The Dilemma of Policies of Torture and Human Rights

With the modern discourse to human rights taking precedence in the realms of law, ethics, philosophy and political sciences, the idea of criminology and punishment falls in an ambit of great uncertainty. The idea of determination of penalties and punishments that fulfil the purpose of deterrence, retribution, just treatment, incapacitation as well as rehabilitation. While at the same time not compromising the morality and ethical perspective of human rights. This jargon of balancing the two aspects creates a dilemma in the realms of political science, criminology and the study of human rights.

The right to freedom from torture is enshrined in many human rights instruments and protects all individuals from being intentionally subjected to severe physical or psychological distress by, or with the approval or acquiescence of, government agents acting for a specific purpose, including to inflict punishment or to obtain information. With global recognition of the most pertinent human right being the right to freedom from torture and over hundreds of domestic and international documents regulating this right, it becomes imperative to understand why torture still exists. Thus the major theme and objective of this text is to; look at a multi-faceted meaning of torture, the international legislations regulating it and to throw light on the dilemma of torture and human rights.

Defining Torture

The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) provides the most precise and widely-cited definition of torture under international law. It defines torture as:

“any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions” (United Nations, 1996).

What rises to the level of ‘torture’ or other prohibited behaviour is yet again falling in the domains of political and circumstantial uncertainty and with the coming in of ‘new torture regime’ and new techniques of torture, analysing the ideologue behind definitions and dimensions of torture has significantly changed However, for the standardisation of definition its a best practice to follow the international standards for definition and nomenclature.

Why Torture

First, some, including those in prominent political positions, inaccurately believe that torture is an effective interrogation method and, therefore justified in some circumstances. For example, after the September 11 attacks, members of President George W. Bush’s Administration justified torture practices in the interest of national security. To punish those responsible for the attacks and keep Americans safe in the future, “enhanced interrogation techniques” (EIT) were justified. Hence, many believe torture to be a method of extracting imperative information.

Second, torture is often committed in secret or in places with little to no independent oversight or monitoring. It is used to extract (often false) confessions, intimidate activists, and terrorise entire communities. Many a times therefore, torture has been used incase of show trials to falsify and manipulate jurisprudence the classic example of which is the 1936-38 Stalinist “Show Trials” (Kearns, 2014, p. 3-11).

Third, because torture is a universal crime of the highest order, governments will go to great lengths to manipulate both law and language to avoid the moral and legal ramifications of torture. Hence, a lot of times torture is used as a legitimising of actions by the authority through the use of fear.

Lastly, Even when accountability mechanisms may exist and are pursued, victims may be afraid to come forward for fear of reprisal, social stigma or re-traumatization. This is to suggest that authorities and parties who torture, use torture as a brainwashing apparatus to legitimise and justify their actions and mobilise and drive propaganda (Kearns, 2014).

Justification of Torture

Even though there exists many justifications of torture in this section, attempt is made to highlight two of the most pertinent justifications for torture, starting from the ticking bomb scenario and ending at the necessity exception or the necessity doctrine principle.

Ticking Bomb Scenario

The problem that even the most virtuous people face when thinking about torture is whether there is ever a case when a good result produced by torture justifies the evil act of torturing someone. It's often illustrated by a version of the 'ticking bomb problem', which asks us to put ourselves in the position of a senior law officer facing a situation like this: A terrorist group states that it has concealed a nuclear bomb in London, The authorities have captured the leader of the group, He says that he knows where the bomb is, He refuses to reveal the location, torture is guaranteed to produce the information needed to ensure the authorities find and make the bomb safe.

In fact torture is not guaranteed to be useful in producing accurate information, but please just accept this premise in order to focus on the points of principle Is it ethically acceptable for you to have him (or his family) tortured to find out where the bomb is and thus save thousands of lives, or is it unethical to torture him, no matter how many die as a result? To many, the ticking bomb scenario seems as a good justification for using torture, a survey revealed about 40 percent British citizens favoured the use of torture in the above scenario (“BBC - Ethics - Torture: The ‘ticking bomb’ problem,” 2014).

The principle of necessity exception or the necessity doctrine

To simply understand the necessity exception principle is to say that in exceptions law can be occasionally broken to prevent greater harm. However as the great saying goes, “The road to tyranny has always been paved with claims of necessity made by those responsible for the security of a nation.” This solution holds that, if torture is the only way to save lives in our imaginary emergency, the official who takes this last resort, should be able to invoke a necessity defence. Parry neatly sums up this position: “If torture provides the last remaining chance to save lives in imminent peril, the necessity defence should be available to justify the interrogators’ conduct.”

