Torture essay plan

Question

1. Should the absolute legal ban on torture be protected and respected in the
face of utilitarian arguments that torture, under certain conditions, may be
employed particularly in ticking bomb scenarios? Discuss this question by
evaluating the relationship between the concepts of liberty, security and
human rights (in light of historical examples and the relevant case-law) and
by referring to the opposing arguments on torture.

Introduction

“If you want a picture of the future, imagine a boot stamping on a human face-
forever”-George Orwell 1984

This essay purports to identify the key strands of the jurisprudential thoughts on
the well-known prohibition of torture.

This essay also affirms that the key to deciphering what can be done is that we
must first understand the much broader context of analysis- specific
cultural/political context.

I am going to tackle in this piece a number of areas of recent discourse on the

prohibition,

Does the torture of illegal combatants yield reliable information? is torture an

effective and perhaps necessary means of social control? Do the adverse effects of
torture outweigh the benefits? Is the torturing of terror suspects legal? And
ultimately can the use of torture by democratic states and UN members ever be
justifiable?

I will conclude the essay by assessing the challenges posed by the prohibition of
torture in the post 9/11 context.

Writing this article in a time as the troops are pulling out of Iraq and an emergence
of claims of inhumane and degrading treatment against the armed British forces is
starting to spin the cogs of the debate on torture and ill-treatment.

 -Outline the current trends in torture, the anxieties people feel in regard to
it, public attitudes etc-back this up with empirical data and surveys.
  – Explain how I am going to approach the subject, that it requires some
fresh thinking, that it requires a realistic viewpoint, it is not enough to stand
on polar ends of the argument because that does not address the current
pressing issue
 -We need to look at ways to minimise the risk and potentially face up to the
fact that torture may never be abolished.
 – Rumsfeld- Not just a few “bad apples” but is becoming more and more
institutionalised as the days pass and is being adopted as common practice
by most countries that are signatories to the treaty.

What Is Torture?

Provide an assortment of definitions

-Torture comes from the Latin “torquere”, to twist

 There is no single precise definition of what constitutes as Torture, which of

course is part of the problem, but this does not mean as David.P Gushee
states that the term is “infinitely elastic”
 For our own purposes in regards to legality, it is useful to look at
International Agreements that deal with Torture to provide us with some
basic groundwork
 Article 5,Universal Declaration of Human Rights 1948,”no one shall be
subjected to torture or to cruel inhuman, or degrading or inhumane
treatment”
 Art 17, The Third Geneva Convention 1949 claims that “no mental or physical
torture ..may be inflicted on prisoners of war.

Article 1 states;

 For the purposes of this Convention, the term “torture” means any act by
which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third
person information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating
or coercing him or a third person, or for any reason based on discrimination
of any kind, when such pain or suffering is inflicted by or at the instigation of
or with the consent or acquiescence of a public official or other person
acting in an official capacity. It does not include pain or suffering arising only
from, inherent in or incidental to lawful sanctions”
Article 2

Any act of torture or other cruel, inhuman or degrading treatment or punishment is

an offence to human dignity and shall be condemned as a denial of the purposes
of the Charter of the United Nations and as a violation of the human rights and
fundamental freedoms proclaimed in the Universal Declaration of Human Rights.

Article 3

No State may permit or tolerate torture or other cruel, inhuman or degrading

treatment or punishment. Exceptional circumstances such as a state of war or a
threat of war, internal political instability or any other public emergency may not be
invoked as a justification of torture or other cruel, inhuman or degrading treatment
or punishment.

Article 4

Each State shall, in accordance with the provisions of this Declaration, take effective
measures to prevent torture and other cruel, inhuman or degrading treatment or
punishment from being practised within its jurisdiction.”

