Definition of Torture[1]

Author: Seumas Miller

1      Defining Torture

Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g. tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end.

All of these practices presuppose that the torturer has control over the victim’s body, e.g. the victim is strapped to a chair.

Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain. However, all of these practices involve the infliction of extreme physical suffering, e.g. exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person. If A accidentally sears B with hot irons A has not tortured B; intention is a necessary condition for torture. Further, if A intentionally sears B with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenceless.

Is the intentional infliction of extreme mental suffering on a non-consenting, defenceless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B‘s friend, A, is being tortured, e.g. A is undergoing electric shock treatment, but that B himself is untouched — albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A. However, B believes that A is being tortured; so B‘s mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A. In that case surely he is not torturing B either.

On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenceless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else’s (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture.

In various national and international laws, e.g. Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g. flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g. causing a prisoner to pretend to have sex with an animal.

So torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person. Is this an adequate definition of torture? Perhaps not.

It is logically possible that torture could be undertaken simply because the torturer enjoys making other sentient beings endure extreme physical suffering, i.e., quite independently of whether or not the victim suffers a loss of autonomy. Consider children who enjoy tearing the wings off flies. Nevertheless, in the case of the torture of human beings it is in practice impossible to inflict extreme physical suffering of the kind endured by the victims of torture without at the same time intentionally curtailing the victim’s exercise of his autonomy during the torturing process. At the very least the torturer is intentionally exercising control over the victim’s body and his attendant physical sensations, e.g. extreme pain. Indeed, in an important sense the victim’s body and attendant physical sensations cease to be his own instrument, but rather have become the instrument of the torturer. Moreover, by virtue of his control over the victim’s body and physical sensations, the torturer is able to heavily influence other aspects of the victim’s mental life, including his stream of consciousness; after all, the victim can now think of little else but his extreme suffering and the torturer. In short, torturers who torture human beings do so with the (realised) intention of substantially curtailing the autonomy of their victims.

So torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person, and; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)). Is this now an adequate definition of torture? Perhaps not.

Here we need to consider the purpose or point of torture. The above-mentioned U.N. Convention identifies four reasons for torture, namely: (1) to obtain a confession; (2) to obtain information; (3) to punish; (4) to coerce the sufferer or others to act in certain ways. Certainly, these are all possible purposes of torture.

It seems that in general torture is undertaken for the purpose of breaking the victim’s will. If true, this distinguishes torture for the sake of breaking the victim’s will from the other four purposes mentioned above. For with respect to each one of these four purposes, it is not the case that in general torture is undertaken for that purpose, e.g. in most contemporary societies torture is not generally undertaken for the purpose of punishing the victim.

One consideration in favour of the proposition that breaking the victim’s will is a purpose central to the practice of torture is that achieving the purpose of breaking the victim’s will is very often a necessary condition for the achievement of the other four identified purposes. In the case of interrogatory torture of an enemy spy, for example, in order to obtain the desired information the torturer must first break the will of the victim. And when torture — as opposed to, for example, flogging as a form of corporal punishment — is used as a form of punishment it typically has as a proximate, and in part constitutive, purpose to break the victim’s will. Hence torture as punishment does not consist — as do other forms of punishment — of a determinate set of specific, pre-determined and publicly known acts administered over a definite and limited time period.

A second consideration is as follows. We have seen that torture involves substantially curtailing the victim’s autonomy. However, to substantially curtail someone’s autonomy is not necessarily to break their will. Consider the torture victim who holds out and refuses to confess or provide the information sought by the torturer. Nevertheless, a proximate logical endpoint of the process of curtailing the exercise of a person’s autonomy is the breaking of their will, at least for a time and in relation to certain matters.

These two considerations taken together render it plausible that in general torture has as a purpose to break the victim’s will. So perhaps the following definition is adequate. Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general, undertaken for the purpose of breaking the victim’s will. Note that breaking a person’s will is short of entirely destroying or subsuming their autonomy. Consider the famous case of Steve Biko who it seems was prepared to die rather than allow his torturers to break his will.

Here breaking a person’s will can be understood in a minimalist or a maximalist sense. This is not to say that the boundaries between these two senses can be sharply drawn. Understood in its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period. Consider, for example, a thief deciding to disclose or not disclose to the police torturing him where he has hidden the goods he has stolen (a torturing practice frequently used by police in India). Suppose further that he knows that he can only be legally held in custody for a twenty-four hour period, and that the police are not able to infringe this particular law. By torturing the thief the police might break his will and, against his will, cause him to disclose the whereabouts of the stolen goods.

Understood in its maximal sense, breaking a person’s will involves reaching the point at which the victim’s will is subsumed by the will of the torturer. Winston Smith in George Orwell’s 1984 is an instance of the latter extreme endpoint of some processes of torture. Smith ends up willingly betraying what is dearest and most important to him, i.e., his loved one Julia.

Moreover, there are numerous examples of long term damage to individual autonomy and identity caused by torture, to some extent irrespective of whether the victim’s will was broken. For example, some victims of prolonged torture in prisons in authoritarian states are so psychologically damaged that even when released they are unable to function as normal adult persons, i.e. as rational choosers pursuing their projects in a variety of standard interpersonal contexts such as work and family.

