is torture ever justified essay

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This entry is in four parts. The first part concerns the definition of torture and addresses the question, what is torture? The second part concerns the defining features of torture from a moral standpoint and addresses the question, what makes torture inherently morally wrong? For instance, it is generally held that torture is defined in part as the deliberate infliction of extreme suffering and that – by virtue of this defining feature – torture is morally wrong. Note that even actions or practices that are inherently morally wrong might be morally justified in extreme circumstances. Or to put things another way, performing an evil action might be morally justified if refraining from performing it constituted a much greater evil. Indeed, the third part of the entry concerns just this possibility: the possibility that notwithstanding its inherent moral wrongness, torture might, nevertheless, in extreme emergencies be morally justified. In short, the third part addresses the question, is torture morally justified in extreme emergencies? The last part of the entry concerns the legality, as opposed to the morality, of torture and addresses the question,should torture ever be legalised or otherwise institutionalised? [ 1 ]

In relation to the definition of torture, there are now a number of contemporary philosophical accounts on offer, notably those of Twining & Paskins (1978), Davis (2005), Miller (2005), Sussman (2005), Gross (2009) and Kamm (2011). Moreover, there are numerous detailed discussions concerning the inherent moral wrongness of torture, all of which focus on the extreme suffering inflicted (Bentham 1804; Shue 1978; Miller 2005 and 2009; Matthews 2008; Brecher 2008; Kershnar 2011), but some of which put greater emphasis on torture as a violation of autonomy (Sussman 2005; Miller 2005). Useful collections of essays on this and related topics are Levinson 2004, Greenberg et al. 2005, Roth & Worden 2005, Rodin 2007, Allhoff 2008, Clucas et al. 2009, Luban 2014 and Shue 2016.

The contemporary debate concerning the moral justifiability of torture in extreme emergencies principally concerns the torture of terrorists and is dominated by two groups. There are those who argue in the affirmative and point to so-called ticking bomb scenarios to support their case. These theorists often adhere to some form of consequentialism, such as utilitarianism. They include Allhoff (2003, 2012), and Bagaric and Clarke (2007), albeit the classic utilitarian justification remains that of Bentham (1804). (See also Twining & Twining 1973.) Then there are those who argue in the negative and stress not only the inherent immorality of torture but also contest that it ever has good effects in practice (Davis 2005; Brecher 2008; Matthews 2008). For instance, they typically claim that torture does not work, since those who are tortured tell their torturers whatever they want to hear.

The classic denunciation of the legalisation of torture is that of Cesare Beccaria 1764. In the contemporary debate concerning the legalisation of torture many theorists of a liberal persuasion have stressed the incompatibility of torture with the values underpinning liberal institutions (Luban 2005; Waldron 2005, 2010; Shue 2016). Moreover, in this contemporary debate, the protagonists have tended to assume that if torture is morally justified in some extreme emergencies then it ought to be legalised. Thus Alan Dershowitz claims that torture is morally justified in some extreme emergencies and, in the light of this claim, argues for torture warrants in these cases (2003, Chapter 4). [ 2 ] See also Steinhoff 2006 and 2013. However, some theorists have argued that although torture can in some extreme emergencies be morally justified, nevertheless, torture ought never to be legalised or otherwise institutionalised. This position was originally advanced by Machan (1990) before being argued in more detail by Miller (2005) and (2009), and later by McMahan (2008).

Before proceeding to the question, or questions, of the moral justifiability of torture in extreme emergencies we need some understanding of what torture is. We also need some account of what is inherently morally wrong with torture.

1. Definition of Torture

2. what is inherently wrong with torture, 3.1 case study – the beating, 3.2 case study – the terrorist and the ticking bomb, 4. the moral justification for legalised and institutionalised torture, other internet resources, related entries.

Torture includes such practices as searing with hot irons, burning at the stake, electric shock treatment to the genitals, cutting out parts of the body, e.g., tongue, entrails or genitals, severe beatings, suspending by the legs with arms tied behind back, applying thumbscrews, inserting a needle under the fingernails, drilling through an unanesthetized tooth, making a person crouch for hours in the ‘Z’ position, waterboarding (submersion in water or dousing to produce the sensation of drowning), and denying food, water or sleep for days or weeks on end. [ 3 ]

All of these practices presuppose that the torturer has control over the victim’s body, e.g., the victim is strapped to a chair.

Most of these practices, but not all of them, involve the infliction of extreme physical pain. For example, sleep deprivation does not necessarily involve the infliction of extreme physical pain . However, all of these practices involve the infliction of extreme physical suffering , e.g., exhaustion in the case of sleep deprivation. Indeed, all of them involve the intentional infliction of extreme physical suffering on some non-consenting and defenceless person. If A accidentally sears B with hot irons A has not tortured B ; intention is a necessary condition for torture. Further, if A intentionally sears B with hot irons and B consented to this action, then B has not been tortured. Indeed, even if B did not consent, but B could have physically prevented A from searing him then B has not been tortured. That is, in order for it to be an instance of torture, B has to be defenceless. [ 4 ]

Is the intentional infliction of extreme mental suffering on a non-consenting, defenceless person necessarily torture? Michael Davis thinks not (2005: 163). Assume that B ’s friend, A , is being tortured, e.g., A is undergoing electric shock treatment, but that B himself is untouched – albeit B is imprisoned in the room adjoining the torture chamber. (Alternatively, assume that B is in a hotel room in another country and live sounds and images of the torture are intentionally transmitted to him in his room by the torturer in such a way that he cannot avoid seeing and hearing them other than by leaving the room after having already seen and heard them.) However, A is being tortured for the purpose of causing B to disclose certain information to the torturer. B is certainly undergoing extreme mental suffering. Nevertheless, B is surely not himself being tortured. To see this, reflect on the following revised version of the scenario. Assume that A is not in fact being tortured; rather the ‘torturer’ is only pretending to torture A . However, B believes that A is being tortured; so B ’s mental suffering is as in the original scenario. In this revised version of the scenario the ‘torturer’ is not torturing A . In that case surely he is not torturing B either. [ 5 ]

On the other hand, it might be argued that some instances of the intentional infliction of extreme mental suffering on non-consenting, defenceless persons are cases of torture, albeit some instances (such as the above one) are not. Consider, for example, a mock execution or a situation in which a victim with an extreme rat phobia lies naked on the ground with his arms and legs tied to stakes while dozens of rats are placed all over his body and face. The difference between the mock execution and the phobia scenario on the one hand, and the above case of the person being made to believe that his friend is being tortured on the other hand, is that in the latter case the mental suffering is at one remove; it is suffering caused by someone else’s (believed) suffering. However, such suffering at one remove is in general less palpable, and more able to be resisted and subjected to rational control; after all, it is not my body that is being electrocuted, my life that is being threatened, or my uncontrollable extreme fear of rats that is being experienced. An exception to this general rule might be cases involving the torture of persons with whom the sufferer at one remove has an extremely close relationship and a very strong felt duty of care, e.g. a child and its parent. At any rate, if as appears to be the case, there are some cases of mental torture then the above definition will need to be extended, albeit in a manner that does not admit all cases of the infliction of extreme mental suffering as being instances of torture.

In various national and international laws, e.g., Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (United Nations 1984 – see Other Internet Resources), a distinction is made between torture and inhumane treatment, albeit torture is a species of inhumane treatment. Such a distinction needs to be made. For one thing, some treatment, e.g., flogging, might be inhumane without being sufficiently extreme to count as torture. For another thing, some inhumane treatment does not involve physical suffering to any great extent, and is therefore not torture, properly speaking (albeit, the treatment in question may be as morally bad as, or even morally worse than, torture). Some forms of the infliction of mental suffering are a case in point, as are some forms of morally degrading treatment, e.g., causing a prisoner to pretend to have sex with an animal.

So torture is the intentional infliction of extreme physical suffering on some non-consenting, defenceless person. Is this an adequate definition of torture? Perhaps not, albeit some theorists, such as Kamm (2011), adhere to this kind of conception. Consider the following imaginary counter-example. A woman who is being raped but who is, nevertheless, still in control of the movement of her jaws sinks her teeth into the face of her attacker causing him excruciating pain against which he is defenceless, until finally he desists. Surely the woman is not torturing her attacker but rather defending herself by inflicting excruciating pain on her attacker. Evidently what is missing in the account thus far is the relationship between torture and autonomy: torture substantially curtails autonomy

So torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person, and; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)). Is this now an adequate definition of torture? Perhaps not.

Here we need to consider the purpose or point of torture.

The above-mentioned U.N. Convention identifies four reasons for torture, namely: (1) to obtain a confession; (2) to obtain information; (3) to punish; (4) to coerce the sufferer or others to act in certain ways. Certainly, these are all possible purposes of torture, as is torture performed for sadistic pleasure. [ 6 ]

It seems that in general torture is undertaken for the purpose of breaking the victim’s will. [ 7 ] If true, this distinguishes torture for the sake of breaking the victim’s will from the other four purposes mentioned above. For with respect to each one of these four purposes, it is not the case that in general torture is undertaken for that purpose, e.g., in most contemporary societies torture is not generally undertaken for the purpose of punishing the victim.

One consideration in favour of the proposition that breaking the victim’s will is a purpose central to the practice of torture is that achieving the purpose of breaking the victim’s will is very often a necessary condition for the achievement of the other four identified purposes (and, indeed, for the achievement of sadistic pleasure). In the case of interrogatory torture of an enemy spy, for example, in order to obtain the desired information the torturer must first break the will of the victim. And when torture – as opposed to, for example, flogging as a form of corporal punishment – is used as a form of punishment it typically has as a proximate, and in part constitutive, purpose to break the victim’s will. Hence torture as punishment does not consist – as do other forms of punishment – of a determinate set of specific, pre-determined and publicly known acts administered over a definite and limited time period.

A second consideration is as follows. We have seen that torture involves substantially curtailing the victim’s autonomy. However, to substantially curtail someone’s autonomy is not necessarily to break their will. Consider the torture victim who holds out and refuses to confess or provide the information sought by the torturer. Nevertheless, a proximate logical endpoint of the process of curtailing the exercise of a person’s autonomy is the breaking of their will, at least for a time and in relation to certain matters.

These two considerations taken together render it plausible that in general torture has as a purpose to break the victim’s will.

So perhaps the following definition is adequate. Torture is: (a) the intentional infliction of extreme physical suffering on some non-consenting, defenceless person; (b) the intentional, substantial curtailment of the exercise of the person’s autonomy (achieved by means of (a)); (c) in general , undertaken for the purpose of breaking the victim’s will.

Note that breaking a person’s will is short of entirely destroying or subsuming their autonomy. Sussman implausibly holds the latter to be definitive of torture: “The victim of torture finds within herself a surrogate of the torturer, a surrogate who does not merely advance a particular demand for information, denunciation or confession. Rather, the victim’s whole perspective is given over to that surrogate, to the extent that the only thing that matters to her is pleasing this other person who appears infinitely distant, important, inscrutable, powerful and free. The will of the torturer is thus cast as something like the source of all value in his victim’s world” (Sussman 2005: 26). (See also Bernstein 2015.) Such self-abnegation might be the purpose of some forms of torture, as indeed it is of some forms of slavery and brainwashing, but it is certainly not definitive of torture.

Consider victims of torture who are able to resist so that their wills are not broken. An example from the history of Australian policing is that of the notorious criminal and hard-man, James Finch: “He [Finch] was handcuffed to a chair and we knocked the shit out of him. Siddy Atkinson was pretty fit then and gave him a terrible hiding….no matter what we did to Finch, the bastard wouldn’t talk” (Stannard 1988: 40). Again, consider the famous case of Steve Biko who it seems was prepared to die rather than allow his torturers to break his will (Arnold 1984: 281–2). [ 8 ]

Here breaking a person’s will can be understood in a minimalist or a maximalist sense. This is not to say that the boundaries between these two senses can be sharply drawn.

Understood in its minimal sense, breaking a person’s will is causing that person to abandon autonomous decision-making in relation to some narrowly circumscribed area of life and for a limited period. [ 9 ] Consider, for example, a thief deciding to disclose or not disclose to the police torturing him where he has hidden the goods he has stolen (a torturing practice frequently used by police in India). [ 10 ] Suppose further that he knows that he can only be legally held in custody for a twenty-four hour period, and that the police are not able to infringe this particular law. By torturing the thief the police might break his will and, against his will, cause him to disclose the whereabouts of the stolen goods.

Understood in its maximal sense, breaking a person’s will involves reaching the endpoint of the kind of process Sussman describes above, i.e., the point at which the victim’s will is subsumed by the will of the torturer. Winston Smith in George Orwell’s 1984 is, as Sussman notes, an instance of the latter extreme endpoint of some processes of torture. Smith ends up willingly betraying what is dearest and most important to him, i.e., his loved one Julia.

Moreover, there are numerous examples of long term damage to individual autonomy and identity caused by torture, to some extent irrespective of whether the victim’s will was broken. For example, some victims of prolonged torture in prisons in authoritarian states are so psychologically damaged that even when released they are unable to function as normal adult persons, i.e. as rational choosers pursuing their projects in a variety of standard interpersonal contexts such as work and family.

Given the above definition of torture (elaborated in Miller 2005 and 2009), we can distinguish torture from the following practices.

Firstly, we need to distinguish torture from coercion. In the case of coercion, people are coerced into doing what they don’t want to do. This is consistent with their retaining control over their actions and making a rational decision to, say, hand over their wallet when told to do so by a robber who threatens to shoot them dead (albeit painlessly) if they don’t do so. As this example shows, coercion does not necessarily involve the infliction of physical suffering (or threat thereof). So coercion does not necessarily involve torture. Nor does coercion, which does involve the infliction of physical suffering as a means, necessarily constitute torture. Consider, for example, a South African police officer in the days of apartheid who used a cattle prodder which delivers an electric shock on contact as a means of controlling an unruly crowd of South African blacks. Presumably, this is not torture because the members of the crowd are not under the police officer’s control; specifically, they are not defenceless in the face of the cattle prodder. On the other hand, if – as also evidently took place in apartheid South Africa – a person was tied to a chair and thereby rendered defenceless, and then subjected to repeated electric shocks from a cattle prodder this would constitute torture.

Does torture necessarily involve coercion? No doubt the threat of torture, and torture in its preliminary stages, simply functions as a form of coercion in this sense. However, torture proper has as its starting point the failure of coercion, or that coercion is not even going to be attempted. As we have seen, torture proper targets autonomy itself, and seeks to overwhelm the capacity of the victims to exercise rational control over their decisions – at least in relation to certain matters for a limited period of time – by literally terrorising them into submission. Hence there is a close affinity between terrorism and torture. Indeed, arguably torture is a terrorist tactic. However, it is one that can be used by groups other than terrorists, e.g., it can be used against enemy combatants by armies fighting conventional wars and deploying conventional military strategies. In relation to the claim that torture is not coercion, it might be responded that at least some forms or instances of torture involve coercion, namely those in which the torturer is seeking something from the victim, e.g., information, and in which some degree of rational control to comply or not with the torturer’s wishes is retained by the victim. This response is plausible. However, even if the response is accepted, there will remain instances of torture in which these above-mentioned conditions do not obtain; presumably, these will not be instances of coercion.

Secondly, torture needs to be distinguished from excruciatingly painful medical procedures. Consider the case of a rock-climber who amputates a fellow climber’s arm, which got caught in a crevice in an isolated and inhospitable mountain area. These kinds of case differ from torture in a number of respects. For example, such medical procedures are consensual and not undertaken to break some persons’ will, but rather to promote their physical wellbeing or even to save their life.

Thirdly, there is corporal punishment. Corporal punishment is, or ought to be, administered only to persons who have committed some legal and/or moral offence for the purpose of punishing them. By contrast, torture is not – as is corporal punishment – limited by normative definition to the guilty; and in general torture, but not corporal punishment, has as its purpose the breaking of a person’s will. Moreover, unlike torture, corporal punishment will normally consist of a determinate set of specific, pre-determined and publicly known acts administered during a definite and limited time period, e.g., ten lashes of the cat-o-nine-tails for theft.

Fourthly, there are ordeals involving the infliction of severe pain. Consider Gordon Liddy who reportedly held his hand over a burning candle till his flesh burnt in order to test his will. Ordeals have as their primary purpose to test a person’s will, but are not undertaken to break a person’s will. Moreover, ordeals – as the Liddy example illustrates – can be voluntary, unlike torture.

Having provided ourselves with an analytic account of torture and distinguished torture from some closely related practices, we need to turn now to the question, What is Wrong with Torture?

In terms of the above definition of torture there are at least two things that are inherently morally wrong with torture. Firstly, torture consists in part in the intentional infliction of severe physical suffering – typically, severe pain; that is, torture hurts very badly. For this reason alone, torture is an evil thing.

Secondly, torture of human beings consists in part in the intentional, substantial curtailment of individual autonomy. Given the moral importance of autonomy, torture is an evil thing – even considered independently of the physical suffering it involves. (And if torture involves the breaking of someone’s will, especially in the maximalist sense, then it is an even greater evil than otherwise would be the case.)

Given that torture involves both the infliction of extreme physical suffering and the substantial curtailment of the victim’s autonomy, torture is a very great evil indeed. Nevertheless, there is some dispute about how great an evil torture is relative to other great evils, specifically killing and murder.

Many have suggested that torture is a greater evil than killing or even murder. For example, Michael Davis claims, “Both torture and (premature) death are very great evils but, if one is a greater evil than the other, it is certainly torture” (2005: 165), and David Sussman says, “Yet while there is a very strong moral presumption against both killing and torturing a human being, it seems that we take the presumption against torture to be even greater than that against homicide” (2005: 15).

Certainly, torturing an innocent person to death is worse than murder, for it involves torture in addition to murder. On the other hand, torture does not necessarily involve killing, let alone murder, and indeed torturers do not necessarily have the power of life and death over their victims. Consider police officers whose superiors turn a blind eye to their illegal use of torture, but who do not, and could not, cover-up the murder of those tortured; the infliction of pain in police cells can be kept secret, but not the existence of dead bodies.

On the moral wrongness of torture as compared to killing, the following points can be made.

First, torture is similar to killing in that both interrupt and render impossible the normal conduct of human life, albeit the latter – but not the former – necessarily forever. But equally during the period a person is being tortured (and in some cases thereafter) the person’s world is almost entirely taken up by extreme pain and their asymmetrical power relationship to the torturer, i.e. the torture victim’s powerlessness. Indeed, given the extreme suffering being experienced and the consequent loss of autonomy, the victim would presumably rather be dead than alive during that period. So, as already noted, torture is a very great evil. However, it does not follow from this that being killed is preferable to being tortured. Nor does it follow that torturing someone is morally worse than killing him.

It does not follow that being killed is preferable to being tortured because the duration of the torture might be brief, one’s will might not ultimately be broken, and one might go on to live a long and happy life; by contrast, being killed – theological considerations aside – is always ‘followed by’ no life whatsoever. For the same reason it does not follow that torturing a person is morally worse than killing that person. If the harm brought about by an act of torture is a lesser evil than the harm done by an act of killing then, other things being equal, the latter is morally worse than the former.

A second point pertains to the powerlessness of the victims of torture. Dead people necessarily have no autonomy or power; so killing people is an infringement of their right to autonomy as well as their right to life. [ 11 ] What of the victims of torture?

The person being tortured is for the duration of the torturing process physically powerless in relation to the torturer. By “physically powerless” two things are meant: the victim is defenceless, i.e., the victim cannot prevent the torturer from torturing the victim, and the victim is unable to attack, and therefore physically harm, the torturer. Nevertheless, it does not follow from this that the victim is entirely powerless vis-à-vis the torturer. For the victim might be able to strongly influence the torturer’s actions, either by virtue of having at this time the power to harm people other than the torturer, or by virtue of having at some future time the power to defend him/herself against the torturer, and/or attack the torturer. Consider the clichéd example of the terrorist who is refusing to disclose to the torturer the whereabouts of a bomb with a timing device which is about to explode in a crowded market-place. Perhaps the terrorist could negotiate the cessation of torture and immunity for himself, if he talks. Consider also a situation in which both a hostage and his torturer know that it is only a matter of an hour before the police arrive, free the hostage and arrest the torturer; perhaps the hostage is a defence official who is refusing to disclose the whereabouts of important military documents and who is strengthened in his resolve by this knowledge of the limited duration of the pain being inflicted upon him.

The conclusion to be drawn from these considerations is that torture is not necessarily morally worse than killing (or more undesirable than death), though in many instances it may well be. Killing is an infringement of the right to life and the right to autonomy. Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim’s autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time, and torture can in principle extend for the duration of the remainder of a person’s life. Further, according to our adopted definition, torture is an intentional or purposive attack on a person’s autonomy; this is not necessarily the case with killing. [ 12 ] Finally, torture can in principle involve the effective destruction of a person’s autonomy.

Let us now turn directly to the question of the moral justification for torture in extreme emergencies. Here we must distinguish between one-off cases of torture, on the one hand, and legalised or institutionalised torture, on the other.

3. The Moral Justification for One-off Acts of Torture in Emergencies

In this section one-off, non-institutionalised acts of torture performed by state actors in emergency situations are considered. The argument is that there are, or could well be, one-off acts of torture in extreme emergencies that are, all things considered, morally justifiable. Accordingly, the assumption is that the routine use of torture is not morally justified; so if it turned out that the routine use of torture was necessary to, say, win the war on terrorism, then some of what is said here would not be to the point. However, liberal democratic governments and security agencies have not even begun to exhaust the political strategies, and the military/police tactics short of the routine use of torture, available to them to combat terrorism.

The most obvious version of the argument in favour of one-off acts of torture in extreme emergencies is consequentialist in form. For example, Bagaric and Clarke (2007: 29) offer a version of the ticking bomb scenario in the context of their hedonistic act utilitarian theoretical perspective. A standard objection to this kind of appeal to consequentialism is that it licenses far too much: torture of a few innocent victims may well be justified, on this account, if it provides intense pleasure for a much larger number of sadists. As it happens, Bagaric and Clarke insist that they want to restrict the practice of torture; only the guilty are to be subjected to torture and only for the purpose of extracting information. However it is far from clear how this desired restriction can be reconciled with consequentialism in any of its various permutations, let alone the relatively permissive version favoured by Bagaric and Clarke. Why, for example, should torture be restricted to the guilty, if torturing a small number of innocent persons would enable the lives of many other innocents to be saved (as presumably it might). Again, why should under-resourced Indian police not torture – as they often do in reality – a repeat offender responsible for a very large number of property crimes, if this proves to be the only available efficient and effective form of retrieving the stolen property in question and, thereby, securing the conviction of this offender, reducing property crime and making a large number of property owners happy? The essential problem confronted by consequentialists participating in the torture debate is that their theoretically admissible moral barriers to torture are relatively flimsy; too flimsy, it seems, to accommodate the strong moral intuitions in play.

Faced with the slippery slope, as they see it, of one-off acts of torture in extreme emergencies transmogrifying into institutionalised torture, and/or simply appalled by the inherent evil of the practice of torture, many theorists – Arrigo (2004), Davis (2005), Luban (2005), Juratowitch (2008), Mayerfield (2008), Brecher (2008), Matthews (2008), and Shue (2016) – have opted for the opposite extreme and argued that torture can never be morally justified. Most of these theorists avoid the problems besetting consequentialists such as Bagaric and Clarke, and they are on strong ground when providing counter-arguments to consequentialist perspectives and/or views that seek to justify torturing the innocent. (But see Arrigo 2004.) However, their moral absolutism is not without its own problems: specifically, in relation to torturing the guilty few for the purpose of saving the innocent many. (See Walzer 1973, Miller 2005; Kershnar 2006 and Steinhoff 2013.)

Before turning in detail to the arguments on this issue, let us consider some putative examples of the justified use of torture. The first is a policing example, the second a terrorist example. Arguably, both examples are realistic, albeit the terrorist ticking bomb scenario is often claimed by moral absolutists to be utterly fanciful. Certainly, the policing example is realistic; indeed, it was provided by a former police officer from his own experience. Moreover, it is widely reported in the media that Al Qaeda, for example, has in the past sought to acquire a nuclear device to detonate in a western city and the 9/11 attacks and bombings in Bali, London, Madrid and Mumbai should leave no doubt whatsoever that Al Qaeda would use such a device if they could get their hands on one. So is it entirely fanciful that there could be such an attack and that an Al Qaeda operative known (on the basis of intercepted communications) to be a member of the cell involved in the planned attack might not be arrested, interrogated and tortured(?) prior to the detonation? At any rate, these are the two most popular kinds of example discussed in the literature. These cases include the real-life Daschner case involving the threat to torture a kidnapper by German police in 2002 which resulted in the kidnapper disclosing the location of a kidnapped child (Miller 2005).

