zenship for wartime court martial conviction, Trop v. Dulles, 356 U. S. 86, 78 S. Ct. 590 (1958). A related constitutional protection, the 13th Amendments's prohibition of involuntary_servitude, has been instrumental in regulating prison labor. See, M. C. Bassiouni, Criminal Law and Its Processes (1978), at Section 5. 2. 6. See also, E. Lavine, The Third Degree (1930) for American problems of that era.

(36) Bassiouni, supra note 22 at 547.

(37) See generally, Amnesty International Report on Torture (1975).

(38) J. Lauret et R. Lassierra, La Torture et ses Pouviors (1973) at 12. See also, P. Dominique, L'Inquisition (1969) and J. Guiraud, Histoire de l'Inquisition au Moyen Age (2 vol. 1935, 1938).

(39) Id. at 14.

(40) Id. at 15.

(41) Id. at 18.

((42) Of particular note are the ethnic and religious disturbances in Sri Lanka, Malaysia and the Southern Philippines.

See generally, Van den Wyngaert, « Repressive Violence; A Legal Perspective», in Repression and Repressive Violence (M. Hoefnagels ed. 1977). (43) Amnesty International, supra note 37, pp. 114-240.

(44) Among them are: Amnesty International Christian Democratic World Union, International Catholic Child Bureau, International Commission of Jurists, World Confederation of Labour, World Peace Council, World Peace Through Law Center, the Anti-Slavery Society, Arab Lawyers Union, Friends World Committee for Consultation, International Council of Social Democratic Women, International Council of Women, International Federation of Free Journalists, International Federation of Human Rights, International Federation of Resistance Movements, International Federation of Women Lawyers, International Federation of Women in Legal Careers, International League of Human Rights, International Movement for Fraternal Union Among Races and Peoples, International Peace Bureau, International University Exchange Fund, International Young Christian Workers, International Youth and Student Movement for the United Nations, Movement Against Racism, Anti-Semitism and for Peace, St. Joan's International Alliance, Women's International Movement for Pea ce and Freedom, World Association of World Federalists, World Jewish Congress, World Muslim Congress, World Muslim League, World University Service and World Young Women's Christian Association.

SECTION II

The relativity of Torture

Although there is sufficient consensus or understanding concerning the extreme forms of « Torture », to permit its general use the precise limits of the conduct or consequences it reflects are not clearly established. It is generally agreed that an act of << Torture >> involves the infliction of severe physical or mental pain or suffering (1). Some authorities, however, would further limit the applicability of term to instances where such infliction is done for the purpose of coercing the victim's will (2), while others discount the significance of the purpose of the act, requiring only that it be intentional (3).

Without passing judgment on this issue, some useful observations may be made regarding the application of the common understanding of deliberate infliction of severe physical or mental pain or suffering.

Social Values and Individual Tolerance

The concept of « severe » physical or mental pain or suffering is, essentially, a subjective one. The purpose of underscoring the relativity of torture is to highlight the fact that the overall significance of a given process or enforcement of societal norms and the individual's tolerance thereto must be examined in the cultural context in which it is applied.

No action by a given society to compel compliance with its norms can be effected without some degree of coercion. Such coercion necessarily involves some degree of physical or psychological suffering to the individual in question.

In assessing the degree of such suffering sufficient to justify the application of the label «< severe », two difficulties are encountered. The first considered is that there is no means of measuring individual suffering or quantifying it. But a more subtle yet more significant difficulty is that, even if a measurement technique were divised, the choice of a level of suffering to be labeled « severe » would be a difficult task. The reason is simply that the judgment as to whether a given degree of suffering is «< severe » depends upon a variety of factors including circumstances of its infliction, tolerance of the individual and the ultimate values of the society in which it occurs.

A useful example is to consider the situation in which a dangerous felon refuses a police order to halt and is shot while attempting to flee the scene of a crime. Such police action is universally accepted, yet its consequence will be a considerable degree of suffering to the victim. In fact, given the inability to pre-determine with accuracy the course of the bullet, this action could result in injuring or killing the individual in question. But, under the circumstances, the propriety of the action is unquestioned.

A second example would be corporal punishment of offenders, as is common in some legal systems, where such treatment is regarded as proper. However, in a society where corporal punishment has been abolished, its administration would be regarded as outrageous.

Thus, the quantum of suffering that is properly regarded as << severe » remains relative even when the circumstances of its infliction are socially acceptable and in some cases, individually tolerable. It is this aspect of relativity that is most difficult to deal with, yet this aspect may also be critical for evaluating the legitimacy of a given coercive practice.

Societies regulate themselves by the application of socially acceptable sanctions to those who violate societal norms. The acceptability of those sanctions is usually deemed indispensable to their overall effectiveness. However where the practice is socially unacceptable, those applying such unacceptable practices cannot claim to be acting on behalf of society and therefore the sanction is deprived of its symbolic significance and ceases to isolate the offender from society. Furthermore, those applying the sanction appear as abusers of society's right of enforcement of its norms and thus become themselves violators of those norms. The application of socially unacceptable sanctions undermines the legitimacy and integrity of the legal process and the Institution which employs it. Consequently, the short-term goals of such sanctions lead to counter-productive long-term consequences which affect the credibility, legitimacy and integrity of the system resorting to such practices.