Torture is prohibited under a number of international treaties

Art 5 of the Universal Declaration of Human Rights

Art 7 and 10(1) of the International Covenant on Civil Rights and Political Rights

Art 3 of the ECHR

 -Geneva Convention
 – It hold “nonderogable status” in human rights law- no circumstance is it
permissible as article 2(“) of the UN convention against torture states;

“No exceptional circumstance whatsoever, whether a state of war or threat of war,

internal political instability or any other public emergency, may be invoked as a
justification of torture”

=Absolute prohibition -amnesty quote

 -Also regarded as a war crime under international humanitarian law and as a

crime against humanity when uintegrated into a widespread or systematic
attack against a civilian population.
  -Explain how too narrow or too broad a definition can potentially harm our
efforts in minimising this practice?
 -Where do we draw the line?

“…but let’s turn to sleep deprivation and a slap in the face. Do these belong in the
same torture category as bodily amputations and sexual assaults?” Bentham,p79

Mark Bowden “torture lite”

“sleep deprivation, exposure to heat or cold, the use of drugs to cause confusions,
rough treatment (slapping, shoving or shaking),forcing a prisoner to stand for days
at a time or sit in uncomfortable positions, and playing on his fears for himself and
his family. Although excruciating for the victim, these tactics generally leave no
permanent marks and do no lasting physical harm”

What are states duties in regards to Torture?

This argument is particularly relevant to our time given the Bush Administration’s
handling of prisoners of war during the Iraq Regime Change and many are of the
opinion that the administration as chipping away at the threshold and the
prohibition and outright ban on torture and have attempted to draw a line closer
and closer to the boundary line that separates aggressive interrogation from
torture, using what Mark Bowden describes as “torture lite” and “enhanced
interrogation techniques”, these include a variety of inhumane treatments to
torment a the victim into confessing intelligence or what the CIA would call
“breaking in the prisoner”.

Among these approved interrogatory measures include forced nakedness and

masturbation, withdrawal of food,sensory deprivation,hooding,use of guard dogs
to threaten, sleep adjustment and deprivation, exposure to severe heat and cold
surroundings and threatened executions the most famous of course being
infamous “waterboading technique” which apparently simulates the feeling of
drowning, which has been described as many as an utterly terrifying act. The list is
exhaustive with each “technique” more incriminating than the last.

Unlawful combatants- not the prisoners of war and thus not extended the rights
and civil liberties of prisoners of war under the CAT.As David P. Gushee states;

“By definition torture and the applicability of civil liberties narrowly- and “military
necessity” in the War on Terror broadly- the U.S. government has made official
room for deeply questionable acts against legally defenceless detainess”( p,78)
 2. What Has History Taught Us About Torture?

-Go through the history of torture in the medieval times- the practices, what was
used and what kind of results it yielded before it was outlawed

– Doesn’t hone investigative skills

-Doesn’t produce good results- Former head of CIA quote

– Has a habit of spreading

-Usually towards minorities and political dissidents

-Leaves permanent mental and physical scarring

-Algier- “Dirty War”

– Early Catholicism

-Ireland v UK

-Vietnam

-Cambodia

-Mark Osiel art.

-John Langsbein Art.

– Israeli Supreme Court

-Pinochet Chile

 …”Torture has scarcely been universally classified as manifestly illegal…in fact

that practice itself was once integral to the criminal procedures, enshrined
within and regulated by medieval rules of evidence. It is only during the late
twentieth century, in part b because of the widespread ratification of the
United Nations Convention against Torture, that the practice came to be
generally regarded as among the few crimes to which the label “manifestly
illegal could be unequivocally applied”- Mark Osiel, “The Mental State of
Torturers” p130
  “The European law of torture was suffused with the spirit of safeguard, yet it
was never able to correct for the fundamental unreliability of coerced
evidence” p101 John H.Langbein,`”The Legal History of Torture”

 “There is, however no escape from the reality that not every suspect is guilty,
and that, for many reasons, information extracted under torture comes with
no guarantee of reliability. Terrorists willing to die for their cause would also
be willing to plant false tales under torture” John H.Langbein p101 ”The
Legal History of Torture”

 “Another insight from history is the danger that, once legitimated, torture
could develop a constituency with a vested interest in perpetuating it. We
have seen in recent years how the enterprise of enforcing the drug laws in
the United States has made law enforcement agencies as dependant on
resulting forfeitures as the junkies are on the dope” p 101 John H Langbein,
“The Legal History of Torture”

 Sir James Fitzjames Stephen- “It is far pleasanter to sit comfortably in the
shade rubbing red pepper into some poor devil’s eyes than to go about in
the sun hunting up evidence”

Case Law- Torture Has Been Used Over The Last Century Even In Stable
Democracies.