Height of the antipodean summer, Mercury at the century-mark; the noonday sun softened the bitumen beneath the tyres of her little Hyundai sedan to the consistency of putty. Her three year old son, quiet at last, snuffled in his sleep on the back seat. He had a summer cold and wailed like a banshee in the supermarket, forcing her to cut short her shopping. Her car needed petrol. Her tot was asleep on the back seat. She poured twenty litres into the tank; thumbing notes from her purse, harried and distracted, her keys dangled from the ignition.

Whilst she was in the service station a man drove off in her car. Police wound back the service station’s closed-circuit TV camera, saw what appeared to be a heavy set Pacific Islander with a blonde-streaked Afro entering her car. “Don’t panic”, a police constable advised the mother, “as soon as he sees your little boy in the back he will abandon the car.” He did; police arrived at the railway station before the car thief did and arrested him after a struggle when he vaulted over the station barrier.

In the police truck on the way to the police station: “Where did you leave the Hyundai?” Denial instead of dissimulation: “It wasn’t me.” It was – property stolen from the car was found in his pockets. In the detectives’ office: “It’s been twenty minutes since you took the car – little tin box like that car – It will heat up like an oven under this sun. Another twenty minutes and the child’s dead or brain damaged. Where did you dump the car?” Again: “It wasn’t me.”

Appeals to decency, to reason, to self-interest: “It’s not too late; tell us where you left the car and you will only be charged with Take-and-Use. That’s just a six month extension of your recognizance.” Threats: “If the child dies I will charge you with Manslaughter!” Sneering, defiant and belligerent; he made no secret of his contempt for the police. Part-way through his umpteenth, “It wasn’t me”, a questioner clipped him across the ear as if he were a child, an insult calculated to bring the Islander to his feet to fight, there a body-punch elicited a roar of pain, but he fought back until he lapsed into semi-consciousness under a rain of blows. He quite enjoyed handing out a bit of biffo, but now, kneeling on hands and knees in his own urine, in pain he had never known, he finally realised the beating would go on until he told the police where he had abandoned the child and the car.

The police officers’ statements in the prosecution brief made no mention of the beating; the location of the stolen vehicle and the infant inside it was portrayed as having been volunteered by the defendant. The defendant’s counsel availed himself of this falsehood in his plea in mitigation. When found, the stolen child was dehydrated, too weak to cry; there were ice packs and dehydration in the casualty ward but no long-time prognosis on brain damage.

(Case Study provided by John Blackler, a former New South Wales police officer.)

In this case study torture of the car thief can be provided with a substantial moral justification, even if it does not convince everyone. Consider the following points: (1) The police reasonably believe that torturing the car thief will probably save an innocent life; (2) the police know that there is no other way to save the life; (3) the threat to life is more or less imminent; (4) the baby is innocent; (5) the car thief is known not to be an innocent – his action is known to have caused the threat to the baby, and he is refusing to allow the baby’s life to be saved.

The classic, indeed cliché, example used to justify torture is that of the so-called ‘ticking bomb’. [ 13 ] (See Bufacchi & Arrigo 2006, Kleinig 2006, Hill 2007, Kaufman 2008, Segev 2008, Wisnewski 2009 and Steinhoff 2013.) Consider the following case.

Consider the following case study:

A terrorist group has planted a small nuclear device with a timing mechanism in London and it is about to go off. If it does it will kill thousands and make a large part of the city uninhabitable for decades. One of the terrorists has been captured by the police, and if he can be made to disclose the location of the device then the police can probably disarm it and thereby save the lives of thousands. The police know the terrorist in question. They know he has orchestrated terrorist attacks, albeit non-nuclear ones, in the past. Moreover, on the basis of intercepted mobile phone calls and e-mails the police know that this attack is under way in some location in London and that he is the leader of the group. Unfortunately, the terrorist is refusing to talk and time is slipping away. However, the police know that there is a reasonable chance that he will talk, if tortured. Moreover, all their other sources of information have dried up. Furthermore, there is no other way to avoid catastrophe; evacuation of the city, for example, cannot be undertaken in the limited time available. Torture is not normally used by the police, and indeed it is unlawful to use it.

In this case study there is also a substantial moral justification for torture, albeit one that many moral absolutists do not find compelling. Consider the following points: (1) The police reasonably believe that torturing the terrorist will probably save thousands of innocent lives; (2) the police know that there is no other way to save those lives; (3) the threat to life is more or less imminent; (4) the thousands about to be murdered are innocent – the terrorist has no good, let alone decisive, justificatory moral reason for murdering them; (5) the terrorist is known to be (jointly with the other terrorists) morally responsible for planning, transporting, and arming the nuclear device and, if it explodes, he will be (jointly with the other terrorists) morally responsible for the murder of thousands.

In addition to the above set of moral considerations, consider the following points. The terrorist is culpable on two counts. Firstly, the terrorist is forcing the police to choose between two evils, namely, torturing the terrorist or allowing thousands of lives to be lost. Were the terrorist to do what he ought to do, namely, disclose the location of the ticking bomb, the police could refrain from torturing him. This would be true of the terrorist, even if he were not actively participating in the bombing project. Secondly, the terrorist is in the process of completing his (jointly undertaken) action of murdering thousands of innocent people. He has already undertaken his individual actions of, say, transporting and arming the nuclear device; he has performed these individual actions (in the context of other individual actions performed by the other members of the terrorist cell) in order to realise the end (shared by the other members of the cell) of murdering thousands of Londoners. In refusing to disclose the location of the device the terrorist is preventing the police from preventing him from completing his (joint) action of murdering thousands of innocent people. [ 14 ] To this extent the terrorist is in a different situation from a bystander who happens to know where the bomb is planted but will not reveal its whereabouts, and in a different situation from someone who might have inadvertently put life at risk (Miller (2005); Hill (2007)).

In the institutional environment described, torture is both unlawful and highly unusual. Accordingly the police, if it is discovered that they have tortured the terrorist, would be tried for a serious crime and, if found guilty, sentenced. We will return to this issue in the following section. Here simply note that the bare illegality of their act of torture does not render it morally impermissible, given it was otherwise morally permissible. Here it is the bare fact that it is illegal that is in question. So the relevant moral considerations comprise whatever moral weight attaches to compliance with the law just for the sake of compliance with the law, as distinct from compliance for the sake of the public benefits the law brings or compliance because of the moral weight that attaches to the moral principle that a particular law might embody. But even if it is held that compliance with the law for its own sake has some moral weight – and arguably it has none – it does not have sufficient moral weight to make a decisive difference in this kind of scenario. In short, if torturing the terrorist is morally permissible absent questions of legality, the bare fact of torture being illegal does not render it morally impermissible.

Note also that since the terrorist is, when being tortured, still in the process of attempting to complete his (joint) action of murdering thousands of Londoners, and murdering also the police about to torture him, the post factum legal defence of necessity may well be available to the police should they subsequently be tried for torture. [ 15 ]

Some commentators on scenarios of this kind are reluctant to concede that the police are morally entitled – let alone morally obliged – to torture the offender. How do these commentators justify their position?

Someone might claim that torture is an absolute moral wrong (Matthews 2008; Brecher 2008). (For criticisms of these authors see especially Steinhoff 2013 and Allhoff 2012.) On this view there simply are no real or imaginable circumstances in which torture could be morally justified.

This is a hard view to sustain, not least because we have already seen that being tortured is not necessarily worse than being killed, and torturing someone not necessarily morally worse than killing him. Naturally, someone might hold that killing is an absolute moral wrong, i.e., killing anyone – no matter how guilty – is never morally justified. This view is consistent with holding that torture is an absolute moral wrong, i.e. torturing anyone – no matter how guilty – is never morally justified. However, the price of consistency is very high. The view that killing is an absolute moral wrong is a very implausible one. It would rule out, for example, killing in self-defence. Let us, therefore, set it aside and continue with the view that torture, but not killing, is an absolute moral wrong.

For those who hold that killing is not an absolute moral wrong, it is very difficult to see how torture could be an absolute moral wrong, given that killing is sometimes morally worse than torture. In particular, it is difficult to see how torturing (but not killing) the guilty terrorist and saving the lives of thousands could be morally worse than refraining from torturing him and allowing him to murder thousands – torturing the terrorist is a temporary infringement of his autonomy, whereas his detonating of the nuclear device is a permanent violation of the autonomy of thousands.

In conclusion, the view that it is, all things considered, morally wrong to torture the terrorist in the scenario outlined faces very serious objections; and it is difficult to see how these objections can be met. It is plausible, therefore, that there are some imaginable circumstances in which it is morally permissible to torture someone.

Let us now turn to the other argument of those opposing the moral permissibility of torture mentioned above. This is not the argument that torture is an absolute moral wrong but rather that, as Michael Davis puts it, “For all practical purposes – and so, for moral agents like us – torture is absolutely morally wrong” (2005: 170). The basic idea is that while torture is not an absolute moral wrong in the sense that the evil involved in performing any act of torture is so great as to override any other conceivable set of moral considerations, nevertheless, there are no moral considerations that in the real world have overridden, or ever will override, the moral injunction against torture; the principle of refraining from torture has always trumped, and will always trump, other moral imperatives. Proponents of this view can happily accept that the offenders in putative examples should be tortured, while simultaneously claiming that the scenarios in these examples are entirely fanciful ones that have never been, and will never be, realised in the real world.

It is important to stress here that the kind of scenario under discussion remains that of the one-off case of torture in an emergency situation; what is not under consideration in this section is legalised, or otherwise institutionalised, torture.

The central claim of the proponents of “practical moral absolutes” seems to be an empirical one; ticking bomb scenarios, such as our above-described terrorist case – and other relevant one-off emergencies such as our above-described police beating case in which torture seems to be justified – have not, and will not, happen.

The first point to be made is simply to reiterate that some of these scenarios – such as police officers beating up kidnappers and other offenders to rescue children – are not only realistic, they are real; they have actually happened. What of the ticking bomb scenario in particular? As stated above, it is by no means self-evident that this kind of scenario is entirely fanciful. Here it can be conceded that there is no guarantee that torture would succeed in saving the lives of (to revert to our specific ticking bomb scenario) thousands of Londoners. This is because the person tortured might not talk or he might talk too late or he might provide false or misleading information. However, it should be noted that the police know that the offender has committed the offence and is in a position to provide the needed information, i.e. the police know that the offender is guilty. Moreover, the information being sought is checkable; if the terrorist gives the correct location of the bomb then the police will find it – if he does not, then they will not find it. Further, the police have no alternative methods by which to avoid the death of the innocent. Given what is at stake and given the fact that the police know the offenders are guilty, the police are, it seems, justified in the use of torture, notwithstanding a degree of uncertainty in relation to the likelihood of success. (See Thiessen (2010) for arguments that so-called enhanced interrogation techniques do in fact work.)

The second point is that, practicalities notwithstanding, the proponents of “practical moral absolutes” still need to offer a principled account of the moral limits to torture – an account of torture, so to speak, in the abstract. And these accounts could differ from one advocate of practical moral absolutes to another. For example, one advocate might accept that it would be morally permissible to torture the terrorist to save the lives of ten innocent people threatened by a non-nuclear explosive device, whereas another advocate might reject this on the grounds that ten lives are too few. What the two advocates would have in common is the belief that even the revised ticking-bomb scenario involving only the death of ten innocent people is, nevertheless, a fanciful scenario that has not occurred, and will not ever occur. In short, different advocates of practical absolutism can ascribe different moral weight to different moral considerations, and we need to know what these weightings are for any given advocate. For otherwise it is extremely difficult to assess the validity or plausibility of the associated general empirical claim that in practice no act of torture has ever been, nor ever will be, morally justified. Roughly speaking, the greater the moral weight that is given by the practical moral absolutist to refraining from torture – this moral weight considered both in itself and relative to other moral considerations – the more plausible the associated general empirical claim becomes. On the other hand, the greater the moral weight that is given to the principle of refraining from torture, the less plausible the narrowly moral claims of the practical absolutist become – indeed, at the limit the practical absolutist becomes a moral absolutist tout court .

At any rate, the general point to be made here is that the practical moral absolutist owes us a principled account of the moral weight to be attached to refraining from torture relative to other moral considerations. For without it we are unable to adequately assess whether or not putative counter-examples to this position are really counter-examples or not. It is not good enough for the practical moral absolutist just to give the thumbs down to any putative counter-example that is offered.

The third general point against the practical moral absolutist is to reiterate that it has already been argued that torture is not the morally worst act that anyone could, or indeed has or will, perform. If this is correct, then it is plausible that there will be at least some scenarios in which one will be forced to choose between two evils, the lesser one of which is torture. Indeed, the above-described police beating scenario (certainly) and the ticking bomb scenario (possibly) are cases in point.

We have seen that there are likely to exist, in the real world, one-off emergency situations in which arguably torture is, all things considered, the morally best action to perform. It may seem to follow that institutional arrangements should be in place to facilitate torture in such situations. However, it is perfectly consistent to concede that torture might be morally justifiable in certain one-off emergency situations and yet oppose any legalization or institutionalization of torture.

Luban (2005) and (2014), and Waldron (2005), in particular, have drawn attention to the moral inconsistency and inherent danger in liberal democratic states legalising and institutionalising torture, a practice that strikes at the very heart of the fundamental liberal value of individual autonomy. They have also detailed the tendency for a torture culture to develop in organisations in which torture is legalised or tolerated, a culture in which the excesses of torturing the innocent and the like take place, as in the US army detention centres in Abu Ghraib in Iraq and Guantanamo Bay in Cuba, and in the Israeli secret service (General Security Service). Nevertheless, it is useful to sketch a general argument against the legalisation and institutionalisation of torture. The argument is consistent with, indeed at some points it is more or less the same as, the arguments of Luban and Waldron. However, the argument has some novel elements, not the least of which is the claim that the view that torture is morally justified in some extreme emergencies is compatible with the view that torture ought not to be legalised and institutionalised.

Most of the theorists who oppose the legalisation and institutionalisation of torture also (at least implicitly) reject the possibility, let alone actuality, of one-off emergencies in which torture is morally justified. The argument has been put that there are, or could well be, such one-off extreme emergencies in which torture is morally justified. So the first task here is to demonstrate that these two claims are not inconsistent. Specifically, it needs to be shown that it does not follow from the fact that torture is in some extreme emergencies morally justified, that torture ought to be legalised, or otherwise institutionalised. So the claim is that it is just a mistake to assume that what morality requires or permits in a given situation must be identical with what the law requires or permits in that situation. This calls for some explanation.

The law in particular, and social institutions more generally, are blunt instruments. They are designed to deal with recurring situations confronted by numerous institutional actors over relatively long periods of time. Laws abstract away from differences between situations across space and time, and differences between institutional actors across space and time. The law, therefore, consists of a set of generalisations to which the particular situation must be made to fit. Hence, if you exceed the speed limit you are liable for a fine, even though you were only 10 kph above the speed limit, you have a superior car, you are a superior driver, there was no other traffic on the road, the road conditions were perfect, and therefore the chances of you having an accident were actually less than would be the case for most other people most of the time driving at or under the speed limit. [ 16 ]

By contrast with the law, morality is a sharp instrument. Morality can be, and typically ought to be, made to apply to a given situation in all its particularity. (This is, of course, not to say that there are not recurring moral situations in respect of which the same moral judgment should be made, nor is it to say that morality does not need to help itself to generalisations.) Accordingly, what might be, all things considered, the morally best action for an agent to perform in some one-off, i.e. non-recurring, situation might not be an action that should be made lawful. Consider the real-life example of the five sailors on a raft in the middle of the ocean and without food. Four of them decide to eat the fifth – the cabin boy – in order to survive. [ 17 ] This is a case of both murder and cannibalism. Was it morally permissible to kill and eat the boy, given the alternative was the death of all five sailors? Clearly it was not pro tanto morally permissible, especially given the cabin boy was entirely innocent; but perhaps it was morally permissible all things considered. And even if it was not morally permissible all things considered, nevertheless, arguably it was morally excusable, and indeed the sailors, although convicted of murder and cannibalism, had their sentence commuted in recognition of this. But there was no suggestion that the laws against murder and cannibalism admit of an exception in such an extreme case; the sailors were convicted and sentenced for murder and cannibalism. Again, consider an exceptionless law against desertion from the battlefield in time of war. Perhaps a soldier is morally justified in deserting his fellow soldiers, given that he learns of the more morally pressing need for him to care for his wife who has contracted some life-threatening disease back home. However, the law against desertion will not, and should not, be changed to allow desertion in such cases.

Some theorists (Allhoff 2012) have invoked the legal principle of necessity in order to establish that torture in some extreme circumstances is or should be legally permissible (Gaeta 2004; Hunsinger 2008). However, the legal principle of necessity is inherently (and intentionally) vague. It typically applies to situations in which someone has infringed a law, but done so to avert a greater evil which is otherwise unavoidable. Here the notion of greater evil is radically underspecified and, therefore, in need of interpretation by the courts in any given case. Moreover, the application of the principle of legal necessity in cases in which it is state operatives who invoke it, such as in cases of torture by the members of security agencies, is fraught with danger. For the protection of the rights of citizens not to be tortured is likely to be significantly reduced if there is a legal justification for torture available to members of security agencies. Given the inherent vagueness of the notion of lesser evil, there is the potential in their adjudications for judges to favour the members of security agencies at the expense of ordinary citizens.

We will shortly turn to arguments to the effect that while there may well be morally justifiable one-off cases of torturing the guilty, it does not follow that torture should ever be legalised, even in such cases. However, it has been suggested by Steinhoff (2010) and (2013) that torturing the guilty can in many cases be understood as torturing the guilty in self-defence. If so, presumably torturing the guilty could reasonably be legalised on the grounds that torturing in self-defence is analogous to killing in self-defence, and self-defence is an explicit legal justification for killing in most jurisdictions. Steinhoff has also suggested (2006, 2013) that legalisation would not necessarily lead to institutionalisation in the sense of the creation of the institutional role of a torturer, the routinisation and bureaucratisation of the process of torture, and so on.

Torturing the guilty in self-defence is arguably something of a misnomer. Firstly, it is not really self defence per se, but rather the saving of the lives of others. After all, generally the would-be torturer’s life is not at risk, and even if it is at risk in a particular location, as in some terrorist bombing scenarios, then presumably the risk can be averted by the torturer simply abandoning his immobilised victim and fleeing the area. Note that on many accounts self defence is a more readily acceptable moral justification or excuse for killing an attacker than is defending the lives of others (at least, others who are not members of one’s family or close friends). Secondly, torturing in order to save life is inherently unreliable by comparison with killing in self-defence. This is because killing an attacker is directly connected to the desired outcome of removing the threat; indeed, to kill the attacker is to remove the threat. This is not so with torture. Rather torturing is one action and removing the threat (e.g., disarming the ticking bomb) is another act necessarily at some causal remove from the first action. Moreover, the putative (necessarily indirect) causal connections between the two actions may well not obtain. Thirdly, torturing the guilty to save innocent lives does not typically involve an imminent threat, as typically must be the case in instances of lawful self-defence in well-ordered jurisdictions. For the threat posed by (say) a terrorist-bomber is either imminent, as in the case of a suicide-bomber, in which case there is no time to torture anyone; or the threat is not imminent in which case there is time to pursue other options, such as intercepting the communications of other members of the terrorist cell and, thereby, locating the bomb. Again, consider typical kidnapping cases. Either the kidnapper is not in custody in which case he or she cannot be tortured; or the kidnapper is in custody in which case the threat to the kidnapped child from the kidnapper in custody is not imminent (the child is either dead or is alive and no longer under threat from the kidnapper in custody). Naturally, as we saw in the last section, there may well be a very small number of exceptional cases in which the threat is more or less imminent and torture is, nevertheless, a realistic option for removing the threat (and, indeed, the only option). Accordingly, this small number of exceptional cases might be analogous to killing in self-defence. Moreover, in some torturing the guilty scenarios the all things considered morally best option might be to torture the guilty party; indeed the general argument for the latter proposition was outlined in the last section. However, this does not demonstrate that justified torturing of the guilty to save the innocent they threaten is essentially a species of justified self-defence and that, therefore, it ought to be legalised.

It is consistent with the rejection of explicit legalisation of the torturing of the guilty that, as noted above, there be some form of legal redress in the very small number of exceptional cases of torturing the guilty in which the threat to the innocent is imminent (and torture is morally justifiable all things considered). These forms of legal redress for the torturer might include the existence of mitigating circumstances or the application of the legal principle of necessity – since the cases in question involve a genuinely dilemmatic situation in which the least harmful of the available options was chosen and chosen to the advantage of the innocent rather than the guilty.

The upshot of this discussion is that torturing the guilty to save the lives of the innocent is not analogous to killing in self-defence. Specifically, the legalisation of torturing the guilty faces the problem of imminence; unlike killing in self-defence it almost never involves an imminent threat. Accordingly, the legalisation of torturing the guilty is likely to be regarded as extremely problematic, since presumably legalisation is likely to result in institutionalisation. Consider in this connection police killing in defence of the lives of innocent citizens. This involves the creation of the institutional role of police sniper with all its attendant training, development and implementation of procedures (including the requirement that the threat be imminent before shots are fired) and, more generally, bureaucratisation. This is, of course, not to say that (as argued above) certain one-off cases of torturing the guilty might not be both morally justifiable and legally excusable (or otherwise be able to avail themselves of mitigating circumstances).

As already noted and contrary to the above-mentioned presumption, Steinhoff insists that legalization does not in fact necessarily lead to institutionalization. Specifically, he argues that the legalization of killing in self-defence has not led to its institutionalization, and he also claims (as we have seen) that torturing in self-defence is akin to killing in self-defence. As we have seen, the proposition that torturing the guilty to save lives is analogous to killing in self-defence is open to question and there is surely at least a presumption that legalisation will lead to institutionalisation. However, there is a further more specific point to be made here in relation to legalisation and institutionalisation. It is true that individualistic killing in self-defence on the part of private citizens has not led to institutionalization, but this is because it is an individual, non-institutional activity which is subject to stringent institutional accountability mechanisms (at least in well-ordered liberal democratic states). But it is extremely doubtful that an individual citizen is ever going to be in a situation where he has to defend his life by torturing his attacker. What we are talking about in this debate is the killing or torturing by institutional actors, e.g., police, of persons who are attacking third parties (whether by killing, kidnapping etc.); the third parties in question are, typically, members of the community. As noted above, the legalized killing by police of third parties has been institutionalized (police snipers). So evidently killing in self-defence does not constitute a relevant case in which there is legalization but not institutionalization.

Whether or not torture is likely to be institutionalised once legalised, or is even likely to be institutionalised if not actively resisted on an ongoing basis, is partly a matter of the motivational drivers in play. And unfortunately, even in liberal democracies, when the threat to the community is regarded as substantial, institutional actors (such as police and military personnel) have been willing to engage in routinised extra-judicial killing (India, today) and more than willing to engage in routinised torture (use of the third degree by police agencies world-wide). In doing so, they have typically appealed to a self-defence moral justification (‘We had to torture/kill in order to save lives’). Moreover, in the case of the extra-judicial killings they have typically helped themselves to and often been aided by the legal justification of self-defence – ‘the Naxalites (in India) shot at us first and we fired back in self-defence’ (albeit what has also been revealed over time is a culture of ‘shoot first and ask questions later’). Torture is much more prevalent than killing in part because (as Steinhoff argues) torture is rightly regarded as not necessarily as bad as killing (criminals tortured by police are typically able to carry on with their lives, even if in prison) and perhaps also in part because torture is less susceptible to the available accountability measures (you cannot hide corpses, at least in liberal democracies). In short, there is good reason to believe that legalizing torture in contexts in which there is a substantial threat to the community will lead to its institutionalization.

