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Hearing: "Is It Torture Yet?" - December 10, 2007
Chairman and distinguished members of this Commission, thank you for this invitation to testify about my research on the impact of democratic institutions on preventing the use of torture. I wish to recognize the exemplary efforts of the individual members of this commission to draw attention to the criminal act of torture in the United States, as well as the Commission’s continuing effort to investigate this important issue. I applaud the work you have done to date and will continue to do, and am both flattered and pleased to be able to offer some small assistance in this important endeavor.
My testimony draws primarily on research that I have undertaken with Professor Will H. Moore of Florida State University and David Armstrong of Oxford University, though I will also rely on other research projects conducted by myself, other members of this team, and work in the broader community of scholars interested in the violation of human rights generally and the use of torture in particular. Several international treaties such as the International Covenant on Civil and Political Rights and the Convention Against Torture make torture illegal, and while the Helsinki Final Act does not explicitly mention torture, it both commits state signatories to respect human rights broadly construed and respect their international obligations under other treaties. Further, and just as important, the US Constitution and, of course, US federal law, prohibit the use of torture by US officials and their employees. Those international treaties and similar domestic laws in other nations prohibit the use of torture elsewhere throughout the world. Yet, contrary to popular understanding, the use of torture remains widespread: existing data show that roughly 80% of the countries in the world tortured at least one person in the government’s control in any given year over the period from 1981-1999. Indeed, the prohibition against torture is the most widely violated of the human rights to the physical integrity of the person.
With that background, the shocked reaction to the revelation of the acts of inhuman and degrading treatment and torture of inmates in the Abu Ghraib prison led me and my colleagues to undertake a scientific inquiry to determine whether the institutions that support liberal democracy—popular franchise (i.e., elections), checks and balances (i.e., accountability mechanisms), and freedom of expression (specifically of the press)—reduced the likely use of torture by governments during the late 20th Century. The institutions that support liberal democracy are strongly associated throughout the globe with freedom, good governance, and human rights – the last finding (concerning the reduced application of state repression is commonly referred to as “the domestic democratic peace”, the title of my recent book with Cambridge University press). There has been little investigation, however, of the extent to which these institutions in particular reduce the use of torture. In fact, there is only one other that we have identified. Our research addresses this issue directly.
I wish to share three points with you today. First, torture is distressingly common. Second, while countries with institutions that support liberal democracy do engage in torture with a considerably lower likelihood than countries that lack such institutions, this difference only holds when no groups engage in acts of violence to challenge the government or its policies. When at least one group commits at least one act of violence countries with institutions that support liberal democracy are effectively just as likely to use torture as countries that do not have such institutions. Finally, I wish to briefly describe the extent to which each type of institution influences the likely use of torture. I will briefly relate each point in turn, and will then close with some observations about what this research implies for those of us who—like this honorable commission—wish to stand vigil in defense of human rights and press governments to eschew the use of torture, regardless of the crimes those in the government’s control are believed to have committed or planned.
The Commonality of Torture
It is an unpleasant truth of the human condition that torture is ordinary. Your invitation of December 3, 2007 asks me to address “the aberration of torture in a democracy.” While I do not wish to quarrel with the Chairman or members of this distinguished panel, I do wish to observe that between 1981 and 1999 80% of the countries of the world committed at least one act of torture in every year and only 20% committed zero acts of reported torture.
It is important to be clear about the definition of torture on which these statistics are based:
Torture refers to the purposeful inflicting of extreme pain, whether mental or physical, by government officials or by private individuals at the instigation of government officials. Torture includes the use of physical and other force by police and prison guards that is cruel, inhuman, or degrading. Torture can be anything from simple beatings, to other practices such as rape or administering shock or electrocution as a means of getting information, or a forced confession.
Seen in historical perspective, torture is less common today than it has been in centuries past, and democracies are less likely to use torture as a regular interrogation practice. Yet, this long historical trend aside, the use of torture is common and widespread across countries with all types of institutions. Yet, recent research has documented that countries with liberal democratic institutions are notably different in the type of torture they employ. More specifically, as international and national monitoring of the treatment of prisoners has increased over the past century, democracies have responded by innovating “clean” methods of torture that do not leave permanent marks or other evidence of pain or physical trauma. While the use of these “clean” methods has diffused to non-democratic countries, it is well documented that they were almost exclusively developed over the past 75 years in the military and police forces of the, France, Israel the United Kingdom, and United States. “Clean” torture produces physical and psychological pain without leaving evidence of the suffering. I urge the Commission to extend invitations to Professors James Ron and Darius Rejali to testify about the development and adoption of these “clean” techniques.
Violent Dissent is an Equalizer
Our research demonstrates that the percentage of countries which use torture at least once in a given year jumps from 80% to 98% when at least one group engages in at least one act of violence against the government in that year: in 566 of the 579 country-years in which there was at least one act of violent dissent exhibited at least one report of torture. Put differently, during the final two decades of the 20th Century nearly every country that was faced with a violent challenge to its rule utilized torture.
Social science is less precise than we would like, yet a figure like 98% jumps out at anyone, especially when one considers that governments seek to hide torture: the data we have is certainly an undercount of actual torturous activity. Thus, it is quite likely that this figure is something of an underestimate!
