Thank you all very much for coming to this special event organised by Elac,
the Oxford Institute for Ethics, Law and Armed Conflict on Torture and Dignity.
So this event really came about because we realised that David was in the country for a period of time teaching down in London,
and we thought that this was this was too good an opportunity to miss having three of
the most eminent and distinguished and active writers theorists and I suppose in a way,
activists on the issue of torture in recent times in the country at the same time.
So we thought we'd seize on this opportunity to bring them all together for this event,
which I think is just going to be terrifically interesting and stimulating.
So a colleague of mine said to me, but then they would just agree with each other.
And in a sense, of course, that that's true.
I tend to think that's not a problem, since I tend to think that the elements of the shared position is fundamentally the correct one.
And I think that over the last few decades, the work and the scholarship of these other three men has really been a bastion
of clear thinking and moral decency and a and a period of public debate,
which has often been characterised by neither of those two things.
So let me just very briefly introduce our three panellists here today.
David Luban to my right is going to kick us off in the presentation.
David is the University Professor of law and philosophy at Georgetown University.
He has been writing on the issue of torture for well over a decade now and has
collected papers will soon be published by Cambridge University Press under the title.
Remind me again what you gave torture. Power and torture power and law.
And he's also been very, very active in the public policy debate in the United States,
including in testifying to both houses of Congress on the role of lawyers in US torture activities.
On my far left is Professor Jeremy Waldron,
who is actually professor of social and political theory at All Souls College in Oxford and also university professor at NYU Law School.
He has also published broadly and deeply on issues of torture, and his papers are collected in a rival complement complementary series with al-Qaeda,
abuse and Torture, Terror and Trade-offs philosophy for the White House.
And I was actually fortunate enough to have written assessments for both crises on both books,
and I can attest that both of them are absolutely superb, essential readings for anyone who is interested in these matters.
And on my immediate left is Professor Henry Shu, emeritus of Oxford University,
who is many of you will know, wrote one of the seminal early papers on torture,
his 1978 paper and philosophy in public affairs, which I know has been an inspiration to many people who work in this field and
who continue to to write and intervene and on this debate to the present time.
So we're extremely grateful to have the three of you here. And I look forward to out to a fascinating discussion.
So, David, I'll ask you to to kick us off. Well, thanks. Thanks for the generous introduction and for having me here.
And when a few days ago, when David was fretting over email about how similar our views were and how we really need a disagreement,
I thought that I could start by saying that now I've seen Zero Dark 30 and I'm pro torture.
But but it wouldn't be true because I haven't seen it and I haven't changed my view.
No, it's every human rights instrument, every major human rights instrument in the world declares that torture and cruel,
inhuman and degrading treatment are violations and almost all of the world's human right instruments
also explain that the reason that we have human rights is out of concern for human dignity.
Now, the the first seems like an obvious thing to include in a human rights treaty.
The second is a philosophical proposition, and it raises puzzles.
How do you get specific human rights out of a general concept of human dignity?
I mean, some might say that you can't get a rabbit out of a hat without having first put the rabbit into the hat.
And there's a more specific puzzle about connecting human dignity and torture,
and that is that it just seems the evil of torture seems too obvious to need fancy explanations through philosophical concepts.
It's the imposition of pain. I mean, torturing a dog is wrong, all.
So. And we might think that torturing a dog is wrong for most of the same reasons, that torturing a human being is wrong.
And then where do you get the human dignity? By the way, dogs will continue to appear in my remarks today in a couple of other places as well.
So you might think that grounding the prohibition on torture in human dignity is too refined and maybe even downright evasive.
And I hope to argue that that's not the case now.
Human dignity is not a precisely defined ahistorical concept like alkaline salt,
and it's not even a historical but definable and a historical fuzzy term like tort or obligation.
I actually think that human dignity is a concept that largely exists in its historical meanings.
And the problem is that there are a lot of them in human dignity.
If you look at the stoic tradition was identified by Epictetus with the unshakeable will by Cicero and Marcus Aurelius,
with reason moving from Stoics to the biblical tradition,
it's human dignity comes from being created in God's image or in having dominion over the rest of nature,
and therefore being a higher order of being than the rest of nature.
In the Renaissance Pico Della Miranda line is oration on human dignity says that it's our chameleon nature.
Our ability to recreate ourselves can't locates it in autonomy.
It could be located in individuality. The contemporary philosopher Avishai Margalit locates it in not being humiliated,
which is something that I have said in in various writings over the last few years.
There is a cultural feminist understanding of human dignity that focuses not so much on
the very masculinist tradition of governance and a kind of senatorial conception of rule,
but on the giving of care and the capacity to give care.
And I know Jeremy is going to be elaborating on conceptions of human dignity, so I'm not going to say more about it right now.
I will say that what I'm going to be focusing on is is two features that I think any
reasonable concept or any reasonable conception of human dignity will have to include.
And those are just to anticipate a bit the integrity of the human personality and the equal status of all people.
Now, let me just start the argument by a reference to an interesting opinion by the German Supreme Constitutional Court from 1977.
The German court was considering whether a life sentence without parole is constitutionally permissible, and they concluded that it wasn't.
This is for two reasons. So it's based on two articles of the German constitution.
One which guarantees human dignity and one which guarantees the free development, the right to free development of the personality.
And the court linked those and said, if you sentenced somebody to life in prison without parole, then you are,
in essence declaring that they are beyond the possibility of rehabilitation,
beyond the possibility of redeeming themselves, of being welcomed back into human society.
And to convey that to a person is to violate their human dignity.
