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Torture And The Geneva Convention Criminology Essay

Normally, if one uttered the word torture, responses would generally be within the realm of disgust and abhorrence. Support for the Geneva Convention laws on the prohibition of torture resounded worldwide and countries that were rumoured to use torture were shunned from what was perceived as ‘ordinary decent society’. Torture, historically, has been systematically applied for the purposes of evidence-gathering within the justice systems of Europe over the past 500 years. By the 18th century, a ban was introduced in Europe. Apart from the abhorrence that thoughts of torture might generate, the deficiency of the employment of torture techniques vis-a-vis the reliability of evidence during this timeframe included torture of the innocent, evidence of a high error rate, forcing oral evidence and involuntary confessions being treated by the Courts as voluntary. The inconsistencies and general disregard for any form of human rights even then resulted in torture becoming regarded as an inconsistent method of seeking justice and protecting security. Montaigne once wrote, ‘nature herself, I fear attaches to man some instinct for inhumanity’ [2] . Our capacity to do wrong is evident historically through the use of torture and the genocidal acts which human beings have committed with the sanction of their governments or judicial systems. It is this instinct in us that society has aimed to stamp out through a complete ban on torture.

The United Nations’ ban on torture is absolute and non-derogable. The 1948 Universal Declaration of Human Rights defines the ban as morally imperative. The U.N. Declaration Against Torture, adopted by the General Assembly in 1975, states that ‘any act of torture or other cruel, inhuman or degrading treatment or punishment is… an offense to human dignity.’ Clearly, it has been drafted that way in order to protect society from its propensity to justify and employ inhuman extremes.

So why, after going to great lengths to rid the world of torture and going to vast measures to eradicate its practice, is this original certainty being questioned, and arguments made to marginalise the use of torture in certain situations? Is it right that we should plausibly accept the rationale of the ticking bomb scenario and condone the use of torture in this instance? Is it right that we should allow some forms of inhuman and degrading treatment to be used in particular scenarios just because they are less offensive than the medieval idea of torture we allude to? Should we employ the use of “torture warrants” in an aim to protect national security? Would an accountable body created to keep check on improper torture practice be more effective in protecting our human rights rather than permitting the unchecked ‘extraordinary rendition’ tactic employed by some countries? Or should we realise that the ban on torture simply does not permit for any degree of derogation like other civil liberties, reflect on the effect that introducing torture warrants would have on human rights, and uphold the all out ban? In the course of this essay I will seek to demonstrate that the argument for an all encompassing ban on torture cannot be trumped by the potential utilization of the ticking bomb theory.

There can be no doubt that the emotive issues surrounding the ticking bomb scenario are vast. After the World Trade Centre attacks, American reaction plunged the world into a heightened media frenzy of fear and alert, and the war on terror was pervasive. Post 9/11, American public opinion drastically changed with regard to its views on torture with opinion polls seeing an increase in line with an acceptance or even more proactive use of torture [3] . The very concept of “torture”, once universally loathed, now became a legitimate topic of debate in America and the ticking bomb scenario suddenly became a very plausible event.

The arguably ironic element of this scenario was that the utilitarian ticking bomb theory was ultimately being pioneered by liberals. Luban, in Liberalism, Torture and the Ticking Bomb, defined liberalism for the course of his article as a ‘broad sense used by political philosophers from John Stuart Mill on, a sense that includes conservatives as well as progressives, so as long they believe in limited government , the importance of human dignity and individual rights’ [4] .

The utilitarian viewpoint, pioneered by the work of Jeremy Bentham, has always been to maximise happiness and minimise pain. With both these viewpoints clearly focusing on the importance of morality, human rights and human dignity, they are in stark contrast to what torture represents. Luban, in quoting the work of Foucault stated ‘to torture in order to cause pain, in order to strip the tortured of humanity, in order to exercise tyrannical power over the captive is inimical to liberalism’s idea of itself’ [5] . So with such an emphasis the anti-torture mandate of the liberalist view and an emphasis on maximising the general well being of society, what changed?

