Ethics of torture
The prohibition of torture is a peremptory norm in public international lawmeaning that it is forbidden under all circumstancesas well as being forbidden by international treaties such as the United Nations Convention Against Torture. It is generally agreed that torture is inherently morally wrong because all forms of torture "involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person", although it does not necessarily follow that torture is wrong in all circumstances. In practice, torture has been employed by many or most prisons, police and intelligence agencies throughout the world. Philosophers are divided on whether torture is forbidden under all circumstances or whether it may be justified in one-off situations, but without legalization or institutionalization.
Premise
The basic ethical debate is often presented as a matter of deontological versus utilitarian viewpoint. A utilitarian thinker may believe, when the overall outcome of lives saved due to torture are positive, torture can be justified; the intended outcome of an action is held as the primary factor in determining its merit or morality. If the outcome of torture resulted in an increase in utility, then a utilitarian would be able to justify that action of torture. They look only at whatever maximizes utility, rather than what seems to be right or wrong, based on our own judgements. Another view is deontological, from the Greek word deon, which proposes general rules and values that are to be respected regardless of outcome. Deontological reasoning, unlike utilitarianism, does not focus solely on the consequences that follow from an action. Instead, this moral theory focuses on the rightness or wrongness of actions independently.It has been suggested that one of the reasons torture endures is that torture indeed works in some instances to extract information/confession if those who are being tortured are indeed guilty. Richard Posner, a judge on the United States Court of Appeals for the Seventh Circuit, argued that "If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be usedand will be usedto obtain the information. ... No one who doubts that this is the case should be in a position of responsibility." However, some experienced intelligence officers have come forward claiming that not only does torture not work, it can result in false information since people undergoing torture will say anything just to make the torture stop. Some people also point to neuroscience to demonstrate that torture may further impair a person's ability to tell the truth.
A utilitarian argument against torture is that torture is most often employed as a method of terrorizing and subjugating the population, not as a method of extracting information. This enables state forces to dispense with ordinary means of establishing innocence or guilt and with the whole legal apparatus altogether. Utilitarians share the belief that the right and moral thing to do in any given situation is the option that promotes the most happiness, and if torture is only used in order to hurt people with no gain, then it would not justify the action. Therefore, it is better that a few individuals be killed by bombers than a much greater numberpossibly thousands of innocent peoplebe tortured and murdered and legal and constitutional provisions destroyed. During the investigation of Italian Prime Minister Aldo Moro's kidnapping, General Carlo Alberto Dalla Chiesa reportedly responded to a member of the security services who suggested torture against a suspect, "Italy can survive the loss of Aldo Moro. It would not survive the introduction of torture."
History
Historically, torture has been reviled as an idea, yet employed as a tool and defended by its wielders, often in direct contradiction to their own averred beliefs. Judicial torture was a common feature of the legal systems of many countries including all civil law countries in Europe until the Enlightenment era. A papal bull forbade the practice of torture in Roman Catholic countries in 1816. This was part of ancient Greek and Roman law theory that remained valid in Europe. Roman law assumed, for example, that slaves would not tell the truth in a legal court as they were always vulnerable to threats from their owners. Their testimony could only be of value if it were extracted by a greater fear of torture. Legal scholars were well aware of the problems of false testimony produced by the threat of torture. In theory torture was not meant to produce a confession as such, but rather details of the crime or crime scene which only the guilty party would know. The Spanish Inquisition is an example in which torture was used to extract information regarding allegations of heresy.In England, torture was never part of the Common Law system, but the Crown could still issue warrants of torture for specific cases. The letter of the law was not always adhered to, for example the confession of Marc Smeaton at the trial of Anne Boleyn was presented in written form only, possibly to hide from the court that Smeaton had been tortured on the rack for four hours. The Crown continued to issue warrants for torture into the 17th century. When Guy Fawkes was arrested for his role in the Gunpowder Plot of 1605, King James I issued such a warrant and Fawkes was tortured to extract from him the names of his fellow conspirators. In the period 1540 to 1640 warrants were issued at an average rate of about one per year, with the last one being issued by Charles I in 1640. The last exception was peine forte et dure, which could be used on someone who refused to plead guilty or not guilty, which was abolished in 1772. Torture was prohibited in Scotland in 1708 after the Acts of Union 1707. These prohibitions applied only in Britain, not in territories of the British Empire unless explicitly introduced there.
