In two hours a bomb will explode, costing the lives of thousands of innocent victims. A terrorist is currently being held in custody and is the only person who knows where the bomb is located. Time is running out. Is it justifiable to torture this terrorist so that the bomb can be located and lives saved? This is known as the ticking time bomb scenario and is the main argument put forward for justifying the use of torture.
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation (International Covenant on Civil and Political Rights, article 7)
The right to be free from torture and other cruel, inhuman or degrading treatment or punishment (CIDT) is one of the most fundamental of human rights and is protected in many human rights instruments including the ICCPR (art 7), European Convention on Human Rights (art 3) and the Convention against Torture (CAT). In all of these instruments the prohibition against torture and CIDT is absolute and non-derogable. In no circumstances can a State justify the use of torture. These provisions were drafted following the horrors of World War II during which time millions of Jews and other minorities had been exterminated and tortured at the hands of Nazi Germany. This could never be allowed to happen again.
Fast forward to the 21st Century and it seems that the horrors of World War II which motivated the absolute prohibition on torture have been largely forgotten. With the rise of global terrorism and subsequent preoccupation with national security, the absolute nature of the prohibition against torture has been called into question. For many, the prohibition against torture is important, but not quite as important as the need to protect national security.
One of the chief advocates for the legalisation of torture is American lawyer, Alan Dershowitz. In his article, ‘The case for Torture Warrants’ Dershowitz justifies the use of ‘non-lethal torture’ in the case of the ticking time bomb scenario outlined above. In light of the rise of global terrorism in recent years ‘the arguments for empowering law enforcement officials to do everything necessary to prevent a catastrophic terrorist attack are becoming more compelling’. The solution: torture warrants.
For Dershowitz law enforcement officials should be allowed to apply for torture warrants where it is believed that physical pressure, including torture, is necessary to prevent the death of innocent victims in the ticking time bomb scenario. If torture is to take place it is much better that it takes place in the open subject to full accountability than hidden under the radar. Before a warrant could be obtained, compelling evidence that the terrorist suspect possessed the desired information would need to be shown. According to Dershowitz this formal requirement of a torture warrant would actually decrease the amount of violence directed against suspects because unless they had such compelling evidence, law enforcement officials would be reluctant to seek a warrant. What then, might it be asked, would constitute ‘non lethal’ torture? Well, according to Dershowitz, a sterilized needle under the fingernail may well be one approved method.
To even consider justifying torture is quite frankly abhorrent and an insult to those whose lives have been destroyed by the devastating effects it has. Although torture inevitably occurs this is not an argument for legitimising it so as to place it into the open. For Dershowitz to argue that the use of torture warrants would decrease the amount of torture employed by law enforcement officials is ridiculous. If officials do not have compelling evidence that the detained suspect has the desired information they will just simply torture the suspect without a warrant. Moreover, once we begin to justify torture where do we draw the line as to what is justified and what isn’t? The main problem with justifying torture however is that once the prohibition is no longer absolute the whole moral force behind the prohibition is undermined. States would lose any inhibitions they might have regarding torture and would in fact begin to see it as their ‘legal right’ to torture a certain individual.
It is quite understandable why rights such as the right to family life (ECHR, art 8) and freedom of expression (ECHR, art 10) are qualified. They involve delicate balancing exercises between rights in which sometimes the interests of the state must take precedence. Torture does not fall into this category. If global terrorism represents a growing threat to national security the solution is to improve intelligence so that any potential threats can be prevented from the very outset. The solution is not to justify torture.