enhance efficiency in its employment.  The definitional trick employed in law is to define torture so that torture lite methods are classified as lesser cruelty, which, while illegal, are not subject to the severe legal penalties or opprobrium that confront the practice of the type of torture identified with breaking bones and rending flesh.  Torture lite is nonetheless torture: Or, more accurately and completely, torture light comprises practices that can be and are applied in a manner that satisfies the legal definition of torture in U.S. domestic law and in international law.  The signal differences between the current administration and its predecessors are a new if ambivalent candor about what we do and the corruption of military law by norms previously reserved for the clandestine services.

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Torture in Postcolonial India: A Liberal Paradox?
Jinee Lokaneeta
Department of Political Science, Drew University, Madison, USA

As any liberal democracy, the Indian state either claims that torture does not occur in India or that it is never authorized as a policy. Yet, in India, the number of cases of custodial torture and deaths are extremely high to the point where torture is a subject of serious concern for human rights activists. This is despite that postcolonial India has very clearly articulated Constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary. This raises the question: how does torture continue to persist in India? In the paper, I counter pose the human rights reports on custodial torture and deaths with the Supreme Court jurisprudence on interrogations: on the right against self-incrimination [Article 20 (3)], safeguards regarding recording of confessions (Section 164 of Crpc), and the response of the courts towards custodial torture and deaths (Article 21 ensuring that there is no deprivation of life and liberty without a procedure established by law). The debates on torture in India have primarily focused on the institution of the Indian police to explain the cause and justification of torture. I argue that while the literature rightly points to the actors of torture: the police, it simultaneously deflects attention from the ways in which the jurisprudence itself struggles with the issue of torture. In the paper, I argue that the strong formal laws and innovative responses of the courts to the question of custodial deaths and torture, while being effective in addressing torture in many ways, ultimately distracts attention from the ambivalence in the court’s own response to the issue of torture and the use of excess violence in interrogations. 

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“The Period of Barbarity”:  Turkification, State Violence and Torture in Modern Turkey
Welat Zeydanlioglu
Department of Languages and Intercultural Communication, Anglia Ruskin University, Cambridge, United Kingdom

The traumatic transition from the Ottoman Empire to the Turkish nation-state gave way to the emergence and development of a violent nationalism promoted and defended by the Turkish military elites. With the establishment of the Turkish Republic, a program of Turkification was launched to create a homogenous Turkish nation. Nation-state-hood was seen as the criteria for Turkey’s “Western-ness” but the ethno-religious diversity of the country was an obstacle to this project.   
With the intensification of the nation building process in the 1930s, the dilution of the largest linguistically distinct non-Turkish group, the Kurds, became a national and civilisational necessity. Any articulation of “Kurdishness” was interpreted as a threat to territorial integrity or as an anachronism of the old Ottoman order. Throughout the 20th Century, military and ideological offensives resulted in waves of intensive Turkification and systematic state coercion, with the Kurdish provinces under emergency rule for the best part of the modern history of Turkey.
The relationship between Turkish modernity, systematic torture and the Turkification of Kurds in Turkey has largely been neglected by scholars. This is despite the fact that torture has been widespread and systematic in Turkey, targeting all sectors of society considered as “others.” This paper places torture at the heart of Turkish modernity and nation-building and analyses the use of torture as a tool for forced assimilation. The specific case in hand is the systematic torture of Kurds during “the period of barbarity” (vahşet dönemi) in the Diyarbakır Military Prison following the 1980 military intervention. This period coincided with the military’s social engineering policies and the stipulation of a new constitution that declared all citizens “Turks.” The examination of this period is not only important for its relevance to current developments in Turkey, but also for identifying torture as central to the Turkish nation-building process.