It has been noted on a number of occasions that the law and morality can and do come apart. Moreover, it is plausible that sometimes they ought to come apart. A further point to be elaborated here pertains to the nature of the sub-institution of torture within the larger military, police, and correctional institutions. There is a need to begin with a few preliminary remarks about social institutions. [ 18 ]

Social institutions, including legal institutions and military, police, and correctional organisations, have both a massive collective inertia and a massive collective momentum by virtue of the participation in them of many agents over a long time who: (a) pursue the same goals; (b) occupy the same roles and, therefore, perform the same tasks and follow the same rules and procedures, and; (c) share the same culture. Accordingly, social institutions and their component organisations are like very large ocean liners that cannot slow down, speed up, or change direction very easily. It follows that very careful thought needs to be given to the establishment of any additional structure of roles and associated practices that is to be woven into the fabric of the institution. For such an additional (embodied) role structure, once it becomes, so to speak, an integrated working part of the larger institution, is likely to be extremely difficult to remove; it is now a beneficiary of the inertia of the institution. Moreover such an additional, but now integrated, role structure participates in, and influences the direction of, the institution; it is now a contributing element to the momentum of the institution.

So what can be said of the likely institutional fit between military, police, and correctional institutions on the one hand, and the sub-institution of torture on the other? The role structure of this sub-institution consists of torturers, torturer trainers, medical personnel who assist torturers, and the like. The core practice of torture has been described in an earlier section.

The practice of torture is endemic in many, perhaps most, military, police, and correctional institutions in the world today, including democracies such as India. It is only in recent times and with great difficulty that torture in Australian prisons and police services, for example, has been largely eliminated, or at least very significantly reduced. The Australian, British, American, and like cases are important not only because they illustrate that torture can be endemic to liberal democratic institutions, but also because they demonstrate that liberal democratic institutions are able – given the political will, suitable re-education and training, stringent accountability mechanisms, etc. – to successfully combat a culture of torture.

Let us look at some of the evidence from the past. Consider police organisations in liberal democracies such as the USA. The influential Report on Lawlessness in Law Enforcement from the National Commission on Law Observance and Enforcement, also know as the Wickersham Commission, in 1931 found that the use of the third degree was widespread throughout police organisations in the USA (National Commission on Law Observance and Enforcement 1931, 4). More recently, we have the Rampart Reports documenting extensive police brutality – including extra-judicial killings (Parks 2000, 87–109; Rampart Independent Review Panel 2000, 11–14) – and, in the wake of the Rodney King beating, the report of the “Christopher Commission” into the Los Angeles Police Department which found that a significant number of LAPD officers “repetitively use excessive force against the public and persistently ignore the written guidelines of the Department regarding force” (Independent Commission on the Los Angeles Police Department 1991, 9–12). In India – another liberal democratic state, albeit one at an earlier stage of economic development – police brutality is institutionalised. According to a recent Human Rights Watch Report (Human Rights Watch 2009: 14), “police violence and misconduct are … widespread and rooted in institutional practice”. Arvind Verma, an authority on policing in India, states that “Misuse of force, false-encounter killings (execution by police) and routine use of torture in extorting confessions are common with the police departments” (Verma 2011: 5).

Now consider prisons in liberal democracies. In the USA in the past widespread beatings and torture of prisoners (e.g., use of electrodes on prisoners’ private parts) has been documented in multiple jurisdictions, including Arkansas, Louisiana, Mississippi, Virginia and Florida. See, for example, Murton and Hyams’ classic work, Inside Prison, USA (Murton and Hyams 1969). In Australia there was the Nagle Royal Commission into New South Wales Prisons. Nagle reported systematic bashings in NSW prisons. He said of Grafton Gaol, in particular, that it had a “regime of terror”, “…brutal, savage and sometimes sadistic” (Nagle 1978: 108). He concluded thus: “It is the view of the Commission that every prison officer who served at Grafton during the time it was used as a gaol for intractables must have known of its brutal regime. The majority of them, if not all, would have taken part in the illegal assaults on prisoners” (Nagle 1978: 119).

When it comes to authoritarian regimes matters are, of course, much worse. Let us set aside the infamous Soviet Gulags under Stalin and also Hitler’s concentration camps, and rather consider some more recent examples. The South African Truth and Reconciliation Commission stated that under the apartheid regime, “torture was used systematically by the Security Branch, both as a means of obtaining information and of terrorising detainees and activists. Torture was not confined to particular police stations, particular regions or particular individual police officers” (TRC 1998: 187). In Chile the National Commission on Truth and Reconciliation (NCTR 1993: 1122) detailed over 2000 victims of human rights violations by the security forces of the Pinochet regime of which victims approximately half were killed (hundreds tortured to death) and the remaining half disappeared after arrest. According to Juan Mendez (a UN Special Advisor who was himself tortured during the Argentinean military dictatorship): “Torture became systematic and pervasive during the military dictatorships of the 1970s and 1980s, but it would be a mistake to trace its origins only as far as this dark era. In fact, torture was used by dictatorial as well as elected but authoritarian governments throughout the twentieth century” (Mendez 2005: 56).

In the light of the evidence it would be a massive understatement to say that historically the sub-institution of torture – whether in a lawful or unlawful form – has been no stranger to military, police, and correctional institutions. Further, there is now a great deal of empirical evidence that in institutional environments in which torture is routinely practised it has a massive impact on other practices and on moral attitudes. For example, in police organisations in which torture is routinely used the quality of investigations and, in particular, of interviewing of suspects, tends to be low. Careful, logically based, questioning on the basis of the available evidence is replaced by beating up suspects. Thus lower echelon police investigators in India often have little or no training in best practice interviewing and (as noted above) they routinely use the third degree. Again, Baldwin’s findings based on hundreds of taped interviews indicate that the interviewing skills of UK police during the period of the infamous police use of the third degree against the Birmingham Six, Guildford Four and Maguire Seven would have been quite poor (Baldwin 1993). Police in organisations in which offenders are routinely tortured do not, unsurprisingly, tend to develop respect for the moral rights of offenders, suspects, or even witnesses. This is entirely consistent with the excesses detailed by Luban and Waldron in the US military detention centres in Iraq and elsewhere, e.g., the Abu Ghraib scandal, and in the case of the interrogations of suspected terrorists by the Israeli secret service. Indeed, these excesses are to be expected.

And there is this further point. The prevalence of torture in numerous military, police, and correctional institutions throughout the world has taken place notwithstanding that for the most part it has been both unlawful and opposed by the citizenry.

It is to be concluded from all this that for the most part military, police, and correctional institutions are qua institutions very receptive to the practice of torture – even when it is unlawful – and that these institutions qua institutions would relatively easily incorporate the legalised sub-institution of torture; accordingly, it is very easy to legalise torture and thereby grow and develop a torture culture in military, police and correctional institutions. This does not mean that there are not important differences between, say, police services in authoritarian states and those in contemporary (though not necessarily historical) liberal democratic states; obviously there are. Nor does it mean that most, or even the majority, of the individuals who occupy roles in these institutions, whether in liberal democracies or elsewhere, are necessarily receptive qua individuals to engaging in the practice of torture; most of them might not be. However, most of them would not be torturing people; that would be done by a distinct minority, as in fact has usually been the case even in institutions in which torture is unlawful and endemic. The question is whether or not as individuals they would initially tolerate, and finally accept, the practice of torture, if it were legally and institutionally established; the suggestion is that the historical and comparative evidence is that they would, including in liberal democracies.

A additional conclusion to be drawn is that should the legalised sub-institution of torture be integrated into any of these institutions it would be very difficult to remove and would, even in liberal democracies, have a major impact on the direction, culture, and practices of these institutions. Again, this is what the historical and comparative empirical evidence tells, notwithstanding the initial and even continuing aversion of many, perhaps most, of the individuals in these institutions to torture as such. Consider the Israeli case. Limited forms of torture were legal in Israel prior to 1999, but illegal post 1999. However, evidently torture has by no means been eradicated post 1999. According to the Public Committee Against Torture in Israel (PCATI), reporting on the period between September 2001 and April 2003: “The affidavits and testimonies taken by attorneys and fieldworkers… support the conclusions …violence, painful tying, humiliations and many other forms of ill-treatment, including detention under inhuman conditions, are a matter of course….The bodies which are supposed to keep the GSS [General Security Service] under scrutiny and ensure that interrogations are conducted lawfully act, instead, as rubberstamps for decisions by the GSS…The State Prosecutor’s Office transfers the interrogees’ complaints to a GSS agent for investigation and it is little wonder that it has not found in even a single case that GSS agents tortured a Palestinian ‘unnecessarily’” (PCATI 2003).

The deeper explanation for the prevalence of torture cultures and the difficulty of eradicating institutionalised torture is no doubt very complex, but presumably it consists in part in the following elements: (1) moral docility, as opposed to physical docility, is a feature of individuals housed in, and materially dependent upon, large, hierarchical, bureaucratic organisations with strong, relatively homogenous cultures; (2) the roles of soldier, police officer, and prison warder necessarily involve the routine use of coercive, and even deadly, force against dangerous criminals, enemy soldiers, or terrorists, and therefore undertaking these roles inevitably results in a degree of moral de-sensitisation and a sense of moral ambiguity when it comes to torturing criminals and/or terrorists; (3) torture is an exercise of enormous power, and power is deeply seductive to many people (and much less dangerous than shooting at armed enemy combatants or trying to arrest or subdue violent criminals).

Armed with these observations on the difference between law and morality, and on the nature of the sub-institution of torture in military, police, and correctional institutions, what now can be said on the question as to whether or not to legalise and institutionalise torture in contemporary well-ordered liberal democratic states undergoing a lengthy period of attacks from terrorist organisations?

As we saw above, torture is a terrorist tactic. Indeed, arguably it is the terrorist tactic par excellence . Detonating bombs that kill the innocent has come to be regarded as the quintessential terrorist tactic. But this is presumably because terrorism has implausibly come to be identified only with non-state terrorism. At any rate, the point to be made here is that torture is a terrorist tactic, and for a liberal democracy to legalise and institutionalise it, i.e. weave the practice of torture into the very fabric of liberal democratic institutions, would be both an inherent contradiction – torture being an extreme assault on individual autonomy – and, given what we know about the practice of torture in military, police, and correctional institutions, highly damaging to those liberal democratic institutions. It would be equivalent to a liberal democracy legalising and institutionalising slavery on the grounds, say, of economic necessity. Legalised and institutionalised slavery is inconsistent with liberal democracy, as is legalised and institutionalised torture. So if legalised and institutionalised slavery and/or legalised and institutionalised torture are necessary because morally required, then liberal democracy is not possible in anything other than an attenuated form. But of course neither legalised/institutionalised slavery nor legalised/institutionalised torture is morally required, quite the contrary. At best, torture is morally justified in some one-off emergencies – just as murder and cannibalism might be morally excusable in a one-off emergency on the high seas, or desertion from the field of battle might be morally justifiable given a one-off emergency back home – but nothing follows as far as the legalisation/institutionalisation of torture is concerned.

A final point here concerns the proposition that, absent legalised/institutional torture, unlawful endemic torture in the security agencies of contemporary liberal democracies confronting terrorism is inevitable. The implication here is that unless legalised, torture will become endemic in these agencies. It has already been argued that legalisation/institutionalisation of torture would be profoundly damaging to liberal democratic institutions. Assume this is correct; it does not follow from this that a torture culture will not come to exist in those agencies in the context of torture being unlawful. Nor does it follow that an unlawful torture culture, indeed an unlawful sub-institution of torture, is inevitable. Here there is a tendency to use the kind of argument that is plausible in relation to, say, the prohibition of alcohol. It is better to legalise alcohol, because then it can be contained and controlled. This form of argument used in relation to torture is spurious. Consuming alcohol to excess is not morally equivalent to torture, and we do not legalise the use of alcohol in emergency situations only. Legalising the use of torture in extreme emergencies would be much more akin to legalising perjury in extreme situations. As with torture – and unlike alcohol – perjury is only morally justified in some extreme one-off situations. [ 19 ] However, no-one is seriously considering legalising perjury in one-off extreme situations (at least to my knowledge), and with good reason – to do so would strike at the very heart of the legal system.

The fact is that the recent history of police, military, and other organisations in liberal democracies has demonstrated that torture cultures and sub-institutions of torture can be more or less eliminated, albeit with considerable difficulty. The elimination of torture cultures and sub-institutions can only be achieved if torture is unlawful, the community and the political and organisational leadership are strongly opposed to it, police officers and other relevant institutional actors are appropriately educated and trained, and stringent accountability mechanisms, e.g., video-recording of interviews, close-circuit TV cameras in cells, external oversight bodies, are put in place. It is surely obvious that to re-introduce and indeed protect the practice of torture, by legalising and institutionalising it, would be to catapult the security agencies of liberal democracies back into the dark ages from whence they came.

The discussion has focussed on the legalisation and institutionalisation of torture, where the practice of torture is understood in general terms; it ought to be now obvious why torture should not be legalised. However, some commentators, notably Alan Dershowitz, have argued that legalised torture could be justified, if the torture in question was restricted to extreme emergency situations and subjected to appropriate accountability mechanisms. Specifically, he has argued for torture warrants of the kind introduced for a time in Israel (Dershowitz 2003, 2004; and Wisnewski 2008).

The notion of torture warrants is supposedly analogous to surveillance and telephone interception warrants issued to police by a magistrate or other judicial officer. The idea is that privacy is a fundamental right but it can be infringed under certain conditions, such as reasonable suspicion that the person whose privacy right is to be infringed is engaged in serious criminal activity, there is no alternative way to acquire the necessary information to convict him/her, and so on. In this kind of set-up the magistrate, not the police, makes the decision as to whether or not these conditions obtain. Consequently, the infringements of privacy rights are restricted, and subject to stringent accountability mechanisms.

However, morally speaking, torture warrants are entirely different from telephone interception or surveillance warrants. First, torture is a far greater evil than the infringement of privacy. For one thing, having one’s phone tapped or movements filmed is inherently much less distressing, harmful and morally repugnant than the physical suffering and loss of autonomy involved in being strapped to a chair and, say, having someone drill into an unanesthetised tooth. On the spectrum of evils, torture is closer to murder/killing than it is to the infringement of privacy. For another thing, torture is a far more dangerous practice than infringing privacy. For the degree of the infringement of privacy can be minimised, e.g., the information gained can relatively easily be kept strictly confidential by the police; moreover, there is no inherent reason for the police to illicitly widen a given infringement of privacy by breaching confidentiality. But in practice torture cannot be restricted likewise. The methods of torture and the process of torture exist on a continuum, and there is often an inherent reason to ‘push the envelope’ and inflict ever more severe forms of physical suffering on victims; so-called ‘torture lite’ becomes full-blooded, no holds-barred torture. One of the consequences of this continuum of torture is the ever-present possibility that the victims of torture will not simply be tortured, but rather be murdered; and in point of fact numerous people have died in the course of being tortured.

Second, as has already been argued, there is an inherent institutional receptivity of military, police, and correctional institutions to the practice of torture; a receptivity which is such that torture cultures will grow and flourish, notwithstanding Dershowitz’s proposal that only tightly controlled and highly restricted forms of torture are to be legally admissible. This institutional receptivity has the consequence that inevitably large numbers of innocent people will be tortured – as has happened in Israel (see PCATI 2003). Indeed, even under tightly controlled and highly restricted forms of torture some innocent persons will inevitably be tortured – just as the privacy of innocent people is infringed under the existing telephone and surveillance warrant systems. Arguably, the infringement of the privacy of some – in fact, many – innocent persons is a price that we ought to be willing to pay for the sake of preventing serious crimes. However, it would be preposterous to argue that (inadvertently?) torturing numerous innocent people is a reasonable price to pay in return for the information provided by those of the tortured who are in fact guilty.

Third, the information gained by wire-tapping or surveillance has in general far greater utility than that gained by means of the practice of torture – certainly by the tightly controlled and highly restricted forms of torture of the kind envisaged by Dershowitz. Indeed, it is by no means clear that the utility – in terms of saving lives (and leaving aside the costs) – of the system of legalised torture warrants will be very high. (In Israel, to repeat the example, it does not appear to have been particularly high.) This is so for two reasons. One reason is that torture victims typically tell the torturer whatever they think he wants to hear, e.g., they are happy to implicate others who are in fact innocent in order to bring an end to their own agony. And even in relation to desired checkable information there is often the problem of knowing whether or not the victim of torture is holding out or does not really know; this is especially the case with hardened terrorists. So by comparison with telephone and surveillance warrants, torture warrants are likely to yield unreliable information; there is a serious question about the quality of much of the information provided under a system of torture warrants. A further reason to disparage the utility of torture warrants is that, again unlike telephone and surveillance warrants, torture warrants are to be issued only in extreme emergencies. By contrast, telephone interception and surveillance warrants are issued as a matter of routine, albeit only under certain (recurring) conditions. Accordingly, the volume of information capable of being provided under a system of torture warrants is extremely limited. In short, over time the torture warrant system is likely only to yield an extremely small quantity of reliable information. This overall likely lack of utility of the torture warrant system qua institution is important to keep in mind in the context of a protracted struggle against terrorism involving ongoing loss of life on both sides. Here the torture warrant system stands in sharp contrast to telephone interception and surveillance warrant systems. Moreover, it is precisely because the set of conditions under which it is reasonable and effective to infringe privacy rights recurs, that infringements of privacy rights by police can reasonably be legalised and institutionalised, e.g., by means of a warrant system. Arguably, the proponents of the torture warrant system have made the mistake of proposing a legal/institutional solution to what ought to be regarded as a one-off moral problem; [ 20 ] hence the inadequacy of their proposal.

At any rate, the conclusion must be that any attempt to compare torture warrants to surveillance or interception warrants is entirely spurious. Torture is a very different beast.

In the light of the above three points concerning torture warrants that have just been made in the comparison between these and surveillance and interception warrants, the inevitable conclusion is that the practice of torture could not be contained under a system of legalised torture warrants and the consequences of its not being contained would be horrific. Moreover, as noted above, and argued by Luban, Waldron and others, the damage to liberal institutions would be incalculable. Finally, the benefits of a system of legalised torture warrants over the longer term are likely to be slight; and certainly easily outweighed by the costs. So Dershowitz is entirely misguided in his advocacy of torture warrants. Indeed, as repeatedly mentioned above, we have the example of Israel’s use, or rather abuse, of this system to provide specific empirical evidence against the introduction of torture warrants.

So torture warrants are highly undesirable, indeed a threat to liberal democratic institutions. Moreover, torture warrants are unnecessary. As has been argued above, there may well be one-off emergencies in which the use of torture is morally justifiable. In those cases, the relevant public officials must bite the bullet and do what is morally required, e.g., torture the terrorist to save thousands of innocent people. In such an emergency, the military or police officers involved will need to break the law on this one occasion. But in itself this is a small price to pay; and a price the police, the military and the politicians have shown themselves only too willing to pay in situations that are far from emergencies.

One final matter. What should be done to the military officer, police officer, or other public official who tortures the terrorist if – after saving the city – their crime is discovered? Quite clearly he (or she) should resign or be dismissed from their position; public institutions cannot suffer among their ranks those who commit serious crimes. Further, the public official in question must be tried, convicted, and sentenced for committing the crime of torture. [ 21 ] Obviously, there are (to say the least) mitigating circumstances, and the sentence should be commuted to, say, one day in prison. Would public officials be prepared to act to save thousands of innocent lives, if they knew they might lose their job and/or suffer some minor punishment? Presumably many would be prepared to so act in these circumstances. On the other hand, perhaps many public officials would never set aside their interest in keeping their jobs and avoiding minor punishments in order to save innocent lives. If so, this is not a consideration in favour of legalising torture. For surely the consequences of setting up a legalised torture chamber and putting such self-interested and uncaring persons in charge of it are likely to be horrendous

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How to cite this entry . Preview the PDF version of this entry at the Friends of the SEP Society . Look up topics and thinkers related to this entry at the Internet Philosophy Ontology Project (InPhO). Enhanced bibliography for this entry at PhilPapers , with links to its database.

• U.N., 1984, U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .
• Final Report of the Independent Panel to Review DoD Detention Operations [PDF]
• Stanford Prison Experiment
• Fay-Jones Report on Abu Ghraib Abuses [PDF]

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The New York Times

Opinionator | can torture ever be moral.

Can Torture Ever Be Moral?

The Stone is a forum for contemporary philosophers and other thinkers on issues both timely and timeless.

The recent Senate report on the Central Intelligence Agency’s use of torture has been the focus of a national debate about whether torture is ever permissible. This interview, the second in a series on political topics, discusses philosophical ideas that underlie this debate.  My interviewee is Jeff McMahan, White’s Professor of Moral Philosophy at the University of Oxford. He is the author of “The Ethics of Killing.” — Gary Gutting

Gary Gutting: What’s your overall view on the morality of torture?

Jeff McMahan: I think that torture is almost always morally wrong and that, for moral reasons, it ought to be prohibited absolutely in law. Torture has been used to extract confessions, to terrorize people associated with the victims, to punish presumed wrongdoers, and even to gratify and amuse sadists and bullies. These uses are always morally wrong. The only use of torture that has any chance of being morally justified is to gain important information. But even when torture is used to gain information, the torturers are usually wrongdoers seeking information that will help them to achieve their unjust aims. And even when those seeking information have just aims, their victims are often innocent, or lack the information sought, or are sufficiently strong-willed to mislead their torturers, so that the torture is ineffective or counterproductive. Still, both those pursuing unjust aims and those pursuing just aims will continue to be tempted to engage in torture if they can do so with impunity. Hence, torture has been widely practiced, though its use has almost invariably been wrong. This means that the overriding goal of the law ought to be to deter the wrongful use of torture, even at the cost of forbidding the use of torture in those rare cases in which it might be morally justified. The legal prohibition ought therefore to be absolute; for those who think that torture would be advantageous to them will always be tempted to try to exploit any legal permission to use it.

Torture can be morally justifiable, and even obligatory, when it is wholly defensive – for example, when torturing a wrongdoer would prevent him from seriously harming innocent people.

G.G. : But you do agree that torture can, in extreme cases, be moral. Why do you reject the absolute view that any instance of torture is immoral?

J.M. : Torture can be morally justifiable, and even obligatory, when it is wholly defensive – for example, when torturing a wrongdoer would prevent him from seriously harming innocent people. It could do that by forcing a person to reveal the location where he has planted a bomb, or hidden a hostage who will die if not found. It can be morally justifiable to kill a person to prevent him from detonating a bomb that will kill innocent people, or to prevent him from killing an innocent hostage. Since being killed is generally worse than being tortured, it should therefore be justifiable to torture a person to prevent him from killing innocent people. In cases in which torture is defensive in this way, the person tortured is not wronged. Indeed, he could avoid the torture simply by doing what he is morally required to do anyway – namely, disclose the location of the bomb or hostage.

G.G. : Do you worry that even saying that torture can be moral will provide an excuse for immoral torture?

J.M. : Yes, very much. The philosopher Henry Shue has a story of being thanked for his influential 1978 article [“Torture,” Philosophy and Public Affairs 7, no. 2 (1978): 124-43] by a pair of American agents who had tortured people. The article had argued vigorously against torture but conceded at the end that the moral prohibition of torture is not absolute. The agents were grateful for the concession, as that made them feel they could engage in torture without doing wrong. I think this is the explanation of why many people who aren’t absolutists about any other moral issue say they are absolutists about torture. They rightly want to avoid giving any aid or comfort to those who seek to justify torture in the circumstances in which it is actually practiced. But there is a dilemma here, for it can seem morally obtuse, and therefore discrediting, to deny that torture is permissible in those cases in which it obviously is permissible – for example, when it would in fact force a kidnapper to reveal the location of hostages who will otherwise die.

G.G. : Should we treat cases of justified torture the way some say we should treat cases of justified civil disobedience: You may, in extraordinary cases, have a moral right to disobey the law, but then you have to face the legal consequences?

J.M. : I think so. To effectively deter wrongful torture, the law should make anyone contemplating torture feel that if he does so he will be sacrificing himself for the sake of morality. It may indeed be best for the law not even to allow a necessity defense for torture, though I don’t think it should make harsh penalties mandatory. It should be possible for courts to exercise leniency in sentencing if there are cases in which people have engaged in torture with clear moral justification. But potential torturers should not be allowed to think that they can evade punishment through statutory loopholes.

In planting the bomb or capturing the hostage, the terrorist makes himself morally liable to be harmed as a means of preventing him from harming innocent people.

