The International Covenant on Civil and Political Rights

For as long as the memory of recorded history reaches, there has been evidence various methods of torture as a means to control populations, extract information or enforce policy. From cutting off hands to thumbscrews or the rack, methods of torture were widely practised and accepted as a norm by states across the globe. It was only with the advent of the enlightenment and eventually culminating in the immediate post-war era following the Second World War that this view of accepting torture changed and many advocated its ban.

Through the International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), methods of torture were near universally publicly condemned, yet its subversive practise continued in many countries, including the United States in battling communism. 1 However, this changed dramatically with the events of September 11th, 2001 and the subsequent War on Terror waged by the Bush Administration. Torture was suddenly advocated as a lesser of two evils, and the only way to extract relevant information from those willing to die for their cause.

Yet the definition of torture as set out in the CAT is specifically worded to protect people from being subjected to abuse in order to relinquish information otherwise not willing to give up. 2 Thus it becomes a pertinent question as to whether these methods are appropriate when one considers the circumstances required to combat terrorism, and this essay shall attempt to answer this question by looking a various arguments for and against the use of torture in combating terrorism. The Ticking Bomb

Perhaps the most pertinent issue regarding the justification of torture is the ongoing and vibrant debate surrounding the ‘ticking bomb’ concept. This is a notion that supposes that authorities have arrested a known terrorist who has knowledge of an imminent attack and how to stop or prevent it. For example, ASIO has Abu Bakar Bashir under surveillance, and legally arrests him just after broadcasting that there is an imminent attack (i. e. within hours) in the Melbourne CBD and that thousands of civilians will die. Would it be justified to use torture to extract the information necessary to prevent the attack and save the civilian lives?

Hypothetical cases similar to this where time is of the essence are used as examples of where torture could be justified as the lesser of two evils, and as a trade off of rights. However, this hypothetical example is widely used as a case where torture is excusable, can be seen as misleading as an imaginary case because of several notions. These notions are idealisation and abstraction, whereby idealisation is the ‘addition of positive features to an example in order to make the example better than reality’ and abstraction is ‘the deletion of negative features of reality in order to make the example still better than reality. 3 Combined, these two notions often arise in hypothetical examples to make them better examples, often in advocating a particular view. The ticking bomb is a perfect example of this, as it is the best example where the different sides of the debate on justified torture meet and sometimes agree. The question of morality, particularly with reference to a ticking bomb is a highly philosophical and contentious one, brings even the strongest proponents of torture into debating the justification of torture with reference to this case.

The essence of the argument essentially comes down to torture as a means to save life, that is to say that torture can be justified by saving the lives of innocents. This argument is supported by many, including a memo by the United States Justice Department to the White House that centred on the argument that ‘necessity and self defence could provide justifications that would eliminate any criminal liability. ‘4 Moreover, this argument suggests that this form of torture is ‘far removed from any of the instances of the barbaric, punitive forms of torture mentioned by the critics. 5 Effectively, a notion of torture as a form of self-defence, with intentions of saving lives and not as a form of punishment or retribution. This is not a crazy or unrealistic proposal, as when one compares the notion of self-defence in most domestic law regimes to the idea of advocating torture as a means of collective self-defence, there are distinct similarities. For as long as the concept of ‘nation’ has been around, the right of self defence has been accepted as customary law. If there is undoubted evidence of an imminent attack, does a nation not have a right to act in its interests of self-defence in protecting its citizens?

If countries and individual security officials such as members of the army or police force are allowed to kill in self-defence or to protect the civilian population, then the difference between torturing and killing is debateable. Firstly, in the ticking bomb hypothetical, there is always the assumption that the terrorist caught is undoubtedly a terrorist. This is can often be far fetched, as many captured or arrested terrorist suspects are exactly that, suspects. The sheer number of those arrested and detained since the beginning of the ‘war on terror’ that have been released due to lack of evidence is testament to this. In assuming that the person detained is undoubtedly a terrorist is vastly different from reality, and moreover, if enough evidence exists to remove any doubt that the person detained is a terrorist and responsible for an imminent attack, then the probability of the authorities needing to torture the suspect for information is significantly reduced. However, in justifying the torture of a suspect, the guilt or intentions of that particular person must be without a doubt. Many of the proponents of the justification of torture, from Alan Dershowitz to Mirko Bagaric and Julie Clarke require that this be the case.