So without at least the hope of parole and of course, at a parole hearing of somebody who is not ready to come out of prison,
back into society, can stay in prison, but they're given the opportunity.
So without that hope, then it's no longer possible to form human goals, you might say, because there is no goal.
This is endless imprisonment or motivations.
Life would have the characteristic of Bernard Williams called the tedium of immortality, and the personality would be in danger of breaking up.
Now, of course, many prisoners who've gotten life without parole sentences don't break up.
But at least that's a strong possibility.
And it's this idea of having a personality that's able to form goals and goals of its own to form a motivational set around them.
That is pretty much the core of what I am thinking of as the integrity of human personality, as a first aspect of human dignity.
And the second I mentioned is, of course, that. Of sharing equally high status with all other humans.
And you can connect this with practices of imprisonment as well,
which oftentimes involve a kind of symbolic degradation of saying that this person will be treated harshly in prison.
Precisely because we want to show that they are lower than other people.
The historian James Whitman has argued that that explains many of the United States practices of imprisonment.
Okay. Now I want to put these together. The first the emphasis on integrity of the personality, you might say, focuses on the individual.
The second on the equality. The equal status of people is a more relational concept of dignity, and they go together.
If you destroy someone's human personality, then you are reducing her to a lower level.
And systematic subordination of somebody is an assault on the personality.
So at this point, let's turn to the topic of torture and what its specific evils are.
And I'm going to begin with physical torture,
although part of my argument is going to be that physical torture and mental torture lie
on a continuum with each other and that they should not be separated from each other.
Now let's go back to torturing the dog. Where we focus on the pain of the dog.
Why isn't talking about the pain of torture enough to explain its distinctive evil?
I mean, one answer is simply that pain by itself isn't necessarily an evil.
Now you write, Focus on the experience of any woman who has willingly undergone natural childbirth,
where the pain, I'm told, is more excruciating than anything that any man could bear.
I don't know how anyone would know that, but I'm willing are having having been in the room when both my children were born,
I'm willing to say that I would have been screaming for the epidural off.
But of course, they were associated with a joyful event.
And it's not an evil and I mean, it's got evil aspects, but it's not itself an evil.
So the point here is that context counts in determining whether pain is an evil or not, and what makes the pain of torture.
Evil is a particular kind of context. Now here I'm going to draw on the authority of the stoic writer Seneca in one of his letters,
who I think had extremely perceptive things to say about torture and the evils of torture.
Seneca says that even the stoic sage who prides himself on being completely indifferent to what the world can inflict on him,
quails his heartbreaks, his courage breaks when he's confronted with the spectacle of seeing the instruments of torture displayed in front of him.
And one of the things that's important about what Seneca says is that it is the spectacle itself.
And he says the spectacle overcomes those who would have patiently withstood the suffering.
Now, I don't know if that means that the spectacle is worse than the suffering,
but certainly that the spectacle is one of the things that's constitutive of the evil.
Now it's the spectacle involves a kind of terror.
What is it terror of? Here's what Seneca says. That which shakes us most is the dread which hangs over us from another's power, over us.
So it's knowing that you are in the power of somebody, knowing that you are at the mercy of someone who is completely merciless.
Now I want to pick up on that element of mastery, of being somebody else in somebody else's power and offer a definition of torture.
This is going to be quite different from the legal definition.
I'll come back to that in a moment. But it's meant to capture just these aspects of torture.
So here it is. A torture is the display of unlimited power over absolute helplessness,
accomplished through the infliction of suffering on the victim that the victim is meant to
perceive as the display of the torture is limitless power and the victim's absolute helplessness.
Now, that's a little complicated, and let me try to pick it apart.
The the main ideas here are, first of all, that torture involves a display of somebody's mastery of the torturers, mastery over the victim.
And what it's a display of is that power relation. I'm absolutely helpless.
You have. Limitless power over me. Limitless power.
You can do anything to me that you want and that that mastery, that radical inequality, that display is accomplished through the infliction of pain.
That's the medium through which the unlimited power is displayed.
Now, the legal definition is, at its core, torture as the intentional infliction of severe mental or physical pain or suffering on someone.
And there are other aspects to it that in most legal definitions by government agents, not for purposes of punishment or law enforcement,
but the core is the intentional infliction of severe mental or physical pain or suffering.
Now, I don't want to say that that definition is wrong, but I think it leaves something out.
And the reason that I'm offering a substitute definition is that the part that it leaves out
is this element of the elements of mastery and the spectacle of mastery that's driven home.
To set the context for the suffering that the torture victim undergoes.
So it's a certain relationship of absolute inequality that's at the centre of the context that makes the pains of torture evil.
Now, the aim of torture is to break the victim. It is meant as an all out assault on the victim's soul.
And now here, the two aspects of human dignity that I singled out earlier on the integrity of the
personality and equal human status are linked to understand the nature of the violation.
We understand that the torture is trying to break the soul of the victim,
to break the mind of the victim, to break the will of the victim, to break the spirit of the victim.
I mean, the way that Elaine's scary in her book On the Body in Pain describes the pains of torture,
is that that's an intensely privatising experience, because as anybody knows who's experienced really bad pain, it's so it's too distracting.
It makes it impossible for you to think about anything else. It brings you back into yourself.
It doesn't even have to be extreme pain. Anybody who desperately has to go to the bathroom in the middle of a lecture where it's too
embarrassing to get up and stalk out of knows how you can't really think about anything else.
So that's the sense of an assault on the victim and the powers of the victim's personality.
And it's done precisely in order to turn the victim into someone who's utterly subservient to somebody else.