G.G. : We’ve been using the term “torture” without defining it. Is it enough to work with clear cases of what is and of what is not torture (locking a prisoner in a cell versus beating him) or do moralists have to get into fine points about exactly what constitutes torture?

J.M. : Both moralists and legal theorists must go into the fine details. There are many reasons why paradigm instances of torture are objectionable: the sheer awfulness of suffering; the humiliation, terror, and dehumanization; the psychological scarring; the various forms of betrayal – of others, one’s ideals, and oneself – and so on. The moral evaluation of torture in a particular instance may depend on which elements are present and to what degree. Torture is not all or nothing: Some instances are worse than others, and at the lower end of the spectrum torture shades gradually into forms of harming that are horrible but do not rise quite to the level of torture. It is one of the problems of the absolutist view of torture that it has to identify some threshold on the scale that measures the elements of torture, such as suffering, and then claim that nothing, not even the prevention of a billion murders, can justify the infliction of that degree of harm, even on a wrongdoer. But the view does not absolutely prohibit the infliction of the highest degree of harm below the threshold. It has to concede that the infliction of that degree of harm can be permissible, even to prevent harms far less bad than the murder of a billion people. The idea that there is such a threshold is wholly implausible.

G.G. : Why do the absolutists have to specify a precise point at which the infliction of pain becomes torture? Why can’t they admit that there are gray areas but still maintain that, in clear cases, torture is always immoral?

J.M. : If you claim that a certain type of act is wrong no matter what the consequences, I think you must specify the precise conditions for an act to be of that sort. But even if absolutists can claim that there are gray areas in which it is indeterminate whether an act constitutes torture, or in which we are uncertain whether the act is torture, they still have to say whether an act that is in the gray area can be permissible. If there is uncertainty, there is a chance that in fact nothing could possibly justify the act. A principle of reasonable caution suggests that we should treat such an act as absolutely prohibited. But if that is so, we have to know at what exact point the gray area begins and claim that all acts at or beyond that point may not be done, whatever the consequences. Or, if the absolutist accepts that acts in the gray area can be permissible, we then need to know exactly where the gray area ends and absolutely prohibited acts begin. So the suggestion that there might be a gray area does not solve the problem of the precise threshold but merely pushes it back a bit.

G.G. : Absolutists might object that you’re just assuming that actions should be judged by their consequences, whereas they think at least some actions are immoral in themselves, apart from their consequences. Is this just a case of conflicting basic moral intuitions, with no way of resolving the issue?

J.M. : I don’t think so. Thus far I have criticized absolutism about torture on the ground that it has to draw a sharp line between acts that are prohibited, regardless of their consequences, and acts that may or may not be prohibited depending partly on their consequences. But I don’t think that only the consequences matter. I have said that it might be permissible to torture a terrorist to force him to reveal the location of a bomb or a hostage, but that would be quite different from torturing the terrorist’s child as a means of extracting the same information. In planting the bomb or capturing the hostage, the terrorist makes himself morally liable to be harmed as a means of preventing him from harming innocent people. But his child has done nothing to become liable to be tortured as a means of saving the parent’s potential victims.

The most important objection to the claim that all torture is absolutely prohibited is that it does not distinguish between the torture of wrongdoers and the torture of the innocent. The British philosopher Elizabeth Anscombe was a moral absolutist but she appreciated that absolute prohibitions have to take account of whether intended victims are innocent or non-innocent. Thus, while she believed that the intentional killing of innocent people is absolutely prohibited, she was scornful of absolute pacifism, which, she argued, “teaches people to make no distinction between the shedding of innocent blood and the shedding of any human blood…and in this way…has corrupted enormous numbers of people.” Absolutists about torture, who say that it can never be justified, make the same mistake. As I indicated earlier, because most of them believe that it can be permissible to kill a person to prevent him from committing murder and also that it can be less bad for a person to be tortured than to be killed, they should concede that it can be permissible to torture a person to prevent him from committing murder. Apart from the fact that killing is usually worse, the only significant difference between killing in defense of the innocent and torturing in defense of the innocent is that torture can only very, very rarely be used defensively.

More From The Stone

Read previous contributions to this series.

G.G. : As a moral philosopher, how do you view the recent controversies about the Senate report on the C.I.A.’s use of torture?

J.M. : It is reasonable to demand that a democratic government act in ways that it can justify to its citizens. The Bush administration lied to its citizens about its torture policy, which was in violation of international law and therefore also in violation of American law, which treats international law as the law of the land. Members of that administration have not shown that any of the many instances of torture in which Americans were involved were morally justified in the way I have suggested that they might in principle be justified. Apologists for torture also cannot point to any terrorist atrocities since Obama abolished the torture policy that might have been prevented had the policy been continued. Given that the policy has been abandoned without any apparent ill effects, there seems to be no reason of national security to continue to conceal facts about the Bush administration’s torture practices. There are, moreover, democratic reasons for exposing them – for example, to deter future administrations from acting in similar ways and to help to dispel illusions that citizens have about the honesty and trustworthiness of their government. Some defenders of torture are outraged by the exposure of the Bush administration’s clandestine criminal acts but not by the fact that these acts were committed. That attitude seems to me fundamentally anti-democratic.

This interview was conducted by email and edited. Other installments in this series can be read here .

Gary Gutting is a professor of philosophy at the University of Notre Dame, and an editor of Notre Dame Philosophical Reviews . He is the author of, most recently, “Thinking the Impossible: French Philosophy since 1960,” and writes regularly for The Stone.

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On the Ethics of Torture

Uwe Steinhoff, On the Ethics of Torture , SUNY Press, 2013, 191pp., $24.95 (pbk), ISBN 9781438446226.

Reviewed by Gregory Fried, Suffolk University

Torture is a problem from hell. Confronting torture seriously means weighing some of our most cherished principles and traditions against threats that once might have seemed fantastical but after 9/11 no longer do. On the one hand is a long-standing taboo against torture as a profound violation of human dignity. Deeply influential institutions, such as the Catholic Church, [1]  have taken an absolutist stand against torture, and the United Nations Convention against Torture, to which the United States is a signatory, allows "No exceptional circumstances whatsoever" to undermine a total ban on the practice. [2]  On the other hand are harrowing scenarios, some hypothetical but others now all too real, which pinion us with a desperate need for life-saving information.

Into this hell steps an important book by Uwe Steinhoff,  On the Ethics of Torture . This book is rather odd in  tone . Steinhoff makes the case for torture in certain limited circumstances, and he evidently has become indignant with some absolutist opponents of torture, who have accused him of "careless philosophizing" about torture scenarios (ix) and of undermining ethical discourse (chapter 7). In response, Steinhoff frequently treats the arguments of his opponents with scorn and sarcasm. Furthermore, in philosophical  style , this book trades heavily on what has become an epidemic in contemporary applied ethics: extravagant hypotheticals. Steinhoff litters his arguments with often gleefully graphic examples involving weapons that cause excruciating pain, disintegration guns, and vaginas that kill. Even making allowances, I find this rather hard to take; perhaps that is a merely aesthetic reaction, but I will return to it after treating Steinhoff's main argument.

That argument is indeed important, one that any absolutist opponent of torture (including myself [3] ) should take seriously. The core thesis is blisteringly simple: "torture is justifiable in certain narrowly circumscribed circumstances, in particular in certain self-defense situations" (ix). Steinhoff convincingly insists that his limited defense of torture is not based on consequentialist considerations. Quite the contrary, Steinhoff calls himself a "threshold deontologist" (44, 77); he supports deontological principles until a threshold of unacceptable consequences overrides the principle in question. This is not unusual for a deontologist (think of the Kantian who would lie to the Nazi hunting Jews), [4]  and Steinhoff is still justified in calling himself one, because (echoing Ronald Dworkin) taking rights seriously means allowing rights to trump utility  most  if not  all  of the time (43). What Steinhoff opposes is  absolutism  about acts. This is where the extravagant hypotheticals come in: to demonstrate that for any act you might think of as always absolutely wrong, we can conjure a  conceivable  scenario in which a reasonable person would have to allow that act.

This is not the first book to make a right-based defense of torture, [5]  but it makes the case powerfully and rebuts in detail the major anti-torture authors, such as David Luban, Henry Shue, David Sussman, and Jeremy Waldron. Steinhoff defines torture as "the knowing infliction of continuous or repeated extreme physical suffering for other than medical purposes" (7), defining "extreme" as anything roughly equivalent to "drilling on the unprotected nerve of a tooth" (9). Steinhoff discounts short "shocks" of pain, and he is skeptical about counting psychological pain a torture (9). This excludes much often considered torture: exposure to phobias, mock executions, and the like, as well as some practices that mix the physical and psychological, such as sleep or sensory deprivation, and exposure to temperature extremes. For the sake of argument, though, we should grant Steinhoff's restrictive definition, because if he can succeed on its basis, that is decisive enough. We can quibble another time about its parameters.

Self-defense is the heart of Steinhoff's argument: "People have a right to defend themselves or others against wrongful aggression, in particular if the aggression is life-threatening" (11). This premise is not consequentialist; it is about the  right  to defend oneself and others against unjust attack. Some might object to a right to self-defense (a pacifist might believe that death is preferable to acts of violence), but Steinhoff argues well that even Kant's deontology supports a  prima facie  right to self-defense, and so also a  duty  for a legitimate government to uphold that right in protecting its citizens against aggression (133).

Steinhoff's next move is to show that interrogative torture -- never punitive or sadistic torture (7) -- may be necessary for self‑defense. Here Steinhoff is on most solid ground with real-life "Dirty Harry" examples, the Daschner and Mook cases, where German police captured kidnappers who then refused to reveal where their respective victims were hidden and presumably in grave danger.  In the Daschner case, the kidnapper was threatened with torture and gave up the location of the child, who had already been murdered, but the police did not know that.  In the Mook case, the child, who had been imprisoned in a wooden box, was saved when the kidnapper revealed the location after a beating (which we can take as a case of torture for the sake of argument).  In each case, the police tortured the kidnappers and obtained information about where the child was hidden. Tragically, the Daschner child was already dead, but the Mook child was saved. Steinhoff reasonably asks why interrogational torture in such cases would be wrong, where there is no other credible option and the torture is both necessary and proportional. If we may use lethal force in self‑defense, why not torture? Also, if torture is the only option, it does not matter that torture sometimes fails or has a low chance of success; a victim of attempted rape, armed only with a sharp pencil, would still have a right to self-defense with that.

Absolutists have often argued that torture is worse than killing in self‑defense, but Steinhoff finds this unconvincing. To see why, we need to step back from torture and consider other horrible things we sometimes think are right if we take seriously the right to self‑defense against unjust assault. Violence, including killing, can be horrific (19), as is torture, but may still be right if necessary to save a victim of unjust attack. This is partly a function of nomenclature: We don't call justifiable violence "assault" or justifiable killing "murder," we call them "self-defense." There is no such terminological distinction for inflicting justifiable pain; it is all called  torture . Steinhoff asserts that given the choice, for oneself or a loved one, between being killed or being tortured, we would generally choose torture. True, as torture's duration and intensity increase, it is more and more likely to cause lasting physical or psychological damage, as studies have shown. "In contrast to this," Steinhoff counters with characteristic sarcasm, "empirical studies show that not 20, not 30, not 98, but  100 percent  of those who have been killed are dead" (23). Now, this is from the perspective of the  target  of the act, not the  actor , and there are deeper complexities at work that I cannot address here, but Steinhoff makes the cogent claim that killing is  usually  worse than  most forms of torture. Killing ends everything forever, torture may be survived, so if we accept the former in self‑defense, then we must accept the latter.

This core argument does a lot of work for Steinhoff. Absolutists often argue that torture is a horror because it breaks the will. As Steinhoff points out, torture does not always do so, but even when it does, so do many things we consider acceptable in collective self-defense, such as plea-bargaining with criminals and coercive detention (65). Anti-torture absolutists also argue that torture impermissibly targets someone who is defenseless, but other permissible forms of self-defense can do that, argues Steinhoff (93-4). Consider artillery out of enemy range, or a police sniper targeting an unarmed kidnapper about to push a child off a roof. But can there be self-defense if the defenseless target of torture is no longer a threat? Steinhoff reasonably answers by defining an active attack as follows:

one completes one's action x at the last point where one could have prevented the intended effect from coming about. Thus the terrorist [in a ticking bomb scenario] and the kidnapper are engaged in their attack on the child or the persons to be killed in the explosion for as long as they refuse to give the life-saving information. (37)

Even in captivity, the terrorist or kidnapper is still  acting , still  attacking . The rights of innocents trump the rights of aggressors.

While Steinhoff defends torture in self-defense, he argues adamantly against its institutionalization, such as by the "torture warrants" advocated by Alan Dershowitz: We do not need institutionalization because such cases are rare enough (64) that its hypothetical benefits "are not worth the risks" (67); I will return to this problematic point later. Steinhoff's argument for the  legalization  of torture under necessity statutes, but against its  institutionalization , links to his refutation of what he calls the "ticking  social  bomb" objection to torture, made by Shue and others, that if we allow torture in rare and limited cases, it will spread and corrupt a society's institutions. Against this threat of the inevitable "metastatic growth" of torture (66), Steinhoff points to the 1988 Mook case: torture helped rescue a buried child, yet Germany suffered no slide into generalized torture (58). For Steinhoff, the principle that "hard cases make bad law" actually supports limited use of torture because the absolutist anti-torture position "shields an aggressor from necessary and proportionate defensive measures by or on behalf of the victim . . . [and therefore] actually  aids and abets  the aggressor and violates the rights and the human dignity of the victim" (60). In a contest between the rights of an innocent victim and an unjustified aggressor, the victim's should triumph -- as they do when we kill aggressors in self-defense, or imprison them for crimes, despite the otherwise presumptive rights to life or to liberty.

These are the key elements of Steinhoff's self-defense argument for torture, and they are enough to move an anti-torture absolutist such as myself. But how far?

There are several serious problems with Steinhoff's argument. The first of these has to do with the  scope  of self-defense. Self-defense, understood broadly to include other-defense, has long stood as the bedrock justification for  jus   ad bellum , justice in going to war. Steinhoff's examples touch on  private  self‑defense, using torturous pain against an attacker when you cannot call on police aid, and  police  defense against criminal threats within a state. But what about a nation's  military  self‑defense against foreign aggression?

Steinhoff wants to argue that the circumstances that justify torture because of the dire need for life-saving information, such as kidnappings or ticking bombs, are exceedingly rare. But these are cases  within  states, not  between  states (or significant non‑state actors) at war. In wartime, the number of enemies with potentially life-saving information rises dramatically: field officers with knowledge of impending attacks; civilian leaders with knowledge of overall strategic plans; scientists with knowledge of weapons systems; and so on. May they be tortured when captured? Steinhoff insists that his interest in torture "was aroused by the German Daschner case, that is, by a child-kidnapping case, not by the 'terrorist threat' the American debate is obsessed with" (x). He derides the American obsession with "'the war on terrorism' and the silly and often racist 'us-versus-them' ideology that accompanies it" (x), and he deplores Abu Ghraib. Steinhoff concludes that if

torturing an Islamic terrorist is justified to avert the explosion of a ticking bomb that would kill thousands of innocent Americans or Israelis, it then is obviously also justified to torture a Christian or Jewish  state terrorist  if by doing so one can avert a more of less indiscriminate bombing campaign by the American or Israeli air force that would (once again) kill thousands of innocent Palestinians, Iraqis, or Afghans. (x; my emphasis)

But this is precisely the problem. The ticking bomb scenario straddles police and military action for self‑defense, because a domestic  or  a foreign enemy might plant it. Steinhoff wants to argue against the institutionalization of torture because "The ticking bomb case or the Dirty Harry [kidnapping] case is a very rare case," and so "it is safe to assume that all the torture that happened or happens in Abu Ghraib, Afghanistan, and Guantanamo simply has nothing to do with ticking bombs or hostages who are about to die" (64). He says the latter are  exceptions . Yet his own example that preventing an "indiscriminate bombing campaign" would justify torturing a "state terrorist" (presumably he means a civilian or military commander with information that might impede such an campaign) shows that  in war  such scenarios are far from " enormously rare " (67). Indeed, they may well be the norm, given how vital wartime intelligence and how devastating an enemy attack can be. So the "state terrorist" will not be a rare individual but rather may be hundreds, thousands, or more. If they possess decisive military intelligence as offenders in an unjust war, then by Steinhoff's own argument, even in custody they are  still actually attacking  and thereby violating the rights of the victim community.

Steinhoff relies on the very rarity of examples of  police  torture in Germany, a nation that has not suffered military attack or been (substantially) at war for nearly 70 years, to show that legalized self-defensive torture need not metastasize (72-3). But if torture against state (or quasi-state) terrorists is justified, as Steinhoff himself admits and as self-defense at the national level would require, that will justify torture on a much larger scale, and normalization and institutionalization seem inevitable. That is precisely what happened in the American case. When Bush's Office of Legal Counsel justified torture against some terrorists, fearing other massive attacks against civilians after 9/11, [6]  the practices, we now know, did metastasize institutionally across theaters of the world‑wide "War on Terror." [7]  This is rather powerful evidence. It does no good, as Steinhoff attempts, to say that "the torture in Guantanamo is not self‑defensive nor an instance of a justifying emergency" (157) and may not be used against terrorists for "fishing expeditions" in order "to find out more about their networks" (158), because one can simply say that the American torture regime was botched. If, as Steinhoff admits, "state terrorists" (i.e., large-scale aggressors) may be tortured to prevent bombing campaigns, then when there  is  good reason to believe that captured aggressors have vital information that could save lives, then they may justly be tortured, and America's criminal and incompetent torture regime is not an argument against  properly employed  wartime torture any more than a botched or disproportional attempt at more conventional self-defense would refute self-defense in general.

A second problem arises from Steinhoff's argument from necessity. He allows that in very rare cases, it might be right to torture an innocent. Steinhoff concocts the unfortunately plausible case of a sadistic but truthful soldier who gives a captured father the choice "to either waterboard his son for 30 minutes or to have him executed" (42). For Steinhoff, the right choice is clear: torture the child. If so, then Steinhoff must "bite the bullet" and ask, what about a ticking-bomb terrorist: if he won't break, may we torture his innocent child in front of him? Steinhoff argues that this would not be justified because "there is no evidence that would suggest that torturing a person by torturing somebody he deeply cares for is more effective in retrieving the vital information than torturing the first person himself" (42). This strikes me as a cop-out, given Steinhoff's argument. He frequently resorts to fantastical thought experiments to demonstrate that certain ethical outcomes are at least conceivable and therefore undermine absolutist prohibitions. Well, isn't it conceivable that a terrorist might have congenital analgia, the inability to feel pain, but still feel deeply about his child? Or what if time were very short and the stakes very high -- say, a nuclear bomb planted in a city? Steinhoff is willing to sacrifice some innocents for thousands or millions of other innocents. As he says: "You do the math" (52). Horrendously, this is not conjectural: John Yoo, formerly of the Bush administration's Office of Legal Counsel, has argued that the president has the authority to order the crushing of the testicles of a terrorist's child. [8]

And this brings us to my third reservation about Steinhoff's argument: its heavy reliance on hypotheticals. Thought experiments have done yeoman's work in philosophy ever since the tale of the ring of Gyges in Plato's  Republic . There clearly is a place for them in testing our moral intuitions, yet they have been taken too far down the trolley track in contemporary ethical theory. At issue here is  modality : the meaning of the possible for making sense of ethical life. Let me suggest two modes of the possible. One is the  merely conceivable , which involves science fiction elements or extraordinarily rare circumstances, things that are not logically impossible or outright violations of the laws of nature. The other mode is the  genuinely plausible , scenarios that are either actually possible (because they have happened) or feasible given a reasonable construal of existing realities. I would like to narrow the use of  hypothetical  to the latter set of  plausible  cases and coin a new term,  hyperthetical , for the merely conceivable.

I will grant that hypertheticals, such as the ring of Gyges or "philosophical zombies" (a recent craze in philosophy of mind) may be useful in testing our intuitions, ethical and otherwise, but they have limited value for thinking about what is right to do in the world we actually inhabit; indeed, they may  impede  good ethical judgment. At issue is the status of  acts  we would normally consider anathema. For  any  such taboo act -- rape, torture, child abuse -- it is possible to imagine a  hyperthetical  that would make us say, "Well, gosh, in a case like  that , I guess we would have to allow it." Steinhoff does just this for rape in the case of "Innocent Jenny" attacked by "Serial Killer," who both happen to be naked: "Jenny, who is a doctor, is currently treating her vaginal infection with a potent new ointment, which has the side-effect of killing any man whose penis is exposed to it long and severely enough" (149). In Steinhoff's scenario, Jenny and Killer struggle, and she manages to force his penis into her vagina while he says "No," thereby justifiably raping him to death in self-defense.

If this is not a  hyperthetical , I don't know what is. The point is this: to say that there are some things we should not do because they are wrong does not mean it is  inconceivable  that there might be extraordinary exceptions. The threshold of exception may be higher or lower depending on the act in question, with lying at the low end and things like killing and torture at the high end.

The reality is that the question of torture is part of an ongoing debate with real practical consequences, and Steinhoff owes us a fuller story about what his argument justifies. A kidnapped child buried alive is now sadly a plausible  hypothetical , but as we move along the range of modality to  hyperthetical  scenarios, something dangerous happens. Here I want to make an Aristotelian or Burkean argument about the ethical habits of both citizens and state institutions. Such habits are fragile, as torture's explosion in the "War of Terror" demonstrates. Jane Mayer has written about how Brigadier General Patrick Finnegan, then dean at West Point, led a delegation to the producers of the TV show "24" (literally a "ticking" deadline), because it had convinced so many West Point cadets that torture is justified, especially as employed by the show's hero, Jack Bauer, in dealing with life-and-death emergencies. The delegation did not convince the producers to alter the program's message, and "24" has been one of the most popular shows with troops stationed abroad after 9/11. [9]  I know first hand how seriously the military takes this concern, because my father and I were invited to West Point to discuss torture with faculty and students in 2011, after our own book on the subject came out.

The point is an Aristotelian one: We cannot form a shared culture of ethical life on the basis of outlandish hypertheticals. Practical wisdom, Aristotle's  phronêsis,  depends on developing ethical judgment and decision-making around hypotheticals that are tied to circumstances that we can recognize and share as plausible touchstones for life as we live it, so that when an exception does occur, we can deal with it precisely as an exception. Hypertheticals, such as Naked Jenny, or torturing innocent children, have the effect of unhinging practical wisdom from the historical context that any robust community of shared norms must learn to inhabit. They are a Trojan Horse: by accepting a remote possibility as setting the standard for action, the everyday and ordinary are utterly transformed. This is why an institution like West Point depends on a code of honor and on absolutes such as the prohibition on torture: a  presumptive inconceivability  imbues both individuals and communities with the requisite ethical intuitions, even if in rare cases these may be up‑ended.

But after 9/11, is a nuclear bomb planted in a city still just a hyperthetical? Maybe not. Torture is a problem from hell.  It   tortures   us  by putting cherished principles on the rack and forcing us to give in to exceptions. Torture  is  in fact worse than killing in this sense: history matters ,  context matters, and at this time in our history, it is torture -- not killing, not rape, and certainly not disintegration ray guns and killer vaginas -- that threatens to overturn principles vital to the foundation of liberal democracy. This is no hyperthetical concern, given the spread of torture under Bush. I will cede to Steinhoff that there are conceivable and isolated  hypotheticals , such as the Mook case, and now, horrifyingly, the planted nuclear bomb, that could make torture justified in self‑defense. But just as Steinhoff calls himself a threshold deontologist, we should stand for a  threshold absolutism  on torture. We must insist on the wrongfulness of torture, even if we accept that there might be exceptional cases where the wrong may be excused. Consider the intuition that while we might give soldiers in a just war medals and a parade, we should recoil at doing this for torturers, even in something like the Mook case. Above all, we must never make such excuses  ex ante , as a matter of open law or secret policy, much less make torture permissible in war, where it will indeed metastasize. Here I disagree with Steinhoff about legalization: violations of such a foundational norm must seek pardon  ex post facto , not license  ex ante . It may seem paradoxical that the justified may still be wrong, but such paradoxes are a feature of the tragic in the human condition, and we must mark the outer limits of hell as best we can.

