With our boys still in Iraq and the War on Terrorism still rife, one of the many fears with the Olympics currently taking place in London is whether we will be subjected to a further attack such as 9/11, the London Bombings or something far more severe.
Authorities constantly have to gather intelligence, be it from interrogating suspects or following up on leads. But how far are they willing to go? How far are they allowed to go? How far would you go?
“I fear that the authority of law has already been undermined in many important ways. The question facing us today is how are we to respond to this situation and what steps can we – and must we – take to restore and protect the international rule of law? ….. The point is made that the enemy is not a nation state and is not willing to respect fundamental standards of international law which protects civilians. Fighting terrorism, it is said, therefore requires new strategies and sometimes “exceptional measures”. This implies that human rights are somehow to be curtailed, that the security imperative outweighs all other considerations.”
Mary Robinson (2006)
To evaluate whether it is a legitimate action for states to undergo methods of torturing suspected terrorist subjects, we would firstly need to understand what terrorism and torture are.
What is Terrorism? It is defined as being “the use of violence and intimidation in the pursuit of political aims” and further legal definition is give under s1 Terrorism Act 2000. A terrorist act could be described as an act conducted to cause mass severity and harm to humanity, being outside the realms of normal criminal behaviour. s2 Terrorism Act 2000 defines a terrorist as a person who is involved in or with the conduction of such an act.
What is Torture? Torture is the intentional infliction of severe mental or physical pain or suffering by or with the consent of the state authorities for a specific purpose. Article 1 of United Nations Convention against Torture and other Cruel, Inhumane or Degrading Treatment or Punishment (UNCAT) 1984, recognised globally, defines what torture is with more detail. The very fact that this is a global convention means that each individual state should adhere to the regulations of the convention, one of which being that each state is responsible for any torture deemed to be inhumane and prohibited, which occurs within its boundaries.
There are different categories or torture, being of both physical and psychological characteristics. Some methods of torture would be deemed more inhumane than others depending on the severity of them. Interrogation could be deemed a method of torture as it would cause stress and anxiety to an individual who was on the receiving end of the interrogation, many would think that isn’t inhumane as it doesn’t cause any physical pain or suffering or inflict pain. If taken for questioning by a police officer during the course of enquiries, this is classed as interrogation.
So what actually constitutes Torture? Psychological methods of torture could simply be isolating you from your friends or family, a mock execution or actually witnessing the execution or torture of a loved one. Although this doesn’t cause any physical harm, it can still cause a mental illness or increase stress levels, anxiety, depression. The individual who witnessed an execution may be consumed with guilt and shame after the event, as they were unable to help the other party, or themselves. Physical torture could constitute being beaten, suffering electric shocks or being subjected to rape or other methods of sexual assault. These are all examples of the less inhumane methods of torture.
The more inhumane methods of torture, which are likely to be on breach of Article 3 of European Convention on Human Rights (ECHR) which prohibits an individual from being subjected to torture, are still used today by many of the national security agencies. The Central Intelligence Agency (CIA) for the United States, has publically admitted that they use many of these methods within an article publicised by the NYTimes. There are three methods which come to mind most, Water-boarding, Chinese Water Method and the Rack. Water-boarding is when the subject being tortured would be laid back, have their mouth covered and water be poured over their face to intimidate being drowned. The Chinese water method is where the victim is strapped down and water is dripped onto a small area of their body, usually the forehead. It is said that this method would drive the victim to insanity as they would be able to see each drip coming and a small hollow would begin to form on their forehead. The Rack is when the subject would be strapped down by their wrists and ankles and then stretched apart.
On the contrary, Professor Sir Nigel Rodel states, “when a state steps in and fails to prevent torture it is in breach of its obligations under international law”, the problem with this statement and the very fact that yes, according to international law the use of torture is prohibited and a states government needs to do its upmost to prohibit this act from occurring, is that, it is down to a state official to allow torture to occur. The CIA are a national security agency for the US, they will be allowed to conduct “intense interrogation” and use other methods in order to gain Intel to protect civilians of the state. Under UK Domestic Law, The Police Force have powers to stop and search, detain a person for limited time as well as indefinitely detain a person who they “reasonably suspect” to be involved with or about to conduct a terrorist act. The Home Secretary has to condone such requests at their discretion, but in doing so he is breaching the UK’s obligation under International Law. But, what about the states obligations to its own population?
