Beyond Criminalisation: Torture as a Political Category

by | 1 Mar 2021

It has been almost a year now that the Overseas Operations (Service Personnel and Veterans) Bill has been discussed in the British Parliament. The Bill is currently at Committee stage before the House of Lords and, if proposed amendments do not succeed, it will become legislation in the next few months. Among its current provisions, it includes a presumption against prosecution of armed forces personnel after five years from the occurrence of certain offences, including torture, allegedly committed during overseas operations. This provision has been correctly described as a de facto ‘decriminalisation of torture’. Human rights groupslegal scholarslawyers but also former generals have laudably opposed the Bill. By reducing the risk of such prosecutions ever getting off the ground, the British government appears to accept that violent and dehumanising activity, like torture, may be understandable or excusable in the context of overseas operations. The failure to exclude torture from the presumption against prosecution reads as undermining the absolute prohibition on torture under international law. The Bill should be unambiguously resisted due to its underlying ‘imperial ideology’ and implications for the protection of fundamental rights. However, if opposing the Bill means advocating for more prosecutions, a dilemma arises for those who, like me, are also suspicious of calls for mobilising the state’s power to punish. Can we combine a firm condemnation of torture in all circumstances with a refusal to implicitly endorse the criminal law and its enforcement mechanisms (notably the police, prosecution authorities and the prison)? Or, in other words, can we object to a punitive response to torture without giving room to the slippery approach of the Bill that all but undermines the absolute duty to end torture?

The Presumption Against Prosecution

The stated aim of the Overseas Operation Bill is to limit ‘vexatious claims and prosecution of historical events’ involving British soldiers, ‘that occurred in the uniquely complex environment of armed conflict overseas’. To this end, Part 1 of the Bill includes restrictions on criminal proceedings against service personnel for certain offences committed overseas. After five years from the occurrence of the alleged offences, three ‘conditions’ must be met for the prosecution to proceed: i) the prosecution must be ‘exceptional’ (clause 2); ii) the prosecutor must give ‘particular weight’ to certain matters when deciding whether to prosecute, including the adverse effect that deployment on operations can have on service personnel (clause 3); iii) the Attorney General must give consent to prosecute (clause 5). Clause 6 and Schedule 1 explain which offences are included or excluded from this presumption against prosecution. Torture is included; sexual offences are excluded. Amendments have been proposed in both Houses of Parliament to exclude torture and other crimes from the presumption against prosecution.

By making it harder, if not almost impossible, to prosecute acts of torture committed by British soldiers after five years, the Bill introduces in effect a statute of limitations for such acts. Many have regarded this as an attempt to jeopardise the absolute and non-derogable character of the prohibition of torture. The ban on torture not only rejects all exceptions or qualifications but also proscribes any measure that jeopardises the force of the prohibition and its implementation. Relevant international jurisprudence clearly states that legal impediments, including amnesties and statutes of limitations, ‘which preclude or indicate unwillingness to provide prompt and fair prosecution and punishment of perpetrators of torture or ill-treatment violate the principle of non-derogability’. This is not merely to say that those suspected of torture must be prosecuted (or extradited) and, if found guilty, punished – as stated in Article 7 of the Torture Convention. It means that the absence of, or limits to, criminal accountability are in themselves a violation of the absolute ban on torture (see also ICTY, Furundžija TJ, §§ 155-157). There is, in other words, an inextricable link between the norm that outlaws torture in all circumstances and the use of penal means to redress it. Criminal law is more than an instrument to uphold the sacrality of the prohibition: it is an imperative. No other forms of legal regulation appear as important as criminal proceedings to address torture. Civil proceedings, for instance, are not considered equally obligatory – as confirmed by the House of Lords in Jones v Saudi Arabia and subsequently by the European Court of Human Rights.

The Prohibition of Torture and Criminal Law

It would seem that any attempt to reduce (or remove) criminal law in cases of torture would be regarded as jeopardising the absolute ban on torture. We cannot at the same time be against the Overseas Operation Bill and against criminal accountability, can we? I think we can. To understand why, we should explore further the nature of the relationship between the prohibition of torture and state penality. 

While it is true that criminal accountability is regarded as the main way to respond to acts of torture, it is also true that torture, by its very nature, often occurs in the penal context. The prohibition of torture has been invoked in many different situations, but it is commonly identified in relation to the treatment of persons deprived of their liberty, especially in prisons and police custody. Moreover, one of the crucial tenets of the prohibition of torture is the uncompromising rejection of torture as an instrument of criminal procedure. It appears that the anti-torture norm performs two functions in criminal law. On the one hand, it has a ‘limiting function’: the prohibition of torture humanises the state’s penal power, by preventing its uncontrolled and arbitrary deployment. On the other hand, the torture ban has an ‘enabling function’: it acts as a driver of intervention and justification for the use of criminal law to remedy public authorities’ brutality. While those advocating against the Overseas Operation Bill are now more concerned with the latter function, it is by looking more closely at the former that we can reconcile the critique of criminal law with the safeguarding of the torture ban as a peremptory norm. 