Finally, before turning to the relationship between democratic institutions and the likely use of torture, I wish to provide the Commission with one further statistic. If we consider whether a government used torture in the year preceding the year we are studying, we learn that once a country begins to use torture, it is alarmingly likely to continue to do so. During our period of study, 93% of the cases that used torture in the preceding year continued to use it in the following year. This figure increases to 99% when we examine only those cases where dissidents are engaged in violent activity: in only 7 of 557 cases where the government used torture in the preceding year and dissident forces engaged in violent protest did the government eschew torture.
With that background, I wish to turn our attention to the impact of liberal democratic institutions on the likelihood of using torture when the government is faced with a violent challenge.
Voice, Veto & Freedom of Expression: Do Liberal Democratic Institutions Help Reduce Torture?
My own research, as well as that of others, has demonstrated that liberal democratic institutions such as the popular franchise, checks and balances, and freedom of expression reduce violations of human rights, especially physical integrity of the person rights. Yet, historical research of government repression of dissidents reveals that governments in countries with democratic institutions tend to shift from overt to more covert tactics to repress dissident groups. Put more directly, while democratic institutions are strongly associated with greater observance of physical integrity rights on average, their impact is seriously eroded when groups in those countries resort to violence to challenge the government and its policies.
I now wish to review the findings my colleagues and I have found regarding the use of torture when dissident groups use violence. First, we show that elections themselves have no impact on the likelihood that a government uses torture when dissident groups engage in violence. This is rather different from my findings and those of others with respect to rights in general. The explanation for these differences are likely found in the objectives desired by those who use torture (e.g., information and/or intimidation) as well as the particular way in which torture is employed.
Interestingly, we do find that a combination of both high voter turnout and close legislative electoral outcomes are associated with a reduced likelihood of torture given violent dissent, but only when the country was not using torture in the preceding year.
Turning to checks and balances we explored the impact of legislatures, independent judiciaries, and combinations thereof. The results demonstrate that the combination of an independent judiciary and a legislature with high levels of opposition party representation reduces the likely use of torture in the presence of violent dissent, though only when there was no torture in the preceding year.
Third, we also examined the impact of freedom of expression. While protection of this right strongly reduces the likelihood that a government uses torture in the absence of violent dissent, that effect disappears when dissident groups undertake at least one act of violence.
To reiterate the context in which these findings stand, existing research by myself and others reports that democratic institutions have an impact on respect for human rights, though generally only when those institutions are well embedded in society. Those same institutions—when fully developed—also reduce the likely use of torture, but only when no dissidents are using violence to challenge government. The moment violent dissidents are on the scene, the effect of these institutions dissipates, and once the government resorts to torture the impact effectively disappears. While robust, the “domestic democratic peace” is not bulletproof.
In preliminary research my co-author on the torture research is investigating transitions away from periods of torture. I wish to stress that these findings are preliminary and subject to revision, but the work to date suggests that civil society—in the form of non-governmental organizations—is the most important determinant for stopping torture once it gets started. In addition to a strong civil society, an independent judiciary and a legislature in which the opposition is well represented tends to increase the likelihood of stopping torture. Protection of freedom of expression also makes a shift away from torture more likely.
Concluding Remarks
Champions of democracy and human rights will find little cheer in our findings. Research shows not only that torture is depressingly common, and that democracies have led a global shift to “clean” techniques that make torture harder to detect, but that the institutions that define liberal democracy have little effect on the use of torture when they are most needed: when groups that oppose the government and its policies turn to violent means to press their political views on society.
In that great American document The Federalist Papers, Messrs. Hamilton, Jay and Madison produced a lasting legacy to human affairs by making a case for the importance of liberal democratic institutions as useful means for mitigating abuse of governmental power – thinking that extends back throughout history. Government rightly has the responsibility to protect the body politic from predation by those who would tear it asunder. Protecting citizens’ right to pursue life, liberty, and happiness falls within that charge. Yet, it is government more than any other human institution that deprecates the physical integrity rights of human beings, and torture is the most common offense of governments in this domain. Contemporary research exposes as fiction the notion that the institutions that are justly celebrated as the foundation of liberal democracy largely, and almost completely, fail to deter governments from engaging in torture when that government is challenged with violent dissent. To be sure, these institutions considerably reduce the likely use of torture in the absence of a violent challenge to government, but that important constrain more or less evaporates in the face of violent dissident activity.
Preliminary work suggests that it is civil society, not government institutions, that can stop torture once it is begun. Civil society tends not to thrive in the absence of liberal democratic institutions, but the existence of democratic institutions alone are not sufficient. I urge this Commission to continue to reach out to non-governmental organizations as they are the primary vehicle for strengthening civil society, especially in the area of human rights. To the extent that legislators can work with activists and other citizens interested in holding government to its highest ideals we can find cause for hope to continue down this long road we are traveling to rid the world of torture. Finally, I would urge this Commission to continue to reach out to the academic community that is engaged in work directly relevant to the Commission’s mandate. There are a great many individuals involved in research that could be useful for understanding and improving human rights conditions. Unfortunately, these efforts are frequently left within academic journals and conferences, hidden behind inaccessible jargon. In short, we do not get out much but we most assuredly need to. If I as a member of this community can assist in any way, please feel free to contact me in the future. Thank you for your attention and interest.
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