John Kerry was all a prisoner of the Gestapo who wrote a famous essay about the torture that he underwent.
And he says when it has happened and the torturer has expanded into the body of his fellow man and extinguished what was his spirit,
he himself can then smoke a cigarette or sit down to breakfast.
Now, I've been focusing on physical pain and physical torture.
It seems to me that the same phenomena go on with mental torture.
Now there's a history of mental torture that I want to mention.
And the modern research by intelligence agencies into mental torture is often traced back to a series of experiments done by a scholar,
an American psychologist named Martin Seligman of On Dogs, published in a paper called Learned Helplessness.
And what Seligman's experiments consisted of was administering electrical shocks to dogs,
but not in the usual way of training that they to make the dog aversive to one thing, make the dog want something else.
But they're completely random and there's no behaviour of the dog that can do anything to make the shocks stop.
And what Seligman discovered was that after a while, the dogs no longer even made an attempt to get away from the source of the electrical shock.
That was the learned helplessness. Now, human researchers picking up on Seligman's ideas discovered several things.
One was that very small disorientation, hooding, somebody depriving them of sleep or making their sleep combat uneven, unpredictable hours.
This was what other of the CIA referred to is the frequent flyer program of waking somebody up every couple of every hour and then every 2 hours.
But really, it kind of ran. Intervals, moving them to a different cell, not letting the victim know what time it is.
Noise. Flashing lights. Manipulations of temperature.
Too hot, too cold. That just the accumulation of those small,
disorienting experiences can reduce somebody to the status of Seligman's dogs to a state of learned helplessness.
Add on other techniques of so-called torture light slapping as not punching or beating the kind of
thing that's torture heavy but an insult slap on an insult grab plus other forms of humiliation.
Forced nudity. Forced grooming. Prisoners at Guantanamo had their beards shaved.
Sexual taunting,
sexual humiliations that all of these can completely break the personality and reduce the victim to a kind of infantile submissiveness.
So I'm kind of Stockholm syndrome in a way in which now they just want to please.
Okay, this is more helplessness. So here's a Guantanamo example.
This is from an interrogator's log in the 50 day interrogation of a man named Mohammed al Qahtani.
I'm told detainee that a dog is held in higher esteem because dogs know right from wrong.
Began teaching the detainee lessons such as stay calm and bark to elevate his social status up to that of a dog.
Detainee became very agitated. That was from the that was from the of the log.
Now, what you see here is exactly the same pattern of complete.
I mean, I think the dog training example is a perfect illustration.
I'm the master. I'm above you. It's through these aversive techniques that I will reduce your will to being a suburb of my own will.
Now, I'm going to give one other example from of a Guantanamo technique.
This was from an Army investigation.
A detainee was given the following threat, and I'm quoting from the official report He will disappear and never be heard from again.
His very existence will become erased. His electronic files will be deleted from the computer.
His paper files will be packed up and filed away, and his existence will be forgotten by all.
No one will know what happened to him, and eventually no one will care.
Now, I'm sure that that threat was written with lawyers in mind.
Under U.S. law,
the only the only kinds of threats that count as mental torture are threats of death or of severe pain to yourself or to somebody else.
So this one is very carefully contrived so that the threat, which is bureaucratic oblivion, can't count under US law as a form of mental torture.
Nevertheless, it clearly is mental torture. And circling back to the place that I began.
It's mental torture of exactly the same kind that the German court was talking about with life without parole.
It is that the torture has the power without inflicting civil pain, simply to erase my existence.
Now, I want to I want to make a couple of comments, a couple of more comments, and I'll stop milder in some sense,
but in some sense more severe than life without parole is long term solitary confinement, isolation.
And in fact, it's isolation is one of the techniques that has been used by interrogators in order to break detainees.
And in fact, the US government entered a pleading in court saying We can't give lawyers to detainees because if they have lawyers,
they'll have human contact with somebody other than the interrogator.
Isolation is what we're using in order to produce the kind of servility that will lead this person to give us useful information.
So the government is saying we have to do this now. In fact, in the United States, there are 25,000 prisoners in long term solitary confinement.
The problem with long term solitary confinement, besides the obvious one,
is that it destroys the personality of a psychologist explains that are who we are
and how we function in the world around us is nested in relation to other people.
So that over a long term, a period, long term isolation, one sense of self is undermined.
It. Mine's your ability to regulate your own emotions.
The appropriateness of your feelings and your thoughts is impossible to index because you're lacking the
feedback from other people that will tell you whether what you're feeling right now is normal or abnormal.
So it becomes a struggle to maintain sanity.
And this, once again, is something that's in, seems to me, the same family as life without parole, as the various forms of torture,
light and disorientation that are all meant to inflict severe mental suffering on somebody in order to display the torturers mastery.
And it seems to me that this is clearly a violation of human dignity,
understood in the twofold way that I've been proposing of maintaining of equal status of all people and the integrity of the individual's personality.
And I think that's that's what I'll stop here. Ray, thank you.
And thanks for sticking to time as well. So I do want to take us on.
Yes, indeed. Thank you very much. It's a very, very great honour to be on the platform with these people.
And on a serious subject, it might seem from that, from some points of view,
talking about dignity as the basis of the objection to torture doesn't quite get at what's involved.
David mentioned this at the beginning of his comments, you know, to say of torture,
that it's disrespectful to say of torture, that it doesn't give people the respect that they're fundamentally entitled to.
Seems to be such an understatement, and it does seem intuitively.
Do we want to concentrate directly on elements of cruelty, cruelty that would be explained as wrong,
not in terms of the dignity of the human being, but as David has suggested, in the same way that cruelty to animals would be would be explained.