Secondly, the ticking bomb concept immediately assumes that the terrorist has the required information, and is going to give the information swiftly and correctly. It does not take into consideration the realities of interrogation, namely the time involved, and as mentioned previously, the issue surrounding the quality of information supplied. It is assumed that the torture is going to work effectively, and if it doesn’t, then the moral justification is instead based on a gamble or calculated guess at best.

Essentially what is occurring is that one of the most important human rights is being removed because it is the ‘lesser of two evils’, yet also on the gamble that torture will wield results more often than not. What if legalised torture does not wield results? Undoubtedly the person being tortured will have a point at which they will give information to stop the pain, but whether that information is either accurate or true is another story altogether. An excellent example of this is Khalid Sheik Mohammed, who told American interrogators everything they wanted to hear, but the intelligence he gave was later totally discredited. He merely said what interrogators wanted to hear in order to stop them torturing him. Whilst his involvement in terrorist organizations was not under any real doubt, no doubt this will not always be the case. More importantly, the assumption of guilt does not take into account one of the most important aspects of most legal systems – that is the right of due process. Especially in the ticking bomb situation, culpability is being decided before any attempt at establishing guilt beyond reasonable doubt.

Whilst there are undoubtedly cases where guilt is obvious, in indoctrinating the ability to torture in ‘extreme’ circumstances, the right to a fair trial is being eroded significantly. However, perhaps the most pertinent issue revolves around an issue raised Professor Henry Shue, in which he comments that ‘history does not present us with a government that used torture selectively and judiciously. ‘8 Governments empowered with such ability to torture do not selectively use such power; it becomes a slippery slope where torture gets used more and more regularly.

This is a highly significant point to raise, as it begs the important question in the ticking bomb example of how big must an attack be to justify the use of torture, namely the question of what the trigger point is. Is the potential death of thousands of innocents enough or merely the potential death of a few innocent civilians? The question revolves around where the line gets drawn, for this is central to justifying the morality of the use of torture. It has been attempted in many forums to suggest that the magnitude of harm that could be avoided is a valid reason for the use of torture.

Generally, the use of terms from the ICCPR Article 6, relating to the right to life is used in defence of this notion, suggesting that torture should only be confined to situations where the right to life is imperilled. 9 This again raises the question of definition, as since torture is non-derogable under international law, which right takes precedence? Does the right to life over-rule the right against torture? More than likely the answer falls again to the issue of quantifying and the numbers of lives potentially lost.

If governments wish to use torture to extract information in this example, then at what point does the use of torture become justified? In answering this, there are two factors that must be understood. Firstly, and as mentioned above, if there is enough information available to know how large an impending attack is or where the perpetrator is, then it is also quite likely that torture will not extract significant information that is not already known. Secondly, and as Professor Shue notes, the likelihood of a government only using torture in selective cases is highly unlikely.

Once the use of torture is employed in selective cases, the chance of it reoccurring in other cases where an interrogation has stalled becomes more and more likely. Again, where does the line get drawn? Unless there is some form of independent oversight body that ensures that torture is only used in the selective, extreme circumstances, the likelihood of torture being used on a more regular basis is quite possible. Whilst the ticking bomb scenario could be used as the most acceptable situation of the use of torture, there are problems associated with this use that begin with the extreme situation and end with widespread use.

No matter what arguments are put forward, there ‘is no such thing as a little bit of torture’. 10 Another problem with the ticking bomb scenario arises from the abstractions surrounding the case; most relevant of which is the question of whether this is the first instance of torture by the relevant authority. If so, then it is likely that the torturer is not a professional, and not used to carrying out such duties, equating to an unsuccessful attempt at extracting information.