Leaving Torture Behind

Prof. Federico Jarast is an Associate Professor at JGLS, and an Argentine lawyer specialising in Public International Law. In this evocative piece, Federico reflects on the ‘real worth’ of International Law in the context of understanding the prohibition of torture. Importantly, he does so by exploring the deeply intertwined legal doctrine and philosophical questions anchored in Jean Améry’s life and death. We then think it apt to preface Federico’s work with a quote by Améry himself:

“Whoever has succumbed to torture can no longer feel at home in the world. The shame of destruction cannot be erased. Trust in the world, which already collapsed in part at the first blow, but in the end, under torture, fully, will not be regained.”

(Jean Améry, Torture, 1966).

If I started by affirming that Hans Chaim Mayer’s legacy claims for justice, very few people would understand the implications of such assertion, as not many contemporaries know whom I would be referring to. Even if I stated that Jean Améry’s life and, most importantly, his (abrupt?) death, compel us to raise objections to the real worth of International Law, it would still be an enigmatic proposition for most readers. But as discouraging as this fact may be, it should not prevent me from sharing his story. 

As a necessary starting point, I am forced to elucidate that both, Hanns Chaim Mayer and Jean Améry were, at least in biological terms, one same person. Being a victim of nazi brutality and, more specifically, having been subject to torture, his experiences troubled him in such a way that after his release from the concentration camp, he changed his name from the former to the latter in order to avoid any kind of connection with German culture.

The work of such powerful thinker, who wrote about a wide array of topis, was unquestionably shaped by the trauma he had to undergo as a direct victim of fascism. In this occasion, I will limit myself to some of his reflections on torture, revindicating his message.

Only two decades after the end of World War II, in 1966, some radio broadcasts by Améry were compiled under the title At the mind’s limits: contemplations by a survivor on Auschwitz and its realities, according to the English translation. As a general reference, I want to make clear that all quotations pertaining to Améry included in this piece were taken from the essays gathered in the aforementioned work.

Far from feeling deterred by polemic, this controversial intellectual made sure he shared his views in the most blatant terms, something that not only secured him many enemies across the whole political spectrum but also kept him outside the mainstream.

When it comes to torture, which in the end is the main topic I want to address in this occasion, Améry said that “[w]hoever has succumbed to torture can no longer feel at home in the world. The shame of destruction cannot be erased. Trust in the world, which already collapsed in part at the first blow, but in the end, under torture, fully, will not be regained.” Any attempt to interpret the implications behind such moving thought would be, to say the least, pretentious; and I genuinely do not feel entitled to it. But it is anyhow safe to say that, from the author’s perspective, a person who has been tortured no longer belongs to this world. Additionally, he also expresses in a very personal note that “[w]e, the victims, will appear as the truly incorrigible, irreconcilable ones, as the antihistorical reactionaries in the exact sense of the word, and in the end it will seem like a technical mishap that some of us still survived.” These ideas trigger so many uncomfortable questions, so many realities we would rather prefer to ignore as human beings…

The first question that comes to my mind is whether torture should be prevented or punished, or both at the same time. From a twenty-first century perspective, one might legitimately expect a definite answer favoring the latter option; but reality prevents us from hastening into such optimistic conclusion. Still today, there are discussions around the globe on how to solve a hypothetical ticking time bomb scenario, or on the acceptability of the so called “enhanced interrogation techniques”. This despite the lege lata, which we are all aware of and which I will refer to shortly.

The second one does not focus so much on the legal implications of Améry’s stance, but more on philosophical lines. Should we burry our past? Are debates to be finalized or should they be endlessly open? If the former were the case, who is entitled to decide when the time has come for a discussion to be closed, to determine when the wound has been healed? I believe this question is up to an extent addressed by the author, when he conveys that “[o]nly I possessed, and still possess, the moral truth of the blows that even today roar in my skull, and for that reason I am more entitled to judge, not only more than the culprit but more than society—which thinks only about its continued existence. The social body is occupied merely with safeguarding itself and could not care less about a life that has been damaged. At the very best, it looks forward, so that such things don´t happen again.” And, to be very honest, I believe Améry is also offering here an answer to the first question, stressing on the different stances that the individuals, on the one hand, and the international community, on the other, might have towards torture.

Bringing the two questions together, it is important to come back to the idea of lege lata, to what the law actually does to tackle the curse of torture. The unavoidable reference is, beyond doubt, the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted through General Assembly Resolution 39/46, in force since 1987 and currently binding on 173 parties.