So I think like him, the part of our work here today is to explain why.
Nevertheless, the concept of dignity is an idea that has great power and does a lot of work in making the case for the kind of ferocious prohibitions
on torture that we find in the legal systems of the world and international humanitarian law and international human rights law.
Dignity is an interesting concept because when it's used affirmatively, when we talk about respecting human dignity,
we can note a picture of the nobility of the human being,
the full exercise of her faculties of reason and moral agency and love, and figuring things out for herself.
We convey a very elevated view of the human being, sometimes associated with image of God and religious conceptions,
sometimes associated, as David mentioned, with some sort of vice agency for God in the world.
It is a very high elevation view when dignity is used to condemn such practices.
Often we're talking about a precipitous and momentous fall down into the depths of degradation and the depths of misery.
And I think it is a no tribute to our species that we have had to develop this one concept that can do both sorts of work.
But affirmatively it refers to a high elevation of the nobility of the human being, negatively in the prohibitions upon assaults on dignity.
It refers to some of the worst things that humans can suffer.
Some of the worst degradations like the treatment can be associated with some of the worst things that people can do to one another.
In between, we have a funny little concept which talks about the dignified and the undignified.
And although there is certainly something undignified about being tortured and although, as David has just mentioned,
the nakedness is associated with that, the helplessness is associated with that, the various forms of humiliation are associated with that.
The notion of the undignified is so far above on this great moral cliff, above the notion of a direct assault on human dignity,
which goes much deeper into the awful evils that humans can inflict on one another.
So I wanted to mention that upfront,
just to sort of pay tribute to the fact that if we just think about dignity in the in the sense of making sure we are, according to humans,
all the respect that the high calling invites, we're not going to be able to capture the other end of it,
which is the refraining from these massive assaults on human dignity.
Whether we like it or not, most of the provisions in human rights codes and in constitutions which limit the abuse of coercive,
painful and penal treatment that people can be subject to.
Most of those are associated either explicitly or implicitly with ideas of dignity.
So, for example, the provision of the United States Constitution, the Eighth Amendment,
which prohibits cruel and unusual punishment, the courts have long held that this is a dignitary and proposition.
They held this when they made a de nationalisation, a prohibited form of punishment.
They held it on both occasions when they held that the capital punishment was per se cruel, unusual,
and when they readmitted capital punishment, they nevertheless re-echoed the notion that the Eighth Amendment was a big material dignitary,
an idea the European Court of Human Rights has said very similar things about Article three,
the prohibition on torture and inhuman and degrading treatment.
I'm going to say much more about that a little bit later on that even though the term dignity is not used in the text of the article,
these are nevertheless provisions that are designed to combat the worst kinds of assault on human dignity and in the legal system of Israel.
The basic law is the law of dignity and liberty. And in the cases that have dealt with torture,
the 1999 case on shaking and other torture like techniques that were being used by the Israeli security forces,
dignity is peppered all over the judgement, which holds that things like shaking, slapping and stress positions are prohibited methods.
They harm the suspect's body, they violate his dignity.
Stress positions are degrading and they infringe upon an individual's human dignity.
The term is used over and over again, so it's there in the law.
It's evidently a resource that the law, I believe, has largely created for itself.
I'm not a great believer in the idea that dignity is primarily a moral or a philosophical idea.
I think it may well be an idea that is doing legal work from start to finish.
And I argued this in my recent book, Dignity, Rank and Rights, which was a town of lectures I gave in Berkeley in 2009.
I do think we need to understand dignity, just the work that it does do in and around law as a legal principle, a distinctively legal value.
The of course, it is cited in other areas of human thought as well.
And I don't want to disparage those. I don't want to disparage the great work that has been done in philosophy by Henry
David Susman in some recent work by Charles and Gregory Freed in their little book,
because it is wrong in their account of the wrongness of torture.
And I do think there are important things in the Kantian conception of human dignity,
which have played a great role in German law and more broadly in the in the in the development of the modern concept of human dignity.
But there are parts of this conception that don't have a whole lot to do with the conceptions of dignity that we have to talk about.
We can't suggest, as we know, and the groundwork to the metaphysics of morals.
But dignity is a term that we use to contrast with things that have a price.
Everything has a price. Every value has either a price or a dignity.
It has a price that is substitutable, fungible for something else of similar price.
If it has a dignity, it is irreplaceable. It is valued beyond price.
Regarding humans, by virtue of their moral autonomy as valuable beyond price is tremendously important.
But it's not going to give us a direct route to the the wrongness of torture or anything else.
Although I do believe that Kantian motions of treating people as ends in themselves
and not merely as means and the currency an idea of what moral autonomy is,
which is this remarkable and on his view,
momentous capacity to oppose moral agency to the power of one's inclinations and to the power of one's feelings.
I think those matters are indirectly relevant to the case about torture,
because one of the things that the torturer does is to say implicitly to the person in front of him,
Oh, so you think you are a person with free will and with a moral ability to choose what to do with this remarkable contra into.
However, that can't be regarded as so momentous in you and in everybody.
I'm going to raise your inclinations to the highest screaming pitch,
and we'll just see what becomes of your world and see what becomes of your agency.
So it is certainly true that in that deeper sense of moral autonomy,
torture is a direct assault and it is an attempt to turn the body and turn the information of the person against that
person's will and against that person's agency to shatter their agency and sacrifice it on the altar of their pain.
That content idea, I do think is is very important and very deep.