ACKNOWLEDGEMENTS

I am grateful for conversations with Charles Fried, Mandeep Minhas, and Jeppe von Platz, which helped me develop the ideas in this review; its faults are entirely my own.

[1]  See Pope John Paul II ,  Veritatis Splendor , section 80.

[2]  See Article 2.2 of the  Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment .

[3]  Charles Fried and Gregory Fried,  Because It Is Wrong: Torture, Privacy and Presidential Power in the Age of Terror  (New York: W. W. Norton, 2010).

[4]  See Charles Fried,  Right and Wrong  (Cambridge: Harvard University Press, 1978), 10.

[5]   For example: Stephen Kershnar,  For Torture: A Rights-Based Defense  (Lanham, MD: Lexington Books, 2011).

[6]  For an account of the perceived threat level following 9/11 and the Bush administration, see Jack Goldsmith,  The Terror Presidency: Law and Judgment Inside the Bush Administration  (New York: W. W. Norton, 2009).

[7]  See  Inquiry into the Treatment of Detainees in U.S. Custody: Report of the Committee on Armed Services, United States Senate, November 20, 2008 .

[8]  For John Yoo’s remarks, see Sidney Blumenthal, “ Meek, mild and menacing ,”  Salon , January 12, 2006, retrieved May 5, 2014. 

[9]  See Jane Mayer, “ Whatever It Takes: The Politics of the Man Behind ‘24,’ ”  The New Yorker , February 19, 2007.

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Article contents

The ethics of torture: definitions, history, and institutions.

• Rebecca Evans Rebecca Evans Department of Politics and International Relations, Ursinus College
• https://doi.org/10.1093/acrefore/9780190846626.013.326
• Published in print: 26 November 2012
• Published online: 11 January 2018
• This version: 30 January 2020
• Previous version

International law defines torture as the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. Since torture is banned under any and all circumstances, states go to great lengths to insist that their conduct does not qualify as torture. Officials seek to distance themselves legally and morally from an association with torture by using clean torture techniques that do not leave physical marks and by downplaying the seriousness of their methods, characterizing their interrogation techniques in euphemistic language that makes it possible to practice torture without admitting that they are doing so. Yet even supposedly lesser forms of abuse referred to as torture “lite” can have severe effects when they are employed in combination and for long periods. Fundamentally, torturous acts are designed to break a victim by demonstrating the victim’s utter powerlessness. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. Torture was seen as an effective technique for obtaining information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Since the end of World War II, torture has been rejected as a violation of basic human rights and publicly condemned by most countries in the world; international treaties such as the United Nations Convention Against Torture (CAT) require signatory parties to end torture within their territorial jurisdiction and to criminalize all acts of torture. Nonetheless, countries throughout the world continue to engage in ill-treatment and torture, often during times of national stress, when perceived others or out-group members are subjected to extreme interrogation. Although torture is employed by democratic and nondemocratic forms of government alike, empirical studies reveal that political regimes and institutions have a significant impact on the type of torture used and the duration of government support for torture. Effective democratic institutions like a free press and an independent judiciary make it more likely that cases of torture will be exposed and violators punished, and democratic governments with strong mechanisms for holding officials accountable are more likely to transition away from ill-treatment and torture of detainees, at least once violent challenges end. During periods of perceived threat, however, public intolerance of unwanted others makes it likely that democratic publics will condone if not encourage the use of torture against detained transnational terrorism suspects and other dissidents. Under such circumstances, independent judicial institutions may incentivize officials to practice torture more covertly. Non-democratic countries are more likely to flout human rights treaties such as the CAT, signing such agreements as a means of deflecting criticism but continuing to employ torture against dissidents. Even liberal democracies are found to have difficulty complying with certain international human rights treaty obligations, especially when information about violations—as in the case of torture—tends to be hidden. The resulting impunity makes it difficult to put an end to torture.

• definitions of torture
• torture lite
• history of torture
• legal abolition of torture
• institutional and political influences on the use of torture

Updated in this version

Revised to include new scholarship on the effectiveness of torture, including testimonials from officials involved in interrogations, empirical studies, and updated data on public opinion; new subtitle, keywords, section headings, and references.

Introduction

Once accepted as a legitimate judicial practice, torture has come to be widely condemned as unacceptable. The atrocities of World War II led the framers of the 1948 Universal Declaration of Human Rights to include a prohibition against torture, stipulating in unqualified terms that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment” (Article 5). Similarly, the Geneva Conventions, which were expanded and revised in 1949 , not only provided protection for prisoners of war and civilians but also banned the use of torture and cruelty against “unlawful” combatants as “outrages against personal dignity” (Fourth Geneva Convention, Article 3). Since that time, various international conventions have made the ban on torture an absolute moral imperative, assigning it the status of a peremptory norm ( jus cogens ) that is widely considered to be binding on all states, whether they have ratified a particular treaty or not. The 1966 International Covenant on Civil and Political Rights prohibited torture even “during public emergencies that threaten the life of the nation” (Articles 4 and 7). Similarly, the 1984 Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment insisted that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2). In 1998 the International Criminal Tribunal for Yugoslavia ruled in the case of the Prosecutor v. Anto Furundzija that the jus cogens value of the prohibition against torture meant that national measures authorizing or condoning torture or absolving perpetrators through amnesty laws are impermissible; furthermore, the court ruled that every state is entitled to investigate, prosecute, and punish or extradite individuals accused of torture who are present in a territory under its jurisdiction (de Wet, 2004 , p. 98). This ruling was upheld in the landmark Pinochet case, in which the British House of Lords divested former Chilean dictator Augusto Pinochet of his sovereign immunity and ruled that even heads of state can be held accountable for violating crimes against humanity, including the prohibition against torture (Evans, 2006 ).

Yet just as considerations of political expediency led the British government to allow General Pinochet to return to Chile rather than be extradited to Spain to stand trial, governments and international courts have not consistently upheld the prohibition against torture. Moreover, torture continues to be practiced by many countries throughout the world, including leading democracies. In 2014 , 155 countries have ratified the Convention Against Torture, but instances of torture or other ill-treatment were documented in 141 countries (Amnesty International, 2014 ). Few countries openly acknowledge employing such practices, resorting to a variety of strategies to circumvent the legal prohibition against torture, including denials that given treatments constitute torture, plausible deniability, and torture by proxy. For example, though the George W. Bush administration denied using torture against detainees in the “war on terror” launched after September 11, 2001 , its clandestine detention program and use of brutal interrogation techniques defied such public claims (Senate Select Committee on Intelligence, 2014 ; for a fuller discussion, see Evans 2019 ).

International law and universal human rights norms symbolize modern progress toward banning the use of torture as well as cruel, inhuman or degrading treatment or punishment. Yet the continued use of torture suggests that protections remain vulnerable to state interests. Although torture is no longer used as a spectacle of state power, it continues as a practice hidden in plain sight. By downplaying the physical and psychological harm caused by interrogation methods and questioning the credibility of victims, governments maintain legal and moral respectability while simultaneously inflicting tortuous experiences in an attempt to uncover information to prevent future attacks.

This article begins by laying out the legal definition of torture and a number of complexities and ambiguities that arise from this definition. Next, it turns to a discussion of the history of torture, analyzing its shift from an open and accepted practice to one that became hidden and stigmatized. The article then summarizes recent scholarship on institutional and legal influences on the practice of torture, pointing to limits on the effectiveness of democratic and judicial institutions in restricting torture. It concludes with reflections on the social forces that enable torture to continue. Although people abhor the general idea of torture, they are willing to believe official denials that authorities actually engage in torture, especially when this is hidden in prisons or black sites overseas. Moral disengagement and victim blaming make it easier to condone violence, while social amnesia contributes to a lack of accountability that suggests that abuse is acceptable.

The Definition of Torture

The UN CAT (Article 1) defines torture as:

any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in, or incidental to lawful sanctions.

According to international law, torture is the intentional infliction of intense suffering aimed at forcing someone to reveal information, punishing unwanted behavior or inspiring fear in a broader population. While this legal definition focuses on the involvement of states and their agents rather than cruelty committed by private citizens, scholars have noted that illegal organizations, such as the mafia or guerrilla armies, are also capable of torture (Davis, 2005 , p. 163).

Since freedom from torture is defined as a universal human right which states may not violate under any circumstances, states go to great lengths to insist that their conduct does not qualify as torture. As legal scholar John Parry ( 2005 , p. 520) comments, “governments will interpret the legal definition of torture to permit specific forms of coercion because they are ‘not torture,’ a move which allows formal adherence to an absolute ban on a shrinking category of conduct.” Governments have carefully parsed the language with which they describe interrogation techniques, using euphemisms and narrow legal interpretations to differentiate between their methods and torture. Governments acknowledge employing “enhanced interrogation techniques” but insist that these do not constitute torture. Like many legal formulas, the definition of torture is sufficiently vague as to permit governments to draw semantic distinctions; governments can thus deny that the harsh interrogation methods that they employ do not meet the high threshold that legally defines torture. To qualify as torture, interrogation methods must not only cause pain but “severe” pain; they must not only involve degrading and inhuman treatment, but an “aggravated” form of such treatment. The prohibition against the intentional infliction of severe physical or mental suffering therefore opens up a subjective judgment as to whether particular methods cause sufficiently severe pain as to be considered torture. As Tobias Kelly ( 2012 , p. 170) writes, “for an act to be considered torture . . . the intensity of pain and suffering is of central importance. Yet the law provides no precise point at which pain tips over into severe pain and an act becomes torture.” As a result, even though the prohibition against torture is absolute and definitive in principle, it is quite difficult in actual practice to recognize and document when torture has taken place (Kelly, 2012 , p. 169). This is especially true given the legal reservations that countries like the United States have adopted when ratifying the UN CAT, effectively excluding practices like sensory disorientation and self-inflicted pain and requiring specific intentionality that is “situated subjectively in the mind of the torturer, not objectively in the nature of his actions” (McCoy, 2011 , p.34). Though the use of excessive force would seem to be banned under international law and the US Constitution, strict textual analysis suggests that exceptions are permitted if the use of force is deemed to be “reasonable,” is applied as part of a “good faith effort to restore or maintain discipline,” or is justified by “compelling government interest” (Parry, 2005 , pp. 527–528).

Public authorities have a vested interest in insisting that instances of painful abuse should not be labeled as torture, given the political and legal consequences this carries. Following the attacks of September 11, 2001 , legal memoranda prepared by the Office of Legal Counsel within the Department of Justice authorized the use of harsh interrogation practices against detainees in Afghanistan, Iraq, and elsewhere, maintaining that these did not technically constitute torture. According to an August 2002 memo, abuse does not rise to the level of torture unless it inflicts pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.” For purely mental pain or suffering to constitute torture, it had to result from “extreme acts” and “result in significant psychological harm of significant duration, e.g., lasting for months or even years.” The memo went on to examine a number of techniques such as sensory deprivation that “may amount to cruel, inhuman or degrading treatment,” but insisted that these “do not produce the pain or suffering of the necessary intensity to meet the definition of torture” (“Standards of Conduct for Interrogation under 18 USC §§2340–2340A,” August 1, 2001 ; reprinted in Greenberg and Dratel, 2005 , pp. 172–217). Public opinion in the United States suggests that most Americans generally agreed with such distinctions; for example, after the shocking pictures of prisoner abuse at Abu Ghraib prison in Iraq were shown in April 2004 , large majorities opposed the kinds of techniques used in Iraq but only a third agreed that what US soldiers did to prisoners there amounted to torture (Morin & Deane, 2004 ).

Such distinctions allow officials to distance themselves from any association with torture. In the popular imagination, torture calls to mind images of dungeons furnished with medieval instruments designed to maim and mutilate. As such, torture tends to be associated with barbaric methods of inflicting physical pain that are readily condemned by the civilized world. Yet modern torture, as Darius Rejali ( 2007 , pp. 1–5) chronicles, often takes the form of “clean” torture techniques that inflict pain without leaving visible marks. Techniques such as electric shock, choking with water, near asphyxiation, and certain types of beatings are specifically designed not to “bruise the merchandise,” which makes them easier to deny and allows states to avoid bad publicity (Rejali, 2007 , pp. 1–5). Interrogation techniques euphemistically referred to as “sleep management” (20-hour interrogations for every 24-hour cycle), “environmental manipulation” (exposure to extreme heat or cold), “stress and duress” (forcing a prisoner to stand or sit in uncomfortable positions for long periods of time), and “ego down” (degrading treatment) are often downplayed as “torture lite,” suggesting that they are not as harmful or severe as “real” torture (Bowden, 2003 , p. 53; Jaffer & Singh, 2007 , pp. 8–19; Wolfendale, 2009 , p. 54). The use of “acoustical bombardment”—playing extremely loud, dissonant music or white noise over long periods of time—has been used as a means of sensory deprivation, preventing prisoners from being able to think straight and compounding their disorientation through sleep deprivation. Although the use of music in interrogations may at first seemed innocuous, it has been found to have debilitating effects on prisoners (Cusick, 2013 , pp. 275–291). Moreover, the use of songs—like the theme song from Sesame Street or Barney the Purple Dinosaur—seems to “undercut the seriousness of the effects of the physical and psychological abuse of which it is a part. We’re able to laugh off the form of abuse on account of the associations of its content. And once we laugh at it, we effectively, although almost surreptitiously, break through the absolute ban on torture” (Cusick & Joseph, 2011 , pp. 17–18).

The various techniques used as part of enhanced interrogations are not activities that one would intuitively think of as being torturous and may even be seen as normal. For example, Rudy Giuliani, the former mayor of New York City, compared sleep deprivation to the “fatigue of campaigning” that he experienced (Bellaby, 2015 , p. 185). When asked to approve specific interrogation techniques for prisoners at Guantánamo, Defense Secretary Rumsfeld authorized forcing prisoners to stand for long periods of time and asked why this was limited to eight hours per day, suggesting that he stood that long if not longer himself (Haynes, 2002 ). Such responses suggest that one knows what it feels like to undergo one of the torture lite techniques and that detainees are weak for not being able to withstand them (Cusick & Joseph, 2011 , p. 18). However, as Elaine Scarry ( 1985 , pp. 47–48) points out, forcing people to stand completely immobile for long periods of time “can produce as violent muscle and spine pain as can injury from elaborate equipment and apparatus, though any of us outside this situation, used to adjusting our body positions every few moments before even mild discomfort is felt, may not immediately recognize this.” Ross Bellaby ( 2015 , pp. 185–186) notes that interrogation techniques are used in combination and over long periods “with no option of recovery, revival or understanding of when the ordeal will end. . . . Over time the building up or continuation of such activities can have profound effects on an individual’s mental, physical and emotional state” and in combination amount to full torture.

Nonetheless, by employing “harsh interrogation” rather than torture, interrogators can more readily see themselves as “professionals motivated by the need to gain intelligence essential for saving lives” rather than as brutal or sadistic torturers (Wolfendale, 2009 , p. 49). Moreover, the use of “lite” techniques is easier to justify because interrogators are not forced to inflict physical violence directly. While they may force detainees into stress positions or subject them to sensory deprivation, the agony that the detainees experience stems from their prolonged exposure to certain conditions rather than an immediate response to the infliction of pain (Wolfendale, 2009 , p. 55). Thus, it is easier to convince interrogators that their actions are benign and that the detainees are responsible for their own pain (Wolfendale, 2009 , pp. 56–57).

Thus, according to certain perspectives, interrogation techniques and detention procedures that aim at “softening up” prisoners through sensory deprivation, sexual humiliation, and exploitation of phobias, though unpleasant, do not constitute torture. Similarly, psychological manipulations designed to break a person’s resistance by creating fear, terror, or helplessness may not be counted as torture because they are presumed not to cause prolonged mental harm, such as the development of post-traumatic stress disorder (Başoğlu, Livanou, & Crnobarić, 2007 , pp. 277–278). Such a distinction between physical torture and extreme mental suffering is reflected in the different legal status of torture, on the one hand, and cruel, inhuman, or degrading treatment, on the other. The British government, recognizing the significance of this distinction, appealed a ruling by the European Court and scored a public relations victory by reducing the court’s finding to the judgment that Britain was “only” guilty of cruel and unusual treatment of Irish political prisoners—not actual torture (Millett, 1994 , p. 102). The CAT also creates a distinction, requiring states parties to criminalize official torture, but simply exhorting them to work to prevent cruel, inhuman, or degrading treatment.

Yet, a 2007 study of survivors of torture found that psychological manipulation, humiliating treatment, exposure to adverse environmental conditions, and forced stress positions were no different from physical torture in terms of the level of traumatic stress and the long-term psychological after-effects that they cause. Based on their findings, the authors conclude that it is misleading to distinguish between torture and other cruel, inhuman, or degrading treatment since both can cause severe mental suffering (Başoğlu et al., 2007 , pp. 283–284). Other medical experts concur that psychological manipulations and forced stress positions are not “substantially different from physical torture in terms of the severity of mental suffering” and can have severe, long lasting effects (McCoy, 2011 , p. 32; Wolfendale, 2009 , pp. 50–51). Similarly, in a study of the effects of extreme stressors on the brain, neuropsychologist Shane O’Mara ( 2015 , p. 4) finds that coercive practices that involve extreme and prolonged stress impair the normal functioning of the brain and result in neuropsychiatric disorders, disrupting if not permanently damaging bodily function and thereby violating even the standards laid down by administration lawyers. Along the same lines, David Luban ( 2009 , p. 222) argues that “there is something deeply wrong, not to mention perverse, about the entire enterprise of trying to draw fine lines between torture and lesser abuses. An essential continuity exists between them, because all have the degradation of their victim as their core.” For Luban, the key characteristic of torture lies in the abject humiliation of the victim, whose sense of complete powerlessness creates such intense fear that the victim is terrorized and “broken.” For interrogators like Tony Lagouranis and Eric Fair, interrogation practices such as stress positions and sleep deprivation, despite their designation as legal rules of engagement, actually did constitute torture; the practices stripped the detainees of their humanity, with effects that were intense, severe and extraordinarily painful (Fair, 2016 ; Lagouranis, 2008 , pp. 335–336).

Elaine Scarry shares Luban’s view that torture renders the victim completely powerless, but she focuses on the way that the infliction of excruciating pain does this. According to Scarry ( 1985 , pp. 27–28), torture reduces people to prisoners of their bodies, demonstrating and magnifying the power of the agent (and, by extension, the regime) employing torture. The “annihilating power of pain” narrows victims’ consciousness, reducing their focus to immediate bodily sensations. Their bodies become agents of their own agony, as the “grotesque overload” of physical pain disintegrates their sense of self and eliminates their ability to express and project themselves through language (Scarry, 1985 , pp. 47–49). The “world-destroying” effect of torture, in turn, compels prisoners to confess, “to assent to words that through the thick agony of the body can be only dimly heard” (Scarry, 1985 , pp. 33, 35). The confession, as Scarry explains, is what provides a justification for brutal treatment, redirecting moral responsibility from the torturer to the prisoner. Even though the torturer is in complete control, the interrogation process shifts blame on to the victim, pretending that the prisoner has caused this situation by withholding information. Yet even a confession does not absolve the prisoner: “despite the fact that in reality he has been deprived of all control over, and therefore all responsibility for, his world, his words, and his body, he is to understand his confession as it will be understood by others, as an act of self-betrayal” (Scarry, 1985 , p. 47).

Along similar lines, Jean Améry, a victim of torture during World War II, writes that torture destroys people’s sense of self by breaking down the boundaries of the body. When the victim’s body is attacked—and furthermore, when the victim has neither the ability to defend himself nor the expectation of help from another person—then he becomes nothing but a body in pain: “only in torture does the transformation of the person into flesh become complete. Frail in the face of violence, yelling out in pain, awaiting no help, capable of no resistance, the tortured person is only a body, and nothing else beside that” (Améry, 1980 , p. 28). The victim’s body becomes the instrument of the torturer, who exercises absolute domination over the prisoner’s flesh and spirit, rendering the victim helpless and hopeless (Améry, 1980 , pp. 21–40).

Recent philosophical essays argue that it is the asymmetrical relationship between victims and torturers that makes torture distinctive. Whereas victims of torture are completely vulnerable and exposed, their torturers are in perfect control. Victims are utterly at the mercy of their tormentors; the prisoner “cannot effectively evade, retaliate or shield himself against these assaults. Unlike other kinds of attack, here the victim must simply take it: there is no reply or counter open to him” (Sussman, 2005 , p. 31). Moreover, the victim cannot stop his or her physical suffering by admitting defeat; although in theory torture will stop once the subject confesses or provides certain information, “a torturer seldom if ever knows how much useful information the tortured has or how much the tortured must confess in order to have confessed ‘everything’” (Davis, 2005 , p. 164). Torture takes full advantage of victims’ helplessness, turning them into active accomplices in their own debasement. Because of the insistent, primal demand for relief from intense pain, victims cannot help but search for some way of appeasing or mollifying their tormentors; the “victim experiences within himself a dialectic where some part of him serves as the eager agent of his tormentor . . . the victim finds in his pain, and his own immediate responses to that pain, a surrogate for the torturer. The victim’s own voice, the voice of his body, has come in part to speak the torturer’s mind” (Sussman, 2005 , p. 24). In addition to exploiting the victim’s pain, torturers defile, degrade, and overwhelm their victims with shame, similar to victims of rape; not surprisingly, sexual torture is often used to emphasize the power of the tormentor and the vulnerability of the victim (Millett, 1994 , pp. 34–35).

The essence of torture is the destruction of the victim’s sense of agency. The deliberate infliction of severe physical pain or mental suffering is not enough; this must be done with the purpose of bringing individuals to such a point of weakness that they betray themselves. The victim must be broken, forced to offer information against his or her will (Bellaby, 2015 , p. 187). When a person voluntarily submits to painful procedures (such as self-flagellation or painful medical procedures), this does not qualify as torture. Moreover, torture differs from coercion insofar as torture seeks to terrorize victims into submission by overwhelming their capacity to exercise rational control over their decisions. Finally, torture differs from corporal punishment insofar as the latter prescribes a specific, predetermined penalty for a particular transgression and does not seek to break the guilty party’s will (Miller, 2017 ; for a contrasting view, see Schabas, 1996 , p. 4). As Manfred Nowak ( 2006 , p. 832), the UN Special Rapporteur on Torture, explains in his study of US and international standards of torture, what distinguishes torture is the total subordination of the victim to the will and power of the torturer, for example through prolonged incommunicado detention in a secret place, which permits the perpetrator to intentionally inflict pain or suffering so as to extract a confession, obtain information, or punish or intimidate the victim.

History of Torture

Although torture has come to be widely rejected, this was not always the case. Historically, torture was not only common in times of war and social upheaval, but it was also openly practiced in many societies as an integral part of the judicial system. No euphemisms for torture were needed in medieval Europe since there was no need to deny the process and torture enjoyed general cultural consent (Silverman, 2001 , p. 21). Throughout much of history and much of the world, torture was seen as an effective technique for obtaining “true” information as well as an appropriate punishment for the immoral and a useful deterrent against future misconduct. Ancient Greeks accepted torture for the interrogation of slaves based on the assumption that slaves could not be trusted to reveal the truth voluntarily. The Romans adopted this practice and extended it to citizens, including Christians who were “put to the question” to force them to renounce their faith. With the rise of Christianity, torture fell into relative disuse until the 11th century , when European judicial systems resurrected the practice of judicial torture and the Catholic Church reversed its previous opposition to torture and sanctioned the use of torture against heretics (Peters, 1985 , pp. 13–14). In China, torture was a legally sanctioned means of extracting information and confessions from the Han dynasty ( 206 bce – 220 ce ) until just before the end of the imperial system in 1905 . Chinese officials were convinced that “the measured use of torture could result in more substantive justice—in the sense that the guilty were more likely to be convicted and the innocent allowed to go free” (Park, 2008 , p. 37).

Analyzing the accepted use of torture in medieval Europe, Lisa Silverman ( 2001 , p. 61) explains that Europeans generally believed that the truth could be elicited from the subconscious by applying physical pain: “It was widely believed that the body had many ways to betray the criminal involuntarily, speaking the truth in signs for all to see while the will stopped the tongue. Pallor, for example, was well known to indicate guilty knowledge.” By inflicting physical pain, legalized torture was therefore seen to bypass the human will and force truth from the guilty, while God would reward those proven innocent. Contrary to the modern assumption that only testimony that is given voluntarily is true, early modern people assumed that “the accused spoke the truth not freely but under compulsion, and it was precisely this compulsion … which made evidence acquired under torture so valuable” (Silverman, 2001 , p. 66).

