Should We Cut Torture Some Slack?

 

Lying to your teacher for your friend’s absence in school, stealing money from your parents to buy your friend some stationery or beating up someone who just punched your brother – unless you are a Kantian who categorically believes that such despicable actions are in no way excusable, then these acts are to an extent permissible in the eyes of, perhaps, a virtuous person. But would you say the same about torturing someone to save the lives of many? It is a tough call to make and it should be. The law is clear to say no but perhaps morality could or even should soften that negative assertion. However, is this really the case?

 

Defining Torture

Article 1 of the United Nations Convention against Torture (which Malaysia did not ratify) puts torture into perspective by defining it 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 third person information or a confession….”This definition allows many torturous acts to be relatively easily placed within its ambit, including even mental torture.

Universally, torture is condemned and no country, whatever its actual practice behind closed doors, publicly supports torture nor opposes its eradication. The prohibition against torture is well established under customary international law and it holds the status of jus cogens, which is a fundamental principle in international law where no derogation is ever permitted. In other words, it is so integral to the international community that it supersedes all other treaties and customary international laws.

International treaties such as Article 5 of the Universal Declaration of Human Rights and Article 7 of the International Covenant on Civil and Political Rights vehemently ban torture and other forms of ill treatment on people. Even humanitarian law, which governs the conduct of parties during armed conflicts, has fundamental elements in supporting the prohibition of torture. Nevertheless, despite all these uncompromising stances against torture, the enforcement mechanism of international law is still relatively flat considering its dependency on the goodwill amongst member states.

 

Is Torture Necessary?

Laws aside, due consideration needs to be paid towards its permissibility in the moral sense of accepting torture within certain circumstances. Perhaps circumstances in which the lives of many are at stake, where consequentialists or utilitarians laud the ‘ticking time bomb’ analogy again and again, can be a justification for the usage of torture to gain information on the whereabouts of the bomb for the purpose of saving the masses. However, some argue that the reliability of such information is questionable given that the person being tortured may just admit or confess to whatever their captors want to hear so as to stop the excruciating torment. A striking example is where Ibn al-Sheikh al-Libi’s confession was used for claims that Iraq supplied both chemical and biological weapons to Al Qaeda. He retracted that statement later, claiming that he confessed for the sake of halting the torture.

Another consequentialist argument suggests that the good outcomes of torture outweigh the bad repercussions. But think about it; the country that uses torturous methods of interrogation can be cast as a hypocrite in the eyes of the international community. The U.S. Senate Foreign Relations Committee noted that “[America] cannot denounce torture and waterboarding in other countries and condone it at home”. Furthermore, the effect of torture lends support to terrorist radicalisation of the population. Tortured terrorists, such as Ayman al-Zawahiri, fuelled the desire for retribution and anti-west politics, which transpires in many of al-Qaeda’s atrocities. Occurrences in Northern Ireland also highlighted consequences associated with heavy-handed tactics.

Even science refuses to acknowledge the reliability of torture as a means of gaining information for the greater good. Professor Shane O’Mara of Trinity College Dublin opined that torture could produce false information by harming those areas of the brain associated with memory. Enhanced measures, such as waterboarding, moves brain activities away from areas supporting memory to those “principally concerned with survival,” such as the brainstem and amygdala, which regulate fear, pain and stress. In other words, the ability to think and recall information will be markedly reduced which could result in unreliable information.

 

A Slippery Slope to Tread

Unsurprisingly, the C.I.A. adamantly defended the use of torture because it claimed that its utilisation led to the finding of Osama bin Laden, the thwarting of an attack on the U.S. Consulate in Karachi and the uncovering of the plot to attack Heathrow Airport and Canary Wharf, among others. But the Senate Select Committee on Intelligence concluded that these key discoveries of the C.I.A. are not the results of torturing the accused terrorists but from alternative sources and modes of intelligence gathering such as wiretapped phones and co-operative informers. The information gained from the tortured accused were just necessities to reinforce the C.I.A.’s existing knowledge.

The Select Committee’s report also showed that torture actually worked but not in the way the defenders of its prohibition claimed. It worked to produce justifications for policies the establishment wanted, like the Iraq War. To recall above, Ibn al-Sheikh al-Libi’s admission that Iraq was supplying biological and chemical weapons to al-Qaeda gave the ‘green light’ for the U.S.’s invasion of Iraq, which ironically, destroyed more lives than saving them.

There is also no qualm to disallow ‘moderate physical pressure’, such as sleep deprivation and exposure to extreme temperatures, in emergency situations given the difficulty in drawing boundaries between the different levels of torture. The gap between theory and practice is always in existence and no matter how ambitious or optimistic one is, the theoretical limits imposed upon the use of torture would never work in practice. This is the slippery slope argument cited by Israel’s Supreme Court to rule that torture could never be justified, even in a ‘ticking time bomb’ situation, because of the overwhelming evidence showing abuse of the system. And mind you, Israel is the only country (and probably the last) in modern times to have openly allowed ‘moderate physical pressure’ as a ‘last resort’.

Although the prohibition against torture is generally accepted across the board in these modern times, the recent rise of religious radicalisation and terroristic acts could very well heighten emotional acceptance of it for the exaggerated benefits that it could produce. International treaties and conventions will simply be pieces of decorative mementos for the world if we continue to morally justify torturous acts by the illusion of protection that feeds on our fears. Even if you are a practical person having no moral conscience, the empirical results just don’t prove the benefits of torture. As for me, if human beings are treated as a means to an end that does not necessarily serve any real benefit, then such actions are categorically abhorred and in this case, torture certainly comes to mind.