And there are discussions and council works not on the ground work, but elsewhere in the metaphysics of morals,
oddly, in the doctrine of virtue, part of the metaphysics of morals,
rather than the doctrine of right about certain forms of punishment and
maltreatment of criminals being absolutely prohibited in virtue of human dignity.
So I don't want to push the the the moral philosophy altogether aside, over the last ten years,
like many of us have become wary of moral philosophers ability to contribute to the torture debate.
I know of only three or four moral philosophers who are prepared to countenance an absolute prohibition on torture.
One of them is sitting beside me. Wiggins is another.
But ever since I started to write on this, my philosopher friends regarded the notion of absolute prohibitions as absurd,
as almost inevitably discredited by their implication with religion and so on.
So by and large, moral philosophers have not distinguished themselves in work that needed to be done over the last over the last ten years.
Ask the moral philosopher about torture. Normally, the first thing they will say is, Well, first thing to say is it's not absolutely prohibited.
Yeah. The first thing to say is that we can imagine a ticking bomb situation in which it is required,
and we're talking about threshold ontology and things like that.
And I we have to get that straight. First of all, maybe there are pragmatic reasons for having a legal prohibition, blah, blah, blah.
But the most important thing to know is it's not absolutely prohibited.
That's been the legacy of most moral philosophers on this matter.
There are non-legal accounts of dignity in religious traditions.
David Luban mentioned the image of God idea and the notion that torture might in
some sense assault and desecrate the divine significance of the human person.
This is not just a Roman Catholic idea.
One of the most powerful anti torture documents is the Evangelicals Against Torture manifesto,
produced by David Gushee and other national evangelicals in the United States and published.
You can access it on the on the website for the Evangelicals Against Torture.
Very, very powerful, but very specifically religious case against this form of assault on the divine status of the human person.
And I said, I want to step closer to law and jurisprudence and to explore dignity as a specifically legal idea.
And I wanted to pursue four things.
One is to think of dignity, not necessarily so much as a foundation of human rights or even as a foundation of this particular right,
the right not to be tortured, but to think of dignity as a sort of status.
That people have. And that law recognises a status that comprises demanding rights and exacting responsibilities.
A status like I don't know the status if you think of differential hierarchical status as
the status of being a judge has certain rights and responsibilities associated with it,
the status of being the Queen or the status of being a parliamentarian, the status of being a married person.
And there are low status as to like bankruptcy and and and alien age and infancy and so on.
But law sometimes identifies statuses and all those together clustered together certain rights and responsibilities.
We now, I think, recognise in modern legal systems a very high status of ordinary human standing and associate with it,
as I said, demanding rights, human rights and quite exacting responsibilities as well.
It comes close to the notion of the status of a citizen. But it's not just a citizen idea.
It's the status of any person.
Any person is to be treated as a being of high mobility and of having this very high array of rights and responsibilities.
And from that point of view, the status of human dignity is high.
It is equal, as David said, and that its relation to torture is that the rule against torture is a forgery.
One of the things that is comprised in the high status of the dignity of the human
person makes dignity do rather different work than being simply a foundational idea.
Although I don't think it's incompatible with doing some foundational work as well.
And I do think David is right that there are some formal elements of that dignity status, namely the radical,
contrived inequality of the mastery and the helpless person in front of the torture, which it is the purpose of torture to create and enact.
It's also the case that torture was for a long time and in times past a form of treatment reserved for low status persons,
a form of treatment reserved for low status persons.
Slaves could not give evidence in an Athenian court except under torture,
and by insisting now that nobody is to be tortured, whatever the circumstances,
we are generalising high status treatment and we are working within the tradition
that James Whitman in the book Harsh Punishment that David referred to,
has described as the the generalisation,
the upwards generalisation of high status treatment to try to apply it to all persons and not just high status persons.
Very, very interesting book about harsh punishment. Harsh Justice.
Harsh Justice, Harsh Justice by Day by James Whitman. Dignity.
Secondly is important because it's a matter of status that unlike some status,
this is inalienable and non forfeit in talking about dignity in the context of torture is very important to make that point.
People will often say, Well, these are not regular human beings. These are terrorists.
This is not a good person. This is a bad person.
This is a person who has already declared war on mankind, who would be ready if he were let loose to bomb and maim and kill.
This is a person who may have forfeited whatever rights that they had.
The idea of dignity and its modern legal usage conveys that that's not possible.
Dignity is retained by all persons under all circumstances, no matter what they do.
May I quote another Israeli case? This from the case on targeted killing from 2005 where the Supreme Court of Israel was
considering and possibly permitting targeted killing like President Obama's drone killing.
And one of the premises they said was terrorism poses an existential threat to the people in the state of Israel.
And the second premise, said President Emeritus Barack.
Unlawful combatants. Terrorists are not outlaws.
God created them as well in his image. They too have human dignity.
Their status is to be respected by law and by customary international law.
It didn't settle the issue, but it drew up shock that this was a serious matter.
We were not against dogs. We're not just dealing with a rabid dog here.
We're dealing with a person with human dignity who has chosen appalling actions, but whose dignity is not is not lost by virtue of that.
And it is. Again, I was very fascinated by David's suggestion that it's part of the strategy of torture
sometimes to try to erase that sense of inalienable or non-profitable rights.
So I think that element of the legal notion of dignity associated with modern
human rights law and international humanitarian law is tremendously important.
Thirdly, and now getting just a little bit more specific,
I think we can learn a lot from some of the language that the law uses to express its stigmatisation requirements.
And here I want to focus particularly on Article three of the European Convention on Human Rights,
which prohibits not just torture, but inhuman treatment or punishment and degrading treatment and punishment.
