Introduction

Torture

English common law has regarded torture and its fruits with abhorrence for over 500 years

Lord Bingham, British judge

Torture is an unqualified evil. It can never be justified. Rather it must always be punished.

Lord Brown, British judge

Introduction

Torture involves deliberately inflicting physical or mental pain on a person without legal cause.
This includes threats to family members and loved ones.

 Before you object that there can't ever be a legal cause for inflicting pain, consider
painful medical treatments, soldiers wounded in a legally declared war, or contestants in
a boxing match.

Torture has been used as a punishment, to intimidate or control people, to get information or just
to gratify sadistic impulses.

Governments have used torture to keep themselves in power, to enforce their particular political
philosophy, to remove opposition and to implement particular policies.

Torture is wrong

Torture is regarded as wrong for several reasons (expanded later in this section):

 It's cruel
 It treats people as means rather than ends
 It is not an effective way of obtaining information

Since the middle of the last century torture has generally been regarded as wrong, so wrong in
fact that the UN Convention Against Torture allows no exceptions, even in circumstances such
as war or while fighting terrorism.

British law bans torture and the UK is one of the signatories to the United Nations Convention
Against Torture. The Foreign Office web site says "Torture is one of the most abhorrent
violations of human rights and human dignity," and adds
"The Government's position on torture has always been very clear. We unreservedly condemn its
use as a matter of fundamental principle. The UK is committed to combating torture globally,
and continues to implement an active campaign to help eradicate it."

A poll in 2006 showed that 72% of Britons oppose torture in any circumstances – even where its
use would save lives.

Torture and other inhumane acts causing severe pain or suffering, or serious injury to the body or
to mental or physical health are also prohibited under international criminal law and can amount
to crimes against humanity and war crimes.

Evidence obtained through torture is not admissible in British courts, although it is acceptable for
police or security forces to act on information obtained by torture.

Torture is still widespread

Torture is still widely practised in the world - in 1996 it was said that torture was used, formally
or informally, in one country out of every three.

Amnesty International states that there were reports of torture or ill-treatment by state officials in
more than 150 countries on the period 1997 to mid 2000.

The ethical problem of torture

In recent decades the absolute wrongness of torture has begun to be questioned, following
repeated terrorist acts and the fear that terrorists have access to weapons of mass destruction.

In this context some people argue that torture, while wrong, is the lesser of two evils, and that it
should be allowed if it is the only way to prevent a greater wrong. For example, they say, it
might be OK to torture a person to get information that would enable the authorities to prevent a
bombing.

Others argue that it is a 'moral absolute' that torture is always wrong, and so can never be
justified by any form of ethical 'cost-benefit analysis'.

History

For much of history torture was used quite commonly, and without huge outcry. Civilisations
such as the Egyptians, the Persians, the Greeks and the Romans all used torture. Even the Church
regarded it as an acceptable part of their armoury.

Torture was used as part of many legal systems in the West until the early 19th century.

The scenario
The 'ticking bomb' problem

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
o 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?

This is not, in fact, a particularly realistic scenario but arguing through this problem can
illuminate many of the issues involved in torture. It's important to acknowledge, however, that
the problem may not be solvable in the terms in which it's stated above.

An answer which focuses on the reality of the ethical situation might say that:

 it is unethical to torture the terrorist

 it is also unethical to let your moral principles condemn thousands of others to an
avoidable death
 so in this case there is no ethically acceptable course of action - whatever you do is
morally wrong
 it is understandable (but still wrong) for the interrogators to torture the terrorist in this
case to save lives
 sometimes an ethically wrong act can be forgiven - in this case because it is a perfectly
intelligible human choice to make

By the way: It's important to understand that this answer does not justify the decision to torture,
nor does it argue that we are justified in choosing the least bad option. Instead it should be
interpreted rather differently - here are a couple of ways of doing it:

 Torturing the terrorist is unethical and can't be justified, but it can be understood, and it
can be forgiven
 Torturing the terrorist is unethical, but in those circumstances it is the 'right thing to do'
This is not intellectually satisfactory but it does acknowledge that hard cases can't always be
solved in a neat way.

Worldwide opinion
Testing the 'ticking bomb' argument

A sizeable majority of people around the world is opposed to torture even if its purpose is to
elicit information that could save innocent lives from terrorist attack.

In 2006 the BBC conducted a worldwide poll to see if people thought the 'ticking bomb' defence
- the argument that using some degree of torture may save lives - could ever be a justification for
mistreating suspects.

The poll for the BBC World Service showed that 59% of the world's citizens say 'no': they are
unwilling to compromise on the protection of human rights.

Opposition to torture was highest in Italy, where 81% of those questioned think torture is never
justified. Australia, France, Canada, the UK and Germany also registered high levels of
opposition to any use of torture.

