History of Torture
© Camilla Green
The origins of torture date back to 530AD, when the great Roman jurists espoused the virtues of torture as ‘the highest form of truth’ [i]. Greek legal orator Demosthenes believed that ‘no statements made as a result of torture have ever been proved untrue’ [ii]. In the 12th Century, Roman Law was revived by officials in Italy and France, to become a source of authority in civil law systems. In criminal proceedings, the accusatorial process was replaced with a structure of prosecution, which required the testimony of two witnesses or the confession of the accused as ‘proof’ for a conviction. In this way interrogation and torture to extract such confessions became enshrined in the civil law system (the law of the United States incorporates civil procedure).
The practice of torture did have its critics. In the 4th Century, philosophers like Aristotle recognised the true nature of torture that, ‘those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, while others are really ready to make false charges against others, in the hope of being sooner released from torture.’ In 1644, Dutch lawyer Atonius Matthaeus II saw past the inherent dangers of mutilation and death to the danger that torture could be used against the innocent. His objections included ‘the affront to natural justice by torturing an innocent’ and ‘the possibility that the accused person’s perception of truth would be skewed under torture’ [iii].
In the 18th Century, the Enlightenment and the relaxation of civil law rules of evidence led to the evaporation of torture provisions in European legal codes. In 1764, the work of Cesare Beccaria, author of On Crimes and Punishments, became so influential as to lead to the banning of judicial torture in criminal proceedings Europe. Beccaria saw torture as a means of ‘conviction of weak innocents’.
Consideration for the rights of those involved in war has historically been entrenched in American military code, dating back to the American Civil War in the nineteenth Century. The Instructions for the Government of Armies of the United States in the Field (Lieber Code), 24 April 1863 state:
Art. 16. Military necessity does not admit of cruelty — that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions. It does not admit of the use of poison in any way, nor of the wanton devastation of a district. It admits of deception, but disclaims acts of perfidy; and, in general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult [iv].
Yet in 2011, the media of the past decade has been saturated with debate about torture, and the issue is so live and real, that it seems impossible that in 1874, Victor Hugo claimed that ‘torture has ceased to exist’ [v]. The 20th Century saw a revival of torture techniques against perceived opponents of the state, and priority was given to state security. The Stalinist regime of the 1930s used torture to instil terror into the population, marking a convergence away from its traditional use to generate confessions. The atrocities of World War II, including the Nazi torture chambers, and continuing violence over the century, sparked a need to address the issue in international law. Despite various treaties addressing torture, states are finding ways to evade their responsibilities under international law and torture is sliding under the carpet.
[i] James Ross, ‘A History of Torture’, Torture: A Human Rights Perspective (Human Rights Watch, 2005), p. 4; See Roman Digests, De Quaestionibus ‘On Torture’ Book 48, Chapter 18.
[ii] Demosthenes 30.37, quoted in Page duBois, Torture and Truth (New York: Routledge, 1991), pp. 49-50, quoted in James Ross, ‘A History of Torture’.
[iii] Antonius Matthaeus II, Commentarius de Criminibus, cited in Rudolph, Security, Terrorism and Tortue, p. 163, quoted in Ross, ‘A History on Torture’.
[v] Ross, ‘A History of Torture’, p. 13.