Ordinary/war time torture

The New Yorker ran an article last week on the practice of long-term solitary confinement as "torture". I strongly recommend it, it makes for an eye-opening read. Solitary confinement, whether of hostages, POWs or, increasingly, prison detainees, provokes grave mental illnesses up to psychosis. The US resorts to the practice more than any other state (25, 000 are currently detained), a sort of prison within the prison, the ultimate way of putting people away, even from prison guards, short of killing them.

The article brought to mind two thoughts. The first is that it is noteworthy (for a human rights lawyer at least) for failing to mention any international resources (apart from a comparison with the UK), even though there are by now quite a wealth of them available and the problem is clearly one that is of international concern (www.solitaryconfinement.org has many of the relevant instruments, decisions, and analyses and the case law of the Inter-American Court of Human Rights is also instructive). It is precisely for situations such as these, where domestic courts and legislatures have totally accepted the practice through inertia, repetition and political pressures, that some possibility of a supranational appeal could be useful. There is in fact a wealth of international resources on this issue and it is just a tad parochial that none of them are referenced.

The second is the deep link that exists between solitary confinement for ordinary detainees in the US and the same practice in Guantanamo. In an article Fred Pinto and I wrote a few years ago, we challenged the exceptionality and abnormality of Guantanamo, suggesting that it was only the more visible embodiment of a type of practice that was rampant elsewhere As Atul Gawande puts it in the New Yorker article:

"With little concern or demurral, we have consigned tens of thousands of our own citizens to conditions that horrified our highest court a century ago. Our willingness to discard these standards for American prisoners made it easy to discard the Geneva Conventions prohibiting similar treatment of foreign prisoners of war, to the detriment of America’s moral stature in the world. In much the same way that a previous generation of Americans countenanced legalized segregation, ours has countenanced legalized torture. And there is no clearer manifestation of this than our routine use of solitary confinement—on our own people, in our own communities, in a supermax prison, for example, that is a thirty-minute drive from my door".

In this context, I am reminded of Catherine McKinnon's early 90s words about "war time rape" in Bosnia, and its relationship to "ordinary rape" outside of war. As MacKinnon famously put it "This war is to everyday rape what the Holocaust was to everyday anti-Semitism". Some begged to disagree by suggesting that "genocidal rape" obscured the ordinariness of the rapes involved. I suggest that a similar tension is evident between "ordinary torture" and "war time torture". Yes, war does provide an avenue for the infliction of violence which it may further legalize. But, in truth, torture is a much more prevalent, ordinary state technology, one that is deployed routinely against "undesirables". It is in the supermax prisons of Illinois and Texas that some of the practices of Guantanamo were carefully honed, and will continue to exist long after the international furore over suspected terrorists's conditions of detention has abated.