Torture is a phenomenon that is embedded in the history of mankind, from ancient civilization to the present. It has been given many meanings, but has eluded exact definition. One of the earliest definitions was given by a Third Century jurist named Ulpian, who stated that “by torture, we are to understand the torment and suffering of the body in order to elicit the truth. Neither interrogation by itself, nor lightly inspired fear pertains to this edict. Since, therefore, torture is to be understood as force and torment, these are the things that determine its meaning” (Peters, 1996).
What can be gleaned from this particular definition is the use of the word “edict”. An edict, under Roman law, is a law, a proclamation, or a statute. In other words, a part of the legal system. So, it is safe to assume that, at a certain point of man’s history, torture was something considered legal.
Today, in what is presumed to be a more civilized society, torture is taboo, looked down upon as inherently immoral and ontologically evil.
What then, spells the difference? Is it because society today is in fact more civilized? Robbery, rape and murder occur now as they did then. Is it because society is more organized now? The Romans unarguably had one of the most well-organized societies in history until the empire finally collapsed. Is it because society has developed a moral conscience? Perhaps. And this conscience can be seen in creations such as the United Nations.
Today, the most relevant definition of torture can be found in the United Nations Declaration Against Torture, which provides that torture means “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted by or at the instigation of a public official on a person for such purposes as obtaining from him or a third person information or confession, punishing him for an act he has committed, or intimidating him or other persons” (United Nations General Assembly, 1975).
The Declaration attempts to provide a fixed, universal definition of torture. However, two things must be noted: first, that as a declaration, it does not have the same binding force as a convention; and second, since international law, although it uses the word “law”, is still mainly a construct of consent, states that do not consent are not within its aegis, and are not covered by the said “law”.
Despite its ancient existence, therefore, torture still has no definite meaning. It is a word whose definition is dictated by perception and necessity. Today, it seems that this perception and necessity is defined by an equally amorphous concept, i.e., terrorism.
Peters (1996) found one thing common with all the definitions of torture thus far, that it is torment inflicted by a public authority for an ostensibly public purpose. Now, there is really nothing in the given definitions of torture that show its supposed inherent evil nature, except that it is usually examined in light of the fundamental human right to life, and to a good life. When taken in the context of terrorism, however, this fundamental human right begins to take on a quantitative dimension, weighing the right to life of the person to be tortured, and that of those that the information to be elicited from the tortured person could save. Thus, in the context of terrorism, torture could actually seem like a good thing.
Granting for the sake of argument that it is conceded that torture is wrong, in a case such as described above, can it be considered absolutely wrong? Or does it allow for an exception, under which it would not be wrong but completely justified? This paper takes the latter view, and attempts to explain why this is so, as contrasted with the opposing view, which will be discussed first. For purposes of this paper, however, torture will be limited to physical abuse, and not psychological. Specifically, sleep deprivation, water boarding, and the use of loud music are not forms of torture within the discussion of this paper.
Arguments against the use of torture
The first argument that may be presented against the use of torture is that of morality. Torture is evil. It is immoral. It goes against the basic and fundamental human rights of every individual as a person. No person can take another’s life into his own hands. Torture is a contemptible, reprehensible practice that should not be tolerated at any cost, because the existence of exceptions would bring about dire consequences. However, there are no absolutes, and there are always exceptions to any rule, whether justifiable or not. Morals and principles tend to change with the times, so this argument does not hold much sway.
A more persuasive argument presented against the use of torture is the danger of having ill defined enemies. This is related to the notion of self-preservation. As mentioned, torture can be used as an engine to extract information from an individual in order to utilize the said information in countering a threat. However, in the context of 9/11, human rights groups caution that the country could potentially move into battle where there is no clear definition of the enemy (Schmemann, 2002). Current events that exemplify such a notion is the “War on Terror” led by the U.S. as a response to the death and devastation which ensued from the hijacking of commercial aircrafts by terrorists. In this case, there was no clear definition on “terrorism”, evidenced by Pakistan and Kashmiri terrorists.