The legal acceptability of torture therefore rested on the belief that it was an unpleasant but necessary means for discovering the truth and thus achieving justice. Criminals would be made to confess their guilt and pay for their crimes; the innocent would be vindicated. In both cases, the pain and suffering of those tortured would help achieve a higher goal, whether preserving civilization, fulfilling a sacred religious mission, or protecting the community. Torture was also used as an accepted part of ordinary criminal procedure in Europe from the thirteenth to the late eighteenth centuries , when judges were required to establish certain guilt in order to convict someone of a serious crime; certainty, in turn, was established through the testimony of two eyewitnesses or the accused person’s own confession. Because the two-eyewitness standard was so difficult to achieve, torture became an accepted means of extracting confessions (Langbein, 2004 , pp. 94–97).

In each case, the practice of torture was subject to strict rules, including the specific instruments to be used, the way in which they were to be applied, and the types of people who could be subjected to torture. In each case, initial restrictions were eventually eased. In ancient Greece and Rome, the rule that only slaves could be tortured was eventually expanded to include other groups; similarly, initial exemptions for women, children, and privileged classes were eventually dropped in medieval Europe. As John Conroy ( 2000 , pp. 27–28) explains, “the class of people whom society accepts as torturable has a tendency to expand.”

Changes in European legal systems led to a general ban on torture in continental Europe over the course of the 18th century . With the advent of less severe punishments for crimes, standards of proof could be relaxed. Defendants could be sentenced to jail, the workhouse, or exile rather than death; whereas the high stakes involved in sentencing a prisoner to death required definitive proof, relatively lighter sentences could be justified on the basis of circumstantial evidence. Torture-induced confessions were no longer legally justified (Langbein, 2004 , pp. 97–99). The abolition of a legalized system of judicial torture also reflected a shift in thinking about torture. Previously, torture was justified on religious grounds since it was presumed to benefit the sufferer by forcing him to admit the truth, even against his will, and thus bringing him closer to God. The infliction of pain was seen as a positive technique for saving the souls of fallen Christians, allowing sufferers to atone for their sins and win eternal salvation; hence, torture in the Inquisition was justified as Rettungsfolter or salvation-oriented torture (Brunkhorst, 2009 , p. 75; Glucklich, 2001 ).

Over the course of the 18th century , however, Enlightenment thinkers challenged this sacramental view of pain, contending that pain had no redeeming value and no connection to metaphysical truths; these intellectuals replaced the sacramental vision of pain with a medical approach to pain that emphasized the need to relieve suffering. Rather than embracing physical pain as a positive technique for overcoming selfishness, they condemned it as a negative practice that destroyed the self. They denied the value of testimony elicited through torture and charged that torture was a “tool of despotism” and “a weapon in the arsenal of political oppression” (Silverman, 2001 , p. 171). In his 1764 “Essay on Crimes and Punishments,” Italian prison reformer Cesare Beccaria wrote that governments have no right to authorize the punishment of a citizen so long as there remains any doubt of his guilt; according to Beccaria, torture was “a sure way to acquit robust scoundrels and to condemn weak but innocent people” (quoted in Foot, 2006 , p. 135). The changing cultural landscape meant that, in Europe at least, torture was transformed from a generally accepted practice to a generally rejected practice by the end of the 18th century . In fact, judicial torture had already become less common before this time, since judges had previously become skeptical that torture necessarily produced truthful testimony (Langbein, 2004 , p. 99; Silverman, 2001 , pp. 66–67).

Michel Foucault analyzes a similar shift in attitudes toward the use of torture as a method of punishment. Prior to the 18th century , torture was not only used to extract confessions but was also used as a form of extreme punishment intended to demonstrate and strengthen the sovereign’s power: “Its aim is not so much to re-establish a balance as to bring into play, at its extreme point, the dissymmetry between the subject who has dared to violate the law and the all-powerful sovereign who displays his strength” (Foucault, 1975 , pp. 48–49). As such, torture was used to terrorize the rest of the population by demonstrating the fearsome consequences of incurring the sovereign’s wrath. Yet the sovereign’s public use of torture as punishment, for example in public executions, did not necessarily deter others from misbehaving; it sometimes triggered sympathy for the convict and prompted riots in support of the prisoner. Public torture therefore proved counterproductive to the goals of the state, undermining rather than reinforcing the sovereign’s power. As such, it gave way to new disciplinary techniques that rejected brutal violence as an ineffective method of controlling and manipulating behavior. Although there was still a fear of violence and brutality, prisoners were found to be much more effectively disciplined by isolating them and subjecting them to constant surveillance.

Changes in legal theory meant that after the 18th century , judicial torture was no longer condoned in Western Europe. Coerced confessions were considered unreliable and were inadmissible as evidence. Torture came to be seen as the hallmark of a premodern, uncivilized culture, and modern, liberal regimes were assumed to have abandoned such a barbaric practice. According to the author of a 1907 entry on torture in the Encyclopaedia Britannica , “the whole subject is now only one of historical interest as far as Europe is concerned” (quoted in Twining & Twining, 1973 , p. 305). When Rejali (quoted in Parry, 2005 , pp. 517–518) wrote that the use of torture in Iran was not an anachronism but part of a rational, bureaucratic structure typical of modern states, his association of torture and modernity prompted one critical reviewer to ask: “if the growth of torture in 20th-century Iran and its changing forms are caused by efforts to modernize, why do we not torture in the modern United States or Western Europe?”

In fact, Rejali documents the continued use of torture by modern democracies in his 2007 book, Torture and Democracy , and argues that the scrutiny of civil society actors and human rights advocates has not ended torture but has incentivized interrogators to employ non-scarring techniques instead: “When we watch interrogators, interrogators get sneaky” (Rejali, 2007 , p. 9). In his comparative and historical analysis of torture, Christopher Einolf ( 2007 ) provides statistical evidence that there was a resurgence of torture in the 20th century . Torture increased with the rise of fascist and communist regimes in Germany, the Soviet Union, and their allies. These regimes employed torture as a mechanism for social control, using it to sow fear in their populations and neutralize dissent. Changes in the intensity and nature of military conduct in the first half of the century also led to an increase of torture of prisoners of war and occupied populations: “When total war tactics were combined with ideological and nationalist disrespect for conventional limitations on war, massacre, violence against civilians, and torture of enemy civilians and prisoners of war occurred at unprecedented levels” (Einolf, 2007 , p. 114).

Yet torture was also a common social practice used against domestic populations, especially members of marginalized groups (Parry, 2005 , p. 521). In the United States, a 1931 report by the National Commission on Law Observance and Enforcement documented the widespread use of stress positions, battery, psychological torture and the “water cure” in order to obtain information about a crime, highlighting the systematic use of the “third degree” by police and prison officials (Coyne & Hall, 2018 , pp. 146–147). Some of these techniques were apparently first tested in the Philippines where a wide range of torture techniques became standard operating procedure, subject to few constraints and no legal accountability (Coyne & Hall, 2018 , pp. 142–145).

Despite international efforts to promote human rights at the conclusion of World War II, torture continued to happen “off stage” in colonial and foreign locations and against members of marginalized groups whose guilt was presumed and credibility was questioned (Parry, 2005 , pp. 521–522). While colonial governments practiced torture prior to the 20th century , the rise of anti-colonial movements in the second half of the 20th century prompted colonial authorities to tighten their control and resort to increasingly brutal methods, including torture. Counter-insurgency campaigns against guerrilla forces also led to an increase in torture, as insurgents and their supporters were more likely to be tortured for information than prisoners of war in previous conventional wars, who were believed to possess relatively little information of value to the other side (Einolf, 2007 , p. 114). The 20th century also saw the rise of military governments in Latin America and communist governments in Asia that used systematic repression and torture to crack down on real and suspected opponents. These governments used torture and state terror to subdue their populations, exaggerating the extent and depth of security threats due to rigid ideological frameworks that convinced leaders that repression of the general population was necessary (Pion-Berlin & Lopez, 1991 , p. 68).

Since torture is forbidden under international law, it is commonly associated with nondemocratic regimes that fail to recognize limits on their power and wantonly subject individuals to brutal, inhumane treatment. However, with the rise of international campaigns against torture and the conditioning of foreign aid on adherence to human rights norms, nondemocratic states came to appreciate the value of appearing to conform to international norms prohibiting torture. Even nondemocratic states that regularly employ torture have ratified the UN CAT, calculating that doing so will enhance their reputations without actually preventing them from continuing to use torture (Hathaway, 2004 , pp. 202–208). In addition, both nondemocratic and democratic states have turned to “clean” torture techniques in order to avoid bad publicity about their human rights practices (Rejali, 2007 , pp. 23–26). These techniques, which leave no visible marks and are therefore easier to downplay and deny, were first developed in democratic countries, where governments continued to believe that coercive interrogation techniques were a useful means of generating valuable intelligence but also realized that they were being watched and judged by others in how well they respected human rights. Thus, in order to avoid bad publicity and preserve a veneer of legitimacy, they turned to what Rejali ( 2007 , pp. 1–10, 2011 , p. 30) refers to as stealth torture: “whenever there’s a free press, church groups, and politicians to watch the police, the interrogators literally pull their punches” and use clean torture techniques instead.

Thus, democratic and undemocratic countries alike have developed ways of evading public scrutiny of unsavory practices that they officially renounced but privately employed. Historian Alfred McCoy ( 2011 , p. 31) examines the program of psychological torture developed and propagated by the CIA during the Cold War, emphasizing that the techniques of sensory disorientation and self-inflicted pain proved advantageous insofar as they did not leave “clear signs of abuse, greatly complicating any investigation, prosecution, or attempt at prohibition.” The CIA conducted research on mind control through “truth drugs” like LSD and experimented with forms of psychological torture through extreme sensory deprivation in hopes of gaining an advantage vis-à-vis their communist rivals (Coyne & Hall, 2018 , pp. 155–160). In Vietnam, where constraints were absent or lax, torture was used as part of Project Phoenix, a program designed to find, capture, interrogate and kill Vietnamese sympathetic to the Viet Cong. Some of the torture techniques developed in Vietnam were later brought back to the United States and used to coerce confessions from criminal suspects, as in the case of Vietnam veteran and Chicago police officer Jon Burge, reported to have overseen the torture of hundreds of African American suspects (Coyne & Hall, 2018 , pp. 162–166). Other cases of democratic countries’ use of torture against people defined as insurgents, terrorists, revolutionaries, or criminals include the French use of torture in Vietnam and Algeria, British practices in Kenya and Northern Ireland, dirty war tactics employed by Spanish security forces against Basque separatists, as well as methods used by Israeli security services to interrogate Palestinians suspected of “hostile terrorist activity” (Conroy, 2000 , pp. 4–8; Millett, 1994 , pp. 74–116; Parry, 2005 , p. 518; Supreme Court of Israel, 1999 ). Furthermore, officials from intelligence agencies of democratic countries were also involved in training their counterparts in developing countries on interrogation methods, including torture; the US Army School of the Americas (SOA) trained Latin American militaries to use practices such as torture, extortion, kidnapping and execution (Blakeley, 2006 ; McCoy, 2011 , p. 33; Quigley, 2011 , pp. 54–57).

These practices were deliberately hidden from the public since this allowed democratic citizens to imagine that the methods employed by their government were both efficient and moral; as Andrew Linklater (quoted in Steele, 2010 , p. 153) explains, “concealment protects moral sensibilities.” Democratic elites also took advantage of the public’s greater willingness to condone the use of torture against racial minorities, immigrants and other marginalized citizens, who are often seen as “deserving” rough treatment since they are members of groups that are portrayed as suspicious or even dangerous (Kelly, 2009 ; Wolfendale, 2009 , p. 58). As Brent Steele ( 2010 , p. 153) explains, if we do not identify—or identify with—the individuals who are subjected to torture, then we can imagine that they are as bad as possible and that they deserve the treatment they receive. Einolf ( 2007 , p. 102) agrees, citing evidence that torture is used “more often against people who are not full members of a society, such as slaves, foreigners, prisoners of war, and members of racial, ethnic, and religious outsider groups” or when the state is perceived to be under severe threat. As a result, despite domestic and international condemnation, torture techniques continue to be used not only in cases of national emergency but also as a routine part of many judicial systems (Tse, 2011 ).

Political and Institutional Influences on the Practice of Torture

All types of governments respond to violent challenges with repression. Studies have found that governments are significantly more likely to resort to torture when they face threats to their continued rule, especially when they are engaged in civil and international wars, face a violent dissident challenge, or are attacked by a transnational terrorist group (see, for example, Conrad et al., 2017 ; Davenport et al., 2007 ; Einolf, 2007 ; Wantchekon & Healy, 1999 ). Erwin Staub ( 2003 ) studied social indicators of genocide and torture, analyzing Turkey during years of Armenian genocide ( 1914–1918 ), Nazi Germany ( 1933–1945 ), Pol Pot’s Cambodia ( 1976–1979 ), Argentina’s “Dirty War” ( 1976–1983 ) and identified the scapegoating of a subgroup as the social condition most conducive to rise of torture. Criminologist Ronald Crelinsten ( 2005 , pp. 76–77) adds that torture is more likely in times of national emergency when there is an especially strong sense of threat to security and when prevailing ideology touts a “sacred mission” that provides a justification for violating standard social norms; he finds that torture is also more common when large numbers of suspects need to be processed. James Piazza and James Walsh ( 2009 , pp. 126–145) come to a more nuanced conclusion in their analysis of the impact of terrorism on government protections of human rights, finding that countries experiencing a large number of terrorist attacks were more likely to engage in disappearances and extrajudicial killings but not in torture, political imprisonment or restrictions on free speech and assembly. They do admit, however, that states may respond to terrorist attacks by engaging in more “clean” torture techniques that are by definition difficult for human rights monitoring groups to detect, much like disappearances and extrajudicial killings (Piazza & Walsh, 2009 , p. 138).

According to Emilia Powell and Jeffrey Staton ( 2009 , pp. 149–150), 83% of all states that ratified the CAT engaged in at least minimal treaty violations, while 42% of ratifiers—including 30% of democracies that ratified the CAT—systematically violated the convention. Democracies are therefore not as exceptional as they often like to think of themselves. On the one hand, liberal democratic institutions have been found to limit state coercion and repression. Democracies have a better record when it comes to respecting physical integrity rights (including freedom from torture as well as lack of extrajudicial killings, disappearances, and political imprisonment), especially where they have effective constitutional guarantees of the right to fair and public trials (Keith, Tate, & Poe, 2009 , p. 652; Simmons, 2009 , pp. 273–274). In democracies, a free media can act as a watchdog and expose human rights violations (Whitten-Woodring, 2009 ), contested elections can incentivize public officials to protect physical integrity rights (Cingranelli & Filippov, 2010 ) and effective judicial institutions can punish instances of state torture (Powell & Staton, 2009 ). Nonetheless, democratic governments have not abandoned the use of torture and many consider it useful in case of external threats such as transnational terrorism. In such instances, they turn to stealth torture and clean torture techniques in order to maintain plausible deniability and reduce the risk of exposure (Rejali, 2007 ). This allows democratic officials to claim that they remain within the bounds of legally acceptable levels of violence, as in former CIA director Michael Hayden’s central metaphor in his 2016 memoir Playing to the Edge , which he describes as playing so close to the line that you get chalk dust on your cleats. In fact, as Jinee Lokaneeta ( 2011 , pp. 34–35) argues, jurisprudence in liberal democracies uses such ambiguity to unequivocally reject torture while simultaneously permitting other forms of excess that exist at the border of legality and illegality. Thus, while constitutional provisions and human rights treaty commitments are not mere “parchment barriers” to human rights abuses including torture (Keith et al., 2009 ), they do not prevent states from violating such commitments in the face of terrorism or violent dissent.

Elections and liberal democratic institutions do, however, tend to reduce the duration of human rights abuses once violent challenges end. Courtenay Conrad and Will Moore ( 2010 ) find that elections and liberal democratic institutions can influence governments to stop using torture once the threat of violent opposition is gone; states with popular suffrage and a free press are generally more likely to terminate their use of torture because allegations of torture are more likely to become public and the executive is more likely to be held responsible and removed from office. Under such circumstances, executives have an incentive to take actions to convince interrogators and jailers that they will be caught and punished if they resort to torture. Democratic systems with a greater number of checks on executive authority (that is, a large number of veto players) are less likely to change torture practices, however, since the system is weighted toward maintaining the status quo. For example, though Barack Obama promised to close the detention camps at Guantanamo Bay, he was blocked from doing so by Congress, showing that institutionalized separation of powers makes it difficult to change human rights policy.

Thus, the use of torture may continue even when the threat of violent dissent is removed: “States whose agents engage in torture in a given year have a 93% chance of continuing to torture in the following year” (Conrad & Moore, 2010 , p. 459). The use of torture is often embedded in local culture and can be difficult to dislodge, given that executives cannot monitor and control all of the agents assigned to interrogate and supervise prisoners. In interviews with local police in India, Rachel Wahl ( 2014 , pp. 820–821) found that a deeply entrenched moral beliefs that defended the use of torture against hardened criminals and terrorists who were seen as “less human.” These enforcement officers rejected the premise that their job was to uphold the law and protect human rights; instead, they justified the use of torture as necessary to fight evil and achieve justice (Wahl, 2014 , pp. 821–822). In the face of genuine moral beliefs that conflict with human rights norms, upholding the personal integrity rights of criminals and marginalized individuals can be difficult even under normal circumstances. However, governments and enforcement officers who refrain from using torture are likely to maintain good practices “until a national security threat justifies the rougher handling of detainees” (Simmons, 2009 , pp. 305–306).

Democratic institutions may constrain governments from engaging in human rights abuses but they may also respond to popular pressure to use harsh tactics against foreigners and marginalized groups, rewarding leaders who vow to protect national security. Democratic majorities expect their leaders to protect them and elected officials who approve or condone the use of torture in the name of order and national security are often re-elected: “blocks of voters who explicitly support aggressive coercive behavior against unwanted others are able to elect executives who promise to take off the gloves on the grounds that they are implementing the will of the people” (Conrad, Hill, & Moore, 2018 , p. 4). Using data from Amnesty International on specific allegations of torture and ill treatment, Courtenay Conrad, Daniel Hill and Will Moore ( 2018 , p. 13) find that contested elections do not lead to greater protection of individual human rights; popularly “elected leaders are expected to protect the majority, and elections may incentivize them to permit/order state agents do so by committing human rights violations against people perceived to be threatening.” Even where there is widespread support for the general prohibition of torture, voters are unlikely to make protection of human rights a key electoral issue, especially for the rights of people of different racial, ethnic and cultural backgrounds. Survey research suggests, for example, that Americans are more accepting of government torture when a detainee has an Arabic name and when the alleged crime is terrorism (Conrad, Croco, Gomez, and Moore, 2018 ; Piazza, 2015 ). Contrarily, powerful constitutional courts are created to protect the rights of political minorities by monitoring and punishing violations of constitutional and human rights. Where courts are powerful, victims may file cases against human rights violators and those found guilty may be held accountable. Even so, effective courts cannot entirely prevent repressive practices, as officials may maintain plausible deniability by employing clean torture techniques that are easier to hide: “Courts may decrease state repression writ large, but they also appear to encourage executives and their agents to be more clever in hiding human rights violations that can be narrowly targeted by turning to clean torture when they do occur” (Conrad et al., 2018 , pp. 13–14). Similarly, despite expectations that constitutional prohibitions on torture should counter majoritarian support for repression of minorities, Adam Chilton and Mila Versteeg ( 2015 ) find that countries with torture bans actually engaged in more torture than countries without such bans and that torture levels actually worsened in the ten years after bans were adopted.

Just as liberal democracies generally have better human rights records but nonetheless practice torture in response to violent threats such as transnational terrorism, their compliance with international human rights treaties varies. Here, too, independent domestic courts may not be enough to deter governments from violating their commitment to refrain from using torture, and majoritarian pressures may actually reward some governments in the form of increased popular support for governments that openly violate international law (Lupu & Wallace, 2019 ). Yonatan Lupu ( 2013 ) argues that even powerful courts in liberal democracies may lack sufficient information to secure prosecutions for alleged cases of torture where evidence is difficult to obtain and standards of proof are high; as a result, ratification of the ICCPR has improved government respect for the freedoms of speech, association, assembly, and religion, but has not reduced the extent to which governments use torture, extrajudicial killings, political imprisonment, and disappearances.

Nondemocratic governments, however, are more likely to flout the terms of international human rights treaties, even when they have ratified such treaties. Such governments may cynically ratify treaties as a form of “social camouflage” to avoid international criticism even though they have little intention of actually improving their human rights practices (Simmons, 2009 , p. 112). Nondemocratic governments are actually more likely to practice torture if they have signed the CAT than if they have not (Hathaway, 2004 ). James Vreeland ( 2008 , pp. 69–70) explains this initially counterintuitive finding by analyzing the different circumstances facing “open” and “closed” dictatorships. He found that dictatorships with the trappings of competitive party politics are both more likely to sign the CAT and also demonstrate higher rates of torture. He explains that “closed” dictatorships in which power is concentrated in a single political party, junta, or leader actually face less opposition since defection is invariably punished. Such regimes face little pressure to ratify human rights treaties; moreover, since they rely on fear and intimidation to rule, “even a symbolic gesture against torture could introduce ambiguity over [their] limitations” (Vreeland, 2008 , p. 78). Dictatorships that allow some competition, however, face much greater prospects of defection and consequently have higher average rates of torture. At the same time, the greater level of uncertainty that characterizes multiparty dictatorships means that domestic political actors are in a better position to press their government to ratify human rights conventions such as the CAT. Vreeland ( 2008 , p. 94) clarifies that becoming a state party to the CAT does not itself cause an increase in torture and “may even serve to help reduce torture as governments adopt CAT provisions into domestic law”—which is why the domestic opposition in multiparty authoritarian regimes push for accession in the first place. Jay Goodliffe and Darren Hawkins ( 2006 , pp. 359–360) also argue that ratification entails a significant commitment insofar as it requires ratifying states to verify policy implementation, and establishes international monitoring and delegates prosecuting authority to other states through universal jurisdiction.

Emilie Hafner-Burton ( 2008 , pp. 700–701) argues that “naming and shaming” by human rights NGOs, media sources, and international organizations is often followed by even more acts of torture and disappearances. This arguably results from the fact that international pressure compels repressive governments to make a variety of improvements in political rights, but doing so exacerbates leaders’ insecurity and prompts them to engage in increased terror to offset these improvements, especially when armed opposition groups or elections threaten their hold on power (Hafner-Burton, 2008 , p. 712). While Beth Simmons ( 2009 , p. 305) acknowledges that international human rights treaties like the CAT cannot force governments to comply, she insists that these treaties can and do reduce torture in polities that have at least moderate levels of public accountability:

CAT ratification resonates in those polities; individuals and groups who may have good reason to fear mistreatment of themselves, their families, their countrymen, or other humans by the government have strong incentives to mobilize to implement the international ban in domestic law.

Overall, respect for constitutional protections of personal integrity rights and for the global norm against torture depends to a large extent on the expectation of norm enforcement and accountability, which is greater but not given in democratic states. Strong domestic legal systems can place significant constraints on the behavior of government leaders and agents, but enforcement is particularly difficult in the case of torture since violations tend to be hidden and public outcry is sporadic at best.

Although disagreements remain over the precise definition of torture, its modern use, and the effectiveness of international treaties prohibiting torture, most scholars agree that “the impressive worldwide prohibition of torture must be honored rather than co-opted by legal sleight of hand” (Miller, 2005 , p. 41). Though torture continues to be practiced by modern states, including democracies, it rejects the liberal tenet of the inviolable dignity of the individual and gives agents of the state absolute power over prisoners. This has a corrupting influence and is incompatible with liberalism and limited government. Even if the intended end is to save lives, the use of torture is generally rejected as an unacceptable means, and government resort to hypocrisy, secrecy and obfuscation, insisting that their enhanced interrogation methods do not qualify as torture. The absolute prohibition against torture under domestic and international law incentivizes officials to turn to clean techniques that have the veneer of acceptability even though they can cause excruciating pain and severe mental suffering.

