with the arrival of nationalism and the emergence of modern nation-states. Of course, prior to that time persons accused of treason were subjected to extremely severe treatment, but the scale of such practices could not compare to that applied against gypsies and mountain peoples of Central and Eastern Europe (41) when they stood in the way of forging a homogeneous national culture. As nationalism gripped other regions of the globe, similar mass persecutions were undertaken, from the religious wars and persecutions of the Reformation era in Europe to tribal persecutions in Africa and ethnic persecutions of an un-official character in Southeast Asia (42).

But the most severe and systematic uses of torture against political opponents have occurred in nations that have already passed through the stage of nationalistic formation, but have arrived at a stage of national ideological crisis. Such states may be divided roughly into two classes: those in which drastically centralized power is an essential feature of the political system; and those in which divergent forces threaten to topple the central government and either replace it with an ideologically dissimilar system or give rise to a fractionalization of the governmental system. In the former case, absolute stability is essential to the government as constituted, whereas in the second gross instability is threatening to emerge at any moment.

The clearest examples of the former class are those states with a totalitarian ideology.

The second class of states is far more numerous, because it embraces states that reflect a variety of political structures, yet see themselves as facing potential disruption by political dissidents.

Summary

A detailed examination of the components of the contemporary practice of torture is reserved for Section IV, its psycholo gical aspects are discussed in Appendix C, and a cautionary note on the state of intelligence on current torture activity follows immediately. It is appropriate to mention here, however, that at least one reliable organization has recently compiled a world survey of torture that reports incidents and patterns of torture on every continent and in states of all cultural, political and religious characters (43).

In reviewing the overall history of the practice of torture, several observations can be made. First, the practice is restricted by neither time nor geography; second, the frequency of resort to torture has neither steadily decreased nor increased with the passing of time; third, the circumstances in which a given state finds itself seem more important than any cultural predisposition in determining whether or not torture will be resorted to.

Thus, it may be concluded that no political system in any part of the globe is necessarily immune from the practice of torture, because overall circumstances may change, and adoption of torture is based on perceived expedience.

While the preceeding material has been aimed at providing a perspective on torture that spans both geography and history, the formulation of policy concerning torture is of course dependent on the facts of the practice in the present.

Such factual data, however, are not readily available. As will be discussed in Section III, the practice of torture is extremely unpopular with influential schools of thought, so it is not surprising that practitioners of torture find it impolitic to assist in wide dissemination of information concerning their activities. Moreover, as will be detailed in Section V, the practice of torture is expressly or implicitly outlawed by nearly all states including those states in which its existence is reliably reported. Accordingly, those persons with knowledge of such activities tend to be persons guilty of perpetrating, conspiring to commit or concealing a crime, and are therefore unlikely to volunteer information.

The result is that information concerning the contemporary practice of torture is somewhat limited, and opportunities to verify such reports as do exist are rare. However, certain organizations have made it their business to gather such information on a global or national scale (44), and the consistency of their findings strongly suggests the reliability of their reports. Furthermore, from these reports there emerges a reasonably clear picture of the mechanisms by which information concerning torture is inhibited.

These mechanisms are important to understand and appreciate because they: 1) describe the conditions and limitations of available data for social-policy formulation; and 2) suggest the evidentiary hurdles that would confront implementation of any anti-torture policy.

a) Problems of Secrecy

The deliberate efforts of perpetrators of acts of torture to conceal their identities take several forms. First, the circumstances in which victims are seized and delivered to places of torture frequently make it impossible for even witnesses of the seizure to identify those responsible.

Frequently, victims are seized in their homes or in transit late at nigth by persons announcing their status as authorities only in the vaguest terms, if at all. The captors' dress may be

distinctively military or undistingushed, but rarely will they bear identifying tags.

Secondly, the identity of torturers if often protected by con cealing the site of the torture. Thus, victims are often blindfolded or otherwise rendered unable to trace their journey from point of capture to site of torture. Such sites are frequently carefully removed from other facilities, either by distance or by security-assuring systems of doors or passageways.

Thirdly, no records of the whereabouts or treatment of torture victims are kept in normal files. And, finally, personnel at torture sites are frequently identified only by nicknames. How much of this procedure is motivated by concern for security against escape of victims, attacks by victims' associates or threat of reprisals against individuals responsible for torture is a matter of speculation. But these measures clearly serve to render investigations of allegations of torture extremely difficult.

Thus, when a person has been arrested under such circumstances, inquiries concerning that person's whereabouts are generally met with a denial that he is in custody at all, and it is generally impossible to find evidence to the contrary. After the fact, when the victim alleges that he has been tortured, he is unable to provide sufficient evidence of the site where the torture took place or the identity of his torturers to make substantiation of his claim possible by persons not privy to these secret places, identities and records.

Thus, the questions frequently remain unanswered whether: a) those who tortured the victim were doing so pursuant to a general or official policy; b) those who deny the torture occurred are lying or are merely unaware of the acts of subordinates or persons in separate branches of the state's security forces; or c) the person alleging torture is lying.

b) Hinderances

Besides the clandestine activities surrounding the practice of torture, several other factors make assembly of evidence regarding claims of torture difficult.

First, many modern methods of torture leave no marks, so that it may be difficult to establish authoritatively whether an individual alleging torture was in fact, subjected to abuse.

