SHOULD TORTURE BE ABOLISHED?

Submitted by-

Diwakar Chirania
ABSTRACT:

Wild animals never kill for sport. Man is the only one to whom the torture and death of his fellow
creatures is amusing. -James Anthony Froude

This paper gives a detailed answer to the research question of “should torture be abolished”? The
paper starts with a general introduction of the subject matter and discussed various international
laws with regard to it. Later this paper discusses case laws regarding the matter and justifies the
paper presenters view that-Torture should be abolished with the help to “The Ticking Bomb
Scenario” and “The Slippery Slope Theory”. Also the researcher affirms to the idea that no form
of torture or inhumanity can be justified under any sort of circumstances, thus firmly believing that
every nation state should sign and ratify the United Nations Convention Against Torture and
implement the laws accordingly. Also, There should also be an absolute an indefinite ban on use
of such practices across the Globe.

INTRODUCTION

If you want a picture of the future, imagine a boot stamping on a human face forever”- George
Orwell (1984)

The word torture is derived from a latin term “torquere’ that means to twist. While there is no
singular precise definition of what constitutes as torture, we can refer to various international
agreements that deal with torture to have a basic understanding. The article 5 of Universal
Declaration of Human Rights, 1948 states that, “no one shall be subjected to torture or to cruel
inhuman, or degrading treatment”. Further Article 1 of United nations Convention Against Torture
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” It is also regarded as war crime and a crime against humanity under the International
Humanitarian Law when it becomes widespread or becomes systematic attack against a civilian
population.

Torture has been very rarely stated to manifestly illegal. In fact, such practices were once an
integral part of criminal procedures enshrined within and were regulated by medieval rule of
evidence. During the late 19th century, because of the large acceptance and ratification of the
United Nation Convention Against Torture, the practice came to be regarded as one of the few
crimes to which the label “manifestly illegal could be unequivocally applied.”

In the book, “The legal history of torture”, John H Langbein gives us another example of the
dangers of Legitimizing torture. He says, “once legitimized, torture could develop a constituency
with a vested interest in perpetuating it. He proves his point with the example of how the enterprise
of enforcing drug law in the United States has made the enforcement agencies dependent on the
information obtained through the practice of torture and compares it to dependence of drug user
with dope.

Torture has been used over the last century even in stable democracies. In the case of Ireland V.
UK, it was found that British Authorities beat Irish prisoners of war with fist and batons. The
detained prisoners were made to stand for long hours, they were deprived of basic human needs
such as food and sleep and were also exposed to white noise for long hours. The European
Commission for Human Rights found that these practices when used together, amounted to torture
but they reversed the appeals and finally ruled that these practices did not fall under the category
of “Torture” but did fall under the definition of “inhuman or degrading treatment”. In the case of
Sandi Mitchell, where he was tortured by the Saudi officials for three years and was forced to lie
and confess about a crime of multiple bomb blast which he did not commit. They would keep him
hanging on rope with his face covered in black mask and inflict horrific crimes upon him to meet
their demands. This shows the brutality and misuse of power that can be done by officials if torture
is legitimized.

Also, there is no escape from the reality that every suspect does not turn out to be guilty, and also
for various reasons the information gathered by torturing does comes with the guarantee of
reliability as the terrorist who are willing to sacrifice for their cause might also be in a plan to plant
false information under the pressure of torture. This might further complicate the investigation and
lead to a significant loss of lives and property.

In books as old as old testament, there were prohibitions against punishment which resulted in
humiliation and degraded those receiving it.

The Ticking Bomb Scenario-The complete ban of torture is often questioned on the grounds of
security or counter-terrorism. The arguments are frequently established on a hypothetical “ticking
bomb” scenario.

This scenario usually involves the police arresting a terrorist, suspected for having planted a bomb
that is about to detonate in the center of a large city. The police consider that only torture will make
the suspect reveal the info required to prevent the deaths of lakhs of people. Is it not justified to
use torture in such a situation?

This argument incites an emotional reaction to a hypothetical situation. It assumes that:

 there is a known threat

 the attack is imminent
 the attack will kill a large number of individuals
 the person arrested is the committer of the attack
 the person has info that will thwart the attack
 only torturing the person will provide the info in time to thwart the attack.

In real life circumstances, however, one or more of these assumptions is always invalid. The
scenario assumes for example that the suspect will give important info under torture. In reality,
torture is essentially unreliable for obtaining precise information. Professional interrogators have
repetitively emphasized that interrogation can be conducted much more efficiently without the use
of torture.
The assumptions that underpin the “ticking bomb” argument can also be used to justify torture in
a wider range of situations.

