by John T. Parry. Ann Arbor: University of Michigan Press, 2010. 328pp. Paper $27.95. ISBN: 9780472050772. Ebook Formats. $27.95. ISBN: 9780472021789.
Reviewed by Jinee Lokaneeta, Assistant Professor in Political Science, Drew University. Email: Jlokanee [at] drew.edu.
UNDERSTANDING TORTURE: LAW, VIOLENCE, AND POLITICAL IDENTITY by John T. Parry is an extremely powerful intervention in the field of Torture studies (an emerging field given the enormous amount of literature being written on the subject in recent years) as well as the debates on theories of rights and the nature of the modern state. While there have been a number of seminal works emerging on the subject such as Darius Rejali’s TORTURE AND DEMOCRACY; Alfred McCoy’s A QUESTION OF TORTURE, and Paul Kahn’s SACRED VIOLENCE: TORTURE, TERROR, SOVEREIGNTY, the strength of Parry’s work lies in an ability to effortlessly move from law, to liberal theory, to post colonial studies in diverse contexts to help understand torture.
The central argument of Parry’s book is that torture is not aberrational; rather it is already a part and parcel of the modern liberal state. As Parry puts it, “. . .torture – understood colloquially and broadly instead of as a strictly defined term of art – is already part of the modern state’s coercive apparatus” (p.12). This statement brings us immediately to the relationship between law and violence, and specifically law and torture. While acknowledging that law is actually meant to “channel and regulate” the violence (p.12), Parry ultimately argues that law in its various forms “will likely fail” to regulate state violence (p.13). Turning to rights theory that is closely related to the protections against torture, he argues, in fact, that rights are constitutive of the modern state’s ability to construct the individual and subjects, and therefore cannot be understood as adequate constraints on the state’s powers. Finally, Parry notes that identities of individuals play an important role in the way they experience both torture and the protections against torture.
Parry’s detailed discussion of each of the sites he chooses is extremely rich and powerful and he pulls together this ambitious project in an admirable way. He divides the book in three parts. The first part of the book is on the laws against torture, the second is a transition chapter explaining his theoretical project, and the third part focuses on developing the past and the present history of torture in democracies including U.S. as a way to “understanding torture in the war on terror.”
Since protections against torture are for the most part articulated in rights ensconced in legal provisions, the bulk of Parry’s book is regarding the ambiguities that remain in the laws, whether International, European, or U.S. [*199] In chapters 2, 3, and 4, he systematically analyzes the protections against torture as articulated in International Law, European Law and U.S. law. In each of these instances, while he acknowledges some possibilities of protections, his main attempt is to ultimately point to the limits of these laws, the ambiguities that remain in terms of defining what constitutes torture, and Cruel, Inhuman, and Degrading Treatment (CIDT), and who are eligible for protections under these laws. To give a couple of key examples, Parry notes that while customary international laws are ultimately bound by “politics and diplomacy” as much as by questions of law emerging from the lack of clarity and structure (19), the more particular treaties and conventions regarding torture and detention are also found wanting. Geneva Conventions that constitute the core of humanitarian law, which were highly controversial during the U.S. war on terror, are examined closely by Parry. He argues that, while on the face of it, the four Geneva conventions are expansive to include all people in a “declared war and armed conflict” between parties or “partial or total occupation of the territory of a party to the conventions,” in reality the rights under these conventions depend on the relationship of the people to the conflict (p.21). In other words, he points to the category of “protected persons” which remains ambiguous in these conventions and has allowed categories such as “illegal or unlawful combatant” to emerge as possible unprotected persons. Similarly, while Common Article 3 of the Geneva Conventions provides minimum protections to all persons, it is supposed to be applicable to “conflicts not of international character” that the war on terror was not interpreted to be. Parry does acknowledge the argument of other commentators that the combination of additional protocols to the Geneva Conventions could be used to apply Common Article 3 to all persons; he notes nonetheless that these protections are lower than those provided by the Geneva Conventions as a whole. Furthermore, he suggests that for almost all relevant international laws including the UN Convention against Torture, there is a lack of clarity on the definition of torture and CIDT that greatly restricts the ambit of these laws.
In the chapter on U.S. law, Parry explains how the entire process of ratification of the International Convention on Civil and Political Rights (ICCPR) and the UN Convention against torture and CIDT was so fraught that it ultimately ended up undermining the significance of international law in the U.S. legal system. He points to how the impact of these laws was limited to practices outside the United States, that these were not self executing and bound by pre existing constitutional safeguards thereby making them primarily “rhetorical acts.” Thus, he writes, "Both documents are 'the supreme law of the land' ... yet as ratified, they can hardly be called law, they are defined as redundant—as a kind of non law or at least as needless law" (p.60). Parry points here both to the definitional ambivalences within the laws but also to the limits placed by the scope of the laws.