In Britain, 72% oppose torture in any circumstances - a reflection of the strong antipathy towards
such practices in Western Europe.

One-third of those questioned - 29% - think that governments should be allowed to use some
degree of torture in certain cases.

Support for using torture is generally greatest in those countries who see themselves as actively
engaged in a struggle against political violence.

43% of those questioned in Israel; 42% in Iraq; 36% of Americans; and 32% in India believe that
some degree of torture should be allowed if it provides information that saves innocent lives.

In China too there is significant support for torture - 37% for, 49% against.

The majority of those questioned in the poll - 19 of the 25 countries surveyed - agree that clear
rules against torture in prisons should be maintained because it is immoral and its use would
weaken human rights standards.

Overall, more than 27,000 people were questioned in 25 countries, all of which were signed up
to the Geneva Conventions which prohibit the use of torture and cruel and degrading behaviour.

More about the poll can be found on the pages in the related links.

Reasons of principle
Why is torture wrong?

The reasons why torture is wrong can be divided into reasons of pure principle and reasons based
on the bad consequences of torture. Both sorts of reason are valid.

Reasons of principle

 Torture treats the victim as a means to an end and not an end in themselves
o it treats the victim as a 'thing', not as a person with all the value that we associate
with persons
o torturers often explicitly dehumanise their victims to make it easier to torture
them
o it uses the physical body of the victim not as a component part of a person of
value, but as a tool to achieve the aims of the torturer

[Torture] dehumanizes people by treating them as pawns to be manipulated through their pain.

Kenneth Roth, Getting Away with Torture, Global Governance, 2005

 Torture is sometimes used to destroy the autonomy of the victim

o some societies have used torture to suppress independent thought and convert
people to 'right-thinking'. The individual is tortured until they abandon their own
views and beliefs and adopt those of the torturers. The victim ceases to be an 'end
in themselves' but becomes just another means to support the regime of the
torturer
 Torture violates the rights and human dignity of the victim, including
o the legal right to remain silent when questioned

Consequentialist reasons
Consequentialist reasons why torture is wrong

 Torture is a slippery slope - each act of torture makes it easier to accept the use of torture
in the future
 Torture is an ineffective interrogation tool
o It may well produce false information because under torture a prisoner will
eventually say anything to stop the pain - regardless of whether it is true
o Because of this the interrogator can never be 'sure' that they are getting the truth
and will never know when to stop
o More effective methods of interrogation that don't involve torture are available
o If a suspect is tortured it may be impossible to prosecute them successfully -
British common law excludes involuntary statements or confessions on the
ground that such evidence is inherently unreliable
 Torture damages the humanity of the torturers
 o Those who carry out torture are likely to become brutalised by their acts, and
desensitised to humanity
o The more acts of torture a person carries out, the more likely they are to carry out
torture
 Torture damages the institution that carries it out
o It damages the reputation and moral authority of the institution
o Its use is likely to produce internal dissent and so damage the integrity of the
institution
o Using torture provides 'the enemy' with something they can exploit for
propaganda

History offers no modern examples of the strategic effectiveness of harsh interrogation

techniques, but it is replete with examples of the negative strategic effects such techniques have
on the counterinsurgency force.

Lou Dimarco, Losing the Moral Compass: Torture and Guerre Revolutionnaire in the Algerian
War, Parameters, 2006

 State-approved torture is bad for the state

The use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal
system which accepts it

Lord Hoffmann, British judge

When the state itself beats and extorts, it can no longer be said to rest on foundations of morality
and justice, but rather on force.

Mordecai Kremnitzer quoted in Marcy Strauss, Torture, New York Law School Law Review,
2004

While the rest of the world is expected to abide by the UN Convention against Torture, for
example, the Americans evaluate international law on the basis of whether it serves their
interests.

Excesses of Sex and Violence, Der Spiegel, May 2004

 Torture can create or strengthen opposition

The interrogations, torture and socialization of prison turned most of the men rounded up by
Mubarak into hardened militants, thirsty for revenge: they would become the foot soldiers of
terrorism

Gilles Kepel, The War for Muslim Minds, 2004

Not only will torture create a dedicated core of anti-American jihadists, their stories will lose us
the "hearts and minds" campaign with the larger Muslim population.

Jeannie L. Johnson, Exploiting Weakness in the Far Enemy Ideology, Strategic Insights, 2005

Definitions of torture
Definitions of torture

Most people define torture as deliberately inflicting pain on another person, and tend to leave it
at that.

