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Can the Use of Torture be Justified?
This report aims to, in the first instance, define torture. It then examines the history of torture and looks at international law that relates to torture. The main part of the study analyses ethical theories in relation to torture and uses these ethical viewpoints to examine whether or not torture can be justified in any circumstances. In addition, the Algerian War and the Iraq War will be used as case studies to further discuss the ethical issues surrounding torture. Conclusions will be drawn and the author’s answer to the question ‘can the use of torture ever be justified?’ will be given, based on the findings in the rest of the report.
Limitations of Study
This study has its limitations. First of all, only two case studies are used. There are numerous cases of torture throughout the world and throughout history that could be utilised. In doing so, perhaps a different conclusion would be made.
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As torture is such an emotive subject it is difficult to ensure that the facts are truly represented. Before the nineteenth century some countries publicly acknowledged torture as an instrument of judicial inquiry, however today the vast majority of countries where torture is practised will blankly deny any knowledge of it. This, of course, makes a study of torture difficult.
In addition, as will be seen, there are numerous, conflicting ethical theories that can be applied to the topic of torture. A person’s personal beliefs will influence how much credence they give to each viewpoint. Consequently, the author’s opinions are likely to differ from the reader’s.
Definition of Torture
Torture has a widely understood definition of causing someone severe pain or mental anguish, usually in order to gain some information from the person being tortured, most usually a confession.
Amnesty International state that ‘torture is the systematic and deliberate infliction of acute pain in any form by one person on another, in order to accomplish the purpose of the former against the will of the latter’ (Klayman, 1978, p482). This definition encompasses both physical and mental pain. It also notes that torture has a purpose, and does not allow torture for the sake of the torturer’s amusement.
The Commission for the European Convention on Human Rights defines torture simply as ‘deliberate inhuman treatment causing very serious or cruel suffering’ (Morgan & Evans, 1999, p95). It offers examples of forcing people to adopt a stress position in rooms where there is a continuous loud hissing noise, hooding, and deprivation of food and water.
The Commission for the European Convention on Human Rights’ definition is the author’s preferred definition. This is because it defines torture, not by the torturer’s intentions, but by the effect the treatment has on the tortured.
A Brief History of Torture
The word torture often conjures up images of medieval torture instruments such a branding irons and head screws. From the mid fourteenth century to the end of the eighteenth century torture was an accepted practise by armies, judicial systems and even churches (Maran, 1989, p vii). Public opinion changed in the nineteenth century, but torture continued to be carried out. Once the torture of Jews by the Nazis in the Second World War became public knowledge, numerous international laws were bought into effect to prevent the use of torture. However, torture still continues to this day, but as its use is still widely condemned, details of torture are either kept non-public, are down played or justified by manipulation of public opinion. So called civilised countries are just as likely to be the perpetrators of torture today as countries with a known poor human rights record (Kellaway, 2003, p34).
The International Context of Torture
International law currently absolutely and unequivocally prohibits torture in all circumstances. There are many international laws and conventions that define torture as a crime against humanity. These include The European Convention for the Prevention of Torture and the European Convention on Human Rights. These two pieces of law are intended to work side by side.
The UN Committee Against Torture is a body of independent experts that monitors implementation of the Convention against Torture and other torture related law. All member states are obliged to submit regular reports to the Committee on how the rights are being implemented (Office of the United Nations High Commissioner for Human Rights).
Ethical Theories Applied to Torture
There are many and varied ethical theories that could be applied to the question, ‘can the use of torture ever be justified?’ Theories that conclude that torture is never acceptable will be examined first.
Immanuel Kant (1724-1804) developed Kantian Theory. It is based on the belief that reason is the final authority for morality. A moral act is an act done for the right reasons (Lovell & Fisher, 2002, p314). Kantian Theory is closely related to the doctrines of all major religions, the Bible states ‘do unto others as you would have them do unto you’. At the centre of Kantian ethics is his categorical imperative, which is a set of universal rules that outline ‘that only the good will, a will to act out of a sense of duty, has unqualified moral worth’ (Pojman, 1998, p194).
Using deontological theory, whereby actions are intrinsically right or wrong, torture can be seen to be unacceptable, whatever the circumstances and consequences. Deontologists hold that one cannot undertake immoral acts like torture even if the outcome is morally preferable, such as the early ending of a war or the saving of lives.
Edmund Burke, the late eighteenth century writer and politician, accused the British of suffering from what he termed ‘geographical morality’ (Lee & Smith, 2004, p16). ‘Geographical morality’ is when people are prepared to be shocked by and to condemn torture in other countries while condoning its practice by their own authorities. The British are not the only ones to be guilty of this, many countries, especially in the West can be accused of ‘geographical morality’.
