ON THE ABSOLUTE PROHIBITION OF TORTURE
February 15th 2001
The next issue, Number 57, will appear on March 15th 2001.
Most people are horrified at the very thought of torture and it is in this spirit that organisations like Amnesty International call for its absolute prohibition. I am as horrified as anyone on this matter but the unpleasant thesis of this article is that absolute opposition to torture is indefensible. I offer this grim thesis on two practical grounds - legalistic and utilitarian.
Of course 'practical people' will say that 'torture has always been part of life and it always will be'. That gloomy view has no place in my thinking but the legalistic and utilitarian considerations seem to me to be well founded.
On the legalistic side the key word is absolute. To prohibit absolutely - by law or by agreed convention - means that the prohibited activity must never in any circumstances be undertaken or accepted as possibly right and reasonable. A good example of an intended absolute is the Vatican's absolute prohibition of procuring abortion in human beings. Even if pregnancy is the result of the incestuous gang rape of a mentally retarded young girl ...... even then, according to the Vatican, it is morally wrong to procure abortion. Appeal to humanitarian considerations simply elicits the assertion that 'hard cases make bad law'. The Vatican position on abortion is, to many of us, unacceptable but it is not unrealistic in so far as the phrase 'procure abortion' can be defined rather closely. No such precision can be attached to the phrase 'inflict torture'.
If it is proposed to ban torture absolutely then it is logically necessary first to define torture absolutely; to ban absolutely something that cannot be defined absolutely is a logical nonsense.
The pitfalls in the way of such an attempted absolute definition of torture are many. One person's pain threshold is very different from another's; torture to one might be mere ill-treatment to another. Another difficulty is that the victim's physical and mental state will affect his pain threshold; what might be tolerated when in good health and spirits may be horribly painful when the victim is in a lowered state. We cannot measure pain (a pain-meter is an instrument we do not possess) so we cannot assess what degree of ill-treatment could be be deemed to be torture for purposes of law.
There is also the 'psychological torture' aspect of the matter. Can the Inquisition's practice of showing the prisoner the instruments count as torture even if no actual bodily pain is inflicted? Can a woman be said to be under torture merely by being told that her child will be tortured if she does not 'talk'? Does it become torture if tape recordings of a child screaming in agony are played to her to concentrate her mind on the enforced decision to 'talk'? (The recorded screams might be those of a child who has innocently and accidentally fallen into a fire).
Any attempted watertight definition of torture would result in little more than a set of guidelines (blessed word !). Guidelines usually tell you as much about what is omitted from them as what is included. There is no need for any interrogator to fear guidelines or model rules.
A glance at the Decalogue shows the inadequacy of rule-book ethics ....... although I ought not to covet my neighbour's wife there is no explicit objection to a woman coveting her neighbour's husband !
Aversion to torture - which all decent people feel is - a moral aversion; its translation into law is very problematic. There is only rarely a one-to-one correspondence between what is right and what is lawful.
The utilitarian case against any attempted absolute proscription of torture might be put as follows:
If we define utilitarianism as the opinion that doing good consists in achieving the greatest happiness of the greatest number then we can see how inflicting torture could be to do good - as the following scenario shows.
Suppose that you are the local Chief of Police and that you are tipped off - by a usually reliable source - that there is quite likely to be a bomb outrage in a public place during the next few days. You round up the usual suspects and ask them to give you particulars of the intended bombing - so that you can take steps to prevent it. They decline to co-operate (they would wouldn't they?).
You have a clear choice: either you allow things to drift - in the near certainty that a number of people will be killed, maimed, bereaved - or you drag the information out of the suspects by whatever means of torture may be required. You, the Chief of Police, are in a terrible dilemma. Do you respect the rights of a few people to be treated decently while in police custody or do you take responsibility for protecting unoffending people going about their lawful business?
I would not care to confront the maimed and the bereaved with the fact that, in deference to an absolute prohibition of torture, I did nothing to prevent their ill fortune. Of course if I am a sadist then I would like to torture suspects anyway; of course if they are masochistic would-be martyrs then they would like me to torture them. But if neither I nor the suspects were perverted in these ways then the issue would be a terrible one for me to face. I would be in a no-win situation.
I am forced to fall back on the messy notion that other things being equal, torture should not be inflicted on anyone.
That would look pretty limp on a banner - would it not? "Other things" have a nasty habit of not being equal!
To embrace absolutes is to invite hypocrisy.
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