 R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte

(No 3) [2000] 1 AC 147,

-Committed widespread and systematic torture in able to control to obtain control

by using those means for as long as possible

 Ireland V UK

-British authorities beat Irish Republican prisoners of war with fists and batons.

-Forced detainees to stand for long hours

-Placed black hoods over their heads

-Deprivation of food and sleep

-Continuous exposure to white noise

-The European Commision of Human Rights found that these practices , used
together, amounted to torture but ECHR reversed these appeals.

-ECHR ruled that these practices were not “torture” but did fall under the definition
of “inhumane or degrading “treatment.

-Significant Criticism from Human rights groups

-Remains a significant precedent.

 Israeli Supreme Court

-Israeli’s General Security services used similar methods such as shaking, sleep
deprivation and forcing suspects to wait in “stress positions” when interrogated.

-When the GSS received criticism from Human rights groups the GSS replied that
the tactics they employed were a necessary defence against torture and protection
of national security.

-Israeli Supreme Court rejected this defence in 1999

– Public Committee Against Torture in Israel v Israel (1999) 7 BHRC 31, para 39:

“Although a democracy must often fight with one hand tied behind its back, it
nonetheless has the upper hand. Preserving the rule of law and recognition of an
individual’s liberty constitutes an important component in its understanding of
security. At the end of the day, they strengthen its spirit and its strength and allow
it to overcome its difficulties.”

 Argentina’s Dirty War

 The case of Shakal Libby

The case that was put forth for the Iraq war was obtained from torture and was
later deemed to be untrue, isn’t this a strong enough argument to suggest that this
isn’t working?

 Saudi Arabia case- Sandi Mitchell

“You’ll say whatever your torturer wants you to say because all you want is the
torment to stop to be able to sleep, and if it means your going to die because of
what you said, then dying becomes preferable to living…you would rather to lie
down and die than to continue with the pain that is being inflicted on
you”(Dispatches,2004)

3. Two Polar Opposite Views Seem To Split Theorist And Critics.

We are clearly not a community of unity on the subject as Lord Brown states;

“Torture is an unqualified evil. It can never be justified. Rather it must always be

punished. So much is not in doubt. It is proclaimed by the Convention against
Torture and many other international instruments and now too by section134 of
the Criminal Justice Act 1988. But torture may on occasion yield up information
capable of saving lives, perhaps many lives, and the question then inescapably
arises: what use can be made of this information? Unswerving logic might suggest
that no use whatever should be made of it: a revulsion against torture and an
anxiety to discourage rather than condone it perhaps dictate that it be ignored: the
ticking bomb must be allowed to tick on. But there are powerful countervailing
arguments too: torture cannot be undone and the greater public good thus lies in
making some use at least of the information obtained, whether to avert public
danger or to bring the guilty to justice.”

First Strand

Deontological Standpoint

 Even in the old testament, there were prohibitions against punishment which
humiliated or degraded those receiving it:

“He may beat him forty times but no more, so that he does not beat him
with many more stripes than these and your brother is not degraded in your
eyes.” (Deuteronomy 25:3)


 The prohibition on torture has been understood as a both a matter of
fundamental human right and a basic civil liberty. Is its most basic terms, no
human being may be tortured, and this is governed by various International
Treaties, particularly the Geneva Convention as was outlined earlier in this
journal.
 Human Rights
 “No one shall be subjected to torture or to cruel, inhuman or degrading
treatment or pounshiment”( UN General Assembly, 1948)- thus the
prohibition on torture has universal coverage under International Law.
  It has now been recognised as a norm of jus cogens; “norms of international
law recognised by the international community as being peremptory in
character” (Responding yto Terrorism:political, philosophical and legal
perspectives; By Robert Imre, T. Brian Mooney, Benjamin Clarke,p90)
 Art 3- governs in absolute terms- no derogation is permitted- even if it is in
the most acute situations of crisis does it permit this rule to be broken.
 ECHR- has taken a unique approach in comparison to other global
jurisdictions and is unrivalled in terms of case law on the matter.
 Art 3 – language too broad or too loose?