Now,
some of you will be familiar with the way in which the lawyers have parsed that they have suggested that these might be three grades of ill treatment,
not all degrading treatment as inhuman, not all inhuman treatment of torture.
But looking at it in the other direction, it would normally be accepted that torture is characteristically inhuman treatment,
even though not all inhuman treatment is torture.
And torture is characteristically degrading treatment, although not all degrading treatment is torture on these accounts.
And so concentrating on the degrading aspects of torture and concentrating on the
inhuman aspects of torture and what those predicates mean can be quite helpful,
I think, in our thinking about dignity on these matters.
Degradation goes with dignity and the sense of dignity as a matter of the high rank accorded to people, whether they are high rank and a hierarchy.
So that Guinness is being degraded on the Bridge of the River Kwai by being
required to work as though he were a common soldier or high rank and the equal
human dignity idea where a person is degraded by being treated as though there
were several ranks of human beings and they belong to one of the lower ones.
All right. We now have high ranking ideas of of of human being.
And torture characteristically aims to diminish and assault that high rank, either by inducing a regress into something like infancy,
where a person is left lying naked in their own waste because they are not able or permitted to
take care of their own bodily needs in the way that adult human beings characteristically do.
Or when people are treated like animals.
There was an attempt to force them into just bestial recoil from pain or the other more complicated and disturbing relations.
The pain that David Luban talked about, or when people are treated just as famous, although no torturer ever treats his victim just as a thing,
he reminds his victim all the time, You are a human being and I am treating you as a thing.
Doesn't just treat him as an animal or as an object or the enormously important sexual element associated with torture.
In almost every circumstance, in almost every context, torture involves sexual degradation.
Often that involves rape or threats of rape or things like rape often involves sexual depravity.
And we know it's one of the gateways through which quite demonic forms of depravity enter the world,
no matter what the high aspirations are, of the philosophers who defend its use to defuse ticking bomb.
So the the notion of degradation operating at the foot of this precipitous cliff that
I talked about sometimes conveys a sense of of why of why dignity is important.
I think the notion of inhumanity does as well, although the term inhuman in Article three is difficult to parse, doesn't mean the same as inhumane.
That is treatment that is not particularly kind of benevolent.
Inhuman means what it says. It refers to something like either a form of treatment that no human ought to be able to inflict,
a form of treatment that no human ought to be expected to suffer or to be expected to be able to bear.
I don't just mean that it's a general negative term of approval treatment that shouldn't be inflicted.
The idea is that somewhere in the interface between psychology and normativity,
we say this is not a form of suffering that humans ought to be expected to put up with.
And this is the last legal idea I want to expound some of the work that I've been doing recently, hesitantly and tentatively,
has been devoted to the idea of whether we can think of there being such a thing as respectful coercion.
The law we know is force law we know can become a law and legal systems use threats of penalties and they impose penalties.
And law and law official and law enforcement officials use force evicting people from places,
stopping people from going to places, putting an end to an assault, seizing goods and so on.
So law is forceful, but law and it's modern conception, it seems to me, limits itself to certain kinds of force and certain kinds of penalties.
And the notion is that law will not use just any means necessary to get its way.
It will not be. Use means. I talked a little bit about this in torture, terror and trade-offs.
It will not use means which are just simply brutal, calculated to smash or destroy the agency of those who are who are subject to its coercion.
It will certainly threaten penalties that are unwelcome and penalties that may be difficult to put up.
But the idea of legal penalties in modern conceptions of law this is the idea that I'm exploring is that legal penalties,
while unwelcome and coercive, must nevertheless be bearable.
It must be possible to bear the term of imprisonment to which you sentence, Goodness me, even if you're sentenced to death,
the sentence must be carried out in a way that you can in some sense, although it's very,
very hard what you think bear the form of execution, walk to your execution, that there is a procedure that you can go through,
but you don't have to break down and become something less than a human being.
And bearing this punishment and that that is a limit to the coercion, there is a limit to the power of the threats that law can make.
And torture aims specifically to go way beyond that torture aim specifically to
go way up to the ends of the or beyond the edge of the envelope of the variable.
Torture does take the any means necessary approach to coercion.
And so I want to say there's something profoundly important about the laws antipathy to torture.
Law works, by and large in all of its operations,
both at the top of the cliff and at the bottom of it by respecting human agency and by
operating forms of coercion that nevertheless allow human agency to take its place.
Law depends on people's application of most of its norms, including most of its punitive norms.
Law does not seek to break the spirit or the will or the personality or the agency of
those who are subject to a threat or an extremist to its penalties and to its force.
Now, it is true, as Blackstone reminded us a couple of hundred years ago,
that torture in the hands of the English has usually been an instrument of the state,
not an instrument of the law, a very frequent instrument of the state, and not just the sort of grubby complicity associated with the present regime,
but by insisting on these legal elements, we are insisting on a substantive,
the substantive importance of bringing state operations under legal and the legal control,
bringing them under the control of the spirit of the law, which, as I say,
in modern jurisprudence, is often something coercive but not something brutal.
And I do think it's worthwhile working on that interface as well.
Great. Thank you very much. We do have a couple of seats at the front if you'd like to come down.
So we'll get to Henry. Thanks, David.
When one condemns a certain practice such as torture,
one of the challenges is to specify the features of the practice sufficiently narrowly that the features
involved do not turn out also to characterise other somewhat similar practices that ought not to be condemned.
If one fails to keep the characterisation narrow enough, one will cast the net too widely and end up with an implausibly broad position.
For example, quite often where I speak against torture is never being acceptable in any circumstances.
