Torture has been used since the beginning of humankind dating back to the Roman Empire when people were tortured as means of punishment for crimes to the present day where torture was used on terrorists as a means of eliciting information with the goal of saving innocent lives. Furthermore, in 2004, photos of torture conducted by the United States soldiers at Abu Ghraib in Iraq were leaked and shocked the world (Einolf, 2007). Subsequent news revealed that the British soldiers were also involved in the torture of Iraqi prisoners of war and that the U.S. army tortured prisoners in Afghanistan and the U.S. military base at Guantanamo Bay (Einolf, 2007). It was through these events that the public and academic debates about torture were opened up. Most Americans were shocked by these events because they were in disbelief that their own government would be involved in such treatment of humans. The debate of whether torture should be prohibited absolutely is challenging because many people believe in the utilitarian approach to preventing terrorist attacks. However, torture should be prohibited absolutely because although it can sometimes produce desirable outcomes, torturing another human is against some of the basic human rights including autonomy and dignity. This paper will first describe the history of torture to provide a better understanding of torture and how it is viewed and shaped through different events. Secondly, the events that led to the absolute abolition of torture will be briefly explained followed by the emphasis on the two approaches known as an ex-post justification and an ex-ante authorization that challenge the abolition of torture. Lastly, an argument for the absolute prohibition of torture will be provided with an emphasis on several important factors which cannot be justified to legalize torture.
History of torture
The understanding of torture is greatly influenced and shaped by historic events and experiences which is why it is important for one to become familiar with the concept of torture before determining whether it should be abolished or utilized (Sonderegger, 2014). It is also important to understand that the use of torture is multifaceted and can serve many purposes such as eliciting information from apprehended terrorists to save innocent lives or as punishment for crimes (Cherington, 2001). Torture had been used since the beginning of human history (Branche, 2007; Cherington, 2001). The ancient Greeks used torture as a tool of questioning the slaves to obtain confessions (Branche, 2007). Similarly, the Roman Empire used torture for the same reasons, with both civilizations limiting torture only for the slaves (Einolf, 2007; Sonderegger, 2014). However, during Imperial Rome, the distinction between the slaves and citizens became blurred and as a result, torture was used on the citizens as well as the slaves, especially if the Emperor deemed the citizens to be enemies (Cherington, 2001; Einolf, 2007). After the fall of the Roman Empire, torture continued to be used by the Barbarians. During this time a new law of evidence was developed due to the emergence of rationalism (Einolf, 2007). Under the new law, two eyewitnesses were required to convict an accused. However, if the two eyewitnesses were unable to provide a testimony then a confession was needed (Einolf, 2007; Sonderegger, 2014). As a result, torture was often used on the accused to obtain a confession and convict them (Branche, 2007).
Prohibition of torture
Torture was abolished in the 18th century by the European States (Cherington, 2001; Einolf, 2007). The establishment of a new law of proof known as free judicial evaluation of the evidence is what fostered the abolition (Einolf, 2007). However, torture could never be completely eliminated. This is evident in the events of the Second World War where the Nazis tortured and killed millions of people in the concentration camps (Branche, 2007; Sonderegger, 2014). Prohibition of torture became the main concern for the international community and as a result, an absolute ban on torture was introduced in the humanitarian law and other major rights treaties (Einolf, 2007; Sonderegger, 2014). Furthermore, prohibitions of torture can be found in the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, the Geneva Conventions, the European Convention of Human Rights and the American Convention of Human Rights (Einolf, 2007; Sonderegger, 2014). All of the above treaties state that no one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. Nevertheless, torture continued to be used in some countries, for example in the Algerian War (1954-1962) and the Vietnam War (1955-1975) (Branche, 2007). Lastly, since the terrorist attacks on the Twin Towers, the use of torture is still taken into consideration in democratic countries devoted by the rule of law. For example, the absolute ban on torture is challenged by two approaches known as ex-post justification and ex-ante authorization.
Ex post justification
An ex-post justification approach does not establish an administrative power to use torture in interrogations (Sonderegger, 2014). The use of torture is not authorized, however, if torture is used it entails criminal responsibility (Sonderegger, 2014). Importantly, an individual using torture can escape criminal responsibility if they use torture on grounds of necessity or self-defense. A number of scholars suggested that the absolute ban only addresses states and state actions (Branche, 2007; Sonderegger, 2014). In contrast, criminal liability is not dealing with the legality of a state action but rather with the individual’s actions in certain situations. It is suggested that an individual engaging in torture to protect their own life or the lives of others cannot be criminally liable for their actions (Sonderegger, 2014). Furthermore, the legal standard of Israel is currently an ex-post justification (Sonderegger, 2014). The Supreme Court of Israel ruled that there is no administrative power to use torture. Moreover, an individual engaging in torture as a means of self-defense is not prohibited from seeking legal defense of necessity (Sonderegger, 2014).