Its “laconic” style as Yutaka Arai-Yokai states, “leaves open a number of definitional
elements of torture or other forms of ill-treatment”(“Grading Scale of Degradation:
Identifying the Threshold of Gegrading treatment or Punishment under Art 5
ECHR,Netherlands Quarterly on Human Rights 21,2003,p388)

As Fionnula Ni Aolan states;

“The looseness of the drafting has left maximum plastically to the court…in this
context the court has exploited the political capacity of European states to absorb a
shifting and evolving standard for democratic states”(Fionnuala Ni Aolain, “The
European Convention on Human Rights an”d its prohibition on Torture”,p225)

-The ECHR has shown a weak view on punishing those who torture, appearing to
have the same states before the courts for violations again and again and failing to
punish.

 “To legally entertain the political reality that systematic human rights’
violations have been a feature of Western European states would open up a
Pandora’s Box, requiring assessment of whether there is a genuine
commitment to Human Rights by leading democratic states. This is a place
where the court( as yet) has not been prepared to go”(P224,Fionnula Ni
Aolain)

 Civil Liberties- What is a civil liberty? Define?

 Following world war 2, there has become an immense increase in the talk of
rights. The number of civil liberites extended seems to grow in number each
year.We are living in an era of” rights” year by year more and more cases
come before the cours making moral claims and arguments in terms of
rights.
 As Mirko Bagaric states;
  “The influence of rights- based theories is doemonstated by the sheer
number of international human rights instruments that most nations have
signed or ratified.” P23 Troture :when the unthinkable is morally permissible.
Mirko Bagaric, Julie Clarke
 The prohibition on torture is rooted in the birth of liberalism and democratic
rights
 Michael Ignatieff;
 “liberal democracy stands against any unlimited use of public authority
against human beings, and torture is the most unlimited , most unbridled
form of power that one person can exercise against another”( Michael
Ignatieff “Evil Under Interrogation” Financial Times,May 15 2004)

 These people use torture as an effective means of gathering

information.bring in some case law to prove otherwise.On the basis that it is
human nation to avoid experiencing intense and prolonged pain.Dershowtiz
uses the example the a german case where an eleven year old boy is
kidnapped for three days and the police had in custody a man who they
were conviced had orchestrated this crime and was aware of his
whereabouts.
 Kantism
 “Slippery slope” argument
 The harms of torture are much greater than they seem and the benefits are
much smaller than one would expect.
 Has a habit of spreading-

 “Once torture has become acclimatised in a legal system it spreads like an

infectious disease, hardening and brutalising those who have become
accustomed to its use”( Holdsworth, A History of English Law, vol v, p 194.)

 John McCain-military view

 Barbara Hudson-social-criminological view
 Slavoj Zizek
 Jeff Jacoby- journalist view
 S.Levinson-legal theorist view
 A.Dorfman
 Henry Shue

Begins his essay by looking at the classic just war rules(jus in bello) distinction
between combatant and non-combatant and this that torture of non combatants
can never be legally justifiable in any case.
  Human rights pioneers
 It is a very effective recruiting tool for terrorist groups- if people are seeing
their own citizens being tortured by an outside body they sense of outrage
will compel more to join insurgents.
 In some ways this will also “harden the resolve” of the terrorist (Carl Levin,
Panorama “License to Torture”)
 Former CIA agents support the fact that other methods of interrogation are
more like to yield reliable results, such as building a relationship with the
terrorist, deception…”we need to be smarter not harsher”
 Makes the intelligence services lazy; as Karen J Grenber states;
 “Legal acceptance of torture, finally creates a perverse incentive for
interrogators. If they are not allowed to torture suspects, interrogators have
an incentive to search for evidence elsewhere or to develop alternative
information-extracting skills. If Torture is allowed , by contrast, interrogators
will have less motivation to develop more refined and conceivably more
effective methods of seeking and establishing the truth”( The torture debate
in America By Karen J. Greenber, p123)

-Legalisation effectively discourages interrogators from seeking out better and

more reliable evidence sources and honing their investigatory skills.