According to its Article 2, para. 1, “[e]ach State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.” Furthermore, Article 4 provides that all Parties “shall ensure that all acts of torture are offences under its criminal law” (para. 1), making sure “these offences [are] punishable by appropriate penalties which take into account their grave nature” (para. 2). In this sense, it is unquestionable that the law proscribes torture, and that States should prevent and punish such acts.

Still, our century is rich in examples which allow for second thoughts on the applicability of the Convention, such as the one involving Mr. Hissène Habré, former President of the Republic of Chad. In this case, the Kingdom of Belgium requested the extradition of Mr. Habré in September 2005 on torture charges, among many other violations of International Law, to the Republic of Senegal, which the latter declined arguing that it was already taking the appropriate measures and steps to prepare for the trial of Mr. Habré. By 2009, Belgium decided to file an application instituting proceedings against Senegal before the International Court of Justice, a case entitled Questions relating to the Obligation to Prosecute or Extradite, which was decided in 2012.

In the end, the Court found that “the Republic of Senegal must, without further delay, submit the case of Mr. Hissène Habré to its competent authorities for the purpose of prosecution, if it does not extradite him” (para. 122.6); but still, it cannot be overlooked that this whole allegedly uncontroversial issue took several years to be sorted out. Meanwhile, an alleged torturer (with all that this implies) was still escaping justice.

Another important document to which notice should be brought is the Statute of the International Criminal Court (also known as the Rome Statute). It would be inaccurate to say that this instrument does not punish torture, but a mere glance of its text allows to conclude that it only does as far as the act of torture constitutes a crime against humanity (see Article 7.2.e) or a war crime (see Article 8.2.a.ii and 8.2.c.i). In the former case, account should be taken that crimes against humanity need to be “part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack” (Article 7.1), while war crimes should either constitute “[g]rave breaches of the Geneva Conventions of 12 August 1949” (Article 8.2.a) or “serious violations of article 3 common to the four Geneva Conventions of 12 August 1949” (Article 8.2.c). Technicalities aside, it is evident that International Law seriously impairs the criminal responsibility of torturers through these requirements.

One last legal aspect that should be mentioned before returning to Améry’s legacy is whether the prohibition of torture is part of jus cogens or not. With no intentions to extend for too long into the matter, I will avoid any references to General Assembly resolutions, decisions adopted by ad-hoc tribunals and pronouncements within the different regional Human Rights systems. To prove the point, it is enough to mention that the International Court of Justice emphasized in Questions relating to the Obligation to Prosecute or Extradite that “the prohibition of torture is part of customary international law and it has become a peremptory norm (jus cogens)” (see para. 99). Similarly, the International Law Commission has completed during its seventy-first session (2019) the first reading of the draft conclusions on peremptory norms of general international law (jus cogens), which needless to say includes torture in the illustrative list of norms favored by this special status (see General Assembly Resolution 74/186).

As promising and encouraging as all this may seem, the truth is that torture is still a reality in today’s world; and the most incomprehensible part of all this situation is the way in which States tolerate it while limiting themselves to pay lip service to the widely violated Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

But what about Améry? It is hard to tell what his thoughts would be on the matter, on the stark contrast between lege lata and lege ferenda. But I guess that the most incontrovertible message he left comes from his actions, not from his always eloquent statements. In 1976 he published On Suicide: A Discourse on Voluntary Death, a book exceeding the very limited goals of this piece. It is important to highlight, though, that only two years later he would put an end to his own life. Notwithstanding that he died more than thirty years after the end of the Second World War, he did not live long enough to see the 1984 Convention being even adopted. Maybe, he did not find his place in this world.

What would his thoughts on torture be today, well into the twenty-first century? It would be challenging, if not impossible, to say what his stance would be. Indeed, it might even be disrespectful. Still, yet another impactful declaration might help us better understand him: “[i]t is not Being that oppresses me, or Nothingness, or God, or the Absence of God, only society. For it and only it caused the disturbance in my existential balance, which I am trying to oppose with an upright gait. It and only it robbed me of my trust in the world.”

In the first paragraph I allow myself to question whether his death was abrupt or not. By now, it is lucid to me that far from being abrupt, his death was slow, and it was us, the human society, who allowed him to die. As hard as it may be to condense his message in so few words, I would be more than satisfied if at this point somebody shared this doubt: isn’t International Law killing Jean Améry the same way that nazi violence killed Hans Chaim Mayer in the concentration camps?

Image: At the Mind’s Limits (1996) and Améry (NZZ) (modified by MB).

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