Secondly, authorities of most states are uncooperative in investigating allegations of torture. Such an attitude may reflect: a) A suspicion that the charge is made solely for political purposes, to embarrass the government, so that cooperation would tend to give undesirable publicity and suggest soundness of the charge; b) A naive, but sincere belief that, because the higher authorities publicly disavow such methods, torture could never occur at a lower level either with or without official sanction;

c) A lack of concern about the possibility of torture occurring based either on indifference toward the matter or confidence that those persons being subjected to torture deserve such treatment; d) A belief that public investigation of such charges is harmful or unnecessary and that an informal internal inquiry is more appropriate, although outsiders would never know the result, or even whether such action were taken; e) Complicity of some degree in the practice, so that any investigation of the matter might adversely affect the official being asked to authorize the inquiry; or f) The presence of a de facto, sub rosa policy of torture by higher officials, covered up routinely by denials and other lies.

Even such impressive evidentiary hurdles as these might be overcome if it were possible to produce several alleged victims of torture simultaneously who had suffered in the same place under the same persons at the same time. Their consistent stories or inconsistencies would serve to either establish an undeniable case that would necessitate an investigation in the interest of publicity, or would show the alleged victims to be liars.

However, such multiplicity of witnesses is rarely possible to achieve in connection with allegations or torture, for several reasons: 1) The threat of further torture may frighten many potential witnesses into silence; 2) The experience itself may have affected the memory or coherency of some potential witnesses; 3) Many torture victims are transferred after torture to prisons, where they are unavailable to investigators; and 4) Other torture victims go underground or flee the country after their ordeal, rendering them inaccessible to their enemies and investigators alike.

The factors noted here are pregnant with significance for policy-making, whether in evaluating the available data upon which to base decisions or anticipating future action regarding specific allegations of torture.

For the purposes of the present discussion of the scope of the practice of the phenomenon, it is sufficient to say that torture continues to occur in a wide variety of political and cultural contexts around the world. A detailed examination of the present practices is deferred to Section IV.

(1) G. I. A. D. Draper, « The Judicial Aspects of Torture », at 1, presented to the International Institute on Humanitarian Law, 30 August to 3 September, 1977 San Remo, Italy.

(2) G. W. Keeton and J. Williams, «Torture », Encyclopaedia Britan nica, Vol. 22, p. 311 (1946).

(3) Slee, e. g., Lipenius, Bibliotheca realis juridica, s. v., «Tortura », (1679); K. Kelbing, Die Tortur (1913), and Justinian, Corpus Juris. See also,

P. De Gallinion, Traite des Instruments de Martyrs et des Divers Modes de Supplices Employes par les Paiens contre les Chretiens (1904); (J. Moreau, La Persecution du Christianisme dans l'Empire Romain (1956); H. Gregoire, « Les Persecutions dans l'Emprie Romain » 46 Memoire de l'Academie Royal 1 (1951); G. de Lacaze-Duthiers, La Torture a travers les Ages (1961); A. Mellor, La Torture, son Histoire (1949); G. Scott, The History of Torture Throughout the Ages (1940).

(4) See, E. g. Ta'T sing Lu Li, (G. T. Staunton, ed. 1810), and J. Murdock, History of Japan (1903).

(5) Grotius, De Jure Belli ac Pacis (F. Kelsey ed. 1964), p. 649.

(6) Sun Tzu, The Art of War (Giles transl. 1944).

(7) See, 1 The Law of War 3 (L. Friedman ed. 1972).

(8) See, A. Aymard and S. Auboyer, L'Orient et la Grece Antique, 293. 99 (1951), C. Fenwick, International Law 7-8 (1965) and L. Friedman, supra note 7.

(9) C. Fenwick, supra note 8 at 667; H. Maine, International Law 138-39 (2d. ed. 1894).

(10) Grotius, supra note 5, at 723 et. seq.

(11) Keeton and Williams, supra note 2 at 312.

(12) L. Langbein, Torture and the Law of Proof (1977) at 5.

(13) Id. at 6.

(14) Id. at 8.

(15) Id. at 73-74,

(16) Id. at 7-8.

(17) Id. at 15.

(18) Id. at 16-17.

(19) Id. at 74-77. See also, L. Parry, The History of Torture in England (1933).

(20) Id. at 79-82.

(21) See, Bassiouni, « The Privilege Against Self-Incrimination: A Historical Analysi and Contemporary Appraisal », in Law in the United States of America in Social and Technological Revolution, (J. Hazard and W. Wagner ed. 1974).

(22) See, Bassiouni, « A Survey of the Major Criminal Justice Systems in the World », in Handbook of Criminology (D. Glaser, ed. 1974). (23) Keeton and Williams, supra note 2 at 313.

(24) U. S. Const., 8th Amend.

(25) A bizarre example is the case of Rochin v. Calif., 342 U. S. 165 (1952) in which a suspect was subjected to stomach pumping in order to recover evidence in the form of illegal drugs that he had swallowed.

(26) See, e. g. Miranda v. Arizona, 384 U. S. 436 (1966), and materials discussed therein.

(27) Keeton and Williams, supra note 2 at 314.

(28) Id.

(29) Id. at 311.

(30) See, E. g., Tyrer v. United Kingdom, Application No. 5856/72, Report of the European Commission of Human Rights, 14 Dec. 1976, involving the practice of birching the Isle of Man.

(31) Keeton and Williams, supra note 2 at 312.

(32) L. Langbein, supra note 12 at 44.

(33) Keeton and Williams, supra note 2.

(34) Id.

(35) Examples of U. S. practices now abandoned as violative of the eighth amendment of the U. S. Constitution include: long prison terms for entry of a known false statement into public records in the Philippines, Weems v. U. S., 217 U. S. 349, 30 S. Ct. 544 (1910); divestiture of citi