On torture: The case of the “hooded men”

Abstract

That torture was never abolished is clear. As a performative piece, the ra-tionality of torture produces its own truths embodied in the “ticking bomb” scenario. If the “law remains law” then the absolute ban on torture is upheld and reproduced in judicial pronouncements. Yet law is not just law but rather a hegemonic technique—a surface over which political struggles are waged, reflecting back the political uncertainties of the time. This es-say will examine the ways in which torture, confession, and the discourses regarding tortured confession operate through the lens of a judgment of the European Court of Human Rights (ECtHR). It is in the case of Ireland v. United Kingdom, (“Hooded Men” case) that the Court attaches the no-tion of “special stigma” to torture and, in doing so, the Court performs in the public sphere—strongly condemning acts of torture while, at the same time, accommodating certain practices that could be said to amount to torture. Although the Ireland case was adjudicated in 1978, the “legal” architecture the Court built around torture in that judgment has made an indelible imprint in the legal and political landscape.