What's wrong with torture?

Recalling his experience as an officior who supervised the torture during France’s brutal war in Algeria between 1955-57, General Paul Aussaresses, wrote that “the best way to make a terrorist talk when he refused to say what he knew was to torture him”. General Paul was prosecuted later for publishing his book years after the war ended, not for torturing Algerians but for revealing the truth and trying to justify it.

To discourage torture evidence, rules of international law have consistently prohibited such practice and devaluated its product by prohibiting the use of any such evidence obtained in any judicial proceedings. According to Article 15 of the UN Torture Convention ‘Each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings [. . .]’. 

The rationale behind this ‘blanket exclusion’ of statements procured by torture in any proceedings lies not only on the unreliable nature of torture evidence but also on its ‘degrading effect on the administration of justice’ and its ‘offensiveness to civilised values’.

Also, Article 69(7) of the Rome Statute of the International Criminal Court, which found its counterpart in the Rules of Procedure and Evidence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda, states that ‘torture evidence is inadmissible if its admission would be antithetical to and seriously damage the integrity of the proceedings.

The common law of England has firmly rejected the use of torture evidence in its judicial proceedings. This exclusionary rule stretches back into the 18th century, where in the case of R v Warickshall a confession was dismissed on grounds of inducement.

However, despite the long-standing legal tradition, the position remained unclear regarding the admissibility of torture evidence inflicted and obtained by foreign nationals without the complicity of the British authorities in proceedings taking place in the UK. A question which was raised in the famous case of A and others v Secretary of State for the Home Department and was ruled on by the House of Lords in its leading judgement in 2006.

In this case, the appellants, suspects of international terrorism were detained with no charge under s.23 of Anti-Terrorism Act 2001, sought rejection of evidence used against them in their appeal before the SIAC, which was procured by torture inflicted by foreign nationals without the complicity of British authorities.

In their argument, the appellants relied on several reasons. First, they submitted that for 500 years the Common law of England set its face firmly against the use of torture and added that admitting such evidence in court would amount to an abuse of process. They went so far to support their argument so as to include international laws, if, as they said, the common law was not enough to require rejection of torture evidence. They maintained that ‘the obtaining of evidence by torture was so grave a breach of international law, human rights and the rule of law that any court degraded itself and the administration of justice by admitting it’ In light of this argument, they invoked Article 15 of UN Torture Convention and the absolute non-derogable right under Article 3 ECHR.

        

The Court of Appeal’s controversial ruling on this case was that; the fact that evidence was procured by torture of foreign national outside the complicity of British authorities was relevant to the weight of the evidence but did not render it legally inadmissible.

Neuberger LJ, a dissenting voice, disagreed with the distinction between ‘foreign’ and ‘British’ torture evidence, holding that if the UK Government is seeking to rely on torture evidence even if it has occurred in a foreign state, then it could be said that the UK has ‘adopted’ that torture.

Indeed, the House of Lords, subsequently, allowed the appeal unanimously confirming the absolute nature of the rule prohibiting the use of torture evidence as a constitutional principle rather than a rule of evidence. They stated that this rule applies to all proceedings including terrorism. And to hold otherwise would bring British justice into disrepute.

The international law dimension of the appellant’s submission has received mixed views. Laws LJ in the Court of Appeal considered it a ‘too exuberant’ reading of the Convention, and that adherence to the ECHR should not ‘carry on its back’ the acceptance of other international obligations.Lord Bingham, while accepting the international dimension, has explicitly stated that common law alone would suffice exclusion.

The Lords further emphasised the importance of States to take positive measures to prevent torture, should absolute prohibition be achieved. Holding that, the prevention of use of torture evidence in any proceedings, as required under Article 15 of Torture Convention, is one way of addressing the problem.

However, the burden of proof established in this case may provide an unfair situation to the applicants and can impose a heavy burden to discharge. So for all the important words and principles laid out in the judgments, evidence obtained by torture may well still be used in English courtrooms and cases.

War on Terror

The tragic events of the 11th of September 2001 have marked the start of a brutal regime initiated by the United States under the so-called ‘War on Terror’. It’s a discriminatory war which has witnessed unprecedented abuse of human rights and torture in the 21st century.

In its fight against terror, the United States, the world’s foremost proponent of human rights, as it promotes itself, have recourse to abhorrent, offensive and repulsive measures of torture.