 English Law Lords even contest its use- see Lord Hoffman and Lord Scott
 “Torture is not acceptable. This is a bedrock moral principle in this country.
For centuries the common law has set its face against torture”- Lord
Nicholls,Judgments – A (FC) and others (FC) (Appellants) v. Secretary of State
for the Home Department (Respondent) (2004)A and others (Appellants)
(FC) and others v. Secretary of State for the Home Department (Respondent)

 Deontolgical view- is a “form of moral laziness One repairs to a code rather

than grappling with a terrible moral dilemma” p88
 `Kant- “…a deontological moral constraint is one that may never be violated,
be the consequences as they may”
 B.Hudson – “Torture is completely incompatible with the liberal society’s
image of itself”

Liberalism

 “Torture ,in short, is a microcosm, raised to the highest level of intensity, of

the tyrannical political relationships and liberalism hates the most. Liberalism
incorporates a vision of engaged, active human beings possessing an
inherent dignity regardless of their social situation. The victim of torture is in
 every respect the opposite of this vision. The torture victim is isolated and
reduced instead of engaged and enlarged, terrified instead of active,
humiliated instead of dignified.”(Liberalism,torture and the ticking bomb,
David Luben)

Second Strand

Utilitarianism

John Stuart Mill coined the term- the greater good

 Ticking bomb- A. Dershowitz

 Argues that we need to legalise torture in order to practice legal normality.
He does make it clear that his mormative stance is adverse to torture but
that in light of continuing use and widespread violations he believes it is
necessary to debate the norms surrounding its use.
 The Crux of his argument lies on basic notions of “necessity”, this need
“exists so as to fill the grey area not covered by legislative and judicial
procedures”(War Torture and Terrorism: Rethinking the Rules od
International Security, Caroline Kennedy-Pipe p,19)
 He purports leaving torture undefined is a dangerous measure and thuis the
discretion to use torture becomes open-ended and rests rather on moral-
decision making capabilities.
 To use an outright legal ban Dershowitz claims blurs the boundary between
acceptable and unacceptable behaviour.
 He believes the answer lies in handing over the decisions to the heart of
democratic society, the judiciary, who he claims should evaluate each case
on their facts and impose a legal framework of checks to propose a
normative criterion for its international use.
 “…a discussion of options within the framework of the two dominant and
competing moral philosophies of modernity: deontology and utilitarianism.
The deontologist says “never” -one is never permitted to use another human
being as a means rather than an end in himself. The utilitarian says that the
greatest good for the greatest number will be served by torturing the creep
and saving the school children. So where do you stand-with Kant or with
Bentham?”- “Reflection on the problem of Dirty Hands, Bentham p 78
 “Neccessity as a justification derives from consequential moral theories,
according to which wrongful actions may be morally deemed by the
goodness of their consequences( Miriam Gur-Aye,” Cant the War on Terror
justify the use of force in Interrogations”, p191)
  “Rare cases make bad law”- H. Shue

“Now the torturer is not a cruel man…the torturer is a conscientious public servant,
heroic the way that New York fire fighters were heroic, willing to do desperate
things only because the plight is desperate and so many lives are weighing on the
suffering servant’s conscience. The time bomb clinches the great divorce between
torture and cruelty; it placates liberals, who put cruelty first, But, I wish to argue, it
placates them with fictions(david Luben Liberalism,Torture and the Ticking Bomb
p6) Intervention, terrorism, and torture: contemporary challenges to just war theory
By Steven Lee

Need to be careful because this analogy as torture is now always being argued on
these terms.