The well legislated torture techniques demonstrated by the Bybee memorandum [6] conjured up by the legal team of the Bush Administration, then employed in Abu Ghraib and Guantanamo Bay created what has been described as a ‘legal black hole’ [7] regarding one of the most strenuously protected bans in our society. The Bybee memorandum effectively ‘decontextualized’ torture [8] . Susan Sontag reiterated that ‘when the pictures of the Abu Ghraib abuse were leaked there was an avoidance of the word torture, abuse and humiliation but certainly not torture.’ [9] At the time of the outcry, Donald Rumsfeld reinforced the abuse statement saying the abuse that may have occurred was technically different from torture, stating “I’m not even going to address the ‘torture word’”. [10] The techniques of hooding, water-boarding, prisoners being exposed to sleep deprivation, having to sit in strained positions, etc. were all viewed by the U.S. Administration as employable tactics to be used on ‘unlawful combatants’ [11] . When there were outcries of injustice from critics of the Bush Administration when these torture tactics were exposed, some lawmakers leapt to the government’s defence. Senator James Inhofe of Oklahoma, a Republican member of the Senate Armed Services Committee, stated that he was not the only ‘member of the committee outraged by the outrage’ that the exposed photographs had caused. He stated ‘these prisoners are in Cell Block 1A or 1B, they aren’t in there for traffic violations. They’re murderers, they’re terrorists, they’re insurgents, many of them probably have American blood on their hands and yet here we’re so concerned about the treatment of such individuals.’ [12] 

This statement, for me, exposes the façade of the liberalist viewpoint here. It is the blatant detachment in this instance that allows me to presume that the liberalist revulsion of torture is only skin-deep and the West’s security interests are paramount. Therefore I would agree with the view point of Hudson that “the strategies of the war on terror challenge the universality of concepts of rights and dignity; the ‘human’ is taken out of ‘human rights’, displacing the understanding of human rights as the inalienable possession of all humans wherever they may be on the Earth, in favour of the idea that rights are only honored in the West, and therefore the rights of citizens of the West are the only rights that matter.” [13] 

While the Bush Administration’s actions were questioned, it seemed to be generally accepted that the security situation was like no other and, as Tony Blair famously declared, ‘the normal rules do not apply.’ [14] If the ‘war on terror’ is like nothing that has ever been dealt with before, perhaps the torture tactics arguably are being employed for the ‘greater good’? Michael Ignatieff’s theory of the ‘Lesser Evil’ comes into play here.

Ignatieff, states that ‘life’s toughest choices are not between good and bad but between the bad and worse.’ [15] These best of these choices are what he termed the Lesser Evil, and it is one of the strongest arguments that some liberals have been comforted by, in an aim to ease some form of conscience regarding torture and the ticking bomb. It provides comfort in seeking a middle ground, safeguarding the rights of persons while protecting us against ‘those who respect no ones rights at all,’ [16] suggesting that a select few individuals, who are capable of causing enormous and immediate harm, have waived their rights to freedom from torture in applicable situations. In defining what the ticking bomb scenario entails, we are presented with this setting: “Imagine that a bomb has been planted that, if allowed to explode, will kill some number of innocent civilians. [Sometimes, to increase the argument’s force, the number is fixed very high.] The man who planted the bomb has fallen into our custody, and refuses to tell us its location. If torturing the man is the only way for us to locate and defuse the bomb, thereby saving innocent people’s lives, then aren’t we morally permitted, even required, to torture him? This shows that torture is sometimes justified as a means of preventing terrorism.” [17] 

When the ticking bomb scenario is introduced it flags up many moralistic issues for liberalists. As Ignatieff states, it highlights the problem of nihilism in a form different from the ones we have seen before: ‘where believing that majoritarian interest - in this case the survival of democratic society itself - could legitimize committing an ultimate violation to human dignity.’ [18] Ignatieff understands the importance where, if democracy wishes to keep torture out of its interrogation rooms, it has to grant access to legal counsel and the possibility of judicial review. Subjecting detention to every form of judicial and legislative scrutiny could aid in preventing interrogation techniques spilling over to the realms of torture. But the hypothetical of the ticking bomb scenarios makes this problematic.