Under the Bush administration, torture was widely practiced under the name of ‘intelligence’. The New York Times, on March 9, 2003, reported on the “pattern” being followed by American interrogators; which has often been called ‘torture lite’ as it leaves no physical mark on prisoners but at the same time is extremely damaging.  It includes forcing detainees to stand “naked,” with “their hands chained to the ceiling and their feet shackled.” Their heads are covered with “black hoods;” they are forced “to stand or kneel in uncomfortable positions in extreme cold or heat,” which can quickly vary from “100 to 10 degrees.” The detainee is deprived of sleep, “fed very little,” exposed to disorienting sounds and lights, and, according to some sources “manhandled” and “beaten.” In one case involving a high-ranking al-Qaeda operative “pain killers were withheld from Mr. Abu Zubaydah, who was shot several times during his capture”; these measures can be comparable to those used during the Spanish Inquisition.

The US intelligence has not stopped at this point. They also followed the typical way Americans can get away with torture; which is getting someone else to do it.The US, have been heavily practising extraordinary rendition, which is a phenomenon of transferring terror suspects, by means that bypass all judicial and administrative due process, to countries with lax human rights records, such as Egypt and Jordan, where harsh interrogation techniques including brutal physical and psychological treatment are adopted. The aim of rendition is to gather as much information as possible while staying away from any judicial oversight.

Victims of rendition may also end up in US administered sites such as Guantánamo Bay in Cuba, detention centres in Iraq or Afghanistan, or in secret facilities known as “black sites” run by the USA’s Central Intelligence Agency (CIA).

If the position is, as Floyd Abraham put it: “In a democracy sometimes it is necessary to do things off the books and below the radar screen.” Then, the word ‘democracy’ should be eliminated and hypocrisy should be used in lieu.

The US Anti-Terror measure has failed to recognize what Bentham noted more than 200 years ago, which is the difference in principle, between torturing the guilty to save the lives of the innocent, and torturing innocent people; as Anti-Terrorism laws know no justice.

 

Until today, Americans still have difficulty with the T-word, preferring instead abuse, moderate physical pressure, enhanced interrogation, highly coercive interrogation and pushed interrogation.

Ticking bomb

The concept of ‘ticking bomb’ has been introduced by Jean Lartéguy during the savage Algerian war in 1960s; it came to life to convince the French people that their life is at stake if torture practice is to be refrained.

The ticking bomb case refers to variations on a scenario that has been discussed by many philosophers, including Michael Walzer, Jean-Paul Sartre, and Jeremy Bentham.

As the Supreme Court of Israel recognized while confronting the issues raised in the Landau Commission Report in 1999, the ‘ticking bomb’ scenario poses the following question: If an arrested terrorist knew the location of a ticking time bomb that was about to explode in a busy intersection but refused to disclose its location, would it be proper to torture the terrorist in order to prevent the bombing and save dozens of lives?

Here, the Court rejected the use of torture in any case, as the president of the Supreme Court, Aharon Barak, put it: "Although a democracy must often fight with one hand tied behind its back, it nevertheless has the upper hand."

However, in an attempt to justify Israel’s brutel actions against Palastinians, Alan Dershowitz introduced a concept of accountability of torture by means of a ‘judicial warrant’, which can be better named as ‘regulated torture’; a green card given by judges to officials to permit torture whenever they think is necessary. Alan believes that an unlawful conduct such as torture might sometimes be "excused".

The so-called ‘torture warrant’ is, in reality, no more than a judicial approval permitting acts of ‘sadistic gratification of the torturer’ and a general invitation for normalizing torturous acts. As Carl Jung has once explained ‘The healthy man does not torture others - generally it is the tortured who turn into torturers.’

The question which remains unanswered is whether ‘necessity’ can ever justify torture. Necessity occurs when an imminent danger is realised. Necessity is subjective; it is based on individual perceptions, priorities and sense of legality. Necessity knows no law; an idea which is linked to that of the social contract, whereby when a society breaks its part of the contract by its failure to provide protection, it follows that the person is not obliged to keep his part, namely to obey the law.

However, to apply such strict criterion would lead to anarchy. ‘No legal system operating under the rule of law should ever tolerate an “off the books” approach to necessity. Even the defence of necessity must be justified lawfully. The road to tyranny has always been paved with claims of necessity made by those responsible for the security of a nation.’

No circumstances, even ‘the terrible dilemma of terrorism’, could justify torture.

Torture is an unqualified evil. It can never be justified. Rather it must always be punished, Even if States turned a blind eye on torture, "restless and angry, people will not be silenced, and leaders ignore them at their own peril"

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Bibliography

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Henry Shue, Torture

Oren Gross, Are torture warrants warranted?

United States Congress, Extra-ordinary Rendition in U.S. Counter-Terrorism Policy: The impact on Transatlantic Relations

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