To Torture Or Not To Torture: Why No Ticking Bomb Scenario Can Justify The Use of Torture Techniques
The prohibition of torture has been laid down in multiple legal documents of the international community, be it of a smaller relatively homogenous group (Article 3 of the European Convention on Human Rights, which also unequivocally bans inhuman and degrading treatment) or of a larger more diverse group of States (Article 1 of the UN Convention on Torture). The prohibition of torture was construed as an absolute right, eliminating the possibility of justifying any act of torture, no matter what the circumstance. The ongoing war on terror has been seen as a reason to reopen the debate on this absolute character: Should we really abide so rigidly by the unambiguous condemnation of the use of torture techniques, or does a States duty to protect its citizens from harm dictate the application of such techniques?
The famous Ticking Bomb Scenario is a tale of a terrorist having been caught by State actors. The terrorist admits to have hidden an explosive in the middle of a Metropole, which will be detonated in a certain amount of time. The terrorist however inconveniently chooses not to reveal where the explosive is located and how it can be dismantled. The authorities face two options: They can either disregard the duty imposed on them by international law by breaching a key human rights law provision and torture the terrorist. Or they can refrain from such actions and interrogate within the bounds of law. Mind you: hundreds if not thousands of lives are at stake.
Don’t worry, the knee-jerk response of many respected politicians and figures of the media has also been to go with door no. 1. It’s not easy to withstand the pressure that comes with being responsible for the lives of many innocent souls, and it gets even more difficult to stick to morality when the narrater adds that loved ones are living in the endangered metropole.
So let me give you a handful of reasons why the absoluteness of the prohibition of torture may never be denied, why it is our duty as a people of the States that carry the burden of protecting us to be loud and clear about the fact that torture techniques, be they traditional or modern, physically or emotionally taxing, can never be justified.
- As Nietzsche wrote in Beyond Good And Evil (1886): “He who fights with monsters might take care lest he thereby become a monster”. The premise is simple: When our most important rules of human rights law are being bent or broken and torture techniques are being applied to extract information, how can we still call ourselves the “Good Guys”? Fighting fire with fire, solving complexities that have political, religious, historical and other contexts with a simple “eye for an eye” cannot be the way of a modern, democratic state under the rule of law.
- Secondly there is the more practical concern of whether the application of prohibited techniques will actually lead to the prevention of the feared terror attack. There are questions that cannot be answered at the pertinent moment, where the state authorities are forced to decide. Is the captive telling the truth: Is there even a hidden bomb? If so, is he capable of dismantling or at least giving indications regarding the whereabouts of sed bomb? And if capable: will he? It has been documented that the application of traditional torture techniques — such as the suspension of the victim by the wrists tied behind the back and subsequently dropping him (“Palestinian hanging”), beating the soles of the feet (Falaqa) or waterboarding — often leads to false statements. The infliction of severe pain more often than not leads to the victim saying whatever he believes the torturer wants to hear.
- The prohibition of torture represents the most essential human rights provision protecting human worth. Whereas lives can be counted and can therefore be seen as a quantifiable variable, human worth cannot be measured. The Utilitarian Approach, on which advocates of torturing the one to save the lives of many rely, requires the possibility to weigh two similar metrics: €5 is worth more than €2. 7 apples is more than 6 apples. Such a weighing of one value against another can not be carried out when the two values are of an entirely different nature one of them cannot even be measured.
Even if such a reasoning feels too theoretical — “it still feels as though one persons suffering is worth saving multiple innocent lives” — we must keep in mind that the prohibition of torture it no longer unjustifiable, when an exception is made in one case. There is no opening the gate and quickly shutting it again. Once one person — however “evil” he may be — has been tortured, the protection of human worth as a whole is at risk.
- Within the mentioning of the opening and closing of a gate lies the slippery slope argument. The assertion is that making decision A. (e.g. torturing one very “bad” terrorist for a good reason) will lead to the making of undesired decision B (torturing without restrictions) (and perhaps also even more undesired decision C, and D and so on). It has been argued that this assumption relies on a logical fallacy: There is absolutely no reason why A should inevitably lead to B. Such a reasoning however is based on the idea that the slippery slope argument requires direct causality between A and B, which is an incorrect understanding of the argument. What is actually required is that A merely increases the chance of B occurring. Such an increase cannot be denied: Taking a brief glance at history — such as the period of the Third Reich or the rule of Stalin — shows that once torture is allowed under certain circumstances, this practice ends up creeping outside of its initial bounds.
- Just like most other methods applied to combat terrorist organisations — e.g. a“boots on the ground” approach or drone strikes -, applying torture to extort information from individuals linked to such organisations carries the risk of inspiring more hatred towards the West. This vicious cycle needs to be broken, not reinforced by abdicating the absolute nature of the prohibition on torture.
When outlining a classical Ticking Bomb scenario many factors making the decision-maker lean towards the use of torture are described: Time is running out, many innocent civilians — perhaps even family members — are at risk, the captured terrorist taunts the state agent with his unwillingness to cooperate. All these factors combined trigger an emotional response. Complex legal matters of extremely high importance should never be decided based on emotional considerations. They should be made with a cool, educated and experienced mind (or many such minds from all over the world). All factors should be regarded, not only those that seem most pressing in a stressful situation.
These are only five of many reasons to abide by the absolute nature of the prohibition of torture, a look into the literature and jurisprudence will yield many more. All I ask is for the reader to think about this matter in an analytical and theoretical way, rather then jumping to knee-jerk, emotion-driven conclusions.
We cannot let fear allow us to become Nietzsche’s monsters.