Why is torture used? The torture of terrorists or “intense interrogation” of torture victims would generally be used in order to obtain information or intelligence in relation to threatened or predicted terrorist attacks.
The question then, is whether the use of torture for a higher purpose in protecting a state and its individuals is deemed acceptable? On first answer, many would answer yes.
Surely if it is appropriate for a method of interrogation to be used in certain circumstances, such as ticking time bomb scenario, which is when officials have reason to believe beyond all doubt that they person they have detained holds information which may be of use and time is running out, then the question is then of saving civilians? Surely this is of the upmost precedence? But then, who is liable? Who decides on what level of method to use?
Aaron Barak (President of Israeli Supreme Court) states “the problem is not who should be punished for inflicting torture but rather whether various techniques of interrogation should be declared, ex ante, permissible or impermissible” during Judgement on the Interrogation Methods Applied by the GSS (Police Committee Against Torture v Israel), HCJ 5100/94 (1999).
George P Fletcher, Tort Liability for Human Right Abuses, pg 130 when commenting on Justice Barak’s Judgement states, “the issue should not be “what is torture?” but “what are the permissible limits of interrogation?…should the burden for water-boarding be on the person who seeks to condemn the action as torture, or on the advocate who thinks it can contribute effectively, without cost, to the process of gathering information?”
One of the problems, when faced with torturing a person who you believe to have important information is that when does it stop? How do you believe he answers they give you? When interrogating a detainee and inflicting pain upon them, if you put yourself into their position, wouldn’t you say anything in order for the pain to stop?
During the War on Terror in Iraq and Afghanistan, the US Military used traditional methods of interrogation against AL-Qaeda and Jihad extremists and found that they were unsuccessful. They found that using the traditional methods in training, 95% of the US Military would end the interrogation and divulge information. They decided to change the methods and used stress interrogations, upping the ante with sleep deprivation and isolation in order to gain valuable information. This is the less inhumane methods or torture but we learnt that they worked. Uncertainty was the key for the advocate administering the torture as it gave them the upper hand. The extremists were used to the US not being able to lay a hand on them, so using the good-cop, bad-cop routine of pinning them against the wall one minute and then walking out of it the next, made the detainee uncertain and more likely to divulge valuable information.
As mentioned earlier, the CIA have admitted to using methods of torture, and have admitted to using the water-boarding technique on at least three occasions. This is deemed as one the more inhumane methods, as it induces the feeling of being drowned. However, when used by the CIA, the detainee or victim was not “water-boarded” for longer than 60 – 90 seconds at a time. This is not a sever infliction of pain and suffering. The Question here then is; what is ‘severe’? The legal definition of torture is quite broad in this sense.
“Judges and Prosecutors have a crucial role to play in combating torture”, Professor Sir Nigel Rodley, surely it is time for them narrow the definition of torture and to set down the law in regards to whether protecting an individual’s state population, and in not causing them pain and suffering is less precedential or more so, than the pain and suffering of one person who holds valuable information in relation to an act which would cause severity against humanity.
The utilitarianism theory, described by Betham as “the greatest happiness principle”, in choosing a higher balance of pleasure over pain or one of “what would you do?” appears to be in favour of the use of torture to protect civilians from terrorism. Rome Statute Article 31(1)d states that “torture for good cause is justified on the grounds that benefits outweigh the costs” also argues in favour.
In protecting the lives of many, it would seem that some methods of torture are inhumane and should be regulated further, but it is accepted by many to be appropriate in gaining valuable intelligence. Torture is against International Law, but even state officials breach those obligations in protecting their nation. It should be regulated in a way that it should be used as a last resort in the direst of situations and certain scenarios, such as the ticking time bomb situation.
John McCain, an alleged victim of torture said, with regards to the War on Terror and George W. Bush’s instigation of such, “You gotta do what you gotta do”.