Given the above definition of torture, we can distinguish torture from the following practices. Firstly, we need to distinguish torture from coercion. In the case of coercion, people are coerced into doing what they don’t want to do. This is consistent with their retaining control over their actions and making a rational decision to, say, hand over their wallet when told to do so by a robber who threatens to shoot them dead (albeit painlessly) if they don’t do so. As this example shows, coercion does not necessarily involve the infliction of physical suffering (or threat thereof). So coercion does not necessarily involve torture. Nor does coercion, which does involve the infliction of physical suffering as a means, necessarily constitute torture. Consider, for example, a South African police officer in the days of apartheid who used a cattle prodder which delivers an electric shock on contact as a means of controlling an unruly crowd of South African blacks. Presumably, this is not torture because the members of the crowd are not under the police officer’s control; specifically, they are not defenceless in the face of the cattle prodder. On the other hand, if – as also evidently took place in apartheid South Africa – a person was tied to a chair and thereby rendered defenceless, and then subjected to repeated electric shocks from a cattle prodder this would constitute torture.

Does torture necessarily involve coercion? No doubt the threat of torture, and torture in its preliminary stages, simply functions as a form of coercion in this sense. However, torture proper has as its starting point the failure of coercion, or that coercion is not even going to be attempted. As we have seen, torture proper targets autonomy itself, and seeks to overwhelm the capacity of the victims to exercise rational control over their decisions — at least in relation to certain matters for a limited period of time — by literally terrorising them into submission. Hence there is a close affinity between terrorism and torture. Indeed, arguably torture is a terrorist tactic. However, it is one that can be used by groups other than terrorists, e.g. it can be used against enemy combatants by armies fighting conventional wars and deploying conventional military strategies. In relation to the claim that torture is not coercion, it might be responded that at least some forms or instances of torture involve coercion, namely those in which the torturer is seeking something from the victim, e.g. information, and in which some degree of rational control to comply or not with the torturer’s wishes is retained by the victim. This response is plausible. However, even if the response is accepted, there will remain instances of torture in which these above-mentioned conditions do not obtain; presumably, these will not be instances of coercion.

Secondly, torture needs to be distinguished from excruciatingly painful medical procedures. Consider the case of a rock-climber who amputates a fellow climber’s arm, which got caught in a crevice in an isolated and inhospitable mountain area. These kinds of case differ from torture in a number of respects. For example, such medical procedures are consensual and not undertaken to break some persons’ will, but rather to promote their physical wellbeing or even to save their life.

Thirdly, there is corporal punishment. Corporal punishment is, or ought to be, administered only to persons who have committed some legal and/or moral offence for the purpose of punishing them. By contrast, torture is not — as is corporal punishment — limited by normative definition to the guilty; and in general torture, but not corporal punishment, has as its purpose the breaking of a person’s will. Moreover, unlike torture, corporal punishment will normally consist of a determinate set of specific, pre-determined and publicly known acts administered during a definite and limited time period, e.g. ten lashes of the cat-o-nine-tails for theft.

Fourthly, there are ordeals involving the infliction of severe pain. Consider Gordon Liddy who reportedly held his hand over a burning candle till his flesh burnt in order to test his will. Ordeals have as their primary purpose to test a person’s will, but are not undertaken to break a person’s will. Moreover, ordeals — as the Liddy example illustrates — can be voluntary, unlike torture.

Having provided ourselves with an analytic account of torture and distinguished torture from some closely related practices, we need to turn now to the question, What is Wrong with Torture?

2      What is Wrong with Torture?

In terms of the above definition of torture there are at least two things that are manifestly morally wrong with torture. Firstly, torture consists in part in the intentional infliction of severe physical suffering — typically, severe pain; that is, torture hurts very badly. For this reason alone, torture is an evil thing.

Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing — even considered independently of the physical suffering it involves. (And if torture involves the breaking of someone’s will, especially in the maximalist sense, then it is an even greater evil than otherwise would be the case.)

Given that torture involves both the infliction of extreme physical suffering and the substantial curtailment of the victim’s autonomy, torture is a very great evil indeed. Nevertheless, there is some dispute about how great an evil torture is relative to other great evils, specifically killing and murder.

Some have suggested that torture is a greater evil than killing or even murder. Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies.

On the moral wrongness of torture as compared to killing, the following points can be made. First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter — but not the former — necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him.

It does not follow that being killed is preferable to being tortured because the duration of the torture might be brief, one’s will might not ultimately be broken, and one might go on to live a long and happy life; by contrast, being killed — theological considerations aside — is always ‘followed by’ no life whatsoever. For the same reason it does not follow that torturing a person is morally worse than killing that person. If the harm brought about by an act of torture is a lesser evil than the harm done by an act of killing then, other things being equal, the latter is morally worse than the former.

A second point pertains to the powerlessness of the victims of torture. Dead people necessarily have no autonomy or power; so killing people is an infringement of their right to autonomy as well as their right to life. What of the victims of torture?

The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenceless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer. Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defence official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him.

The conclusion to be drawn from these considerations is that torture is not necessarily morally worse than killing (or more undesirable than death), though in many instances it may well be. Killing is an infringement of the right to life and the right to autonomy. Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim’s autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time, and torture can in principle extend for the duration of the remainder of a person’s life. Further, according to our adopted definition, torture is an intentional or purposive attack on a person’s autonomy; this is not necessarily the case with killing. Finally, torture can in principle involve the effective destruction of a person’s autonomy.

 

[1] The material in this paper is extracted from the first two sections of Seumas Miller “Torture” Stanford Encyclopedia of Philosophy https://plato.stanford.edu/