King's Student Law Review

Introduction

This article will examine the moral dilemma surrounding the use of torture, and particularly, whether torture is ever justified in the face of a resounding threat to national security.  This is a morally questionable task to take on; Slavoj Zizek has argued that “essays … [that] simply introduce it as a legitimate topic of debate are even more dangerous than an explicit endorsement of torture”,[1] because they legitimise the discourse and thereby change the normative framework.  This author believes, however, that it is necessary to deal with these difficult questions in order to push against the growing trend of civil liberties retractions by Western liberal democratic governments from their citizens.

This article will attempt to negate the above statement in three sections.  Firstly, it will establish the tenor of the ‘present atmosphere’ by assessing the impact of the September 11 attacks on the absolute prohibition on torture in international law.  It will then attempt to undermine the above statement through a critical examination of the idea of a ‘balance’ between liberty and security.  Finally, having established the fallacy of the ‘balance’ concept, it will assert that torture should not ‘give way’, even in the face of security threats.

Torture: status and threats

The non-derogable right to not be subjected to torture, or cruel, inhuman and degrading treatment,[2] finds its place in six international human rights conventions as well as the Geneva Conventions, which prohibit its use in situations of armed conflict. Henry Shue wrote in 1978, “no other practice except slavery is so universally and unanimously condemned in law and human convention,”[3] and the Human Rights Committee in 1992 proclaimed, “no justification or extenuating circumstances may be invoked to excuse a violation of this right.”[4]  This tight web of international treaty law, customary international law, soft law declarations, and academic scholarship, led the ICTY Trial Chamber in Furundzija in 1998 to label the prohibition on torture a jus cogens norm.[5]

Following the September 11 attacks in the US and the subsequent establishment of a global ‘security’ paradigm, however, torture’s jus cogens status came under threat, as did a number of other supposed non-derogable human rights.  George Bush’s 2001 US Patriot Act ushered in a new era of executive and expanded police powers that sanctioned, inter alia, incommunicado detention, prolonged detention without charge, denial of the right to challenge the lawfulness of detention,[6] illegal deportation, and ill-treatment of detainees.[7]  UN SC Resolution 1373 (2001) internationalised this new counter-terrorism paradigm, calling for State compliance to counter-terrorism measures and establishing a Counter-Terrorism Committee under its Chapter VII powers.[8]  Many have argued that States have used this Resolution to justify encroachments upon civil liberties using anti-terrorism discourse.[9]

Indeed, the ensuing decade has seen a series of increasing infringements on civil liberties, including an arbitrary UN-sanctioned ‘blacklist’,[10] the horrors of Abu Ghraib in 2004, the withdrawal of habeas corpus for Guantanamo Bay detainees,[11] the express permission of statements obtained by coercive interrogation as evidence before military commissions,[12] and the Jay Bybee torture memos which attempted to define torture out of existence.[13]  Apart from intermittent but spirited backlash from human rights courts,[14] a decade on from 9/11, we have not seen a return to ‘normal’, but instead, a process of institutionalisation of these emergency controls, resulting in a shift in the normative framework described by Giorgio Agamben as a legitimised ‘state of exception’.[15]  It can be concluded that torture, while still prohibited on paper, is tolerated in practice.

The ‘balance’ myth

This section will examine whether the ‘balance’ argument, which is often employed to justify the mitigation of human rights, in fact carries any weight.  Jeremy Waldron defines the idea of a ‘balance’ between security and liberty as “the maximum risk we are prepared to bear as a result of people’s liberty”.[16]  In his 2003 paper he challenges this idea of a ‘balance’, arguing persuasively that abrogating citizens’ civil rights, including the prohibition on torture, is not a plausible means of avoiding catastrophic horror.[17]

Waldron challenges the consequentialist claim that when added weight is given to the security argument without a corresponding addition to the human rights argument, the balance must logically shift in its favour.  He argues that instead, rights are trumps, impervious to balance, and even if they were not, abrogating human rights has not been proved to be a plausible means of dealing with an enhanced security situation.[18]  Indeed, towards the end of his paper, Waldron highlights that empirical evidence does not show that abrogation of civil liberties effectively counters security threats.

Waldron also discusses the issue of “equality not equilibrium”;[19] the idea that restricting civil liberties affects some parts of society more than others, and while most people will ‘pay’ nothing for their increase in security, some will suffer disproportionately.[20]  As Ronald Dworkin puts it, these “familiar metaphors of ‘trade-off’ and ‘balance’ are deeply misleading”, as they hide the realities of the compromise.[21]

Waldron helps us understand that the notion of a ‘balance’ between security and liberty is false, and that a prohibition on torture could never be weighed directly against national security ends in a zero-sum fashion.

Torture as an absolute ethical proscription

This section will challenge the permissibility of torture on security grounds from a moral and ethical perspective.  Even if security could justify torture, is it ever permissible? This argument typically contemplates the use of torture in the hypothetical ‘ticking bomb’ scenario.  Judge Posner has stated that only the strictest civil libertarian would reject torture if the stakes were high enough,[22] and the Israeli Supreme Court agreed with Posner in its 2005 judgment, trustingly leaving the decision up to Israeli security service investigators.[23]  A real-life ‘ticking bomb’ situation was contemplated in Germany in 2010, and indeed the court seemed hesitant to punish the torturers harshly for their seemingly morally justified actions.[24]  Alan Dershowitz, notorious for his 2002 article advocating torture warrants,[25] has called an absolute prohibition on torture “naïve … hypocritical and ultimately illiberal”.[26]

However, this hypothetical does not account for the extreme nature of the situation, and the rarity in which it will be encountered.  As Neil Belton stated, the ‘ticking bomb’ scenario – whether conducted surreptitiously or “subject to some kind of juridical oversight”[27] – is just a fantasy that is used by those who wish to justify torture.[28]  Others take a more pragmatic approach to the negation of the utilitarian ‘ticking bomb’ scenario, arguing that information obtained through torture will be false, unreliable, and that a person would say anything to relieve the torture.[29]  Far from protecting national security, this information may serve to harm it.

Another, sociological, argument for never condoning torture was expounded by Emile Durkheim in 1898, who argued that torture “eternally corrodes and corrupts us”,[30] and is a crime so heinous that when employed, it destroys society’s moral existence.[31]

Conclusion

This essay has established that the legal prohibition on torture is a jus cogens norm under threat from a security paradigm, currently operating in Western liberal democracies, that aims to curtail civil liberties.  This essay has shown that this insidious and pervasive discourse preys on the idea of a ‘balance’ between liberty and security, but that in fact this balance does not exist.  Even if it did, far from accepting the use of torture to protect our national security, the legal prohibition on torture should be maintained on moral and ethical grounds, lest the foundations of our society be rent asunder.

Julian Elderfield

London School of Economics