Torture: Closing Pandora’s Box

Can torture and other forms of ill-treatment ever be justified?

DEBRA LONG

SINCE 11 September 2001, fundamental rights that had once been cherished, perhaps taken for granted by many, are being questioned. Through the knee-jerk reaction to threats of terrorism, some governments, the media and the public have alarming queried the once universally accepted principle of the absolute prohibition of torture, cruel, inhuman and degrading treatment or punishment. This debate opens up a Pandora's box of legal and moral dilemmas.

Throughout the past century, as a response to atrocities that had occurred, all States have expressly agreed, under international humanitarian and human rights law, to prohibit torture and other cruel, inhuman and degrading treatment or punishment.

This has led to a plethora of international instruments that reflect this universal condemnation. Accordingly, common Article 3 of the Geneva Conventions, Article 5 of the Universal Declaration of Human Rights, Article 7 of the UN International Covenant for Civil and Political Rights, Articles 2 and 5 of the UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment, Article 3 of the European Convention for Human Rights, Article 5 of the Inter-American Convention on Human Rights and Article 5 of the African Charter, all categorically prohibit the use of torture and other forms of ill-treatment.

Under international humanitarian and human rights law, this prohibition is a non-derogable norm. No exceptional circumstances whatsoever, whether a state of war, internal political instability or any other public emergency, may be invoked as a justification for these prohibited acts.

Furthermore, this right to be free from torture and other forms of ill-treatment must be afforded to everyone, regardless of what they may have done.

Whilst, regrettably, torture and other forms of ill-treatment still occur throughout the world, the legal basis of the prohibition of torture has not yet been called into question directly by States. Rather, there is a growing trend to try and re-examine the definition of torture.

This discourse is driving a wedge between the status of the prohibition of torture on the one hand and cruel, inhuman and degrading treatment or punishment on the other. There have been attempts to try and categorise certain acts, in particular interrogation techniques, as not amounting to torture.

This dangerously implies that acts not amounting to torture, but which are nevertheless inhuman or degrading, may be permissible under certain circumstances.

Many judicial bodies and international experts have warned against trying to establish a precise distinction and exhaustive list of different types of treatment. In its general comment on Article 7 of the International Covenant for Civil and Political Rights, the Human Rights Committee has considered that it is not desirable to draw up a list of prohibited acts or a precise distinction between them. Furthermore, Sir Nigel Rodley, when he was the UN Special Rapporteur on Torture, considered that it is extremely difficult and indeed dangerous to establish a threshold to distinguish acts of torture from cruel, inhuman or degrading treatment on the other.

Therefore, it is essential in this current political climate to reiterate and reaffirm that the prohibition of inhuman and degrading treatment or punishment must be defended as vigorously as that of torture. Such acts can never be justified under any circumstances.

Yet, aside from this legal debate, there is also the moral dimension that must be addressed and in so doing recall why torture and other forms of ill-treatment are prohibited, at all times, under international humanitarian and human rights law. Recent events have resurrected the "ticking bomb" scenario and arguments have been advanced as to the "moral" justification for using these prohibited acts. Can torture or other forms of ill-treatment ever be "morally justifiable", for example in order to save lives?

In answer to this dilemma, there are three reasons as to why torture and other forms of ill-treatment can never be justified. The first reason is the pragmatic argument that information extracted using the prohibited treatments has been proven to be unreliable.

The second reason is based upon the fundamental principle of respect for human dignity. This is a universally accepted principle and cornerstone of civilised society. This right is to be afforded to everyone and progressive societies should be judged not only on the way they treat innocent individuals but also, perhaps more so, on how those possibly guilty of something are treated.

The third reason is the danger of a creating a "slippery slope". Once an exception is permitted on the grounds of necessity, this would open the door to arguments being advanced on the basis of expediency. Any justification for using torture or other forms of ill-treatment would be arbitrary and subjective. Who is to make that "moral judgement" as to when such acts are to be justified and against whom they can be applied?

It is for these reasons that the use of torture and other forms of ill-treatment or punishment have been prohibited. Unfortunately, such acts are a 21st century reality.

Therefore, we must resist the circumstantial pressure to open up a debate that should never happen. We are in danger of forgetting the painful lessons learnt in the past: that legally and morally there can never be a justification for torture and other cruel, inhuman or degrading treatment or punishment.

Debra Long is UN & Legal Programme Officer at the Association for the Prevention of Torture (APT), Geneva