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.