Torture: Right Under Certain Circumstances?

A couple of weeks ago, I wrote a piece that discussed a difficult balance that states and citizens must strike. The balance is between the effectiveness of the implementation of laws, and the acceptability of these laws not just to the law-abiding majority but also to the accused minority.

I discussed this balance in the context of the ‘release’ of Abu Qatada. This is particularly apt as Qatada’s rendition to Jordan was blocked due to legitimate concerns that evidence used against him might be obtained through processes associated with torture. Indeed, this week the Home Secretary, Theresa May, is in Jordan to seek assurances that evidence obtained through torture will not be used against Qatada, in the hope that this may pave the way for his deportation.

Torture is illegal. This is enshrined in international law and in most domestic laws. We should remember that torture is not limited to an act of physical violence but is broadened to include the threat of violence. Put simply, the threat of torture is torture in itself; but is torture permissible or at least understandable under some circumstances?

In April 2009, former U.S. Vice-President Dick Cheney appeared on Fox News to formally request the release of CIA documents, which it was claimed proved that harsh interrogation techniques – a euphemism for torture – had worked. In September 2011, the former Director General of the Security Service (MI5), Baroness Eliza Manningham-Buller, acknowledged that although life saving intelligence had been gathered through the process of water boarding it was still wrong. More so, Manningham-Buller said that it should always be rejected as an option even when it offered the prospect of saving lives.

In 2002, Jakob von Metzler, the eleven year old son of a prominent German family was kidnapped. A few days later Magnus Gäfgen was arrested when he went to collect the ransom. After hours of questioning, Gäfgen would not talk and so the Deputy Police Chief of Frankfurt, Wolfgang Daschner, said that if Gäfgen continued to be silent he would inflict “unimaginable pain” on him. The threat worked and Gäfgen revealed the location of Jakob who was, unfortunately, already dead. In this case, the Deputy Police Chief was charged, convicted and fined for using threats of violence against a suspected kidnapper. Furthermore, the kidnapper was awarded damages due to serious violations against his human rights.

But what if Jakob had been found alive, would this excuse his behaviour? Are there some circumstances in which the use of torture is excusable?

Is our moral repulsion at the thought of torturing another human being one that exists due to the fact that it has occurred, or because we know it has occurred? Clearly, there is a significant difference. My research in this area, specifically in relation to counter-terrorism, suggests that it is the publicity that is associated with torture that is the dominant concern for states and agencies.

However, a large proportion of views that are voiced in my undergraduate seminars are quite surprising in so far as they contend that torture should be permitted in some circumstances. Particularly, however, when there is a reasonable chance of saving a life. To take things a step further, I ran a counter-terrorism simulation with a group of postgraduate students on a module that I convene, entitled Terrorism and Insurgencies. This time-pressured simulation led to some surprising views, particularly when groups came up with policies akin to the suspension of habeas corpus, the introduction of internment and the use of torture to gain life-saving intelligence that could protect the country’s security.

But what does all of this tell us?

It should be noted that questions of torture are difficult to fathom within an abstract environment akin to a classroom. However, this suggests that even though we know that torture is wrong and should not be used – particularly given the backdrop of scandals such as Guantanamo Bay and Abu Ghraib – when put in a situation that policymakers face on a regular basis, some of our students did view torture as a permissible response.

To those who view torture as permissible under any circumstances I leave you with the following question. If you believe that torture is permissible under certain conditions where the state and/or associated agencies have a reasonable suspicion of evidence against a suspect – would you, yourself, be forgiving of the state if they made a genuine mistake and tortured you? My own response is no. Torture is wrong and should never be applied; even when it can save lives. A utilitarian approach should recognize that even within the context of counter-terrorism when we, the law abiding majority, either overtly or implicitly sanction the state and/or agencies to use such techniques in order to save lives, we have lost the moral high ground and in some ways are no better than those we are trying to stop.

Dr. Edgar Tembo is a Teaching Fellow in Politics and International Relations.

 

4 thoughts on “Torture: Right Under Certain Circumstances?

  1. Another way to approach this question would be to ask: if an ideal State (or even just a moderately well-behaved one :) ) were to give Joe Bloggs £X in compensation for a year’s wrongful imprisonment, how much should it give him for mistakenly torturing him (presumably some kind of sliding scale depending on how much long-term damage to body and mind the torture caused, I suppose)?

    My guess is that the majority of Dr Tembo’s graduate students would say that there should be such a sliding scale but that someone else should devise it :oops:

    More seriously, is not the “moral high ground” simply a cover for “I’m right because I’m me”? In my experience people who give themselves permission to take the latter position have achieved a simplification which arguably makes it easier for them to cope.