On the other hand, an ex-ante authorization approach establishes an ex-ante administrative power to conduct interrogations in a harsh manner in ticking-bomb scenarios (Sonderegger, 2014). For example, while German police law prohibits coercion and using harsh methods to elicit information, the same law allows the use of force, even deadly force, if there is an imminent threat to the life and physical well-being of innocent people (Jessberger, 2005). A number of scholars argued that when there is a clash of life versus life, the interest of innocent lives should prevail (Sonderegger, 2014). However, on the constitutional level, The Constitution of the Federal Republic of Germany (GG) guarantees and protects the terrorist and victims’ dignity in absolute terms. This is somewhat inconsistent with the ex-ante authorization approach because the GG and the ex-ante approach contradict one with the other, although it is important to understand the definitions of torture which may explain the inconsistency (Sonderegger, 2014). For example, while almost all definitions of torture include causing physical or mental pain, some countries like Sri Lanka do not include suffering in the definition. Additionally, Kazakhstan’s Penal Code does not include severity as a requirement for torture. Thus, definitions and the constitutions of torture are variable from country to country. Furthermore, the European Convention on Human Rights (ECHR), states that torture of people is entirely prohibited while at the same time it states that the life of a lawbreaker may be taken if this is the only way to protect innocent lives (Sonderegger, 2014). One of the more recent examples of the ex-ante authorization approach is evident in the High-Value Detainee Program (HVDP) which was created by the Central Intelligence Agency (CIA) as an anti-terrorism measure following the twin towers attacks (Sonderegger, 2014; Lau, 2016). The HVDP attempted to institutionalize and regulate the harsh interrogations of certain detainees who were deemed highly dangerous and who had links to terrorist groups (Lau, 2016). However, the HVDP was ceased by the Obama administration (Sonderegger, 2014).
Ex ante authorization approach is underpinned by the utilitarian mechanism (Sonderegger, 2014; Aniel, 2018). In other words, it is believed that using torture on one individual with the hopes of eliciting some information that could potentially save the lives of innocent people is justified. The good outweighs the bad and the balance is met. This approach tends to minimize the significance of torture meaning that torture is perceived as an appropriate and justified method of obtaining information (Sonderegger, 2014; Aniel, 2018). However, torture is far beyond a mere method of obtaining information with numerous implications. Firstly, the process of carrying out torture not only significantly impairs the psychological and physical health of the individual being tortured, it also negatively affects the torturer (Rasmussen et al., 2007; Sonderegger, 2014). Moreover, survivors of torture often report adverse psychological effects such as major depression and post-traumatic stress disorder (Rasmussen et al., 2007; Vorbrüggen & Baer, 2007; Choi et al., 2017; Constanzo & Gerrity, 2009). The adverse psychological effects are dependent on the duration of torture and the physical harm suffered during torture (Vorbrüggen & Baer, 2007; Choi et al., 2017; Constanzo & Gerrity, 2009). For example, survivors who were exposed to scaring or amputations of extremities generally suffer from more severe psychological effects than the survivors who do not have those physical reminders (Rasmussen et al., 2007; Motta, 1994; Vorbrüggen & Baer, 2007; Choi et al., 2017). Additionally, just the mere sight of another human being harmed is disturbing to most people. For example, many survivors of war experience post-traumatic stress disorder (Motta, 1994; Constanzo & Gerrity, 2009). Therefore, being the person inflicting pain to another human being through torture can result in significant psychological impairment for most people.
Secondly, an ex-ante approach comes with a risk of a slippery slope because the institutionalization of torture is a complex and multifaceted process that is difficult to control (Sonderegger, 2014; Aniel, 2018). This process would require numerous tests and experiments to be conducted in order to legalize it. Experiments would need to be conducted to determine which tools of torture should be utilized. However, no such experiments would be permitted to be carried by the ethics committee(Wantchekon, 1999). Nevertheless, if torture became institutionalized it would be challenging to monitor and regulate the process of torture because people are different and the pain from a specific tool may be experienced differently depending on gender and age of the person being tortured (Sonderegger, 2014; Aniel, 2018; Wantchekon, 1999). Thus, the results could possibly lead to death of the person being tortured.
Fourthly, the prohibition of torture supports the fundamental values of democratic societies. That is, the prohibition of torture is linked to one of the basic human rights of dignity (Sonderegger, 2014; Aniel, 2018). For example, torture aims to break a person’s will and by doing so it infringes upon autonomy. Moreover, denying a person’s autonomy contradicts the states’ fundament: A rule-of-law state or liberal state is based on the notion of the individual’s autonomy which is fundamental of all basic human rights and places the state’s legitimacy in question (Sonderegger, 2014).
Lastly, the utilitarian argument is the most prominent argument many people opposing the absolute prohibition of torture have. The argument is often explained with a ticking bomb situation. For example, a terrorist who is under the guard of authorities is being questioned because he is the only one who knows where the bomb is located. People argue that torture is the most effective way to elicit information from terrorists and save the lives of many innocent people. However, Sonderegger (2014) argued that the use of torture cannot be justified by utilitarian arguments because it breaches human rights. Additionally, in 2006 the German Federal Constitutional Court stated that collective goods may not, under any circumstances outstrip individual rights and it deemed individual freedom to be a higher stake than collective security (Sonderegger, 2014).
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