The four Geneva Conventions of 1949 are the primary sources of international humanitarian law that prohibit acts of torture during war and peace. Although regulations enacted by the Geneva Conventions still remain in force, they are no longer conducive to international security needs. Security concerns have drastically transformed since 1949; war has continued to evolve and is no longer limited to confrontation between countries and their militaries. The unconventional warfare of terrorism has infiltrated societies worldwide and, despite its illegality, has resulted in the legitimization and continued use of torture in some countries and cultures. Subsequent legislation designed to illegalize torture, proved unsuccessful. One hundred and forty countries ratified the United Nations and Other Cruel, Inhuman or Degrading Treatment or Punishment Convention Against Torture, [Adopted in 1984. Went into effect in 1987] agreeing to safeguard human rights and illegalize torture. To date, torture has been reported in more than one hundred of these countries (Pragmatic Approaches to Torture). As diplomatic attempts to eliminate torture as a byproduct of warfare have failed and despite moral implications, I feel the only way to ensure all human rights would be to legalize torture, develop regulations, guidelines and enforce restrictions. Through the analysis of the development and present usage of torture combined with its theoretical implications, this paper will argue that as international law has been unable to eradicate torture, it should be legalized by an international agency that can enforce a code of conduct and standards to ensure laws are followed and violators are held legally responsible for their actions.
Part I: September 11, 2001 and the Change of Warfare
Since the close of World War II and the enactment of the Geneva Conventions, warfare has changed. Terrorism is not a new practice; it dates back to the Roman Empire. However, modern terrorism, which many associate with the September 11, 2001 attacks on the United States, revolutionized warfare. Protecting citizens from other nations are no longer the only security issues governments’ face. Security threats of an individuals’ ability to wage war on society have escalated to new levels. As of 2001, legal institutions and laws have become outdated and provide no means to deal with the phenomenon of modern terrorism. Legal developments to overcome terrorism have presented governments with the question of how to maintain individual rights while protecting national security.
Post September 11th attacks, individuals’ rights granted by the United States Constitution, national, and international law conflicted with maintaining order. The realized threat of radical Islamic terrorist groups infiltrating and attacking America overpowered individual rights activists. The United States Government recognized the need for a new level of national security. On September 14, 2001, the 107th United States Congress passed a joint resolution that superceded individual rights, authorizing United States Military forces to avenge and prevent future terrorist attacks on the United States. Section 2 of the resolution states:
The President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons. (S.J. Res. 23)
The joint resolution conflicted with the principles of the United Nations Declaration of Human Rights. For the United States, September 11th illustrated the capability to infiltrate and injure state infrastructure and societal foundations. Joint Resolution 23 clarified a top priority of national security for the United States Government. Facing a new reality of terrorism provoked the United States to prioritize national security before morals and individual rights.
Many Americans, as well as others worldwide believe that safeguarding individual rights protected by the United Nations Declaration of Human Rights and other national legislations should be of highest governmental priority. However, governments that do not protect their land will face greater problems than limited individual rights. What many fail to recognize is that “rights” claimed to be unalienable are actually privileges that the government and military protect. Maintaining national security allow individuals, citizens or not, the opportunity to stand on their soap boxes, protest government actions and demand protection of their “rights.”
Part II: Past Laws and Present Morality
Crimes against humanity committed during World War II catalyzed worldwide outrage and led to the United Nations adopting the Universal Declaration of Human Rights, of which Article 5 states, “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (UN Declaration of Human Rights). The Geneva Conventions of 1949 turned the doctrine into international law. Adversaries of legalizing torture derive their convictions from these outdated doctrines. The theory that torture is justly outlawed and should remain illegal as no sufficient causes exist justifies the ratification of laws that “safeguard” the human right to life. Michael Walzer’s book, Just and Unjust Wars discusses the morality of war. In the book, Walzer states, “To men at war, the rules don’t seem relevant to the extremity of their situation (15).” In my opinion, this is the reason, despite half a century of national and international laws and numerous countries illegalizing and condemning torture, the debate on legitimizing and utilizing torture continues.
Iraqi torture violations have been prominently recorded both the domestic government and by occupying forces. Abu Ghraib, the Iraqi prison used for torturous acts by the Hussein regime was turned into a United States Military Prison after the Hussein government was overthrown. In 2004, a report by Major General Antonio M. Taguba exposed the jail as a torture site of Iraqi prisoners (Torture at Abu Ghraib). In 2005, an illegal detention center was discovered in the Iraqi Interior Ministry. The United States Military personnel found 173 detainees, some with visible signs of torture, in addition to torture devices. Iraq’s Interior Minister, Bayan Jabr, claimed that the center held, “the most criminal terrorists.” When asked how he would address the situation, Jabr stated that anyone guilty of torturing detainees would be appropriately punished, as Iraqi forces “respect human rights” (Iraq official defends 'torture' facility). The Geneva Conventions were clearly broken by Iraq, showing their disregard for the conventions’ standards of human rights.