However, the major problem with the necessity justification is that it is too pliable and positively invites political manipulation. As per Parry, even if torture could be justified in a specific case as a matter of criminal law, we still must ask if it is wise. The focus of the necessity defence is narrower than the focus of the policymaker, and using torture or cruel, inhuman, or degrading treatment may not be wise from that broader perspective even if it is justified as a matter of law (Stephen Brown, 2007, pp 4:8-4:12).

Hence, regardless of these justifications of torture it is in the end deemed to be inhuman and cruel. Therefore, comes under scrutiny internationally resulting in various national and international legislations banning and regulating torture.

International Legislations Regulating and Banning Torture

This section is an amalgamated write-up, analysing the major international legislations governing torture including the UDHR, 1948, The 1949 Geneva Conventional and additional protocols, 1977 American Conventions on Human Rights, 1992, ICCPR and most importantly the UN-Convention Against Torture.

One of the most fundamental aspects of human rights law is the universal proscription of torture. Article 5 of the Universal Declaration of Human Rights holds that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment." This sentiment is similarly expressed in Article 7 of the International Covenant on Political and Civil Rights, Article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 5 of the African Charter on Human and Peoples' Rights, Article 5 of the American Convention on Human Rights, and Article of the 1949 Geneva Convention dealing with the protection of the prisoners of war. Notwithstanding rhetorical agreements on the prohibition of torture and related practices, there remains a strong desire within state governance to have recourse to the use of violence. Despite the clear consensus in favour of outlawing torture, the perennial problem facing the international community is the weakness of these prescriptions in practice (P. Nagon, W. 2001).

The Convention Against Torture itself is supplemented by several other U.N. General Assembly initiatives promulgated in part as a result of pressure from global civil society (“UNTC,” 2020). Despite its far-reaching progress in giving some efficacy to the prescriptive force of international laws that seek to eradicate torture, the United Nations faces certain inherent institutional limitations. This has led to international organisations mobilising their resources to aid the international campaign against torture.

It is not wrong to say that the convention is one of the most intricate and comprehensive document in the international arena governing torture. However, under the objectives of this paper the discussion shall be limited to the aforementioned points. And thereby visualising the way forward in the realms of torture and rights.

Way Forward and Conclusion

While the paradoxical nature of rights and penalties will be a never ending debate the purpose of this text has very well been to highlight the true nature of torture, why it still exists and how it is globally condemned, followed by a very intricate analysis of international norms against it. The way torture fits in the jigsaw of human rights and its abolishment is a key in unlocking the true aspects of global human rights. Upon understanding and negating various justifications of torture we make this fact even more latent and stress on the urgency of international norms to be strengthened to abolish the use of torture completely and in parallel pushing on the narrative of torture being an inefficient tool of extracting information and drawing legitimacy.

References

BBC - Ethics - Torture: The “ticking bomb” problem. (2014, January 1). Retrieved from

http://www.bbc.co.uk/ethics/torture/ethics/tickingbomb_1.shtml

Golden Books, 1994 A. Hirsch, ed., The Book of Torture and Executions , Toronto, Canada, 1994

Kearns, E. (2014). The Study of Torture: Why It Persists, Why Perceptions of It are Malleable, and Why It is Difficult to Eradicate. Laws, 4(1), 1–15. https://doi.org/10.3390/laws4010001

P. Nagon, W. (2001). The International Law of Torture: From Universal Proscription to Effective Application and Enforcement. University of Florida Levin College of Law UF Law Scholarship Repository. Retrieved from

https://scholarship.law.ufl.edu/cgi/viewcontent.cgi?article=1627&context=facultypub

STEPHEN BROWN, R. (2007). TORTURE, TERRORISM, AND THE TICKING BOMB: APRINCIPLED RESPONSE. JOURNAL OF INTERNATIONAL LAW & POLICY, 4:8-4:12. Retrieved from https://www.law.upenn.edu/journals/jil/jilp/articles/4-1_Brown_Rory_Stephen.pdf

United Nations. (1996). UN Convention Against Torture and Other Cruel, Inhuman, Or Degrading Treatment Or Punishment . New York, United States: Human Rights Commission --UN, UNTC. 2020 , May 25, Retrieved from: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-9&chapter=4&clang=_en

By- Vardaan Shekhawat (vardaanshekhawat2@gmail.com)

Vardaan is a dynamic young professional with a clear mission: To use corporate discipline for growth driven action and welfare. He actualizes this mission through interventions rooted in research and analysis amalgamated with innovative process based policies. At the moment Vardaan is working on scaling and expanding the operation for his social enterprise by the name of Project uP: Vishwaas, an organization that uses research to create impact while focussing on child welfare and urban slum development.

Featured Image Credits: © Scott Langley/ Amnesty International© Scott Langley/ Amnesty International