Gareau (2004) said in his book that an Indian spokesman declared that Washington can put an end to the terrorist structure in Kashmir by declaring Pakistan to be a terrorist state due to the apparent support they were providing to the Kashmiri cell.
Washington made no such declaration and the author surmises that it was because the U.S.’s political track was to establish cordial relations with the Pakistani government. This emphasizes the apparent malleability and discriminate use of terminology to describe a threat, as justified by political motives. To reiterate, torture is utilized with specific goals in mind, particularly, the abatement or outright prevention of threats in rare, time-sensitive, imminent danger cases, but there exists a real danger in using torture to counter imagined antagonists.
Another persuasive argument against the use of torture is the very same reason which bore the Miranda Rights; that without due process, the state is but a tyrant. The U.S. Supreme Court’s doctrinal pronouncements in that seminal case were meant to remedy thy physical and psychological coercion that took place during incommunicado interrogations which produced inculpatory statements from suspects. The Court observed that “the police resorted to physical brutality — beating, hanging, whipping — and to sustained and protracted questioning incommunicado in order to extort confessions” (Miranda vs. Arizona, 384 U.S. 436 ).
Quoting the Wickersham Commission Report, the Court pointed out that the use of the “third degree”, as it is called, not only involves a flagrant violation of the law by the very officers of the law, but also entails the risk of extorting false confessions and the tendency for the police and prosecutors to be less diligent in their search for objective evidence (Miranda vs. Arizona, 384 U.S. 436 ). Under this argument, the enemy is identified and defined, while the threat remains uncertain, or even illusory.
The use of brutal tactics for a laudable end might be justified if this end is attained, but this is quite rare. In certain instances, the torture of suspects to obtain vital information has produced good results. But it can be argued that these results still do not justify the use of torture, because granting any form or color of legality to the use of torture could cause a chain reaction, with human rights violations left and right. And if this basic human rights protection can be cast aside, no right is secure (Roth, 2005).
Arguments For the Use of Torture
Peters (1996) pointed out that an eminent American jurist defined torture as an engine of the state, and not of law. This was in recognition of the fact that torture, though illegal and immoral, was practiced with governmental imprimatur. This does not in any way make torture less inhumane, but emphasizes that in certain instances and under certain circumstances, torture may be deemed necessary. The better way to address torture, therefore, is to provide tightly circumscribed restrictions for its enforcement, rather than to abhor its existence and deny the consequences whenever it does occur.
This was the theory espoused by Alan Dershowitz in his book “Why Terrorism Works”. In his view, torture is inevitable, so prohibiting it will only drive it underground, where low-level officials use it in their discretion (Roth, 2005). He argues that torture should thus be subjected to judicial supervision and oversight, with police investigators securing a torture warrant first (Roth, 2005), much like the process in applying for a search warrant.
Any government is charged with the protection of its constituents. National security is important for any nation, and when acts of terrorism threaten this security, the government should be allowed to do whatever is possible to curb the threat. Barber (1985) points to an argument that the basic opposition as to the use of torture is between moral idealists and practical leaders. A government may thus be against torture in principle, but in practice, it cannot be absolutely so.
When the existence of the government or the state and the safety of its people are met with the threat of terrorism, rebellion, or revolution, and the danger to life, liberty and property of many is imminent, there is no time for the usual judicial or police proceedings. Untimely information could lead to a massive death toll and widespread destruction. When the threat of having ill-defined enemies becomes a reality, an act to counter such enemies becomes a more immediate function of the right to self-preservation rather than just wanting to avoid having enemies.
The most potent argument for the use of torture is the “ticking bomb” scenario, which have unfortunately become a reality rather than just a tool for academic discussion (Perry, 2005). In extremely rare situations where danger is so imminent it is almost tangible and when time is of the essence, the usual methods just will not work. There is no time to gradually extract information, no time to push the right buttons in the suspect’s mind to elicit the correct information.