Hidden assumptions

The situation also comprises some hidden assumptions that should be defused:

 The purpose of the torturer is to get the required data-

Even if the torturer did begin with the honest motive of obtaining info/data, torture corrupts the
perpetrator. This is an innate part of the act of torture. The assumption that the objective is only to
collect data is very simplistic. In real life conditions other motivations and emotions, such as anger,
punishment and the exercise of authority, can take over.

 It is an isolated situation-

Unfortunately, it is part of the nature of torture that any authorization invariably leads to a slippery
slope, where the use of torture steadily becomes more common, even accepted.

The Slippery Slope Theory -

Any legal exemption created to accommodate a “ticking bomb” situation would inevitably lead us
down a slippery slope, at the bottom of which torture becomes arbitrary and unpunished, or
widespread and systematic, or both. The final result of any exemption to the prohibition of torture
is the destruction of democratic foundations and the destruction of any open, free and just society.
At the end of the day, we have much more to lose by making a legal exemption to accommodate
some future ticking bomb situation, than we do by preserving the absolute prohibition of torture
even if that means assuming some hypothetical risk. This is because opinions about the ticking
bomb hypothetical are not accurately about what we would do in some fictional future, it is about
the kind of civilization we want to live in today and everyday. If it happens to exists in reality at
all, the pure ticking bomb situation is vanishingly rare. It does not resemble reality of the vast most
of the events, where a plot is foiled before the planned attack becomes imminent, or the attack
takes place, but there was no culprit in custody immediately before the attack who could have
leaked info to avert the attack. Further, since the ticking bomb situation is often raised in the
context of threats symbolized by organized networks of extremists, it is worth recognizing that any
attack planned by a terrorist organization is likely to be designed to succeed even if in one of
Defusing the Ticking Bomb Scenario their affiliates are taken into custody. This only emphasizes
how rarely all the improbable assumptions of the pure ticking bomb scenario could coincide. If
such situations are so rare, does it make sense to twist our system of international and national
laws to accommodate them, even presuming one agreed with the calculus posed by the pure
hypothetical.

Further, since it is not convincing to presume near-certainty about the various fundamentals of the
situation in any real-world situation, any exemption based on the ticking bomb scenario would
undoubtedly allow torture to be carried out based on various degrees of suspicion. As the degree
of certainty necessary drops, the probability that people who are not involved at all will be tortured
based on mistaken identity, or for having been at the “wrong place at the wrong time”, increases.

History also shows that any tolerance of torture leads to its propagation, in respect of other types
of “evil” as serious as the “ticking bomb” evil, and in respect of its use for purposes other than
procurement of data/info.

The creation of a legalized exception in a single State would also cause international proliferation.
If States that are considered to be global leaders on human rights express their tolerance of torture,
even in narrow situations, other States will take this as their indication to continue or increase their
own use of torture against their own inhabitants, in a much wider range of situations than the
ticking bomb scenario. It is easy to see the huge decrease in diplomatic influence that would result
for a State that goes from being a “torture prohibitionist” to simply being a less keen torturer.

Further, using torture in our own state allows other states to more effortlessly justifying using
torture against our own armed forces and citizens. It is no surprise, then, that many military leaders
would themselves firmly object to any tolerance of torture among their own forces.

Finally, we must understand that being ready to use torture, even in rare situations, implies certain
institutional arrangements that seem fundamentally unpredictable with the kind of society most
people desire. We can expect secret interrogation centers staffed with interrogators trained in
torture techniques (presumably in some sort of torture academy). On our streets we would walk
amongst men and women who have been promoted to override their natural revulsion at causing
pain and suffering to another human being who are helpless in defending themselves. Researchers
and businesspersons would work to invent and manufacture ever more horrific torture machines
and procedures. In the past these types of institutional arrangements have been associated with the
Nazis, with other fascist states and totalitarian societies and dictatorships.

Thus, the total, complete and nonderogable prohibition of torture and all other forms of cruel,
inhuman and humiliating treatment or punishment, must be strongly promoted, not only in the face
of challenges based on the so-called “ticking bomb scenario”, but in every place where torture or
talk of torture still lurks. We must say no to torture always because “Torture” is of the same species
as “genocide and slavery”. The political and legal projects that have become associated with the
ticking bomb scenario must be rejected in precisely the same way we would meet any proposal for
the use of genocide or slavery: with condemnation, shame, abhorrence, and a resounding and
absolute “NO”.