The use of torture in Europe became highly criticized during the Enlightenment. Cesare Beccaria's On Crimes and Punishments denounced the use of torture as cruel and contrary to reason. The French Revolution abolished the use of torture in France and the French Armies carried abolition to most of the rest of Europe. The last European jurisdictions to abolish legal torture were Portugal and the canton of Glarus in Switzerland.
Under codified legal systems such as France, torture was superseded with a legal system that is highly dependent on investigating magistrates and the confession remains "The Queen of Proofs". As a result, such magistrates are often under pressure to produce results. It is alleged that in many cases police violence towards suspects has been ignored by the magistrates. In the adversarial system of common law used throughout the English-speaking world, the experience is a different one. As the two parties have to convince a jury whether the defendant in a case is guilty or innocent of a crime, if the defence can persuade a jury that reasonable doubt exists over the credibility of a confession, then the jury is likely to disregard the confession. If the defence can show that the confession was made under such duress that most people would make such a confession, then the jury is likely to question the confession's credibility. Usually the more duress that can be shown to have been used by law enforcement by the defence, the less weight most juries will place on confessions. In Britain, partly to protect the individual against police brutality and partly to make confessions credible to a jury, all interviews with a suspect are audio taped on a machine which make two simultaneous copies, one for the police and one for the defendant. In Northern Ireland, where society is more polarised than in the rest of the United Kingdom, which means that allegations of police brutality are perceived by sections of the community to carry more credence, interviews are video taped.
It has been alleged that in certain circumstances torture, even though it is illegal, may have been used by some European countries. In "anti-terrorist" campaigns where information is needed for intelligence purposes, and not to obtain a confession for use in court, there is a temptation by the security forces, whether authorised by governments or not, to extract intelligence from alleged terrorists using any means available including the use of torture. Where there is a time component to a crime, for example in a kidnapping case, there is also a temptation for the police to try to extract information by methods which would make the evidence inadmissible in court.
Israel has been accused of using torture against Palestinians as early as 1967, and by 1987 torture was generally considered to be permissible under the law. However, there were limitations to who could be tortured. The party being tortured had to be guilty, and it had to be for good reason in order to be tolerated. In 1999, the Supreme Court of Israel ruled that torture was unlawful and that prohibitions against torture were "absolute". Despite this ruling, there are claims that many innocent Palestinians still face torture tactics from Israeli authorities, revealing the difficulty of stopping torture in practice, even after it is no longer considered legal.
Debate
Proponents
Some scholars have argued that the need for information outweighs the moral and ethical arguments against torture.Yasmin Alibhai-Brown, in an opinion article published in The Independent on 23 May 2005, wrote:
Two academics at Deakin University in Victoria, Australia, Professor Mirko Bagaric, a Croatian-born Australian based author and lawyer, who is the head of Deakin University's Law School, and a fellow Deakin law lecturer, Julie Clarke, published a paper in the University of San Francisco Law Review arguing that when many lives are in imminent danger, "all forms of harm" may be inflicted on a suspect, even if this might result in "annihilation". The reasoning behind the proposal to legalise torture is that:
When reviewing Alan Dershowitz's book Why Terrorism Works: Understanding the Threat, Responding to the Challenge, Richard Posner, a judge of the United States Court of Appeals for the Seventh Circuit, wrote:
On 20 December 2005, Albert Mohler, president of the Southern Baptist Theological Seminary, addressed the problem of whether torture should be used by American military forces in order to gain important information from terrorist suspects. Although he spoke out against any form of legal codification, he did state the following: