Is Torture Justified?
Presuming that a person has information of an imminent terrorist attack that will cause huge or mass destruction and exterminate human lives, has been arrested by the relevant government authorities and that the only means available to extract information to stop the attack is only if he is tortured. In such cases, should torture be justified or allowed?
The “war on terrorism” has highlighted the prevalence of torture, despite the fact that torture is universally condemned. There is absolute prohibition on the use of torture and there are no exceptions to it[1].
The use of physical force to extract information from a terrorist will usually involve the methods that tantamount to torture. Torture is an absolutely barbaric practice and is never justifiable in a civilized society. It has been declared as unacceptable and uncivilized[2]. The use of torture is declared to be unacceptable by Article 5 of the UN Universal Declaration of Human Rights, and Article 1[3] of the Convention against Torture[4]. These international agreements oblige the ratifying nations to prevent any act of torture against anyone within their jurisdiction and to prosecute violators in its courts. Its prohibition was ratified by 145 states, including the US and UK[5]. It is a violation of the fundamental human rights.
If a policeman is allowed to shoot dead a gunman engaged in exterminating innocent human lives, so why should there be any protection for someone who withholds vital information that could help save the lives of innocent civilians?
However, various studies have shown that torture does not work. When someone is being tortured, they will admit to anything that they think the torturer wants to hear in an effort to save them from the cruel practice.
Many people argue that torture is necessary because of the lives it will save and peace it will bring. We must keep in mind the fact that a person will say anything to escape torture. The primary question is; how do you determine that you have extracted the truth or just misinformation[6]? There are adequate ways to receive information from someone, even a terrorist. There is court system for people who will not give up information or confess. In such cases, an independent committee should be formed, which should adopt a legal process to approve torture in extreme cases, because this will prevent it from being used misused.
Secondly, the terrorist would be dedicated, know how long he had to hold out, and would likely to mislead his torturers until the bomb went off. On the other hand, when the torture is intended to extract information to lead to the whereabouts of the explosive device, there is indeed an implicit check: If the bomber is lying to make escape torture then the explosive will not be where he tells the police to look[7].Finally, it is uncertain whether torture will be able to sway an individual to reveal the information. In other words, it is impossible to determine with any certainty the exact end (the possibility of saving lives) as well as the effectiveness of the means (torture) in helping save lives.
Eliza Manningham-Buller[8] has argued that it should be “utterly rejected even when it may offer the prospect of saving lives[9]“.
Torture has been permissible where the evidence suggests that this is the only mean to obtain information and save innocent lives. Given the choice between inflicting a relatively small level of harm on a terrorist and saving innocent lives, it is verging on moral indecency to prefer the interests of the terrorist. This argument is not sound. It would open the floodgates for torture being widely used, despite the absolute legal prohibition against it. Secondly, we can never be totally sure that torturing a person will, in fact, result in saving an innocent life.
In a situation, where the man has admitted that he has planted a device and is refusing to disclose any information, present reality demands a direct response to ensure public safety[10]. Torture would seem to be justified in such a scenario and one could rely on the legal defense of necessity[11].Alan Dershowitz[12] argues that torture can be justified in such cases, namely, to force a captured terrorist who is withholding critical information to disclose the location of a bomb that would otherwise kill or harm the public. He has posed a question that “If you had a situation where a thousand lives were at stake and we could prevent those lives being lost by causing pain to a clear, admitted terrorist, is that morally wrong[13]? Dershowitz thinks that the scope of torture should be strictly regulated[14], but two academics MirkoBagaric[15] and Julie Clarke[16], have argued[17]that when many lives are in imminent danger, “all forms of harm” may be inflicted on a suspect, even if this might result in “annihilation”[18]. But in the present scenario, where it is certain that the person has information that could prevent many lives being lost and there is no other way to obtain that information, the mere fact that they’re not directly involved in creating that threat doesn’t mean they can wash their hands of responsibility[19].
Richard Posner[20], a former US Judge states the importance of the use of physical force by giving a similar example to the current case, “If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information…no one who doubts that this is the case should be in a position of responsibility[21]”.
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which she might be associated.
[1]MirkoBagaric, ‘A case of Torture’ May 2015 (http://www.theage.com.au/news/Opinion/A-case-for-torture/2005/05/16/1116095904947.html)
[2] Alan Dershowitz, ‘The case for torture warrants’ (7 September 2011)
‹ http://blogs.reuters.com/great-debate/2011/09/07/the-case-for-torture-warrants/ › accessed 8 September 2011
[3]defines torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person . . . .”
[4] Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment 1984
[5] Jordan J. Paust, ‘The Absolute Prohibition of Torture and Necessary and Appropriate Sanctions’ (Valparaiso University Law Review, Vol. 43, 9 April 2009) ‹http://www.american-buddha.com/torture.jordanpaustabsoluteprohibition.htm› accessed 6 November 2011.
[6] Stephen L. Carter, ‘Torture Can be Wrong and Still Work’ The Daily Beast (11 May 2011)
[7] Stephen L. Carter, ‘Torture Can be Wrong and Still Work’ The Daily Beast (11 May 2011)
[8] Former MI5 Head
[9]‘Torture is wrong and never justified’ (BBC News 8 September 2011)
[10] Bob Brecher, Torture and the Ticking Bomb (1stedn, Blackwell Publishing 2007)
[11] Chanterelle Sung, ‘Torturing the Ticking Bomb Terrorist: An analysis of Judicially Sanctioned Torture in the Context of Terrorism’(Boston College Third World Law Journal, Volume 23 2003)
[12]Harward Law Professor
[13]Alan M. Dershowitz, Why Terrorism Works: Understanding the Threat, Responding to the Challenge (Yale University Press 2003)
[14] Torture can never be justified (8 April 2010) ‹http://www.intelligencesquared.com/__data/assets/pdf_file/0020/45281/Intelligence-Squared-Controversy-Torture-can-never-be-justified.pdf › accessed 8 November 2011
[15] Professor at Daekin University in Victoria, Australia
[16]Law Lecturer at Daekin University in Victoria, Australia
[17] in a paper in the University of San Francisco Law Review
[18] Liz Minchin, ‘Make torture legal, say two academics’ (Information Clearing House 2005)
‹ http://www.informationclearinghouse.info/article8861.htm› accessed 9 November 2011
[19] Angela O’Connor, ‘QC uses Dirty Harry to defend torture’ ‹http://www.theage.com.au/articles/2005/05/22/1116700595664.html›
[20] In a review of Alan Dershowitz’s book, Why Terrorism Works: Understanding the Threat, Responding to the Challenge
[21] Stacy Humes-Schulz, ‘Limiting Sovereign Immunity in the Age of Human Rights’ (Harvard Human Rights Journal Volume 1)