Determining whether a given sanction is socially acceptable thus requires reference to the values a given society places on individual and collective welfare.

Before examining the question of values, discussed in the following section, it is appropriate to consider the factors affecting such judgments.

Individual Tolerance

It should be noted that the meaning of the term . torture » is subjective with respect to each and every individual victim. Whether treatment is viewed as « torture » depends on the man

ner in which it is performed and the individual's tolerance to such treatment. For example, the reaction of different individuals to the same treatment may be very dissimilar. A given treatment, such as suspending a person by the hands for a certain number of hours, may produce less pain in a person of relative strength and good health than in a weaker individual (4). The quantum of pain produced will have a different impact on different individuals because of their varying individual tolerances for pain (5). Both considerations also depend on how the suspension is executed.

As a result, even objectively similar treatment of two individuals may result in one's experiencing severe pain, while the other experiences only minor discomfort. This would be particularly true in the case of treatment designed to produce mental suffering, because individual resistances to such stimuli are so particularly different (6). (See Appendix C, « Psychological Aspects of Torture >>).

The Social and Cultural Context (7)

Another element of subjectivity in applying a universally uniform standard is largely dependant upon the social and cultural context in which the act in question occurs and the degree to which the observer has been conditioned thereto. Thus, in a societal and cultural context which accepts the concept of corporal punishment and where certain forms of physical harm is generally accepted, the pain or suffering incidental to carrying out such a form of punishment to which a person subjected is not socially perceived as being «< severe » punishment and usually the individual does not perceive himself or herself as being subjected to severe » pain and sufferance.

The conclusion is therefore compelling. Physical and psychological pain and suffering may or may not be deemed «< severe » depending not only upon individual tolerance but upon its societal and cultural context because of the degree of its acceptability and its expectation by individuals. That which is viewed and perceived as << torture » in one context is not in another. Conclusion

All of the factors discussed above may be crucial in determining how a society views a given form of treatment for prisoners. The difference between punishment that is considered just under retributive, incapacitative, deterrent or rehabilitative theories and that which is regarded as unjust is established with reference to these factors. Likewise, measures designed to discourage repetition of officially disapproved conduct will be classed as rehabilitation, behavior modification, brainwashing or dehumanization with reference to these factors.

Thus, it is with reference to these factors that the authority administering a given treatment to prisoners is judged. If the treatment is in accordance with societal views, the authority will be viewed as an agent of society toward normalization of behavior. But if the treatment is contrary to these views, the authority's integrity, reliability and stability will be questioned, as well as the integrity, reliability and stability of the institutions

it administers.

In short, it is with reference to these factors that society may either judge the prisoner as deserving the treatment or judge the authority as an outlaw or a mechanism run amok.

Accordingly, a very high price may be paid by an authority that fails to consider these factors in formulating its policies for punishment.

(1) See, e. g., Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G. A. res. 3452 (XXX), 9 Dec. 1975, wherein no attempt is made to distinguish between the types of treatment condemned.

«

(2) << The word 'torture' is often used to describe inhuman treatment which has a purpose such as the obtaining of information or confessions, or the infliction of punishment, and it is generally an aggravated form of inhuman treatment ». 12 Yearbook of the European Commission of Human Rights, The Greek Case, p. 186 (1969). Limiting use of the term to practices designed to aid in fact-finding for the judicial process was done by J. Langbein in Torture and the Law of Proof (1977). Applying the term to all measures of coercion or intimidation which involve infliction of severe suffering has been advocated by J. Lauret and R. Lassierra in La Torture et ses Pouvoirs (1973).

(3) See, e. g., Tyrer v. U. K., Application No. 5856/72, Report of the European Commission of Human Rights, 14 Dec. 1976, wherein applicant argues that the practice of birching, a judicially imposed corporal punishment on the Isle of Man, constitutes a violation of Article 3 of the European convention, which prohibits torture and other forms of cruel, inhuman or degrading treatment or punishment.

(4) See, Langbein, supra note 2 at 8-9.

(5) See, e. g., Timmerman and Sternbach, « Factors of Human Chronic Pain: An Analysis of Personality and Pain Reaction Variables », 184 Science 806 (1974).

(6) Id. See also, « Science and the Sources of Pain », 106 Science News 261 (1974), and D. Colligan, «New Science of Torture», 80 Science Digest 44 (1976), and J. Hardy, H. Wolff and H. Goodell, Pain Sensations and Reactions (1967) at 386-87.

(7) See, A. Bozeman, The Future of Law in a Multicultural World (1971), ix et. seq., 3-33, for a general analysis of the difficulty of determining the role of law in the future because of the diverse societal and cultural settings.