  2. Personally I oppose torture strongly, and agree with your points about moral high ground. I should also point out that there’s an need to examine the area of Opportunity Costs (i.e. by using torture you are necessarily ruling out certain alternative ways of conducting your counter-terrorism operations).

    But I have to admit that this position isn’t without its problems.

    Unless one is to adopt a pacifist position one is in effect saying that it is quite acceptable (in certain circumstances) to kill or wound your enemy, but hurting him is absolutely wrong and never justifiable – which is a bit odd.

    Similarly, and following on from this point, it is odd to say that torture is never under any circumstances justifiable, yet war (clearly an evil and a greater one than torture) sometimes is – because it is held to be a lesser evil than all other possible alternatives (the essence of Just War theory).

    So even rejecting utilitarianism and a consequentialist view of morality, and holding that torture is always an evil, and thus always in some sense morally wrong, I find it hard to say that in principle there are no circumstances in which its use could be justified. “A reasonable chance of saving a life” may be an inadequate (and even lazy) justification, but are there no evils that might exceed the evil that is torture?

    I’m not sure how far your question “Would you, yourself, be forgiving of the state if they made a genuine mistake?” helps to advance the argument.

    The answer of course is no, but it would also be no in other cases where the state’s agents might employ force (whether in warfare or e.g. when I am shot by a police firearms team under the misapprehension that I am a dangerous armed maniac). Yet in those cases (whilst questions might be asked about possible negligence in forming the mistaken judgement) few people would say that the use of force was in principle wrong. I personally as the victim would probably take a different view, but my bias is obvious ….

  3. Would you not say arguments that entertain the notion of torture simply amount to intellectual fraud and serve only to justify torture as an institutional practice? It falls under the slippery slope argument, but by suggesting that torture in extreme circumstances is a useful tool that should be justified, one opens up the door to many problematic knock-on effects. The ticking-time bomb scenario of using torture to stop a terrorist from “blowing up” a city or population has been shown to be extremely fraudulent and verging on impossible as a situation. Through using such arguments the “extreme circumstances” becomes diluted and torture becomes more widespread. Look for instance at the Israeli government now. Through the Landau Commission in 1987, the Israelis played upon this sentiment to effectively legalise torture as a method of interrogation that was not confined to extreme cases.

    I accept that in plain black and white, dealing with no complexities of real scenarios, it is appealing to suggest torture could be useful in certain scenarios. For many the use of words such as “terrorist”, “nuclear bomb”, and “innocent civilians”, overwhelm our commitment to anti-torture. However, the reality of the situation is that those words are not all that count. The big picture is what counts, and if the big picture involves torture becoming effectively institutionalised because of such emotive arguments, one can quickly see why the world as a whole should say no to torture every single time. Torture can only be contained in one way – by refusing to entertain the very concept at all.

  4. Dr. Tembo, thanks for an interesting post. However, this article casually conflates torture and threats of torture (or, more to the point, the most generalised threats of violence) in order to make a point.

    While it is right to say that threats of physical violence, even implicit threats (such as those imposed by what has been called ‘structural violence’) lie on what might be thought of as a continuum of violence, they are not *the same as* physical violence.

    The debate is actually – in the Jakob von Metzler case you mention – more straightforward than you suggest.

    Had the polcie interrogator struck the suspect, or placed him in a stress position, or bombarded him with painful or disorinetating sound or light, or used some other physical force to cause harm and distress, there would clearly be a strong moral case against that interrogator, regardless of the suspect’s alleged crimes.

    However, it is very clearly *precisely because of* the crucial differences between actual, material acts of torture and the utterance of a set of words intended to intimidate and possibly to imply the imminent use of torture, that the subsequent conviction of the interrogator and damages awarded to the suspect is so problematic.

    I am in complete agreement that when it comes to torture, and the tenuous and repugnant cases made for it by hawkish (if not sadistic) political and military leaders in the post-9/11 West, we should ‘refuse to entertain the very concept at all’. However, I think that to say that a German police officer threatening a suspect with words actually constitutes ‘torture’ is misleading and problematic.

    Put yourself in the suspect’s shoes. You’ve been detained and questioned over an offence you have committed and you are withholding some information for whatever reason (fear of prison or capital punishment, or simply because you can). The officer questioning you threatens that unless you gave him the information – an address/location in this case – he wants, he will inflict ‘incredible pain’. You give him the information in order to avoid the threatened pain. You remain physically unharmed. Could you, in all good conscience, say that coming out of that experience you felt that you had undergone ‘torture’? If so, I think you deny that term the gravity that gives it meaning.

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