 Has this ever occurred? Is the question asked by Clive Staffford Smith, the
first British defence attorney representing the victims of Abu Ghairb,”Theory
is one thing-reality is another, especially if you don’t know if the person you
have captured is guilty”(Dispatches-“Is Torture a good idea?” Channel 4)

 Jean Bethke Elshtain

 Pioneers of national security
 Torture warrants
 “…stunningly bad idea”… “ Sanctioning torture through torture warrants
partakes of the same moralistic-legalism as the statesperson who values his
pure conscience above all else and who will not violate amoral norm under
any circumstances. We cannot- and should not-insulate political and military
leaders form the often harsh demands of necessity by up-ending moral
universe: that which is rightly taboo now becomes just another piece of
armamentarium of the state”-Bentham p84
 “While perhaps attractive to those not versed in International law, the
Dershowitz thesis can be easily disassembled upon perusal of a basic
textbook in public international law. The Thesis requires a narrow view of the
rule of law, namely one that excludes the obligations of states under
international human rights law.”(As before Responding to Terrorism. P93)

 “A certain ascetism is required for those who may be required, in a

dangerous or extreme situation, to temporarily override a general
prohibition .They should not seek to legalize it. They should not aim to
normalize it. And they should not write elaborate justifications of it, as if
there were a tick-list one can go down and , if a sufficient number of ticks
appears, one is given leave to torture” Bentham p84
  Trial of Guy Fawkes (1934), pp 90-92
 Dick Cheney
 Michael Ignatieff;
 “Suspending rights is a lesser evil solutions, but it compromises the status of
human rights as a set of unchanging benchmarks. Once you admit that
human rights can be suspended in times of emergency, you are accepting
that human rights are not a system of indivisible absolutes; their application
requires balancing liberty and necessity, pure principles and prudence” p.9
 Dirty Hands- Michael Walzer
 “One begins with a rule governed activity. There may be situations that were
not anticipated and that are so serious, so dire in their potential
consequences, they may require over-riding the rule. The rule in question is
not thereby “set aside canceller or annulled” One is obliged to acknowledge
violation of the rule and to offer reasons why, in this circumstance, the rule
was temporarily overridden. This overriding of a rule should not be easy: it
should in fact, be in extremis, or close to it. And one overrides the rule of
recognition that a moral wrong does not make a “right” but it might bring
about a “less bad” or “more just” outcome”-Bentham p83

 “Information – the gathering of intelligence – is a crucial weapon in the

battle by democracies against international terrorism”

National security

It is useful when looking at this issue to look at the writing of Cass R Sunstein; who
outlines what he calls the balancing approach between national security and civil
liberty as he describes as an “optimanl tradeoff” Per se that as the magnitude of
the threat increases, the argument for intruding civil liberities also increases( Laws
of Fear: beyond the precautionary principle,217)

“This approach to the relationship to the relationship between liberty and security
is standard and intuitive, and something like it seems to me correct.But it is not
without complcaiotns.There might for example, a “core” of rights into which the
government cannot intrufe and for which balkancing is inappropriate.Consider
Torture.”

The lesser evil?

Oren gross

Empirical Data
  “Currently nearly half say the use of torture under circumstances is often
(15%) or sometimes (34%) justified about the same proportion believes that
the torture of supported terrorists is rarely (22%) or never 25%””The Pew
Research centre”
 Oonagh Hathaway article.

Establish my own argument taking into accounts both sides of the discussion.

 Make clear that both provide too narrow a view on the current situation.

 “The burden of my argument is that, while deontology makes something

called “torture” impossible, utilitarianism makes it too easy and too
tempting”- (Reflection on the Problem of Dirty hands, Bentham,p79)

 What are the current realities of the current day situation?

 “When the USA makes its case for Torture, they call it coercion of course,
they talk about terrorist masterminds that have information that will safe
lives. But that’s not the sordid reality of Guantanamo Bay. More often were
talking about yogurt sellers, chauffeurs, people who were caught up in the
wrong place at the wrong time” (Clive Stafford Smith,”Dispatches” “Is torture
a good idea?”)
 Guantanamo Bay is a clear violation of Human Right and fundamental civil
liberties