However, there are many other theories that show that torture could be morally acceptable in some situations.
John Stuart Mill (1808-73) put forward an ethical theory known as utilitarianism. Utilitarianism can be summed up in the phrase, ‘everyone should act in such a way to bring the largest possibly balance of good over evil for everyone involved’ (Almond, 1988, p127). Using this theory, torture can be justified if it brings about a ‘greater good for a greater number of people’. The ends justify the means. Using Utilitarianism Theory, if the torture of one person means that several people are located and rescued from a dire situation, then that torture is justifiable.
Consequentialism offers the idea that torture is justifiable if the consequences of the torture are morally right. Consequentialism is an ethical view that establishes the rightness or wrongness of actions by the good or bad produced by its consequences.
Interlaced with the question ‘can torture ever be justified?’ is the question ‘can war ever be justified?’ As torture is an agent of war, this seems appropriate. Just War Theory can be used to justify torture on the grounds that it is acceptable in response to certain situations. St Thomas Aquinas (1225-74) described ‘jus ad bellum’, the conditions that he believed has to be met for war to be justified. War has to be ordered by a legitimate authority, it must be waged for a just cause and the intention of those who wage war should be the triumph of good over evil (Almond, 1998, p197). Of course, the problem with utilising this Just War theory is that fulfilment of the conditions is subjective. However, it is possible that torture could be morally justified using the Just War Theory if it was carried out by a legitimate government whose general aim is good and with the best of intentions.
The concept of proportionality is found in Acquinas’ consideration of the Just War Theory. He argued that warring activity should be proportionate to the aggression made and therefore not excessive to that aggression. This would imply that torture, an extremely aggressive warring activity, would be ethically acceptable in response to extremely aggressive actions.
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It can be argued that the intentions of a torturer make a difference to the moral value of the action of torture. In consequentialist theories of ethics, intention is important, as intention is what you hope to achieve by the action. For Kant, intention can make all the difference between morally correct behaviour and morally incorrect behaviour.
Ideology can play a part in legitimising the use of torture. Ideology is the body of ideas and beliefs of a group, possibly religious, or nation (Maran, 1989, p11). If the ideology of the tortured is believed to be morally wrong and the act of torture prevents the spread of this ideology then torture can be deemed to be justified.
So, in conclusion, there are ethical theories that both state that torture can never be justified and those that state it can be, in different, varying circumstances.
Case Study: Torture in the Algerian War (1954-1962)
The Algerian War lasted from 1954 to 1962. The war was the final part of the process of the decolonisation of Algeria from France. The war was one of the 20th Century’s bloodiest colonial struggles, and it continues to be the object of intense controversy, especially in France (BBC News, 2001). It is now public knowledge that the French utilised torture against some Algerians. This torture has been widely condemned in recent years. However morality has a historical dimension and the morality of today cannot be used to judge the actions of fifty years ago.
In 1955 a French civil servant, Williaume, was sent by the French government to investigate allegations of torture in Algeria by French military personnel. His report failed to unequivocally condemn the torture that he discovered (Nacquet, 1963, appendix). As a result, the period 1955 to 1962 saw an increase in the amount of torture, not only through Algeria, but also in France itself
Paul Aussaresses, a retired French general is quoted as saying “as far as the use of torture is concerned, it was tolerated, if not recommended.” Aussaresses is unusual in that he openly talked about and wrote about the act of torture and his participation in it. Although many others have reviewed the use of torture in the Algerian War, Aussaresses is one of the few who were involved and can give first hand accounts. Therefore his comments that defend the use of torture will be used to form the basis of this part of the report.
Torture, Aussaresses said, was sanctioned at the highest level because of the need to extract urgent information from the enemy. “It was a matter of stopping actions which were being prepared for deeds causing the deaths of my fellow French and Algerian citizens,” he said. He claims to have stopped Algerian bomb makers from killing French civilians by extracting confessions though electric shocks and suffocation. (BBC News, 2001). Aussaresses seems here to be using Mill’s Theory of Utilitarianism to justify the torture that occurred; he believed it bought about a greater good for a greater number of people. Whether or not this torture can be considered justified in the light of his comments depends on whether or not the torture did indeed stop other deaths, and of course, whether the reader subscribes to the Theory of Utilitarianism.