Someone will object by saying that they suppose. I'm simply opposed to all tough interrogation,
which means I would leave authorities facing terrible opponents with no means of forcing them to reveal anything that they do not want to reveal.
This lack of effective means of interrogation the objector would not accept, but the objection is mistaken.
Tough interrogation need not be. Torture tortures far more than merely tough interrogation.
But drawing the line between torture and tough interrogation is not easy.
In particular, I have no doubt that torture violates human dignity.
But I wonder whether some tough interrogation that is not torture also violates
human dignity while nevertheless being permissible in some extreme circumstances.
If this is correct, it complicates the role of the appeal to human dignity in arguments against torture.
At least these are the questions I want to raise in order to get your views.
Are there some forms of interrogation that one are not torture to, or at least in extreme cases,
morally permissible, but three are nevertheless disrespectful of human dignity.
She uses my example, the form of interrogation advocated by Matthew Alexander, a pseudonym, and his 2008 foot.
How to Break a Terrorist. The US interrogators who used brains, not brutality, to take down the deadliest man in Iraq.
Matthew Alexander is the pseudonym for a U.S. Air Force interrogator who was
instrumental in locating the rural safehouse in which Abu Musab al-Zarqawi,
the leader of al Qaeda in Iraq, was hiding so that he could be killed by an air strike on 7th June 2006.
The choice of verb and the title of his account, How to Break a Terrorist, is for reasons that Jeremy just alluded to.
Unfortunate because for Alexander, it does not mean what break means in the CIA torture paradigm that David also talked about.
There's no assault on the personality structure of the person being interrogated.
Quoting Alexander. Break is the jargon we use to signify getting a prisoner to open up a little like cracking an egg in quote.
Alexander has only contempt for the American torturers with whom he had to serve in Iraq, but mostly because of their incompetence.
Quoting Alexander again, who's quoting one of his colleagues, right when he says, tear down his self-respect, that should level the playing field.
End of quote from the other person. Alexander goes on.
I can't believe I'm hearing this. If you tried to crush an American colonel's sense of self with words alone, would it work in quotes?
In any case, Alexander gives his prisoners the opposite treatment.
Quote, Still, I've given him hope, and hope is the most powerful weapon in quote.
So is Alexander interrogating with kindness.
Far from it. The hope he gives is false hope.
He pretends and tricks and lies to his prisoners, treating them in ways that in almost any other circumstances would be clearly immoral.
Quote The best interrogators are outstanding actors.
Once they hit that booth, their personalities are transformed.
They allow a doppelganger to emerge. What doppelganger is most likely to elicit information from a detainee?
Changes from prisoner to prisoner. Sometimes I must have a wife or children so I can swap stories with the prisoner.
No, I have neither. In quote, The interrogation that Alexander practices does not make a pretty picture.
He coercively manipulates his prisoners. They are not treated as humans.
They're used instrumentally to obtain information. Some people will certainly feel that it's morally wrong ever to treat people like this.
It does not obviously respect their dignity as human beings.
The centrepiece of Alexander's book is his account of how he interrogated the man who in the end gave him the location of al-Zarqawi safehouse.
After a number of days of free cigarettes and general chat,
the man confided in Alexander that he was very unhappy with his wife and began to complain about his wife.
Alexander responded In effect, You think your wife is difficult?
Let me tell you about my wife, because Zander has no wife.
But then for days they traded stories about what a pain their respective wives were.
And after some more days of this, the prisoner mentioned to Alexander that he actually was very much in love with
the mistress and that the one thing he wanted most was to marry his mistress.
But he couldn't because divorce was contrary to Islam as he understood Islam.
This was the opening that Alexander had been waiting for.
He said to the prisoner, You know, the Americans run the country now.
I'm sure I can find a judge who would rule that your for your initial marriage was not valid and that you're really not married,
and then you'll be free to marry your mistress. And the prisoner admitted that that would have fulfilled his greatest dream.
And Alexander, of course, said, But I need something from you.
I need to know the location of Zarqawi safe house.
And after a few days, the prisoner gave it to him.
Alexander gave the location to the Air Force, and they blew the house to bits, killed Zarqawi.
And Alexander did nothing ever to help his prison.
Alexander's technique is unrelenting until he obtains the information he wants.
But it's not, I think, torture. It is not mercilessly cruel and destructive.
No severe pain or suffering, physical or mental was inflicted on prisoners.
The struggle is a battle of which the prisoner's values and beliefs are not respected.
He is, if he can be tricked into betraying them, is treated as an enemy.
Now with it is possible, but the soundness of neither his mind nor his body is undermined.
He's not shamed and humiliated like the men at Guantanamo who were forced sometimes to wear women's underwear and other
times made to obey dog commands like stay and bark in order in both cases to mock their values and undermine their dignity.
Alexander's prisoner will surely ultimately regret that his interrogator outsmarted him and obtained the wanted information.
But his regret will be possible because his mind will have remained silent.
Unlike the minds of some of those assaulted by the CIA torture method, his personality structure was not undermined.
He was offered a fraudulent deal that he could have refused to take.
Quoting Alexander, We don't have to become our enemies to defeat them.
In, quote, David Rubin's insightful definition of torture is, quote, the display of unlimited power over absolute helplessness,
accomplished through the infliction of severe suffering on the victim that the victim is meant to perceive as the display of the torturers,
limitless power and the victim's absolute helplessness, unquote.
Alexander's subject is in a weak position. He has been captured by the military forces of his enemy and imprisoned.
But he is not utterly helpless, like the nameless prisoners in CIA's black sites.
And Alexander has considerable power over the prisoner before him.
But he is not all powerful because he chooses to limit his own power.