Torture in the Middle East is not confined to Iraq. Legislation illegalizing torture in Iran has proven unsuccessful due to lack of international enforcement. Over the past five years the Iranian Government has increasingly utilized methods of torture to maintain order. In 2005, Iran publicly admitted to using torture in prisons and detention centers. In 2007, a draft resolution was approved by the United Nations asking Iran "to eliminate, in law and practice, all forms of discrimination and other human rights violations" (UN Sees Iranian Rights Abuses). Forms of torture used in Iran include, but are not limited to flogging, amputations, stoning and public executions. Despite several United Nations resolutions condemning and requesting the Iranian government cease these violations of international law torture in Iran has continued over past years.
Post September 11, 2001 several European Union members adopted a policy of deporting foreigners who pose threats to national security. In May 2007, “the United Nations Committee Against Torture condemned the French Government for expelling a terrorism suspect, Adel Tebourski, to Tunisia despite credible evidence he faced torture upon return (France: Terror Expulsions Policy Lacks Basic Safeguards). Although it was not illegal for France to deport Tebourski, the international community viewed France’s actions as unjust given that France knowingly expelled an individual subject to Tunisia’s actions of torture –violations of the Geneva Conventions.
How strong are our morals when concerning torture? If we are neither the victim nor the perpetrator are we responsible for what happens outside our backyard? Advocates against legalizing torture maintain that it is immoral and never justified to use torture. Organizations such as the Human Rights Watch, Amnesty International, and the American Civil Liberties Union advocate that all individuals have the responsibility to end acts of torture as well as all violations of human rights. Despite legislation prohibiting torture, public reports, and widespread support for the aforementioned organizations to end torture, these violations of human rights consistently and exponentially occur. According to a 2006 MSNBC report, “Torture in Iraq may be worse now than it was under Saddam Hussein, with militias, terrorist groups and government forces disregarding rules on the humane treatment of prisoners” (Torture in Iraq worse now than under Saddam?). Iranian torture of political prisoners has expanded to include homosexuals. Recent reports show that in Iran, homosexuals are beaten, hanged, or executed (Gays Deserve Torture, Death Penalty, Iranian Minister Says). Although torture is immoral, so we have been taught, the legalization, the establishment of code enforcement and creation of an international governing body could oversee and administrate suspect tortuous governmental actions that have proven to inevitably take place.
Part III: The Ticking Bomb Theory:
A terrorist organization has openly stated that they have hid a nuclear bomb in downtown Manhattan. The bomb will explode and kill thousands of people in New York, including the leader of the terrorist organization. The NYPD have the leader of the terrorist organization in custody, who admits to knowing where the bomb is, but refuses to disclose the location. If torturing the terrorist is 100% guaranteed to secure the information necessary for the authorities to find and disarm the bomb and save the people of New York, is it ethically acceptable to torture him?
The ticking bomb theory is extreme, but raises important issues about morality in modern society. Under the United Nations Declaration of Human Rights torture is unethical. However, it is simultaneously unethical to sentence thousands to an avoidable death. The “more ethical” choice is to favor those with the higher value of life. The leader of the terrorist organization does not value life. He assisted in planning a bombing that will result in thousands of deaths, including his own. The people of New York are bystanders; they can do nothing to protect themselves or prevent the detonation of the bomb. It can be generalized that the people of New York value life more than the terrorist. In either scenario the terrorist suffers. Both possible fates, the bomb exploding or torturing the terrorist, violate the United Nations Declaration of Human Rights. It is important to note that the terrorist put himself in this position, wherein either scenario the people of New York had no choice. Ultimately, torturing the terrorist to save innocent lives is more ethical as he does not value the lives of others, or his own.
It is easy to dismiss the aforementioned scenario because of our perceived notion of low risk events based upon our limited knowledge. However, the ticking bomb theory can be applied to all threats and acts of terrorism, the only difference is that with the decrease in the number of lives at stake and the definiteness of the occurrence, the pro-con ethical decision list becomes less apparent.
The obvious choice is easy to identify in the following fictitious event; a terrorist holding hostage thirty passengers on a New York City bus, threatens to detonate a bomb that would kill everyone, including himself. A military sniper has a clear shot of the terrorist. Should the order be given to kill the terrorist and save the thirty passengers? Again, it can be rationalized that either way the terrorist will die. The more ethical decision is to kill the terrorist as opposed to him killing himself and thirty innocent people. However, what if the terrorist was threatening to detonate a bomb on a bus in his home country, where the passengers are supporters of his cause? A military sniper (from an occupying democratic government’s military) has a clear shot of the terrorist. Is it ethical for the sniper to kill one terrorist in order to save the thirty passengers, despite them being supporters of the terrorist? Are their lives comparable to the lives of passengers on a bus in New York City who do not identify with the terrorist’s cause? Using western-democratic thought deduction, the answer is yes. Although the passengers may support the terrorist they still did choose to be on a bus that would be attacked. Identification with a terrorist cause does not make an individual a direct threat to society.