Sources note that the effect of the torture of Algerians by French was a retaliation whereby Algerians took part in ‘killing and raping collaborators, rivals and settlers’ (Joly, 1991, p36). So, in actual effect the torture that Aussaresses describes as the catalyst for saving lives, actually served to result in more life loss. Therefore, regardless of the beliefs of the author or reader regarding the Theory of Utilitarianism, in this instance the act of torture was not justifiable on the grounds that it bought about the largest possible balance of good over evil for everyone involved.
Aussaresses is also quoted as saying “the men I executed were always men guilty of blood crimes. They had blood on their hands. I would do it again today if it were against Bin Laden” (BBC News, 2001). Aussaresses seems to be utilising the concept of proportionality from Acquinas’ Just War Theory to justify the acts of torture and killing here. He believes his acts were justified as they were in proportion to those perpetrated by the Algerians involved. However, it is the author’s opinion that the concept of proportionality has no place in ethical thinking. The old adage ‘two wrongs do not make a right’ is very topical here. Indeed, may proverbs lead and guide ethical thinking. Torture cannot be justified because other crimes have been committed by those tortured. It can be questioned, what right did Aussaresses and his contemporaries have to dish out this punishment? If people had committed crimes they should have been tried in a court and justice meted out in that manner.
French people were led to believe that France was ‘crusading for the defence of Western values against the barbarians of the East’ (Hoffman, 1963, p.85). It is clear, then that ideology was used as a justification to the public of the acts of torture that occurred. However, the author subscribes to the theory that this justification is flawed due to ‘geographical morality’ as discussed earlier. I believe this justification was simply used to ensure the public accepted the practise of torture.
Case Study: Torture in the Iraq War (2003 onwards)
There has been some conflict in Iraq for the past couple of decades. For the purposes of this paper the latest Iraq War, commencing 2003 and still continuing will be considered.
This war is a useful case study as it demonstrates, in these more recent times, when torture is seen to be less and less acceptable, how it both still occurs and is justified in different terms to previously.
There is much discourse as to whether or not the Iraq War itself is justified, so the use of torture as part of it questioned considerably. Using Aquinas’ Just War Theory, the Iraq War is unjust and therefore any torture taking place as part of it is also so. The War is not believed, by the author to be just as it does not Aquinas’ third condition, that those waging the war are dong it simply to triumph good over evil.
There is no doubting that both American and British troops have been involved in some kind of torture of Iraqi nationals. A Red Cross report, the Army’s own Taguba report (British Red Cross, 2004), even the photographs published in newspapers all point to this. In Camp Bucca during the period August 2003 to February 2004 the following acts have been reported; forcibly arranging detainees in various sexually explicit positions for photographing, and punching, slapping, and kicking detainees, amongst others (Observer, 2004).
There is an aspect of ideology being used to justify torture. It has been noted that the media portrays Islamic people as those who ‘will stop at nothing, including disgraceful acts of terrorism, to disrupt Western values’ (Lee & Smith, 2004, p 215). However, it is the author’s opinion that this does not justify torture. It is also the author’s opinion that information gained through torture is likely to be unreliable due to this very fanaticism, and therefore make the ‘purpose’ of torture unobtainable.
The Anti-Terrorism, Crime and Security Bill is the emergency legislation that was created in response to the US terror atrocities on September 11th 2001. It has been accused of eroding civil liberties. It has contributed to a heightened sense of vulnerability in the British public and perhaps, in part, although not its aim, it has contributed to making the mistreatment and torture of Iraqis more acceptable. Bin Laden has been vilified in Western press and the torture of Iraqis can be seen as proportional to the atrocious acts committed by Bin Laden and his followers.
There is a real sense of ‘geographical morality’ in the justification of torture by the US and the UK. When videos of kidnapped Westerners being tortured are viewed, there is universal damnation in the West, but Western personnel behind closed doors are practising similar acts.
This paper has explored the issue of torture and discussed whether or not is can ever be justified. The definition of torture, a brief history of torture and the international context of torture have been discussed. The main part of the report has dealt with the question ‘is torture ever ethical?’ by first exploring ethical theories in relation to this question, and then applying relevant theories to tow case studies, the Algerian War (1954-1962) and the Iraq War (2003 onwards). It is worth noting that the justifications offered for torture in both cases were very similar, despite the two occurrences being fifty years apart.
Finally, the author would like to offer their opinion and draw to a conclusion the debate offered by the question ‘can torture ever be justified?’ It is the author’s opinion that torture can never be justified and can never be considered the ethically correct thing to do. There is no ethical theory offered in this paper that the author subscribes to that can correctly be applied to any of the justifications offered in the two case studies used. Not only that, but torture does not fulfil its intended purpose of gaining useful information and it often brings about more barbarity.
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