Ignatieff imagines that there will be disagreement among people of conscience as to whether torture might be permissible in exceptional circumstances but there will be agreement that it can never be a general practice.’ [19] 

This anticipates Alan Dershowitz‘s ‘torture warrant’ theory. Dershowitz, a civil libertarian who over many years has fought for human rights, is opposed to torture as a normative matter. Dershowitz’s work on torture warrants started in the 1980’s, long before the issue of the war on terror was thrust into the spotlight, and began as a way of reducing the use of torture in a nation plagued with terrorism. It is well documented that the Israeli Security Service (the “GSS” or “Shin Bet”) employed what was described as ‘moderate physical pressure’ on suspected terrorists to derive the information necessary in an aim to prevent future terrorist attacks. Dershowitz described the tactics employed, ranging from being placed in a darkened room with a sack over the suspect’s head; loud or unpleasant music being blared incessantly from speakers; the suspect being seated in extremely uncomfortable positions and then being shaken vigorously. There was a definite unwillingness to adopt the ‘purist’ approach to torture techniques in Israel. [20] When criticised about the methods applied by the security forces, the ticking bomb scenario was always quoted as a defence by Israeli forces to combat the very real threat of terrorism. Dershowitz had a clear goal; if the reason that non-lethal torture is permitted is solely based on the ticking bomb case, then these actions should be limited exclusively to those compelling but rare situations. In essence Dershowitz goal was to argue for the reduction of the use of torture to the smallest amount and degree possible, while creating public accountability for its use through the formation of a torture warrant. Permission to torture was to be gained through the judiciary to act as a greater protection for civil liberties, human rights and create a screen of accountability.

Dershowitz further highlights the fact that ‘extraordinary rendition’ is hugely prominent within various official ‘non- torture’ states. [21] His problem with this is that it allows direct violation of human rights and human dignity to occur, in secret and unchecked, and that remedying this situation is extremely necessary. Dershowitz’s makes it clear that ‘[t]he individual to be tortured is specified, as are the level and duration of the pain to be inflicted. The warrant would only be granted for torture to prevent an imminent attack. Anything outside the warrant’s specification would be a criminal offence.’ [22] Regardless of the intention to protect liberties and balance security that the idea of torture warrants aims to bring, it is ultimately too outrageous to employ. Hudson states that, ‘[t]he ticking bomb is the core of a liberal ideology that allows the unthinkable to be thought and to be approved by the highest ranks of lawyers and politicians, as well as by the public.’

For Luban, the real debate is not the rightness of the equation between ‘one guilty man’s suffering and the suffering of hundreds of innocence.’ Rather, it is about ‘the certainty of the suffering in the act of torture contrasted with the mere possibility of avoiding suffering by gaining urgent information.’ [23] 

Even if the concept of torture warrants were to be employed, what guidelines are to be set, and how could we ensure that states would not change its laws to dilute the objective of protecting human rights. In the Philippines, for example, it was revealed that an assassination attempt on the Pope and various plane bombings by terrorists had been thwarted as the Phillipino security services which had captured and tortured leading members of the particular terrorist group involved. [24] Official reports, however, failed to mention that the suspects had been kept in confinement for up to a year before this. How would torture warrants be of any use in combating terrorism activities of the detainees’ alleged organisation, if the detainees had been kept in confinement for so long? Surely information from detainees would be of very limited use in combating a current threat.

The difficulty with the above scenario is that, rightly or wrongly, it is impossible to draw a distinguishable line. It begs the question of how far we will compromise civil liberties and human rights to protect national security. Ignatieff states that suspending rights is a ‘lesser evil’ solution, but this compromises the idea of human rights as being a set of unchanging bench marks. Once it is conceded that human rights can be waived or derogated in times of emergency, it is accepted that human rights are not a system of indivisible absolutes, and that their application requires the balancing of liberty and necessity, pure principle and prudence. If security measures are permitted to be paramount in times of crisis, civil liberties could potentially be destroyed.