Continued use of such techniques is made easier by downplaying their seriousness and restricting their use to marginalized groups in remote locations. “When officials declare that they have not approved illegal or inappropriate treatment, their denials tend to be accepted because we are likely to overlook or discount the seriousness of the treatment that has been permitted or inflicted” (Parry, 2005 , p. 521). The use of clean torture means that victims have a difficult time proving that they were brutally mistreated and they “may be already defined as suspect or untrustworthy because of their race or ethnicity, or because they were detained in the first place” (Parry, 2005 , p. 521). Moreover, torture is easier to hide when victims are others—foreign enemies or racial, ethnic, religious, and other minorities who are naturally regarded with less sympathy and more suspicion. People are less likely to define an act as torture when it is perpetrated against others and are therefore less likely to be concerned about torture when it occurs overseas against terrorism suspects that are viewed as a distinct “other” or is perpetrated by a member of one’s out-group (Kearns, 2015 , p. 10; Norris, Larsen, & Stastny, 2010 ).

Distinguishing between in-groups and out-groups is also one of the steps involved in conditioning individuals to commit violence and torture. In-group solidarity is fostered through common uniforms, rules, and language. Camaraderie and peer pressure urge individuals on while authorities encourage obedience and provide rewards (Huggins, Haritos-Fatouros, & Zimbardo, 2002 ). Socialization and group cohesiveness increase anonymity and decrease self-awareness, fostering a lack of personal accountability for abusive behavior (Costanzo & Gerrity, 2009 , pp. 196–198). In his study of a German police unit during World War II, Christopher Browning ( 1998 ) argues that the “ordinary men” who served in the unit were gradually desensitized to brutality by the examples of their peers and the mockery they feared if they failed to participate. Hostility toward out-groups is encouraged by dehumanizing victims and characterizing them as a threat, making it less disturbing to use violence against them. As Janice Gibson and Mika Haritos-Fatouros ( 1986 ) analyze in their study of the brutal but effective process of desensitizing special police units in Greece to torture suspected communists, military training gradually desensitized soldiers to violence and reduced the strain normally created by repugnant acts. The moral disengagement that made violence possible involved giving the enemy derogatory names and portraying them as less than human, making it easier to kil1 them (Gibson & Haritos-Fatouros, 1986 , p. 55). Similarly, in the Stanford prison experiment, the students who were randomly assigned to be guards quickly became aggressive and abusive within the prison, insulting and bullying the prisoners:

Even without training, the student guards “knew” from television and movies that they were supposed to punish prisoners; they “knew” they were supposed to feel superior; and they “knew” they were supposed to blame their victims. Their own behavior and that of their peers gradually numbed their sensitivity to what they were doing, and they were rewarded by the power they had over their prisoners. (Gibson & Haritos-Fatouros, 1986 , p. 57)

Dehumanization also helps explain the lack of accountability even when cases of torture are uncovered. In John Conroy’s ( 2000 ) study of the “unspeakable acts” committed by British soldiers against Northern Irish men falsely accused of being Irish Republican Army terrorists, he notes that the British government took years to acknowledge that the abuse and continued to deny that the techniques constituted torture. Moreover, the government charged without evidence that the tortured detainees were nothing more than “thugs and murderers” while “the perpetrators, instigators, and defenders of the five techniques . . . escaped unscathed, their reputations untarnished” (Conroy, 2000 , p. 187).

The continued use of torture and abusive practices also relies on social amnesia, which perpetuates a culture of impunity (Rajali, 2011 , p. 27). Occasional scandals tend to quickly fade from memory and torture retreats back to the shadows, at the margins of prevailing political discourse (Parry, 2005 , p. 521). For example, the British public’s knowledge of torture and other abuses committed by British colonial authorities in Kenya has clearly faded:

It is fair to say that even now, fifty years later, the British public is not really aware of what went on . . . British ignorance about Mau Mau is of a peculiar, resilient kind. It is breached every so often, but then heals over again. . . . There was a period in the later 1950s when everyone knew, or could know, what was going on. . . . All that seems to have been forgotten. The British need to believe that their Empire was run and eventually dismantled with restraint and humanity—as opposed to the disgusting brutality of the French, Dutch, Belgian, Portuguese, Spanish, and German colonial empires. (Neal Ascherson quoted in Parry, 2005 , p. 521)

Just as it is wrong to see torture as an historical anachronism, it is also misleading to claim that it is a new temptation or the product of exceptional circumstances (Athey, 2007 ). Historical amnesia and general lack of concern for the possible torture of others make it difficult to hold governments accountable for violations and pressure them to comply with the prohibition against torture. When no one is held responsible, torture is able to continue; as Rejali ( 2011 , p. 38) notes, “nothing predicts future torture as much as past impunity.” Despite international agreements and constitutional prohibitions, governments and their citizens have not demanded effective action to halt the spread of torture; in fact, they have been able to pretend that torture only occurs on an exceptional basis by relegating torture to hidden places and condoning its use against threatening and marginalized groups. This protects officials who ordered and implemented torture from responsibility. In order to confront torture, people must concern themselves with rights of all others, even those from “the torturable classes” (Conroy, 2000 , p. 251).

Links to Digital Materials

American Civil Liberties Union (ACLU) . The ACLU website includes thousands of searchable documents related to torture as well as a link to the partially redacted investigative report produced by the Senate Select Committee on Intelligence that describes human rights abuses by the CIA’s post-9/11 program of detention, torture, and other abuse of detainees. The website also includes links to statements demanding accountability for the CIA torture program and observations on the merits of legal cases against the US for its unlawful rendition, arbitrary detention, forced disappearance and torture of suspected terrorists.

Amnesty International (AI) . AI has documented torture for decades and regularly posts information on its website about torture practices in countries throughout the world, including annual reports on the state of human rights around the globe, as well as urgent action updates that contain information for letter writing campaigns calling for the release of prisoners of conscience at high risk of torture and other ill-treatment or even death.

Center for Constitutional Rights . The Center for Constitutional Rights focuses on promoting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights and its website contains extensive information and criticism of immigration sweeps, ghost detentions, extraordinary rendition, and other programs that deny individuals their right to due process. The website also includes descriptions of cases that have been brought against foreign officials and corporations for human rights abuses in US courts, as well as cases against US officials in foreign courts under the principle of universal jurisdiction.

Cingranelli–Richards (CIRI) Human Rights Data Project . The CIRI Human Rights Dataset contains data on government respect for 15 internationally recognized human rights in 202 countries from 1981 to 2011. It codes data from annual human rights reports produced by Amnesty International and the US Department of State and calculates a physical integrity index that measures state practices for torture, extrajudicial killing, political imprisonment and disappearances. The project was originally designed by Dr. David Cingranelli and Dr. David Richards.

Committee Against Torture (CAT) . The CAT is the body of 10 independent experts that monitors implementation of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment by its State parties. The website contains information about the CAT and its work, as well as country-specific information.

Guantánamo Testimonials Project . The Center for the Study of Human Rights in the Americas at the University of California Davis has collected testimonies of prisoner abuse at the US naval base at Guantánamo Bay, Cuba since 2005 as part of a long-term project to assess the effects of the US war on terror on human rights in the Americas. The website includes testimonies of prisoners, officials from US intelligence agencies, interrogators and military guards, military physicians and psychologists, defense lawyers, and the Red Cross.

Human Rights Watch . This nongovernmental organization grew out of the 1978 Helsinki Watch to become a leading defender of human rights. HRW investigates human rights violations, including torture, in countries throughout the world and publishes investigative reports of country practices as well as annual reviews of human rights practices around the globe.

Ill-Treatment and Torture Data Collection Project . Unlike previous research that measured the rough number of alleged or reported cases of torture in a given country in a given year, this project codes data on four concepts: Incidence, Perpetrators, Motive and Judicial Response. The data draws on individual allegations compiled in Amnesty International documents.

National Security Archive . This NGO, founded in 1985 by journalists and scholars to check rising government secrecy and based at George Washington University’s Gelman Library, has a massive archive of declassified US documents. The award-winning archive includes tens of thousands of documents released through Freedom of Information and declassification requests, which has produced what one review called a “state-of-the-art index to history.”

Rule of Law Oral History Project . This project, part of Columbia University’s Center for Oral History Archives, was initiated in 2008 to explore the state of human and civil rights in the post-9/11 world and expanded in 2010 to study the statutory and constitutional challenges of the use of the detention facilities at Guantánamo Bay. The website includes an archive of interviews with former detainees, psychologists and activists, legal scholars, military prosecutors and officials, defense attorneys, judges, journalists, and representatives of human rights NGOs.

World Organization Against Torture (Organisation Mondiale Contre la Torture, OMCT). Created in 1986, the OMCT is a coalition of international nongovernmental organizations dedicated to ending torture, summary executions, enforced disappearances, and all other cruel, inhuman, or degrading treatment. The OMCT website contains information about grave human rights violations and campaigns to protect victims and pressure governments to respect international human rights norms and prosecute the alleged perpetrators of human rights violations. The website also contains links to annual reports on the work of human rights defenders.

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Can torture ever be ethical.

Alvin Powell

Harvard News Office

Safra Center speaker, former fellow, says perhaps

In 2004, German police captured a man they believed had kidnapped a young boy. They questioned him for two days, and then, fearing for the child’s safety, a senior officer authorized an interrogator to use pain, if necessary, to get information.

After being told what was being planned but before any force was used, the suspect confessed and told police he had killed the boy and where they could find the body.

Though they had gotten the desperately needed information without resorting to violence, both the superior and the interrogator were charged with a crime under the German constitution’s absolute ban on torture. Rather than going to jail, however, the two were let off with a fine after the court found “massive mitigating circumstances.”

German courts, even faced with a constitutional prohibition, found that in this case, torture was “quasi-acceptable,” according to University of Texas Law Professor Sanford Levinson, otherwise the two would have gone to jail.

That’s just one example of the “ticking time bomb” situation where police, military, or other government personnel are faced with a desperate need for information to save lives, Levinson said. Multiply the German child’s life by a thousand, or several thousand, and you have the national security situation in the United States, where the public and policy debate over torture is raging.

Levinson, a former fellow at the Safra Foundation Center for Ethics, used the German case to help illustrate the conundrum that torture presents ethicists, policymakers, and ordinary people who are concerned about the issue.

Levinson spoke Thursday (Oct. 26) at the John F. Kennedy School of Government’s Starr Auditorium. Safra Center Director Dennis Thompson said that as a way to mark its 20th anniversary this year, the center is inviting former fellows to return and speak during its lecture series.

Thompson, Whitehead Professor of Political Philosophy in the Kennedy School and in the Faculty of Arts and Sciences, praised Levinson’s views on the U.S. Constitution as often going against prevailing views, but being widely respected nonetheless.

Levinson’s talk drew from a variety of sources, but he concluded that, despite his inclination to think an absolute ban on torture might be best, he still believes there will be situations in which governments must resort to torture for a larger public good.

One problem with banning torture, he said, is that in doing so, those writing the laws must define what torture is. Once that is done, he said, it immediately legitimizes techniques that may be very close, but that don’t fit the legal definition. It also may legitimize actions that are as bad as those banned, but are not on the list.

If torture is not to be banned, then the country needs to set up a system where it is regulated so that it doesn’t become widespread. One way of doing that would be for the president to authorize its use, but to then become responsible – and liable for punishment – should that specific case later be deemed unacceptable.

Either way, Levinson said, the nation’s lawmakers need to wade into this difficult territory.

Levinson compared torture with slavery – citing the Dred Scott case – and warfare. Like slavery, he said, torture is abhorrent to our society. Also like slavery, torture is largely about control. It is conceivable, he said, that if the questioners control the subject’s environment completely and the subject recognizes that he or she is completely in the questioner’s control, violence will not be needed.

“Both Dred Scott and those who defend torture today ask us to believe there are entire categories of people who have no rights,” Levinson said. “Torture may be less about concrete acts and more about total control and subordination.”

War, on the other hand, is more accepted by society than torture, Levinson said. Wars, though violent, are distinguished from torture by having willing participants on both sides. That distinction blurs, however, as war increasingly involves civilians.

The problem with the current war on terror, Levinson said, is that the opponent is not tied to another country against which retaliatory strikes can be made. Without the certainty of retaliation, there is no deterrence. That makes prevention an important way to head off a terrorist act, which can mean getting information about imminent strikes from members of terrorist organizations.

“Do we really believe there is no possible situation to legitimize the use of torture in any case?” Levinson asked. Related links:

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Torture is unacceptable and unjustified ‘at all times’ underscore top UN officials

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Torture in any form, is absolutely unacceptable and can never be justified, top United Nations officials said on Tuesday, urging great support for victims worldwide.

In his message to mark the International Day in Support of Victims of Torture , Secretary-General Antonio Guterres said that the “absolute prohibition” of torture is “stipulated in unequivocal terms” as a foundational principle, including within the Universal Declaration of Human Rights .

“Much has been achieved in the fight against this and other cruel, inhuman and degrading punishment and treatment, yet more action is needed to eradicate torture fully,” he said.

“ Torture remains unacceptable and unjustified at all times , including during states of emergency, political instability, or even in a war.”

In the message, the Secretary-General also paid tribute to all who stand in solidarity with the victims of torture and their families, and underscored that the victims have the right to justice, rehabilitation and redress.

Commemorated annually on 26 June, the International Day in Support of Victims of Torture marks the moment in 1987, when the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment , came into effect.

The International Day also serves as a rallying cry for all stakeholders including UN Member States, civil society and individuals to unite in support of victims of torture and those who are still subjected to the ghastly practice. It also highlights the need for prompt and specialized rehabilitation programmes to help victims “make the transition from horror to healing.”

“It takes decades to restore this broken human being as a result of the effects of a pernicious attack on their body and their mind,” said High Commissioner Zeid in a separate message.

In his message , the UN rights chief also reiterated the vital role played by the Voluntary Fund for Victims of Torture, a unique victim-focused mechanism that channels funding for the assistance to victims of torture and their families that helps over 50,000 torture victims and their families every year.

The UN human rights chief, Zeid Ra’ad Al Hussein, also underlined the need for stable and peaceful States everywhere, to support victims of torture.

“If you do not pay attention” to the victims, he said, “and if you leave them unattended, they are the ones will keep the wounds of a State open because their suffering hasn’t been addressed.

The High Commissioner for Human Rights added that the Fund plays a “critical role in restoring some sense of humanity to societies and societies” where torture is still used.

• prevention of torture

• Is torture ever justified?

Have the terrorist attacks of September 11th 2001 put a lasting dent in civil liberties? The first of a series begins this week with a look at torture

IN EVERY war, information is a weapon. In a “war against terrorism”, where the adversary wears no uniform and hides among the civilian population, information can matter even more. But does that mean that torture can sometimes be justified to extract information?

The answer in international law is categorical: no. As laid down in treaties such as the Geneva Conventions, the UN Convention against Torture and the International Covenant on Civil and Political Rights, the ban on torture or any cruel, inhuman or degrading treatment is absolute, even in times of war. Along with genocide, torture is the only crime that every state must punish, no matter who commits it or where. Defenders of this blanket prohibition offer arguments that range from the moral (torture degrades and corrupts the society that allows it) to the practical (people will say anything under torture so the information they provide is unreliable anyway).

The September 11th attacks have not driven any rich democracy to reverse itself and make torture legal. But they have encouraged the bending of definitions and the turning of blind eyes. There is a greater readiness among governments that would never practise torture themselves to use information which less squeamish states have obtained—through torture.

Start with definitions. Most civilised people squirm at the thought of putting suspected terrorists on the rack or pulling off toenails. What if that prisoner knew the whereabouts of a ticking bomb—maybe a biological, chemical or even nuclear one? Wouldn't a little sleep deprivation, sexual humiliation or even water-dunking be justified to save hundreds and perhaps thousands of lives? Whatever the law says, a lot of people seem to think so.

In a BBC survey of 27,000 people in 25 countries last October, more than one out of three people in nine of those countries, including America, considered a degree of torture acceptable if it saved lives. Opposition was highest in most European and English-speaking countries (see chart). Another poll in 2005 by the Pew Research Centre found that nearly half of all Americans thought the torture of suspected terrorists was sometimes justified.

Two Republican presidential hopefuls, Rudy Giuliani and Mitt Romney, support the “enhanced” interrogation of suspects in the event of an imminent attack. Dick Cheney, America's vice-president, recently suggested that “dunking” a terrorist in water to save lives was a “no-brainer”. The ensuing uproar led him to backtrack, claiming that he was not, of course, referring to “water-boarding”, or simulated drowning, a technique regarded as tantamount to torture and banned in the American army's own interrogation manual.

I'll tickle you into submission

One objection to allowing moderate physical pressure is the difficulty of knowing where to draw the line. If stress positions and sleep deprivation do not work, do you progress to branding with red-hot irons and beating to a pulp? And can you rely on interrogators to heed such distinctions? It is the danger of a slippery slope that makes opponents of torture insist on a total ban.

Israel is the only country in modern times to have openly allowed “moderate physical pressure” as a “last resort”. Since interrogators used such methods anyway, it was argued, passing an explicit law would at least make it possible to set out some limits. But in 1999, citing the slippery-slope argument, Israel's Supreme Court ruled that torture could never be justified, even in the case of a ticking bomb. It went on to outlaw techniques such as sleep deprivation, exposure to extremes of hot and cold, prolonged stress positions, hooding and violent shaking.

In the 1970s Britain used similar techniques against suspected terrorists in Northern Ireland. These were banned in 1978 following a case brought by the Republic of Ireland to the European Court of Human Rights. Although not torture, such methods did amount to inhumane treatment, the court ruled. In 2002 the International Criminal Court for ex-Yugoslavia in The Hague decided that prolonged solitary confinement constituted torture. Such rulings did not prevent America from resorting to such harsh techniques when interrogating suspects in Afghanistan, Iraq and Guantánamo Bay, however. Former detainees in those places have spoken of severe beatings, water-boarding, excruciating stress positions, mock executions, sleep deprivation and much else besides.

Administration lawyers argued that since al-Qaeda and its Taliban allies were not a state party to the Geneva Conventions they were not covered by its ban on torture and other maltreatment. True, America had ratified (in 1988) the Convention against Torture, but that applied only to acts carried out on American soil, they said. And though America's own 1994 federal statute against torture did cover acts by Americans abroad, this applied only to full-blown torture, not lesser abuses.

In the notorious “torture memos” drawn up by the Department of Justice and the Pentagon in 2002 and 2003, the same lawyers sought to restrict the normal definition of torture—“severe pain or suffering”—to extreme acts equivalent to “serious physical injury, organ failure, or even death”. Furthermore, as a wartime commander in chief whose main duty was to protect the American people, the president had the power to override both domestic and international law, they argued. After being leaked in 2004 most of these memos were “withdrawn”, though not the one on the president's wartime powers.

Mr Bush and his colleagues have always said that America neither authorises nor condones torture. “We don't do torture,” the president famously said. But Mr Bush has been vaguer about the grey area between torture and more moderate pressure. Soon after suspected terrorists were first sent to Guantánamo in January 2002 he said that America's armed forces would treat the detainees “humanely” in a manner “consistent with the Geneva Conventions”—but only “to the extent appropriate and consistent with military necessity”.

Not until the Supreme Court's ruling in Hamdan in 2006 did the administration accept that all detainees, wherever held, were protected by Common Article 3 of the Geneva Conventions, which bans all forms of cruel, inhuman or degrading treatment as well as torture. The 2005 Detainee Treatment Act, incorporating an amendment by Senator John McCain, already prohibited such treatment by American soldiers anywhere in the world. But it did not apply to the CIA .

Co-operating with torturers

Yet it is the CIA that has been responsible for the “extraordinary rendition” of suspects to clandestine prisons in third countries for “enhanced” interrogation (whether by that country's agents or the CIA itself) amounting at times, many suspect, to torture. The programme's existence was not officially confirmed until Mr Bush announced last year the transfer to Guantánamo of the last 14 “high-value” detainees then being held in so-called “black sites” around the world. Of some 100 suspected terrorists believed to have been “rendered” over the past six years, 39 remain unaccounted for, Human Rights Watch, a New York-based lobby, says.

In July this year Mr Bush set out new broad guidelines for interrogations under a resumed CIA programme. He says the newly authorised techniques now comply fully with the Geneva Conventions' ban on “outrages upon personal dignity, in particular humiliating and degrading treatment” as well as torture. Even if true (which is hard to know because the details have not been disclosed), the programme itself with its enforced disappearances and black sites, which even the International Red Cross is not allowed to visit, violates basic tenets of international law.

Even if a country bans torture, how should it treat information that others have extracted this way? In 2004 Britain's Court of Appeal ruled that information acquired through torture was admissible as evidence in court. David Blunkett, then Britain's home secretary, welcomed the ruling. Although the government “unreservedly” condemned torture, he said, it would be “irresponsible not to take appropriate account of any information which could help protect national security and public safety.” But the ruling was later overturned by the House of Lords.

A separate question is whether governments should use information extracted under torture by others for counter-terrorist purposes, even if it is not admissible as evidence. Most probably agree with Mr Blunkett that it would be irresponsible not to. But a case can be made that this is, in effect, condoning the use of torture by allies.

Britain has also run into trouble when trying to deport suspected foreign terrorists against whom it has not got enough evidence to secure a conviction in court. Under international law, a country must make sure that the person it wishes to expel is not in danger of being tortured or subjected to other abuse in the receiving country. In 2005 the UN 's special rapporteur on torture criticised Britain for relying on “diplomatic assurances” that deportees would not be tortured. Charles Clarke, who had succeeded Mr Blunkett as home secretary, retorted that the rights of the victims of the London Tube bombings that year mattered more than those of the perpetrators. The UN should “look at human rights in the round”, he said, “rather than simply focusing all the time on the terrorist.” Fine—except that no British court had convicted these suspects as terrorists.

To date, 144 countries have ratified the Convention against Torture. (The hold-outs include such usual suspects as Sudan, North Korea, Myanmar and Zimbabwe, but also India.) And yet, the UN 's special rapporteur told the Security Council in June, torture remains widespread. Amnesty International noted cases of state-sponsored torture or other inhumane treatment in 102 of the 153 countries included in its 2007 report. The worst offenders were China, Egypt (both of which are parties to the convention), Myanmar and North Korea, along with several African countries. America's transgressions are trivial by comparison. The worry, argues Kenneth Roth, director of Human Rights Watch, is that when America breaks the rules it encourages others to do the same.

The scandal of Abu Ghraib: a recruiting poster for terrorists

Why does torture endure? Part of the reason, argues Michael Ignatieff, a Canadian writer, may be that it is at times motivated not so much by a desire to extract vital information but by something baser, such as an urge to inflict pain, exact revenge, or even just for fun. That seems to have been part of the motivation of the Americans who abused prisoners in Abu Ghraib, for example. But torture may also endure because it sometimes works.

They'll say anything

Many critics of torture claim that it is ineffective as well as repugnant. Since people will say anything just to stop the pain, the information gleaned may not be reliable. On the other hand, if people do say anything under torture, you might expect some of what they say to be true and therefore—if those being tortured really are terrorists—useful to the authorities. Torture certainly helped induce Guy Fawkes to betray his co-conspirators after they had tried to blow up King James I and the British Parliament on November 5th 1605.

Asked recently about the CIA 's use of enhanced interrogation in secret prisons, George Tenet, the CIA 's director until 2004, replied that the agency's widely condemned rendition programme had saved lives, disrupted plots and provided “invaluable” information in the war against terrorism. Indeed, while denying the use of full-blown torture, he said that the programme on its own was “worth more than the FBI, the CIA and the National Security Agency put together have been able to tell us.”

Mr Ignatieff, for his own part, sees no trumping argument on behalf of terrorists that makes their claims to human rights and dignity prevail over the security interests—and right to life—of the majority. Yet he continues to advocate a total ban. “We cannot torture, in other words, because of who we are,” he says. He knows that many will disagree.

This article appeared in the International section of the print edition under the headline “Is torture ever justified?”

International September 22nd 2007

• Faith upon the earth

From the September 22nd 2007 edition

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‘Is torture ever justified?’: The European Court of Human Rights decision in Gäfgen v Germany

Natasha Simonsen is a Rhodes Scholar at the University of Oxford. Previously, she worked as a consultant for UNICEF and has interned with the United Nations High Commissioner for Refugees in Pakistan.

