The lives of animals, the lives of prisoners, and the revelations of Abu Ghraib

Vanderbilt Journal of Transnational Law, Nov, 2004 by Charles H. Brower, II

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE LIVES OF ANIMALS
III. THE LIVES OF PRISONERS
 IV. THE REVELATIONS OF ABU GHRAIB
     A. The System Works
     B. Have We Descended to the Level of
        Saddam Hussein?
     C. Enlightened Self-Restraint
  V. CONCLUSION

ABSTRACT

In this Article, Professor Brower suggests that the images depicting inhuman treatment of detainees at the Abu Ghraib prison contain timely lessons about the function and the importance of legal personality. To illustrate this thesis, the Author first identifies animals as a population condemned to an existence bereft of the protections that accompany legal personality. Next, the Author describes the chilling similarities between the treatment of animals and the treatment of prisoners in Iraq and in the so-called "Global War on Terror." Finally, the Author discusses three potential lessons for a nation widely perceived to have retreated from its commitment to the rule of law.

   The prisoner of war does not belong to our tribe. We can do what we
   want with him. We can sacrifice him to our gods. We can cut his
   throat, tear out his heart, throw him on the fire. There are no laws
   when it comes to prisoners of war. (1)

I. INTRODUCTION

The sickening images appeared in April (2) and became notorious in May 2004. (3) Photographs documenting inhuman treatment of Iraqi prisoners by U.S. military personnel unleashed a torrent of questions: How did the mistreatment start? (4) Was it isolated or widespread? (5) Does it rise to the level of torture? (6) Who bears responsibility? (7) Why do women appear so prominently as tormentors? (8) How will the pictures affect our nation's strategic interests? (9) Have we blown the scandal out of proportion? (10) Whatever their merit, these questions fail to recognize the pictures as a well-timed revelation about the function and the importance of law.

Properly viewed, the images of captivity at Abu Ghraib do not merely depict brutality. The images provide a terrifying glimpse of life outside the protection of legal rights. Drawing on the work of a Nobel laureate, Part II of this Article explores this theme by describing animals as a population condemned to live without legal rights. Part III identifies the striking similarities between the lives of animals and the lives of prisoners captured on film at Abu Ghraib. By revealing a human population doomed to live, for however long, like beasts, the snapshots offer fresh insight into the function and importance of legal rights. Part IV discusses the significance of this revelation for a nation widely perceived to have retreated from its commitment to the rule of law.

II. THE LIVES OF ANIMALS

When studying public international law, students often struggle to understand the concept of "international legal personality," the capacity to hold and assert rights at the international level. (11) Because abstract definitions rarely provide enlightenment, the Author frequently draws on a concrete example from domestic law: animals have no rights. (12) You can buy them and sell them. You can slaughter them, devour them, and parade around in their skins. Because they have no legal personality, animals lack the right and the capacity to object to such outrages. (13) They must depend on our goodwill. Students generally meet this discourse with ripples of nervous laughter, signaling their appreciation for the grave situation of any living being forced to exist without the protection of legal rights.

One could, however, describe the lives of animals even more forcefully. For example, when invited to give a lecture on the topic of her choice, the title character in Elizabeth Costello addresses her audience on "the subject of animals." (14) At the outset, she reminds her listeners that "Germans of a particular generation" still stand "a little outside humanity" not because "they waged an expansionist war," but because they crossed the line between "the ordinary ... cruelty of warfare" and "a state that we can only call sin." (15)

   "They went like sheep to the slaughter." "They died like animals."
   "The Nazi butchers killed them." Denunciation of the camps
   reverberates so fully with the language of the stockyard and
   slaughterhouse that it is barely necessary for me to prepare the
   ground for the comparison I am about to make. The crime of the
   Third Reich was ... to treat people like animals.... By treating
   fellow human beings ... like beasts, they had themselves become
   beasts. (16)

Even those Germans who did not actively participate in such crimes found no shelter behind the mantle of innocence. (17) To the contrary, their "willed" and incredible ignorance of the camps became the badge of guilt for an entire generation. (18) Costello unveils the modern relevance of her observations:

   Let me say it openly: we are surrounded by an enterprise of
   degradation, cruelty and killing which rivals anything that the
   Third Reich was capable of, indeed dwarfs it. in that ours is an
   enterprise without end, self-regenerating, bringing rabbits, rats,
   poultry, livestock ceaselessly into the world for the purpose of
   killing them. (19)