Understanding Torture: Law, Violence, and Political Identity

Chapter Four. Torture, Rights, and the Modern State

chapter four  Torture, Rights, and the Modern State As I stated in the introduction, this chapter breaks with the legal analysis in the previous chapters and turns to the relationship between torture, rights, and liberal governance. The starting point for my analysis is the idea that legal or human rights do not exist in a vacuum, are not inherent in nature or required by rational deduction, and do not function as trumps. In other words, I do not assume that Kantian, liberal, or natural law ideas of human rights—that such rights force the state to treat people as ends, not means; that they provide people with a sphere of liberty outside state power; or that they comprise “the right to be treated as human beings”—are correct as a descriptive matter.1 My analysis also goes against the grain of the standard, progressive account of international human rights, which sees them as an escape from state violence and a liberating regime of universal principles—indeed, as “a universal political ideology.”2 A well-known statement by Louis Henkin exempli ‹es this account. Human rights are universal; they belong to every human being in every human society. They do not differ with geography or history, culture or ideology, political or economic system, or stage of societal development. To call them “human” implies that all human beings have them, equally and in equal measure—regardless of sex, race, age; regardless of high or low “birth,” social class, national origin, ethnic or tribal af‹liation; regardless of wealth or poverty, occupation, talent, merit, religion, ideology , or other commitment.3 With respect to the more focused idea of universal human rights as law, Anthony D’Amato provides a wonderfully concise distillation of the prevailing view. Since the Holocaust of World War II, the Nuremberg trials, and Eleanor Roosevelt’s superb drafting of a General Assembly resolution entitled, “The Universal Declaration of Human Rights” (1948), people are de78 manding direct access to public international law. Prior to 1945, a state could do anything it wanted to its citizens within its own territory, including murdering them, without any international accountability. Today , genocide, torture, enslavement, and other crimes, possibly extending to persecution and deportation, are illegal under customary international law even if they occur entirely within the territorial boundaries of a state and involve the state’s own nationals. The law of human rights . . . is changing “international law” into “interpersonal law.”4 In contrast to such views, I assume that rights as we know them today are a form of positive law, derive most of their power from sovereign authority, and exist only because of modern states.5 As such, whether in the national or international context, rights are usually instruments of state or institutional power. More precisely, rights tend to serve the interests of states and international institutions, and one of those interests is de‹ning the modern concepts of self and citizenship in relation to modern states and societies, as well as to an international legal and political order. To the extent that rights discourse is constitutive, therefore, it fosters unexpected and even uncomfortable ideas of nation, community, citizen, and individual. Among other things, the idea of liberal rights requires the idea of the individual, whose identity, in turn, requires the state. As the European Court of Human Rights recently explained, the state is “the guarantor of individual rights and freedoms and the impartial organizer of the practice of the various beliefs and religions in a democratic society.” To the extent that rights discourse is aspirational, it idealizes the nation, constitution , or political institution alongside the citizen, such that the citizen’s identity is a legitimate political project. To quote the same court again,“the State has a positive obligation to ensure that everyone within its jurisdiction enjoys in full, and without being able to waive them, the rights and freedoms guaranteed by the Convention [on Human Rights].”6 Important as well is that the constitutive and aspirational aspects of rights discourse also re›ect the idea that liberal rights are universal. Traditional accounts of rights as constraints on state power fail to explain not only the pervasiveness of torture and related practices but also the elasticity of legal rights in the face of torture. The approach I sketch here provides a better explanation of how legal discourse, including rights discourse , accommodates itself to and often supports the use of state violence. In other words, modern liberal states can respect rights and the rule...