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“For Such Purposes As”: Towards an Embedded and Embodied Understanding of Torture’s Purpose
Abstract
Purpose is a constitutive element of torture under article 1 of the UN Convention Against Torture (UNCAT). It is increasingly and widely accepted as being the determinative aggravating factor differentiating between torture and forms of cruel, inhuman and degrading treatment or punishment (hereafter “CIDTP” or “ill-treatment”). Compared to the depth of discussion on other constitutive elements such as severity of pain and suffering and official capacity, the dimensions of purpose have remained relatively and unduly overlooked in scholarship on torture. As the significance of purpose as differentiator becomes increasingly established, there is a corresponding need to better understand its dimensions—particularly to question the rationale for having it mark an aggravation of state violence. This paper will draw and build upon the literature and jurisprudence pertaining to a functionality-oriented, teleological construction of torture, before situating the discussion in torture's broader ecology in order to critically examine and expand understandings of its purpose, bottom-up, situationally and institutionally.
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Notes
For instance, the purpose of humiliation springs to mind and may be reasonably argued here (ICTY 1998: Furundzija, §162).
Elsewhere, as mentioned, the Inter-American system subscribes to a broader understanding of purpose. The war crime of torture according to the Elements of Crime for the ICC require the same purposes as article 1 of the UNCAT (ICC 2011: 14).
To include: non-consensual anal examinations (UN Working Group on Arbitrary Detention 2011: 20; UNSRT 2016: §36; UNSRT 2013: §76; UNSRT 2001: §§17–25); arbitrary detention (UNCAT 2013: §22; UN SPT 2016: §§60–5); sexual harassment, humiliation, forced nudity, forced medical treatments such as sterilizations (UNSRT 2013: §88; UNSRT 2016: §§68–70); killings; sexual violence; female genital mutilation; “honour” crimes; trafficking; child, early and forced marriage; forced conversion therapy; reproductive coercion (see UNSRT 2019), and rape (IACtHR 1988).