More particularly, torture is not a typical civil liberty, in that there should be no room for derogation - it is an all out prohibited procedure. If we allow national security to dilute this, we open our options to an extremely dark path. We allow the definitions of what kinds of crisis would permit the use of torture to be left open to a wide interpretation. We chip away at individual rights piece by piece.

In the case of the shooting on the London Underground of Jean Charles de Menezes by police operating a ‘shoot-to-kill ’policy, he is almost always described as an ‘innocent Brazilian.’ [25] If de Menzes was instead a suicide bomber, would the outcry have been the same? The police shot an innocent man in a direct violation of both domestic and international human rights legislation. This was forgotten, nothing was done. The defence argument was framed in terms of whether enough care was taken to ascertain the identity of Menezes, not whether a shoot-to-kill policy is conscionable in and of itself. How is this employed for the greater good? This leaves us with chaos.

So with attachment to individual liberties so obviously compromised in the above circumstances, how are we to have a stringent implementation of a successful and legitimate use of torture in the ticking bomb scenario? Essentially, how could legislation be formed to allow the use of torture and how can we protect this from eventually involving into a social norm? Could we run the risk of letting this evolve into a conditional law?

For example, the tactics employed by the British government during internment in Northern Ireland during the 1970’s resulted in accusations of torture and inhuman and degrading treatment. The tactics employed were strikingly similar to those employed by the Israeli government. It is also well documented that in the case of the Birmingham Six the suspects were severely beaten by the police to obtain confessions. The case of Ireland v UK [26] before the European Court of Human Rights investigated the implementation of such techniques during investigation. Yet the outcome of the Ireland v UK [27] held that, whereas the suspects had suffered “inhuman and degrading treatment”, it did not rise to “torture.”.

Ultimately, one of the most prominent democracies cannot be seen to be employing such tactics and this is why there was no real justice granted to the victims here. It was the political fear that destroyed liberalists’ policy. Politics is paramount in human rights, security and liberty. There is no way that the torture warrants prescribed by Dershowitz can be immune to the abuses which clever lawyering can omit. The all out ban is paramount due to this instance. Jeremy Waldron, a strong critic of Dershowitz’s support for the legal regulation of torture, states that the prohibition of torture is an ‘archetypal law’ [28] i.e. highly significant beyond its immediate content and contains the morality that defines a particular type of society. To allow for the dangerous delusion of the ticking time bomb to come into effect, if we take the concept seriously, then we start to run the risk of turning the interrogator into the fully fledged torturer who will lose his sense of morality. The famous Stanford prison experiment showed how easily we can sociologically adapt the idea of ‘re-normalisation’. We could ultimately face losing all sense of perspective in the use of such methods.

The “ticking bomb scenario” deflects attention away from the actual practice and authorization of torture. It allows us to be sucked into, as Henry Shue states, a world of idealization and abstraction. He highlights that ‘it is a way in which tricks us into believing that our ability to do this is still within our moral conscience in an ideal world and allows us to ignore the practical exertions we are faced with.’ [29] 

Tom Williamson [30] further stated that ‘intensive interrogation and torture are not very effective anti-terrorist strategies.’ Here, a specialist officially states that torture is an ineffective means.

I am strictly of the deontologist point of view and believe in Immanuel Kant’s perspective [31] . I believe the absolutist approach is totally necessary and that torture should be outlawed always and no circumstances should affect this. There are numerous examples of international jurisprudence demonstrating the adherence to the absolutist concept. The ruling in Chahal v UK [32] , whereby the respondent was not deported and subjected to the hands of potential torturers; the outcome of Velasquez Rodriguez v. Honduras [33] which punished the torturer and the Pinochet case [34] , in which it was determined that heads of states can be punished for their role in torture, determine that all is not lost and there is still some form of international responsibility. However, this in my view is not enough!

