After years of struggle, civilized nations now
recognize that acts of torture are inconsistent with human dignity
and respect for the rule of law. It was a hard fought victory -- and
it is now in jeopardy. In the aftermath of the horrific attacks of
Sept. 11, it has been suggested that torture may be necessary in the
war against terrorism. Innocence must be defended at all costs.
While such comments are understandable, they are ultimately
incorrect.
The arguments for using torture are deceptive, and
the scenarios compelling. "A suspect knows the location of a
bomb that will lead to catastrophic injuries. Should torture be used
to reveal the location of the ticking time bomb?"
This scenario falls apart, however, upon careful
scrutiny. First, it assumes that law enforcement has the right
person in custody. That is, the suspect knows where the bomb is and
when it is scheduled to detonate. What if there is only a 50 percent
chance that the suspect knows the information? What if this number
is only 10 percent?
Second, it assumes that torture will be effective in
gaining access to the critical information. In fact, however,
torture is notoriously unreliable.
What if there is only a 60 percent chance that the
suspect will reveal accurate information? How about 20 percent? How
low are we willing to go?
How should we make the decision whether to torture?
How many people must be endangered before the torture option can be
considered?
What type of torture is permissible? Can family and
friends be threatened and harmed? How about children? If the end
truly justifies the means, the answer must be "yes."
Apart from these practical limitations, the
"ticking time bomb" scenario suffers from even more
fundamental flaws. It is now firmly established that torture is
inconsistent with the basic values of humanity.
International instruments, from the Universal
Declaration of Human Rights to the Convention against Torture,
establish the prohibition of torture as a jus cogens norm -- a
binding obligation that applies to all states. These instruments do
not recognize a right of derogation under any circumstances.
The laws of war, as codified in the 1949 Geneva
Conventions, also prohibit torture. Even prisoners of war may not be
subject to torture, and people that commit such grave breaches are
subject to criminal prosecution.
Various international tribunals, from the Nuremberg
Tribunal to the International Criminal Tribunal for the former
Yugoslavia, have prosecuted and convicted individuals who committed
acts of torture. These tribunals refused to accept any defenses as
justification for torture.
How would this new practice affect the international
community? It certainly goes against decades of U.S. foreign policy,
which has struggled to affirm the universality of human rights and
the binding nature of the prohibition against torture.
It violates countless international agreements the
United States has signed and ratified, including the 1949 Geneva
Conventions, the International Covenant on Civil and Political
Rights, and the Convention against Torture. And it would set a
dangerous precedent.
If the United States justifies its own acts of
torture, how can it possibly condemn Afghanistan, China, Cuba, Iraq
or North Korea for similar acts? If torture can be used to defend
the integrity of the nation, then Habre, Milosevic, Papa Doc,
Pinochet, Pol Pot, Stalin and Stroessner, were correct in their
methods.
U.S. courts have been prominent advocates in the
struggle against torture, ever mindful of the fragile nature of
democracy and the delicate balance between civil liberties and
national security. Twenty years ago, one court acknowledged the
dangers posed by the flagrant disregard of basic human rights and
the universality of the right to be free from torture.
As noted in a more recent decision that condemned
acts of state- sponsored torture, "justice must always be
mindful of the affirmative values it protects and the perils it
guards against. Like the contours and relation of hand and glove,
justice must stay outside and above the evil it encloses, while not
becoming a part of it."
Torture injures the victim and degrades the
perpetrator. It threatens the core values of civilized nations --
respect for human dignity, justice and the rule of law. This
explains why the torturer has been long been referred to as hosti
humani generis -- an enemy of all humanity.
Sadly, innocence cannot be protected at all costs
because the price of such cost-benefit analysis is simply too great
for us to bear.
