Sameness/Difference, International Human Rights Law, and the Political Meaning of Torture

Abstract

Human rights and humanitarian law concerning torture simultaneously emphasize and de-emphasize the body in politically and theoretically interesting ways. Law offers competing accounts of the body, as something either natural or constructed, upon which legal normativity is erected. There is likewise little theoretical consistency in the range of conventional explanations of torture and in the normative basis for its condemnation. Liberal legalism seems to assume a linear relationship of bodies to persons, of natural bodies to human dignity, while other disciplines acknowledge discursively constructed bodies, bodies characterized by difference rather than sameness, bodies determined by culture, position, and subordination rather than biology. I want to make more explicit the theoretical linkage of bodily integrity to human dignity in the context of post-9/l 1 torture. Cosmopolitan legalism must confront the existence of other bodies, unnatural, constructed, cultured, tribal or colonized, and admit that the linear mapping of dignity onto the body is contradicted by contemporary torture practice. Torture is predicated upon dehumanizing the other, denying his/her dignity, stripping him/her of political and legal agency, and in so doing generating political meaning-for both "us" and "them." Torture is not an exceptional case; it fits into a larger pattern of state power, including violence, racism and imperialism.