Earlier this month, the Grand Chamber of the European Court of Human Rights handed down its decision in G äfgen v Germany . The case raised the classic ‘ticking time bomb’ scenario that features in moral philosophy seminars the world over, forcing the Court to confront the question: is torture is ever justified? Although the Court’s rhetoric emphasised the absolute nature of the prohibition on torture and inhuman or degrading treatment, that was not borne out in the result, with the majority finding that the admission of evidence obtained as a direct result of inhuman and degrading treatment did not compromise the fairness of the applicant’s trial.

The tragic facts of the case are as follows. The applicant lured a 12 year old boy to his Frankfurt apartment and suffocated him, disposing of the body beside a lake and issuing a ransom demand to the boy’s parents. Gäfgen collected the ransom, and was arrested attempting to flee from Frankfurt airport later that afternoon. He told police that the boy was alive and being held by two other (fictional) kidnappers in a hut by a lake, but repeatedly refused to disclose the location.

 Believing the boy’s life to be in grave danger, and in the face of the applicant’s continued resistance to police questioning, the next morning the Deputy Chief of the Frankfurt police authorised Officer E to threaten Gäfgen with considerable pain, and to inflict that pain if necessary. The infliction of pain on the applicant was to occur under medical supervision by a specially trained police officer who was en route to Frankfurt in a helicopter at the time. The authorisation was fully documented in the police file, and was taken in defiance of explicit orders to the contrary by superiors. Gäfgen also alleged that he was pushed in the chest several times, shaken so that his head hit the wall, and that he was threatened with sexual abuse. The Grand Chamber did not find these additional facts to be established beyond a reasonable doubt, although they did accept that threats to inflict considerable pain on the applicant had been made and that officer E had the intention to carry them out. A mere ten minutes after the threat, Gäfgen made a full confession and admitted the boy was dead.  He agreed to take police to the lake where he had hidden the  body (on the condition that officer E was not present). He reiterated his confession on several subsequent occasions.

 The applicant’s confessions were excluded from the evidence at trial, but the “real” evidence which was obtained as a result of the confession (in particular, the boy’s body) was admitted (the so-called “fruits of the poisoned tree”). On the second day of the trial, after having been informed that none of his previous confessions were admissible against him, but having lost his application to exclude the real evidence, Gäfgen gave a partial confession in the witness box. At the conclusion of the trial he made a full confession, citing his remorse and desire to take responsibility for the crime. He was convicted of murder and kidnapping with extortion and sentenced to life imprisonment.

 The decision considered two issues: first, whether there was a violation of Article 3 of the European Convention on Human Rights (“No one shall be subjected to torture or inhuman or degrading treatment or punishment”), and second, whether there was a breach of the applicant’s right to a fair trial under Article 6.

  Article 3

It was common ground in the proceedings that the threat of infliction of considerable pain against a suspect in police custody breached Article 3 of the Convention.  However, the Court’s established case law from the 1978 case Ireland v UK draws a hierarchical distinction between “torture” and “inhuman and degrading treatment.” Arguably, this hierarchy has no foundation in the text of the Convention, since Article 15 says that no derogation is permitted from any part of Article 3. It is not at all clear that the text of the article can support the hierarchy between torture and inhuman and degrading treatment which the Court has been minded to maintain. Regrettably, this distinction was subsequently adopted in Articles 1 and Article 16 of the 1984 Torture Convention .

On the question of whether the treatment constituted “torture” or merely “inhuman and degrading treatment”, the Grand Chamber set out a shopping list of relevant factors, including: the duration of the threatening treatment (ten minutes), the applicant’s “fear, anguish and mental suffering” during that period, the apparent absence of any long-term psychological consequences, the intentional and premeditated nature of the threat, and the fact that the applicant was handcuffed in police custody at the time the threats were issued and therefore in a particular state of vulnerability. In the Strasbourg Court’s characteristic manner, it simply listed those factors and then arrived at its decision—that that the treatment was “inhuman and degrading” but not “torture”—without explaining which factors were decisive in that assessment and why. Since many of the same conclusions could be drawn with respect to waterboarding, does the Grand Chamber’s decision carry the implication that waterboarding too should be regarded as inhuman and degrading treatment rather than torture?

The Court’s failure to fully explain and justify its conclusion that the treatment qualified as “inhuman and degrading” but not “torture” is especially problematic given the potentially far-reaching consequences which attach to that distinction. According to Article 15 of the Torture Convention , statements obtained by torture must not be given in evidence in criminal proceedings, whereas the same result does not necessarily follow if the treatment is “merely” inhuman and degrading. Indeed, the Court’s own precedent in Jalloh v Germany extends the importance of that distinction by declaring that the admission of any evidence—whether in the form of a confession, or items of real evidence—which had been obtained by torture would render a subsequent trial unfair (at para. 105). These and other issues were considered at length by the House of Lords in A v Secretary of State (No 2) , a case which was not referred to by the Grand Chamber . In light of the significance of the classification of particular conduct as “torture” or “inhuman and degrading treatment”, the Grand Chamber’s analysis on this point leaves much to be desired.

The Grand Chamber, like the ordinary chamber and the domestic courts before it, accepted that the police officers had acted in an attempt to save the child’s life. However, the Court stated (at para. 107) that

The philosophical basis underpinning the absolute nature of the right under Article 3 does not allow for any exceptions or justifying factors or balancing of interests, irrespective of the conduct of the person concerned and the nature of the offence at issue.

This may alleviate concerns raised by the Grand Chamber’s assertion in its earlier case of Jalloh v Germany that the seriousness of the offence may be relevant to the determination of whether particular treatment amounted to a violation of Article 3, and in turn whether the admission of evidence obtained in breach of Article 3 would violate Article 6 (see paras. 77 and 107 of Jalloh , and the excellent case comment by Andrew Ashworth at (2007) Crim LR 717). That case concerned the forcible administration of emetics to a small time drug dealer. The Court held that Article 3 had been violated, but its reference to the seriousness of the offence in this context may be read to suggest that if a drug baron or “king pin” had been involved, the treatment may have been justified. This alarming assertion led Judges Wildhaber and Caflisch in dissent to observe, aptly, that “the majority appears to value the health of large dealers less than that of small dealers.” Moreover the Jalloh Court left open the possibility that if the public interest in securing the applicant’s conviction had been greater, it might have warranted the evidence being used at trial (para. 107). This runs directly counter to fundamental precepts of human rights law—surely the need for scrupulous adherence to fairness does not decrease as the seriousness of the offence increases—if anything, the reverse should be true. The fact that the Grand Chamber in Gäfgen eschewed reference to factors such as the seriousness of the offence or the public interest in conviction may therefore reflect a promising return to principle, after its unfortunate foray in Jalloh .

Returning to Gäfgen, the German government had argued, and the Chamber had accepted, that notwithstanding the threat in breach of Article 3, Gäfgen could no longer claim to be a victim as required by Article 34 of the Convention. This was because the proceedings in domestic courts had acknowledged the breach of Article 3, the confessions obtained thereby had been excluded from evidence at Gäfgen’s subsequent trial, and the two police officers had been convicted of criminal offences and transferred from police investigatory duties.

The Grand Chamber overturned the Chamber’s finding on this issue, holding that the applicant had not received sufficient redress such as to lose his victim status. The responsible police officers had been convicted of coercion and incitement to coercion, but subjected only to fines (and even those were suspended) and although they had been transferred to other police duties not involving the investigation of offences, one officer had actually been promoted to head of a department at police headquarters. Additionally, the Grand Chamber observed that compensation is normally required to provide redress for a breach of Article 3, and that the failure of domestic courts to make a final decision on the award of compensation meant that the authorities had “not reacted adequately and efficiently to the breach of Article 3 at issue” (para. 127).

Gäfgen had also argued that redress for the violation could only have been granted by the exclusion at trial of all items of evidence obtained as a direct result of his pre-trial confessions, including real evidence (the results of the autopsy conducted on the child’s body, and tyre tracks matching the applicant’s car which were found at the lake where the body lay hidden). The Grand Chamber declined to resolve this issue, holding that it was not necessary to decide whether redress for a breach of Article 3 necessitates the exclusion of all evidence obtained as a result of the breach. The Court preferred to address this issue in the context of Article 6, below.

The Grand Chamber affirmed the Chamber’s findings that there was no breach of the applicant’s right to a fair trial under Article 6 of the Convention. In this respect, two points are significant.

First, the Grand Chamber agreed with the ordinary chamber that all of the pre-trial confessions were tainted by the continuing effect of the inhuman treatment, but that there was no issue with the admission of the two confessions which Gäfgen had made during the course of the trial. The domestic court’s exclusion of the pre-trial confessions, and the pre-trial caution administered to the applicant regarding his right to remain silent, had broken the chain of causation such that the inhuman and degrading treatment could no longer be regarded as operative.

Secondly, the Grand Chamber agreed with the Chamber that the admission of real evidence obtained from the pre-trial confessions did not breach Gäfgen’s Article 6 right to a fair trial.  The Court asserted that this position would be different if the treatment concerned had amounted to torture, but that there were grounds for distinguishing real evidence obtained by inhuman and degrading treatment from real evidence obtained by torture. In this respect, its earlier finding that the threat amounted only to inhuman and degrading treatment allowed it to dodge the issue. The Court went on to state (at para. 178) that:

The repression of, and the effective protection of individuals from, the use of investigation methods that breach Article 3 may therefore also require, as a rule , the exclusion from use at trial of real evidence which has been obtained as a result of any violation of Article 3, even though that evidence is more remote from the breach of Article 3 than evidence extracted immediately as a consequence of a violation of that Article. (emphasis added)

The Strasbourg court wanted to have its cake and eat it too. Despite laying down this general rule, it went on to hold that the rule would not apply if the admission of the evidence in question had no bearing on the outcome of proceedings, and then to declare that Gäfgen fell within the scope of that exception. It is true that the Frankfurt AM Regional Court had declared that the conviction was wholly based on his subsequent confession at trial, along with untainted real evidence. But the applicant had also argued that the admission of tainted real evidence at trial was what prompted his confession. Admittedly this argument was undermined by the fact that he had argued at trial—and in a subsequently published memoir—that he had confessed solely out of remorse for the boy’s family. Undoubtedly the untainted evidence, such as the ransom money and a note concerning the planning of the crime found in the applicant’s flat, together with the police surveillance of his collection of the ransom, could have supported a conviction for kidnapping with extortion. However it is difficult to say with certainty whether, absent the child’s body, the untainted evidence alone could have sustained a murder conviction.  It is equally difficult to say with certainty whether the applicant would still have offered a full confession if the items of real evidence had been excluded from his trial. In this respect the Grand Chamber’s findings that (1) the chain of causation between the inhuman treatment and the applicant’s confessions at trial had been broken; and (2) that the conviction was based solely on his confessions and not the tainted items of real evidence; are open to serious question.

It is notable that the Torture Convention does not address the admissibility of real evidence in criminal proceedings, requiring only that statements “established to have been made as a result of torture” be excluded. This raises the question of whether the Torture Convention should be regarded as setting a minimum standard which states parties should be encouraged to exceed, or whether it is in practice often regarded as setting a ceiling. It is clear from Articles 1(2) and 16(2) of that Convention that the former approach should be preferred. Indeed, the Grand Chamber in Jalloh suggested (at para. 105) that the admission of any evidence obtained by torture would “only serve to legitimate indirectly the sort of morally reprehensible conduct which the authors of Article 3 of the Convention sought to proscribe.” It is not clear why the same reasoning should not apply to evidence obtained by inhuman and degrading treatment. Six judges in Gäfgen dissented on this latter point, regretting the Court’s failure to unequivocally declare:

that irrespective of the conduct of an accused, fairness, for the purposes of Article 6, presupposes respect for the rule of law and requires, as a self-evident proposition, the exclusion of any evidence that has been obtained in violation of Article 3.

The decision of the Grand Chamber in Gäfgen may be regarded as something of a mixed bag. On one hand, the Court’s clear statement that the seriousness of the offence was irrelevant to the questions of (1) the threshold for inhuman and degrading treatment; and (2) the fairness of the trial; may be read as putting some distance between its contrary (and highly problematic) assertion in Jalloh . On the other hand, the Court’s high-minded rhetoric about the absolute nature of the prohibition on torture and inhuman and degrading treatment is not borne out in the result, since it refused to hold that the admission of evidence obtained by inhuman and degrading treatment had rendered the trial unfair. Although the Court asserts that this case fell into an exception to an otherwise generally applicable rule, whether the exception will eat up the rule remains to be seen.

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Global opinion varies widely on use of torture against suspected terrorists

Around the world, public opinion is divided about whether government-sponsored torture can ever be justified as part of efforts to prevent terrorist attacks, according to a spring 2015 Pew Research Center survey of 38 nations . A median of 45% across the countries polled said they did not believe use of torture by their governments against suspected terrorists to try to gain information about possible attacks in their country could be justified. A median of 40% thought the use of torture could be justified in such cases.

Looking at public opinion across major regions, the view that torture may be justified is most common in sub-Saharan Africa, where a median of 55% hold this view; it is least common in Latin America (a median of 25%).

The U.S. public is among the most likely to consider torture justifiable: 58% say this, while only 37% disagree. There are only five nations in the survey where larger shares of the public believe torture against suspected terrorists can be justified: Uganda (78%), Lebanon (72%), Israel (62%), Kenya (62%) and Nigeria (61%).

American public opinion breaks sharply along partisan and ideological lines on this issue. Nearly three-in-four Republicans (73%) think torture can be justified against people suspected of terrorism, compared with just 58% of independents and 46% of Democrats. Similarly, 69% of conservatives say it can be justified, while 59% of moderates and 43% of liberals agree.

Ideological divisions on this issue are not unique to the U.S. In all five Western European nations surveyed, people on the political right are more likely than those on the left to believe their government could be justified in using torture.

People’s views about their own country’s potential use of torture are strongly correlated with their views about the U.S. government’s post-9/11 interrogation practices.

Countries with larger percentages of people who say their own governments would be justified in torturing terrorist suspects also tend to have larger percentages of people saying the use of torture by the U.S. government was justified after the 9/11 attacks.

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Richard Wike is director of global attitudes research at Pew Research Center .

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Torture is never justified

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Torture Debate: Can It Ever Be Justified? Essay

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Introduction

Can torture be justified, works cited.

Beginning from the year 2002, it has become common knowledge that abuse of prisoners from Afghanistan and Iraq has been taking place in American military prisons while the American government has also been sending prisoners to the countries that practice torture. The Bush administration for example supported a policy that had a very narrow definition of torture and this permitted abusive behavior on enemy combatants, suspected terrorists and others categorized under the war on terror. Greenberg states that “The debate over the United States’ Post-September 11 th endorsement of torture as a policy in aid of interrogation has been curious indeed.

Official U.S. government memoranda defined torture so narrowly, in contravention of U.S. law and treaties, and interrogators and jailers engaged in abusive acts undoubtedly consisting torture under U.S. and international law, yet the United States has neither admitted such policy existed, nor formally defended the mistreatment of detainees.” Various pictures of abuse have appeared on the print media and television and several government reports and documents have revealed an existing use of torturous methods. The U.S public however continues to have an indifferent response towards the debate, not because Americans care less about introduction of torture to their national identity or language, but because majority of them remain confused about how this issue can be addressed. For many Americans however, the use of torture stands as a threat to the American systems of values as well as national identity (Greenberg 1-8, 111).

In the history of America, torture has always remained incompatible with the nation’s values as evident in the Bill of Rights which forbids all unusual and cruel forms of punishment but only permits corporal punishment through painless methods. The American government and its people condemn the nations that practice torture and have been granting asylum to those who are afraid and wish to run away from it. Anti-torture legislation has been enacted by congress and judicial opinions have described the process as totally inhuman. In the aftermath of 9/11, the Bush administration and American in general however abandoned their reluctance to the use of torture (Greenberg 35-38, 52). The Bush administration permitted the use of torture techniques such as sleep deprivation, forced nudity, waterboarding and forced standing against terrorist detainees. At Abu Ghraib however, CIA interrogators and U.S military personnel went overboard to implement torturous methods that caused sexual humiliation, lasting physical damage and even death.

But such use of torture does not guarantee that the information given by the victim is correct and he may only be revealing what the interrogators want to hear in order to escape pain. Head in his article ‘Is Torture Justified’ goes ahead to argue that “When the Bush administration used torture against Abu Zubaydah and Khalid Sheikh Mohammed, they didn’t simply spill the beans; instead, they told interrogators what they thought the interrogators wanted to hear. And this drives at the heart of the argument against torture: Someone who is being tortured will happily say that grass is blue and the sky is green if he believes it’ll end the torture, which makes it an unreliable interrogation method to say the least.” The use of torture therefore remains a very unreliable method of interrogation and should not be legalized for various reasons namely; legalization would lead to large scale implementation of torture techniques as used in Abu Ghraib which are nevertheless inflicted on suspected detainees who may not be the real culprits. Furthermore, use of torture by the U.S against its prisoners will encourage other nations to use it with greater impunity. Evidence derived from torture through confessions cannot be reliably used in legal proceedings and false lead generated through torture can derail ongoing investigation (Head, ¶ 2, 8-9).

Torture is conducted under four illiberal motives namely punishment, torture, victor’s pleasure and extracting of confessions. Most liberals find it acceptable to use torture for intelligence-gathering purposes if captives are unwilling to talk. This is because unlike using torture for confession purposes which dwells on past events, intelligence gathering is quite forward-looking and information gathered is mainly geared towards forestalling future atrocities like terrorist attacks. By rejecting torture as a form of punishment, terror or method of extracting confessions and allowing it only for intelligence purposes, torture becomes a last resort for people who are deeply reluctant to use it. After all, torture could help to gather intelligence that could save lives. However, this raises a question as to whether torturers should be professionally trained so that they are familiar with the techniques and are able to overcome their personal instincts against causing pain to the captives (Fletcher 124-125; Greenberg 43-47).

Two key prisoners, Abu Zubaydah and Khalid Shaikh Mohammed have been subjected to the near-drowning technique of waterboarding for 266 times; 83 times against Zubaydah and 183 times against Mohammed. The use of such a torturous method of interrogation that the Obama administration has declared illegal so many times on the same person highlights the unreliability of such form of interrogation. According to information gathered by Shane “The New York Times reported in 2007 that Mr. Mohammed had been barraged more than 100 times with harsh interrogation methods, causing C.I.A. officers to worry that they might have crossed legal limits and to halt his questioning. But the precise number and the exact nature of the interrogation method was not previously known.” Though declared legal by the Bush administration, the use of torture repeatedly for so many times not only raises questions about the effectiveness of such methods but also the assertions that made by the administration officials that such methods were used following strict guidelines. Reports indicate that Zubaydah had revealed considerable amount of information before waterboarding and none after the waterboarding incidents. This is a clear indication that orders to repeatedly subject him to waterboarding were uncalled for (Shane ¶ 1-6, 15 &16).

Although the Bush administration allowed torture of suspected terrorists at CIA detention centers overseas or through rendition to friendly states, the same doctrine maintains that terrorists have no right to reciprocate. The same administration even gave room for government officials to inflict torture on detainees as a defensive method against terrorist attacks. But arguments for torture irrespective of how justifiable they may appear suffer from a similar defect in that terrorists are denied the right to live free of torture and yet those inflicting it are themselves unwilling to forego this same right.

If American soldiers for example were to be captured and tortured abroad, such an action would raise a lot of flare. Using torture against enemy detainees gives their countries a right to use torture as well. Although terrorists kill innocent civilians in their bid to seek political objectives, they do not contend that their families or the innocent civilians should be killed in reciprocation. According to Fletcher and Ohlin, “Reciprocity is so misunderstood in our current environment that it leads to a totally asymmetrical view of warfare.” Terrorists believe that infidels do not deserve to live but a similar act of desperation carried out against them would attract a lot of criticism from them and indeed would be an open display of the moral fallings of the U.S as a nation. Although the torturer and the terrorist cannot be entailed as equally guilty, both parties’ lack of reciprocity causes them to depart from normal conduct (Fletcher & Ohlin 170-171).

Although torture has been described as a deliberate infliction of pain and suffering, the abuses inflicted on detainees at Guantanamo, Abu Ghraib and Baghram is a pale reflection of pain compared to the suffering, maiming, death and collateral damage that was caused during the Iraq and Afghan wars. The crushing of people’s limbs and burning from the bombs used in these wars is far beyond what has been subsequently reported in the abuse of American prisoners. Yet, Americans and the world at large fail to regard the wartime suffering of innocent civilians with the same special abhorrence that they regard torture. Such an approach appears hypocritical and leaves one wondering why torture should be considered more evil than bombing and killing. But torture in the real sense is inhuman, tyrannical and reduces human dignity. The victim of torture is isolated, terrified and humiliated and whatever information he or she gives may be a result of external pressure. Besides, the aspects of mistaken identity whereby an innocent person may fall victim to torture, there is also a growing fear that tyrannical rulers may take advantage of this form of punishment and pleasurably degrade those that have unfortunately become subject to their will (Greenberg 38 – 40).

The appropriateness of torture is not only a political, professional or law oriented question but also one that touches on the aspect of morality and values. The use of torture today has several loopholes. Experts argue that information acquired through torturous methods is quite unreliable and therefore dismisses the use of torture as a competent method of achieving certainty. As methods of conquering the threat of international terrorism are implemented, care should also be taken that those implementing them are easily differentiated from the terrorists, and that the principles differentiating them are safeguarded not only verbally but also in action (Greenberg 8, 116).

Fletcher, P. George and Ohlin D. Jens. Defending Humanity: When Force is Justified and Why. New York: Oxford University Press US, 2008. 124, 170-171.

Greenberg, J. Karen. The Torture Debate in America. Cambridge, UK: Cambridge University Press, 2005. 1-8, 35-52 & 111-117.

Head, Tom. “Is Torture Justified?”. 2009. Web.

Shane, Scott. “Waterboarding used 266 Times on 2 Suspects” . The New York Times, 2009. Web.

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IvyPanda. (2021, November 18). Torture Debate: Can It Ever Be Justified? https://ivypanda.com/essays/torture-debate-torture-can-it-ever-be-justified/

"Torture Debate: Can It Ever Be Justified?" IvyPanda , 18 Nov. 2021, ivypanda.com/essays/torture-debate-torture-can-it-ever-be-justified/.

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IvyPanda . 2021. "Torture Debate: Can It Ever Be Justified?" November 18, 2021. https://ivypanda.com/essays/torture-debate-torture-can-it-ever-be-justified/.

1. IvyPanda . "Torture Debate: Can It Ever Be Justified?" November 18, 2021. https://ivypanda.com/essays/torture-debate-torture-can-it-ever-be-justified/.

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Torture Accusations Could Lead to Civil Rights Case in Mississippi

Federal authorities investigating the “Goon Squad” in a suburban sheriff’s office have widened their investigation, seeking out more victims of brutality.

The Rankin County Justice Center in Brandon, Miss. Credit... Rory Doyle for The New York Times

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By Brian Howey and Nate Rosenfield

Brian Howey and Nate Rosenfield are examining the power of sheriffs’ offices in Mississippi as part of The Times’s Local Investigations Fellowship .

• June 11, 2024

More than two months after deputies were sentenced for torturing two Black men in central Mississippi, federal prosecutors have widened their investigation and may sue the Rankin County sheriff’s department for civil rights violations, a serious escalation that could lead to federal monitoring.

Todd Gee, the U.S. attorney for the Southern District of Mississippi, talked about the possibility at a meeting last month, where he urged local residents who attended to come forward if they had experienced violence or discrimination at the hands of deputies.

More than 50 people, including defense attorneys and civil rights advocates, packed into a library outside Jackson, Miss. Some shared stories of being harassed or falsely accused of crimes by deputies, according to several people who attended the meeting, which was closed to the press.

“Information from people like you can make a difference,” Mr. Gee told the crowd, according to video of the meeting obtained by reporters.

He explained that if deputies’ misconduct had been going on for years it could be evidence of a pattern of civil rights violations that could lead to a case against the department.

Rather than focusing on individual acts of misconduct, “pattern or practice” investigations determine whether civil rights violations have become part of an agency’s overall culture. Prosecutors can sue a department and seek a consent decree, a legally binding agreement that would force the department to implement reforms.

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