They would probably go along with the World Medical Association's very wide definition of
torture contained in the Tokyo Declaration of 1975 as:

…the deliberate, systematic or wanton infliction of physical or mental suffering by one or more
persons acting alone or on the orders of any authority, to force another person to yield
information, to make a confession, or for any other reason.

Tokyo Declaration, 1975

The United Nations definition of torture is more restrictive and includes the following
ingredients:

 Inflicting severe physical or mental pain or suffering

 Doing so deliberately
 For any of the following reasons (this is an illustrative list, not an exclusive list)
o To obtain information or a confession from the person being tortured or from
someone else
o To punish that person for something they, or another person, has done or is
suspected of having done
o To intimidate or coerce that person or another person
o For any reason 'based on discrimination'
 A 'public official' or a 'person acting in an official capacity' must either inflict the pain,
instigate the action, or agree to it being carried out
o This element isn't essential to the ethical debate - an act might still be torture
without 'public officials' being involved
 The actions must not be part of a 'lawful sanction'
o This is a pretty obvious loophole and is not part of the ethical debate - one might
want to argue that a legal punishment amounted to torture and so ought to be
made illegal.

United States law gives more details of precisely what forms of mental torment should count as
torture:
'severe mental pain or suffering' means the prolonged mental harm caused by or resulting from -

 the intentional infliction or threatened infliction of severe physical pain or suffering;

 the administration or application, or threatened administration or application, of mind-
altering substances or other procedures calculated to disrupt profoundly the senses or the
personality;
 the threat of imminent death
 the threat that another person will imminently be subjected to death, severe physical pain
or suffering, or the administration or application of mind-altering substances or other
procedures calculated to disrupt profoundly the senses or personality;

U.S. Code: Title 18: Section 2340

Torture and the law

Torture and the law

The United Nations bans torture completely:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal

political in stability or any other public emergency, may be invoked as a justification of torture.

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
United Nations, 1984

Torture is outlawed in international law and forbidden in the laws of many countries. The
Convention against torture reinforces this by insisting that states should either extradite or
prosecute alleged torturers within their boundaries, regardless of where their crimes took place.

Some countries explicitly forbid the use of evidence obtained by torture in any legal proceedings.

Torture is banned by the ethical codes of many professional organisations - particularly medical
organisations.

When torture 'isn't really torture'

A US government memo suggested a very narrow definition of torture

©
Some states have defended the use of torture in particular cases, denied that inflicting pain in
those cases amounts to torture, or narrowed the definition of torture to exclude many things that
most people would class as torture.

(NB: The document in the following example has now been completely superseded and no
longer represents US policy.)

A 2002 US government Department of Justice memorandum narrowed the definition of torture

to include only the most extreme pain:

We conclude that for an act to constitute torture as defined in Section 2340, it must inflict pain
that is difficult to endure.

Physical pain amounting to torture must be equivalent in intensity to the pain accompanying
serious physical injury, such as organ failure, impairment of bodily function, or even death.

For purely mental pain or suffering to amount to torture under section 2340 it must result in
significant psychological harm of significant duration, e.g. lasting for months or even years...

...In short, reading the definition of torture as a whole, it is plain that the term encompasses only
extreme acts.

US Department of Justice interrogation memo, 1 August 2002

The memorandum also stated that for a person to be guilty of torture the infliction of severe pain
must have been that person's precise objective.

Thus, even if the defendant knows that severe pain will result from his actions, if causing such
harm is not his objective, he lacks the requisite specific intent even though the defendant did not
act in good faith.

Instead, a defendant is guilty of torture only if he acts with the express purpose of inflicting
severe pain of suffering on a person within his custody of physical control.

US Department of Justice interrogation memo, 1 August 2002

The same document then went on to say that the US law banning torture did not apply:

to the President's detention and interrogation of enemy combatants.

US Department of Justice interrogation memo, 1 August 2002

and went on to say that even if a case of torture did survive those limitations, the torturers could
find a legal defence:
We conclude that, under the current circumstances, necessity or self-defense may justify
interrogation methods that might violate Section 2340A.

US Department of Justice interrogation memo, 1 August 2002

The 2002 memorandum has now been completely superseded by a 2004 memorandum, which
stated:

we disagree with statements in the August 2002 Memorandum limiting "severe" pain under the
statute to "excruciating and agonizing" pain, or to pain "equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily function, or
even death,"

US Department of Justice interrogation memo, 30 December 2004

Top

Pragmatic approaches to torture

The balance of liberties

Many countries that are publicly opposed to torture still, in fact, use torture:

In recent years, there have been public reports of torture in more than 100 of the 140 nations that
have ratified the Convention against Torture - This figure is based on reports on human rights
practices produced by both Amnesty International and the United States Department of State.