The changing meaning of rights and the rights bearing subject is a key part of the story for Parry whether it is in terms of shifts in constitutional law about the flexibility of available rights, the [*200] exclusion of rights for those outside the territory (and/or non citizens), or the balancing of rights in situations of necessity. For instance, from rights as “indefeasible,” Parry notes how the shift occurs in U.S. constitutional law to becoming more flexible. Using cases such as TERRY v. OHIO (1968) where the Warren court actually allowed for law enforcement officials to “stop and frisk” on reasonable suspicion, he notes a move away from a “strong” conception of rights to a more “realistic one” in practice. Alongside is a shift in the notion of the “reasonable” behaviour of the rights bearing subject which relies more and more on the assumption that a “reasonable innocent” person would cooperate and consent and not assert his/her rights in face of searches. Arguments of necessity or a utilitarian balancing of interests also begin to appear in the contexts of protections against excessive violence. Here Parry refers to CHAVEZ v. MARTINEZ (2003) where a person was continually questioned despite being in agonizing pain after being shot by the police. To determine the coerciveness of the questioning, in Chavez, the Court considered questions such as: whether that act resulted in incriminating evidence, was coercive enough to constitute “shock the conscience,” or was required for a legitimate state interest. Further, Parry points out that the necessity defense commonly used in criminal law is easily extendable to other contexts including laws related to torture especially when considered in the context of “ticking bomb scenario” which by definition invokes the “balancing of evils.”Hence, Parry counter poses the absolute prohibition of torture that appears in law to the ways in which practices of “discretion,” “everyday police activity” and “constitutional interpretation” mediates these absolute protections and consequently dilutes them.
The interpretation of rights in the U.S. context is theorized more generally by Parry in a linkage chapter that connects the “legal analysis” in the first half of the book to the “relationship between torture, rights and liberal governance” in the latter half (p.78). Here he puts forward the understanding that unlike a natural law based, Kantian, or liberal notion of rights, he considers rights to be based on positive law, emerging from sovereign authority, and, he argues that these rights are constitutive of the relationship between the state/sovereign and its subjects. “Rights thus have a double edge, for they confine even as they liberate, expose even as they protect, and confirm the power of states and other institutions every time they are invoked” (p.80). Analyzing a range of philosophers from Michael Walzer and Carl Schmitt to Giorgio Agamben, Parry notes that for each of them, there are limits to abstract rights whether in terms of distributive justice, in the economic sphere, or in terms of inscribing state power on bodies of citizens. Here, he makes the provocative argument that “liberal, critical, and authoritarian theorizing inevitably converge in contemporary political discourse” (p.83). For him, consequently, a critique of rights theory explains the crucial argument that the use of torture and state violence is actually consistent with the rule of law and the rights discourse, not constrained by them.
Colonial and Imperial imperatives also play a constitutive role in this torture narrative, a less explored aspect of [*201] torture studies. Utilizing post colonial sites such as India, Algeria, and Kenya, Parry points to the continuities between the colonial and the post colonial in modern democracies such as Britain and France both in terms of acts of torture but also the imperatives behind the violence – that of controlling the natives. Thus, he makes the very important point that torture in democracies has existed both in the past and the present and often the practices are hidden or performed outside and thereby termed as exceptional (chapter 5). He then uses that framing to understand the U.S. and its imperial past and present. The main argument is not just that there is an exception that gets created in the colonial context due to the imperative of state control but such a framework gets re created in post colonial or non colonial contexts as well such that they are a part and parcel of the modern state’s power (Agamben) and are generally seen in all kinds of governments (liberal and non liberal). But most of all, the subjects of such violence are often the colonial subjects but in other non colonial and post colonial contexts, they include all marginalized others. In the U.S., the affected encompasses internally the Native Americans, the blacks, the inmates at the maximum security prisons, the detainees and the immigrants, and on the outside were the Filipinos, the Latin Americans, and the Vietnamese (chapter 6). Hence, Parry notes that “bare life” (aka Agamben) becomes extendable to all. Here the relationship between law and exception is also notable. For Parry, although torture usually appears in a “metadiscourse of exception” associated with “states of emergency,” since the exception is also a part and parcel of routine laws, that helps normalize the former and is often upheld by judicial decisions or legislations.