As Foucault has noted, the abolition of torture is neatly connected with the emergence of modern penality, which no longer depends on hurting people’s bodies publicly, but works through the normalisation of behaviour by policing and imprisoning deviant subjects. Opposing torture does not necessarily imply a reduction of the space of penal techniques and institutions in our society. The anti-torture norm, as currently understood, locates the problem with state penality as an issue for governance. It questions the modes of penality — how and (to some extent) how much we punish — rather than penality itself. The assumption is that criminal law can be made a socially valuable instrument if freed from torture and other morally shocking practices. The police, the prison and other criminal law institutions are regarded as necessary social goods in so far as they are governed, their agents well trained and adequate funds allocated to them. But, of course, torture has not disappeared from modern penality. Torture, carried out in secret, remains today an aspect of policing and punishing. Governance, albeit driven by an enlightened spirit of reform, has become a vehicle of new penal control, which, apparently devoid of ‘uncivilised’ practices, runs more deviously but also more effectively. In other words, the process of formally banning torture has left in place assumptions about the purpose and function of criminal law in society. It has also invited investments in the state’s penal power and, therefore, built the power and legitimacy of its institutions and techniques. Here the ‘limiting function’ is reconciled with, and flows into, the ‘enabling function’. 

Beyond Human Rights Law

It appears that while the ‘enabling function’ of the torture ban in criminal law is an imperative (acts of torture must always be punished), its ‘limiting function’ is not unqualified (despite the harm it causes, the state’s penal power remains prima facie a necessary social good). It is important to recognise that this feature derives from the legal notion of torture and its primary understanding as a human rights violation. Article 1 of the Torture Convention, for instance, explicitly excludes pain or suffering arising from ‘lawful’ application of criminal sanctions, although the entire criminal process, even when in compliance with human rights standards, may in practice result in serious physical and mental pain.[1] Moreover, it is the nature of torture as a violation of human rights law that demands a victim, a perpetrator and a remedy. The legal process enables us to identify individuals and groups to be held accountable or given reparation, but may leave unimplicated the social, economic, and political landscape that causes torture in the first place

Human rights have long had a role in fostering and legitimising penal expansion. This role does co-exist with attempts to set restrictions on the state’s power to punish but ultimately prevails over them. Human rights, as commonly understood, are a moral and legalistic tool to engage with social phenomena. Their ultimate aim is to prevent and remedy wrongs that threatens proclaimed universal values. As the values at the basis of human rights are regarded as universal and indisputable (a moral truth), their breach is seen as requiring the intervention of criminal law to reaffirm them, communicate the gravity of the offence and deter the wrong. The prohibition of torture, as the exemplary human rights principle, appears as ‘theoretical and illusory’ without methods of enforcement: only through the use of criminal law is it rendered ‘practical and effective’ (ECtHR, Gäfgen v Germany, § 123). Paraphrasing Foucault, we could say that human rights punish with an attenuated severity, but by punishing in the name of a higher ideal, they do so with more universality and necessity.

Torture as a violation of human rights law leads us to think that we cannot restrict criminal accountability without undermining the absolute duty to prevent and end the practice. Yet it is not necessarily the same if we approach torture as a political category. The ‘limiting function’ may prevail over the ‘enabling function’. In other words, criminal law may be regarded as an obstacle – not a tool – to achieving a non-tortuous society. Not by chance, those who are the most critical of the state’s power to punish, such as prison abolitionists, have long used the language of torture to illustrate the violence and pain of prison. By moving beyond the legal notion of torture and its primary understanding as a human rights violation, we can find space for accommodating the condemnation of torture in all circumstances with a refusal to endorse criminal law. Torture apologists object to prosecutions for torture by narrowing down its definition and reducing its scope. The British government, for instance, wants to restrict prosecutions against soldiers deployed overseas because it does not believe that their violence should be regarded as torture. In Agamben’s terms: by showing its ability to exceptionally inflict dehumanising violence on human life without torturing it, the British government attempts to state its sovereignty. An anti-torture and anti-carceral perspective would do the opposite. It would expand the protection against torture to include suffering arising from wider forms of state and non-state violence. This perspective also highlights that criminal accountability of overseas personnel does not in itself recompense the victims, legitimises ordinary types of violence in overseas operations and the deployment of British soldiers abroad, and, at least in the case of imprisonment for life, is not so different from torture.[2] By identifying the problem in the individual soldier’s acts, criminal liability also leaves untouched the systemic nature of military violence. War, writes Elaine Scarry, has some similarities with torture: both are about injuring others, whose bodies in pain become the palpable signs of the perpetrator’s otherwise abstract power. An anti-carceral perspective finally reminds us that, once enabled, the criminal justice system is likely to play its racist biases. It is not a coincidence that the three prosecutions for the offence of torture ever occurred in the United Kingdom were all against non-British, non-white defendants (see R v Reeves Taylor § 62).

Conclusion

The Overseas Operation Bill is an obnoxious political endeavour and must be opposed. Yet it is not the presumption against prosecution in itself that makes it objectionable and erodes the absolute ban on torture. It should be possible to assert the absolute duty to end torture without any invocation of criminal law. It is the ideology that the Bill underscores – the assumption that, no matter what British soldiers do, their violence will not be regarded as torture – that in effect functions as an apology for torture.


Mattia Pinto is PhD Candidate in Law at the London School of Economics and Political Science (LSE). I am grateful to Conor Gearty, Natasa Mavronicola and Peter Ramsay for their insightful comments on an earlier draft. Any errors remain my own.

[1] If a criminal sanction is not in compliance with human rights standards, it is generally regarded as unlawful. See, e.g., ECtHT, Tyrer v UK.
[2] Under s 134(6) of the Criminal Justice Act 1988, the offence of torture is punished with a maximum sentence of life imprisonment.

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