Can you justify torture?
There is an excellent article by Sally Neighbour in the Australian, titled "Asking the painful questions", which deals with use of torture by the West in the "war on terror".
The article mentions the dilemma formulated by the US legal academic Dershowitz. Imagine this scenario:
"A massive bomb has been set to go off in downtown New York or Sydney. A member of the terrorist cell has been captured. It's believed he has information that could avert the attack, saving hundreds, possibly thousands, of lives. Should he be tortured to get that information?"
Would it be, for example, acceptable to force a sterilised needle under the nails, causing excruciating pain but no permanent damage?
It is very tempting to answer yes to this question. After all, we are talking about a potential mass murderer. There are hundreds of lives at stake. Surely, saving hundreds of lives balances favourably against causing temporary pain to a member of a terrorist cell?
Of course there is a little problem in that, if the person does reveal information under torture, you have no way of knowing whether information is reliable. They would no doubt would be delighted to send the authorities on a wild goose chase. In the meantime our timebomb may very well go off. This particular argument against use of torture is entirely pragmatic - while it may be effective to force a confession to matters suggested to the victim (for the history buffs - consider the formulaic confessions given by those accused of witchcraft), but it is not all that effective at getting to the truth.
Pragmatic considerations aside, there is a much more important reason why torture is never legitimate. Consider this:
What if the building with a ticking time bomb contains dozens of people, not hundreds. Is use of torture justified then? Does it matter if they are "nice" people we feel sympathy for (eg. if this is a kindergarten building) or if they are not so nice people (eg. if this is a prison building)? What if it is only two people? Or one person? Is every life not equally precious? If it is ok to torture a person to save hundreds of lives, why is it not legitimate to save dozens of lives or to save one life? Where do you draw that line?
What if you don't know that there is a ticking bomb set to go off just yet, what if you just suspect it may be some time in the future. Is it ok to torture your terrorist suspect then? Does it matter if s/he is not personally involved in the plot but is merely protecting someone who is (eg a family member)? Does it matter if they are a child or elderly or ill?
Why would we restrict it to terrorism. How about an accomplice of a serial killer? Should they be tortured to reveal the identity or whereabouts of someone who may murder one or more people? What about a suspected serial killer against whom there is not enough evidence and s/he will go free to kill again - is it legitimate to torture them for a confession?
The point of these questions is that once you step on the slippery slope, there is no return. There is no stop sign. If torture is legitimate in any circumstances, it will be legitimate in many circumstances.
The article cites a proposition from Dershowitz to make use of torture more transparent (acknowledging the reality that governments do use it), but creating a "system of torture warrants, whereby US President George W. Bush or Prime Minister John Howard would have to sign off on a warrant issued by a judge to authorise torture."
Quite apart from the fact that no political leader would be honest enough or stupid enough to put their signature on such a warrant, the proposition is quite repulsive. Firstly, torture is so antithetical to our common law, to international law and to all notions of decency and humanity, that any judge who does sign such a warrant would be unworthy of their position. An even greater problem is that to officiate torture is to legitimise it. To give an express right to political or judicial officers to approve its use is to sound the death knell for the universal prohibition on torture. The prohibition is reduced to saying that it is not ok, unless we say its ok, which is no prohibition at all.
Dershowitz's argument is pragmatic. "We live in a world where we have to choose evils," he argues. "We can't just declare suddenly, 'Let's not have torture', the way some human rights organisations do, and hope it will go away. It's not going away."
Practically speaking he is right. However, ideologically he is not. The world said "let's not have torture". Almost 130 countries said it when they ratified the Torture Convention, almost 150 countries said it when they ratified the ICCPR. Prohibition against torture is now firmly entrenched as a jus cogens rule of international law - meaning that the prohibition is a peremptory norm which no treaty or law can abrogate. It is absolute.
The cause of eliminating the use of torture in practice cannot be advanced by undermining this absolute prohibition. Why should we allow those who do engage in or authorise this inhumanity to hide behind a warrant? Let them fear revelation and political consequences while in office. Let them fear the legal consequences once out of it. Let them remember Pinochet and have no delusions of impunity. And let them spend the rest of their lives looking over their shoulder for their own Balthasar Garzon.
It is not perfect, it will not make torture go away, not today, not tomorrow, not in the next decade. But is it not better than giving up the fight and, for reasons of pure pragmatism, legitimating activity which can have no legitimacy?
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