Another fictitious event: a state military has in custody a terrorist who has ties to Osama bin Laden, or another known terrorist leader. Is the military justified in using torture to extract information that could potentially lead to the capture of a known terrorist leader? In this case, it is arguable that using force to extract information is unjustified because there is no immediate threat. It can be argued that torturing a terrorist under these circumstances would create hostility and spark a retaliatory attack. Although there is no direct threat, what if the terrorist is linked to additional terrorist groups and leaders? Does the opportunity for gaining important information legitimize the use of torture when a terrorist poses no immediate threat to society? It is illegal to use force to obtain information, however it is simultaneously illegal to deprive human beings of their “right to life,” which is threatened by potential terrorist activities. Adversaries of torture argue that information may not be reliable as a person may not be forthright during intense interrogation. Although this is a valid argument, it seems unlikely that during extreme circumstances human beings are capable of maintaining complete composure and still provide false information. The major flaw in this anti-torture argument is that human beings are fallible and at one point or another will make mistakes.
Part IV: Faults of Torture Legislation
Members of society are not fully knowledgeable about government activities. Human rights violations such as the media reporting of torture, provoke public outrage, but are only partial stories. Governments have to prioritize and make decisions for the common good of their state. Although, the above example of a hidden weapon in Manhattan is unlikely, the logic highlighted in the ticking bomb theory is relevant to real life security issues governments’ face: the necessity of choosing the lesser of two evils. It is barbaric to torture and/or take the life of another human being, therefore, legislation illegalizing torture is morally justifiable However, when it comes down to “us’ versus “them” people are willing do anything for personal and state survival, even compromising morals. It is because of this innate survival instinct that civil activists groups such as Amnesty International and other well intentioned organizations strive for a utopian world that is unattainable. The European Union is at the forefront of the governmental movement to globally eliminate torture. Their tremendous efforts to rally support against the use of torture and creating legislation is overshadowed by the fact that torture continues. Activists are no more capable of ending torture practices than the international bodies that establish anti-torture laws and possess no authority to enforce them.
The European Union supports the United Nations Convention Against Torture in addition to the Optional Protocol to the Convention Against Torture. After ten years of negotiations, the Protocol was adopted on December 18, 2002. It is a groundbreaking effort to eliminate torture. The Optional Protocol established both national and international means for inspecting detention centers. It states:
The objective of the present Protocol is to establish a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment (2)
The Protocol called for the establishment of a Subcommittee on Prevention, charged with visiting countries where persons “are or may be deprived of their liberty” (2). The subcommittee’s job is to “make recommendations to State’s Parties concerning the protection of persons deprived of their liberty against torture and other cruel, inhuman or degrading treatment or punishment” (5). Aside from creating and establishing guidelines for a Subcommittee on Prevention to recommend changes in state operations, the Protocol does nothing to foster the protection of human rights. The Protocol does not establish punishments for human rights violators, nor does it require that action be taken to eliminate human rights violations. The only requirement of State Parties is to “examine the recommendations of the Subcommittee on Prevention and enter into a dialogue with it on possible implementation measures” (6). As it took ten years for the United Nations to establish a Subcommittee on Prevention which has no legal authority to impose reform, it is unlikely that governments’ will discard existing practices on the basis of recommendations. Five years after the adoption of the Optional Protocol and the establishment of the Subcommittee on Prevention, torture remains a rampant, worldwide, problem, from military torture used by the United States Armed Forces in Iraq to torture practices in Iran and other countries, including Sudan as it deals with internal strife.
Torture legislation is too broad. Legislation does not recognize differences between torture practices used by armed forces to extract intelligence information and the military torturing of citizens for “amusement,” as in the aforementioned case of American forces in Iraq. Torture, stemming from national conflict, as in the case of Darfur, Sudan, where people are beaten and raped, cannot be grouped in the same category, nor can the torture against homosexuals by the Iranian Government.
Part V: Conclusion
We live in a world that is connected by technology and divided by cultural differences. As long as people and countries disagree there will be wars. Under these circumstances, I believe torture can be justifiable and is impossible to eradicate. As long as there are people willing to die for causes, torture will be invoked to gain information and advance in warfare. When dealing with the “ethics of torture,” it is necessary, as in the case of the ticking bomb theory, to choose the lesser of two evils. I believe torture can be justified if it saves lives and is done for the “greater good.” However, it will never be a universally accepted practice. Preventative measures, in this case torturing to acquire information that can potentially safeguard a country and its people, are always condemned. There will always be those who claim there are other ways.
Torturing as a form of amusement and punishment are practices that should and can be eliminated with proper legislation and the development of an international organization with the ability to implement and not just recommend reform. For the legislation to work it has to be accomplished with the approval of all countries and not just a select few. Countries need to be able to join together, despite differing views. Similarly, for an international organization to monitor and control torture violations of a military nature (Iraq) and stop civil torture (Sudan) the organization needs to have a representative from every country. This utopian ideal, like the universal illegalization of torture, is good in theory, but in actualization unlikely. Cultural differences and varying opinions on “right” and “wrong” will always hinder human rights progress.
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