Regarding torture, I feel Hudson sums up this viewpoint beautifully when she states: ‘We liberals are not asked for our opinions on real situations in Guantanamo, Abu Ghraib, Bagram or other places of detention, but asked if we could countenance the torture of one to save many. Cruelty is displaced from real pain of the tortured to the imagined pain of the potential victims.’ We continue to displace the pain, to forget about the rule to the heinous acts being committed.

Another well documented anti-torture argument is the fear of torturing the innocent. The difficulty with the ticking time bomb scenario is in drawing the line. If one captive does not speak, do we use harsher methods? If we capture a group of suspected terrorists, do we torture them all regardless? Do we give in to the words previously uttered by Senator Inhofe and adapt the concept of an eye for an eye? If we dare to contemplate such activities we give human rights a meaningless and ludicrous value.

Does the huge infringement of civil liberties really outweigh the potential saving of life? For a start, it was reported that 70% - 90% of people detained in Iraqi detention camps were caught by simply being at the wrong place at the wrong time [35] .

The fear of torturing the innocent is one of the views that liberals find the most difficult to deal with. It is their ability in this instance to recognize the injustice here and define it as wrong. The most important point in this instance is that it is still wrong to torture the guilty. It asks the question, are only the innocent worthy of human rights? Justice involves protecting the rights of ‘the worst of the worst’, as well as the rights of those who are, or may be, innocent. If we forget this, we destroy all that we worked for. We give ourselves no limitations. How far could this go, could we start taking it to the extreme and implement such techniques in our domestic laws? Could we start justifying starvation for unpaid credit card bills, flogging for parking tickets? Beating’s for noise pollution? When do we draw the line, when do we turn democracy, which we have aimed to preserve, into a police state?

The current pending trial of Khalid Sheikh Mohammed, one of the ‘self confessed’ masterminds of the September the 11th attacks, is due to take place in New York [36] . This flags up a number of difficulties for the U.S. judicial system. The suspect allegedly referred to himself as a ‘terrorist to the bone’. However the crucial case for the defence in this trial is the fact that Khalid Sheikh Mohammed was subjected to torture by the C.I.A during interrogation. It was documented that Mohammed underwent the technique of waterboarding 183 times before it was banned in 2003 [37] . The question is posed as to how reliable his statements could possibly be due to being subjected to such techniques.

Philosopher Paul Ricouer looks at the relationship between justice and vengeance. He analyses the perennial tension between the two, and speaks of current times as witnessing the sense of justice being undermined by the ‘irresistible resurgence of the spirit of vengeance’.

Vengeance, he tells us, cannot be at peace with justice, because the goal of justice is precisely to overcome vengeance.’ [38] There is an extremely high chance that due to the torture techniques and general prejudice the jury may have regarding this case, Mohammed will not be convicted of the attack. It will be extremely difficult to form an impartial jury in this case that will not be hungry for vengeance. A man who is allegedly responsible for the biggest atrocity in American history walks free due to the derogation of his captors from the all out ban on torture? What sense of justice does this bring to the families of those lost in the attack? Torture hindered justice here as it was encased in vengeance. This only cements further that the employment of torture is of absolutely no benefit.

Slavoj Zizek stated ‘those who introduce torture as a legitimate topic of debate are even more dangerous than an explicit endorsement of torture.’ [39] This is what we risk becoming if we start swaying from an all out ban. Barbara Hudson states that ‘Justice in a time of terror also calls for us to develop a more fluid sense of self, going beyond nationality and ethnicity to recognize being human as our first and most basic identity.’ [40] No one can claim to understand the workings of a terrorist or the disagreements nations will undoubtedly face, is human condition. If a terrorist attack should ever arise and we are not prepared to torture the suspects to prevent a disaster, we can rest assured that ‘we have not sold our souls and that we have not brutalized the civilization, these are the catastrophes that we can avoid.’ [41] I believe that upholding our civilized principles regarding the absolute ban on torture is of paramount importance and that by doing so future generations will lead humane lives.


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