Oona A. Hathaway, Associate Professor of Law, Yale Law School

Some people now argue that the phenomenon of Islamic terrorism is so grave that there has to be
a reconsideration of the balance of liberties.

Previously, according to this view, the individual had to be protected against governments but
now the individual ability to wage war on societies is so great that individual liberties may have
to be restricted.

Furthermore, this argument goes, the legal codes banning torture were written before the rise of
terrorism, and so those rules may be out of date and don't apply to the new realities.

Therefore, it's argued, it is necessary to permit some forms of treatment that are arguably cruel in
order to combat terrorism.
 A 'torture warrant' could be issued like an arrest warrant, some solutions
propose ©

The pragmatic approach

If we accept this point of view then a pragmatic approach to the ethics of torture suggests that it
may be useful to move away from arguing about whether torture is or is not unethical, and move
towards working out the best way to minimise the harm done by torture.

If the harm done by torture is to be minimised then torture itself needs to be removed from secret
dungeons and brought out into the open.

Two ways of making people willing to acknowledge that torture does take place might be:

 to accept that although torture is wrong and illegal, under some circumstances there is no
need to punish those involved in torturing
 to accept torture in certain circumstances and regulate it by law

One solution is to remove punishment for torture in some circumstances, by permitting 'official
disobedience' in those cases. The thinking goes like this:

 torture is always wrong, and it should always be illegal

o those who torture put themselves at risk of legal punishment
o but there may be cases where they can show good reasons why torture was
necessary;
o if a court agrees with them then they may either be acquitted of any crime
(presumably because they didn't have a 'guilty mind')
o or, convicted and then pardoned
 but note that
o these cases would only be where it was necessary to prevent some catastrophic
event, and not where it was to obtain information about a crime that had already
happened
o these cases would have to be very rare in order not to bring the system into
disrepute

Regulating torture

Another possibility is to regulate torture by the use of so-called 'torture warrants' on the grounds
that forcing torture into the open would reduce its use and particularly its misuse. The thinking
goes like this:
  torture is always wrong except where permission is obtained in advance (and perhaps in
public) from a court of law
o this could be rather similar (although more difficult) to obtaining a search warrant
 regulating torture officially would guarantee accountability, record-keeping, standards,
and limitations.

The argument for this is that if the authorities can never legally torture a person, they may do so
illegally.

Permitting state officials to apply for a 'torture warrant' does at least bring the whole thing into
the open and allow for some control over what is going to happen anyway.

...better to legitimate and control a specific practice that will occur, than to legitimate a general
practice of tolerating extra-legal actions under the table of scrutiny and beneath the radar screen
of accountability.

Alan Dershowitz, The Torture Warrant: A Response to Professor Strauss, New York Law School
Law Review, 2004

It's arguable that both these approaches to torture are likely to impose serious ethical strains on
any legal system that has to implement them, by weakening the general principle that torture is
always wrong.

Rendition
Rendition

Individuals have claimed to be flown to countries where they were

tortured ©

Rendering or rendition involves sending a person from one country to another for imprisonment
and interrogation, probably by methods such as torture, that would be illegal in the country doing
the rendering.

It's been alleged that US intelligence agencies have used the process of 'extraordinary rendition',
to send terror suspects for interrogation by security officials in other countries, where they have
no legal protection or rights under American law.

Some individuals have claimed they were flown by the CIA to countries like Syria and Egypt,
where they were tortured.
The US government and its intelligence agencies maintain that all their operations are conducted
within the law.

US officials do not deny that terror suspects have been transferred for interrogation in other
countries, but reject accusations that they are being tortured when they get there. US Secretary of
State Condoleezza Rice said that all American interrogators are bound by the UN Convention on
Torture, whether they work in the US or abroad.

Victims of torture
Victims of torture

Victims often need care and treatment ©

Torture victims often need long and costly treatment, and usually rich nations foot the bill rather
than the offending states, according to the UN Special Rapporteur on Torture, Manfred Nowak.

Currently (2007) the EU is the biggest donor to torture rehabilitation centres, providing $29m
(22m euros). The UN Voluntary Fund for Victims of Torture is the second biggest financier of
torture rehabilitation, providing $17m (13m euros).

In his annual report to the UN Human Rights Council in Geneva in 2007, Nowak said that states
that commit acts of torture should be forced to pay for victims' rehabilitation.

Mr Nowak suggested that such states could then even pass the bill on to the individual torturers.

If individual torturers would have to pay all the long-term costs, this would have a much stronger
deterrent effect on torture than some kind of disciplinary or lenient criminal punishment.

In reality, it's almost never the state that tortures, but other states who provide asylum, who take
victims of torture and who are then providing in state institutions rehabilitation.

Torturers 'must pay victims' - UN, BBC News, 27 March 2007