He will not reduce his prisoner to a weeping infant, begging for mercy.
Like the inmates at Guantanamo. Alexander offers his prisoner a deal, a rotten deal, a deal he should and could refuse.
But his subject chooses to gamble that he can trust Alexander.
He can't. Does Alexander's technique respect the dignity of his subject?
The short answer is that I do not know, and I am eager to see what Jeremy and David, who find more of a dignity than I have and the rest of you think.
But here are some brief, relatively random thoughts.
Alexander's technique consists, I would say, primarily of trickery.
Such trickery is a standard element of warfare.
When the Allies decided to land at Normandy, they sent their bombers to hit Calais.
This was a trick that invited the German forces defending the French coasts to send more of their forces to Calais,
ideally pulling some of them out of Normandy.
Earlier, the Allies have gone to enormous lengths to create the impression that the southern front would be opened in Greece, not Sicily.
This is one way one fights wars. But in one respect, Alexander's trick is worse.
It relies on a betrayal of trust. If German commanders moved troops to Calais, it was not because they trusted the allies not to deceive them.
They simply thought they had evidence from which they could reliably infer a conclusion.
You don't waste bombs on a place you're not going to attack.
So you must be planning to attack the place you were bombing.
The Allies hoped the defenders would make this inference, but they did nothing to invite or create trust in themselves,
to invite the inference or to create trust in themselves.
Alexander, on the other hand, spends weeks building up his subjects trust, carefully constructing an elaborate lie.
And even during war, one kind of trickery is prohibited.
Perfidy is Alexander.
Perfidious perfidy consists of according to the first Geneva Protocol of 1977 quote acts inviting the confidence of an adversary
to lead him to believe that he is entitled to or is obliged to accord protection under the rules of international law,
applicable in armed conflict with intent to betray that confidence in, quote, Article 37.
Examples of perfidy given in Article 37 include, quote,
a the feigning of an intent to negotiate under a flag of truce or of a surrender to be the feigning of an incapacitation by rules or sickness.
C the feigning of civilian non-combatant status in quote, someone who does not care about civilians.
Although wounded will not be tricked into coming forward and making herself vulnerable.
Only someone who's committed to respecting civilians or assisting the wounded will expose herself to danger,
and thus only she will be tricked into her own death.
She will be tricked because and only because she is committed to abiding by the rules, but by the limits on war.
Does Alexander commit perfidy? Certainly.
Practices intention is sorry deception with the intention of betrayal.
He pretends that his non-existent wife makes him so miserable that he understands the desire to marry the mistress
because he wants his target to give him something for the help for the mistress that he has no intention of providing.
But Alexander is not exporting commitment to the laws.
Limited in conflict or commitment to any other principle is exploiting misery.
Alexander's deception may be a dirty trick, but it's not perfidy.
Perfidy does not violate personal trust. It violates commitment to principle and the exploitation of self-interest.
Even the interest in escaping misery and attaining happiness and even through the violation of trust
does not seem to me analogous to the exploitation of concern for others or commitment to law.
But is it respectful of human dignity?
It certainly shows no respect for the ends being pursued by the subject of the interrogation, but neither does war or law enforcement in war.
One seeks to impose one's will on another to see that their ends are not served and that one's own conflicting ends are served.
But many warriors respect their adversaries. In fact,
it's quite common to find fighters who have more respect for their adversaries
than for the politicians on either side who have made them into adversaries.
And they still try to outwit and sometimes to kill each other.
Alexander does not discuss respect or dignity.
I doubt that. In fact, he sees himself as very interested in them, but could have respected the man he has betrayed.
I think so. Compare two of the characters in Tim O'Brien's novel about the war in Vietnam.
The Things They Carried. An American has just killed his first member of the Viet Cong.
One of his comrades is disrespectfully jubilant.
Oh man, you [INAUDIBLE] trash the [INAUDIBLE].
You scrambled his sorry self. Look at that. You did.
You laid him out like shredded [INAUDIBLE] Louie Rice Krispies, you know?
On the dead test, this particular individual gets A-plus.
But the man killed the Viet Cong reflects very differently.
He thinks he may face up in the sense of betrayal.
A slim, dead, almost dainty young man.
He had bony legs, narrow, waist long, shapely fingers.
His chest was sunken in poorly muscled scholar navy.
His wrists were the risks of a child. He'd been born maybe in 1946.
He would have been taught that to defend the land was a man's highest duty and highest privilege.
He had accepted this. It was never open to question. Secretly, though, it also frightened him.
He was not a fighter. His health was poor. His body small and frail.
He liked books. He wanted someday to be a teacher of mathematics.
At night, lying on his mouth, he could not picture himself doing the brave things his father has done.
He hoped in his heart he would never be tested.
He hoped the Americans would go away soon.
He hoped. Tim O'Brien's character sees the man killed as a fellow human being, one who loved mathematics and feared fighting.
Alexander is so well able to trick his subject precisely because he understands him too.
As a fellow human being with an interior consciousness, one who's fed up with his wife longs for his mistress in an odd way.
It is Alexander's capacity for empathy that makes him so good at the betrayal he practices.
O'Brien's character must fight. Alexander must interrogate.
Each seeks to thwart the purposes of his adversary.
But neither, it seems to me, needs to deny his adversaries fundamental humanity.
Is this enough? Enough to acknowledge human dignity?
Enough to be permissible in the circumstances?
Thank you. Well, we've been very privileged, I think,
to have three really fascinating and illuminating and insightful reflections on the relationship between dignity and torture.
And we've now got about 40 minutes that we can take for this one.