There has to be a way to get information in time to meet the exigencies of the situation. This will ultimately result in the infliction of some form of physical torment on the suspect in order to elicit the desired information. Torture is more often than not resorted to as a matter of extreme urgency and necessity, sacrificing the quality of life of some in order to protect the life and limb of many. And in such a case, it still cannot be said that torture is in any sense right, or moral, but it can and should be conceded that in such a case, it is justified by the exigencies of the situation.
As for the argument that the use of terror could turn the state into a tyrant, this is easily addressed by returning to the proposals of Dershowitz. When the use of torture is tightly circumscribed and rigorously regulated, it will be less likely to be subject to abuse. This should not be misunderstood as providing a license to police officers and interrogators or other government officials to torture whoever they please, whenever they please. It merely provides a contingency plan to ensure the least violation of human rights by prescribing a set of rules to govern a situation where torture may be resorted to.
Briefly, then, this paper is arguing that torture be allowed under the following, which must concur: 1) in extreme situations; 2) these situations involve time-sensitivity and the threat of imminent danger; 3) the use of torture will be tightly circumscribed by rules and regulations, and only by authorized officials; and 4) the use of torture is pursuant to a well-defined public purpose, such as national security. For example, a member of the Al Qaeda is captured, and reliable intelligence reports indicate that a bomb will be detonated somewhere in New York.
This is confirmed by an Al Qaeda official going on CNN and making a demand for all U.S. troops to leave Iraq, and if no movement is seen within the next four hours, the bomb will be detonated. In such a situation, the officials who have custody over the captured Al Qaeda member should be authorized to inflict some form of physical torture on the captive in order to elicit information to prevent the detonation of the bomb. The physical torture must be limited to certain forms, such as beating, punching, kicking, but should not be permitted to resort to extremes such as amputation or mutilation. That would be going too far, even in the extreme situation presented.
The paper started with the notion that, like it or not, torture has been a part of the history of man. And again, like it or not, it is still a part of history being made. The arguments for and against torture show, more than anything, that it is a phenomenon that should still be reckoned with today. Why? Because it still exists, and it is actually practiced. And turning a blind eye to it will not make it go away. Rather than deny its existence and shout empty invectives against its use, or put against it an absolute ban that cannot be as absolutely followed, its exercise, whenever permitted by foreign government policy or the exigencies of the situation, should be tightly circumscribed.
When torture is utilized by the state in order to protect national security, it is not necessarily legal, but the acts of the torturers are given a color of legality, and their prosecution for whatever human rights violations they may commit is up to the state which allowed them to do so. Therefore, torture remains as something immoral, but not necessarily as something illegal.
When this is done, the earlier definitions of torture under the Roman regime as an “edict” echo in contemporary times. If the government does not punish its use, it will go unpunished as an internal matter. As for its repercussions in international law, until all states become members of the Untied Nations and assent to be contracting parties to its Declarations and Covenants, its definition of torture and the International Criminal Court will not be a universal force to dissuade its use.
There is no denying that torture is taboo, to say the least. But there are merits to its use that cannot be denied through resorting to motherhood statements of morality and right and wrong. Those belong to the realm of abstracts and thought, while there might be nothing left to counter the concrete actions, in the here and now, of terrorists.
Barber, J.D. (1985, December). Rationalizing torture; the dance of the intellectual apologists. Washington Monthly, 17, 12+ .
Gareau, F.H. (2004). State terrorism and the United States: From counterinsurgency to the War on Terrorism. Atlanta: Clarity Press.
Miranda vs. Arizona, 384 U.S. 436 (1966).
Perry, D.L. (2005). Torture: a collection. Ethics and International Affairs, 11 (3), 119+.
Peters, E. (1996). Torture. Philadelphia: University of Philadelphia Press, 1.
Roth, K. (2005). Getting away with torture. Global Governance, 19 (1), 389+.
Schmemann, S. (2002, January 12). A nation challenged: Human rights; U.N. gets a litany of antiterror plans. New York Times, p. A7.