The chapter on the war on terror appears then as an articulation of the culmination of this long history of torture. Parry describes the systematic way in which the policies unfolded in the post-9/11 setting up of the camps, authorization of detention of enemy combatants, articulation of non applicability of laws, use of “harsh” interrogation methods that travelled from Guantánamo to Afghanistan to Iraq, and the creation of rendition sites. Interestingly, Parry concludes that despite the historical similarities, the detailed legal and political analysis on torture that emerged in the post-9/11 context constitute something new and represent a shift in the discourse in terms of accommodation of CIDT if not torture against those who were defined as the marginal.
Parry’s biggest contribution is that he challenges a central myth regarding torture, of torture being an aberration, and an exception in modern states; instead he points to the centrality of torture in liberal governance. Torture, for Parry “sits on a continuum of violent state practices, where the use of these forms of violence by modern states as a way of regulating populations is far more significant than whether 'torture' is the particular form of violence used” (p.12). While democracies focus on the hidden aspect to make torture appear exceptional, the techniques, the defences, and ambiguities in law actually point to the pervasiveness of the acts. Absolute rights against torture and laws regarding torture that are often assumed to be adequate are exposed by Parry as being limited. His arguments are [*202] persuasive at many levels. However, some questions do emerge from his provocative formulations and I note a few of these below in the spirit of carrying forward a conversation that has continued with Parry over the years.
First, Parry notes and critiques the rhetorical quality of certain laws, and treaties, and I wonder whether those rhetorical aspects do have a more serious role to play than Parry acknowledges, namely that it forces the state to constantly negotiate the parameters of violence and innovate and justify forms of violence in response to internal and external critiques. Thus, the state is violent but also has to find ways of taming that violence such that egregious acts and justifications have to be withdrawn, thereby, implying that rhetorical acts play a role of ensuring some forms of accountability.
My second concern is regarding his provocative point about the adequacy of laws and rights. About laws, I share Parry’s critiques regarding ambiguities within laws and the challenges concerning their ability to serve as protections against torture. However, often times, Parry comes close to saying that law is entirely incapable of playing that role. For instance, at one point, he writes, “. . . I doubt that law provides a meaningful language for talking about [torture] at all” (p.13). There are instances, when Parry does note the possibilities of laws providing some protections (p.40). However, this formulation sits uneasily with his central claim that laws actually “will likely fail” to control state violence (p.13). Here his notion of law appears to almost foreclose a broader conception that pushes at its limits to aim for a wider scope than that provided by positivistic narrow interpretations.
A similar point can be made regarding his critique of rights which while being limited in the ways Parry suggests, are often not just the result of a positive sovereign authority but rather the gains of people’s demands for transformation. As K. Balagopal, a leading human rights theorist and activist from India, has put it, “rights” are also the articulation of people’s demands.
A right takes shape in some people’s minds, in their thoughts. Then it spreads into the social consciousness. It gets recognized in the political practice. At a particular phase it registers victory, politically. That means the law, the constitution, the traditions, the culture all these recognize it as a right. They will institutionalize it in one form or other.
Thus, by considering rights as emerging only from positive law, from sovereign authority, one risks undermining the agency of those who have articulated demands and located possibilities within these rights historically and also helped form the basis of a powerful human rights movement.
Finally, I once asked an ACLU attorney representing the Guantánamo detainees about whether these U.S. and international laws themselves are flawed and without batting an eyelid, he replied, we would never say that. While one could consider it an answer befitting the role he performs, I actually wonder whether one should consider his reply as an actual understanding of law where the point for us (critical theorists) is to both note the limits of law even while acknowledging the expanded gamut of law, to be constantly pushed against, in [*203] order to remind one of the substantive origins of some laws, and not just the technical aspects of law, and to continue to consider law as one of the arenas of the struggle for political and legal rights.
However, in a context where laws and rights have been considered as the final protections against torture, such that democracies claimed themselves to be free of such violence, Parry’s book is a reminder of the flaws of this perspective and while conversations regarding the particular questions noted above will continue, his provocative work is undoubtedly an outstanding contribution to the understanding of torture.
Interview of Dr K. Balagopal by Janam Saxi, On File with Author.
Kahn, Paul. 2008. SACRED VIOLENCE: TORTURE, TERROR, SOVEREIGNTY. University of Michigan Press.
McCoy, Alfred. 2006. A QUESTION OF TORTURE: CIA INTERROGATION, FROM THE COLD WAR TO THE WAR ON TERROR. Metropolitan Books.
Rejali, Darius. 2007. TORTURE AND DEMOCRACY. Princeton University Press.
© Copyright 2011 by the author, Jinee Lokaneeta.