In this article, Dolvi Oswal discusses the ethical debate revolving around the use of torture in justice delivery system.

Legal Definition of Torture

Torture is defined in the convention under Article 1 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”. It may be “inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity.”

Under customary international law as well as under international human rights treaties, torture or other cruel, inhuman or degrading treatment is prohibited at all times and in all circumstances. It is a non-derivable right, one of those core rights that may never be suspended, even during times of war, when national security is threatened, or during other public emergencies

Torture is not completely accepted, and however it is practised, none of the countries publicly supports torture or opposes its abolition.

In this paper, I will be discussing the various theories against torture, which are absolutist, conditional and pragmatic torture prohibition. According to the convention it is required for the states to adopt the absolutist approach against torture but according to my understanding there is a problem with adopting this approach, I will be discussing the problems with an absolutist method and will try to propose a better way which will help us to deal with torture.

Various approaches of understanding torture prohibition

There are three different academic perspectives to the question of torture’s justifiability in exceptional circumstances. These approaches are termed as absolutist, conditional and pragmatic torture prohibition.

Qualified torture prohibition

• The first approach is conditional approach also known as qualified torture prohibition. According to them, there are certain situations they necessitate the use of torture to prevent the loss of innocent life.
• These situations should not be dealt with a vacuum rather the use of torture under these exceptional should be monitored judicially and legislatively. The question of torture cannot be left out in a twilight zone; it is an issue which requires open debate.
• The conditionals highlight the primacy of the rule of law both in confronting this challenge and its ultimate regulation.
• One of the most prominent advocates of the qualified prohibition on torture is Alan Dershowitz. He supports the torture warrant system to judicially supervise torture in ticking bomb cases.
• According to him, lethal torture should be used in eminent mass terrorism attack with public support. The democracy has to make the difficult choice of evil- decisions for which there is no good resolution.

Pragmatic prohibition of torture

• The second approach is the pragmatic prohibition of torture, according to it, the absolute prohibition on torture should be upheld with the realisation that, in exceptional cases, public officials will step outside of the legal framework by employing torture to acquire information in order to prevent looming of unlawful violence.
• They want to protect society from acts of terrorism and defend the right to life of the victims of such acts. This approach accommodates exceptional situations alongside the absolute legal prohibition.
• The qualified torture prohibition seeks to accommodate the prohibition, within the law but in contrast, this approach seeks to accommodate the exception extra-legally.
  The extra-legal model could be understood as an attempt to minimise the damages created by state of emergency.
• They choose this model over judicial mechanism so that the judicial system is cleaned in the time of crisis. When the judiciary faces the crisis it tends to go to war and is sensitive to the criticism that they impede the war effort.
• It is argued that a categorical prohibition on torture is also desirable in order to uphold the symbolism of human dignity and the inviolability of the human body. If one believes that absolute ban is impossible, it is, nevertheless, worth upholding the ban for an independent reason.

Absolute torture prohibition

• Last and the one which is protected under the international law is the Absolute torture prohibition approach. This approach is widely known as having customary status under international law. However, this approach has been challenged by politically and morally.
• People who take this approach argue with an ethical perspective. According to them, torture is immoral and inconsistent with a democratic society. Torture is something which can never be justified or excused.
• Jeremy Waldron supports the approach of the absolutist. According to him the prohibition on torture cannot be easily cast aside because it does not exist in a vacuum. Prohibition of torture epitomises a legal archetype that operates not only as a rule but also as a foundation feature of the legal system.
• The rule against torture represents certain policy which governs the relationship between law and force, and the force with which law rules. Waldron denies any framework for in which torture prohibition which includes exceptional situation.
• He introduced the concept of “torture warrant” through the judiciary. The judge while providing the warrant should be unwilling to do so unless there is a rare and compelling case and because of the warrant system, there should be no justification for torturing extra-legally, without having sought a warrant.

The absolute prohibition on torture in cases like ticking bomb case is not really based on morals and logic. This approach adopts the ‘constrained’ utilitarianism to support the legal and practical argument.

Torture has been widely practised, 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.

Problem with absolute torture prohibition approach

There are numerous motives why paradigm times of torture are objectionable: the sheer awfulness of suffering; the mortification, terror, and dehumanization; the mental scarring; the diverse types of betrayal. The ethical evaluation of torture in a selected instance may additionally depend upon which elements are present and to what degree. It has to concede that the infliction of that diploma of damage may be permissible, even to save you harms far much less bad than the homicide of one billion humans. The concept that there is such a threshold is entirely incredible.

It has to concede that the infliction of that diploma of damage may be permissible, even to save you harms far much less bad than the homicide of one billion humans. The concept that there is such a threshold is entirely incredible.

There needs to be specific condition laid down to claim that certain type of act is wrong no matter what the consequences are. If it is claimed by the absolutists that there are grey areas in which it is uncertain whether an act constitutes torture, or in which we are indeterminate whether the act is torture, they still have to say whether an act that is in the grey area can be permissible. Noting could justify the act if there is uncertainty. It is suggested by the principle of reasonable caution that we should treat such an act as absolutely prohibited. But if this is the case, we have to know at what exact point the grey area begins and whatever the consequences are we need to claim that all acts at or beyond that point may not be done. Or, if the absolutist accepts that acts in the grey area can be permissible, we then need to know exactly where the grey area ends and absolutely prohibited acts begin.

Nothing could justify the act if there is uncertainty. It is suggested by the principle of reasonable caution that we should treat such an act as absolutely prohibited. But if this is the case, we have to know at what exact point the grey area begins and whatever the consequences are we need to claim that all acts at or beyond that point may not be done.

Or, if the absolutist accepts that acts in the grey area can be permissible, we then need to know exactly where the grey area ends and absolutely prohibited acts begin.
My reason to criticize absolutist approach against torture is 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 relative of the terrorist or someone who is close to him, as a means of extracting the same information. In planting the bomb or capturing the hostage, the terrorist makes him morally liable to be harmed as a means of preventing him from harming innocent people. But his closed one has done nothing to become liable to be tortured as a means of saving the parent’s potential victims.

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 relative of the terrorist or someone who is close to him, as a means of extracting the same information. In planting the bomb or capturing the hostage, the terrorist makes him morally liable to be harmed as a means of preventing him from harming innocent people. But his closed one has done nothing to become liable to be tortured as a means of saving the parent’s potential victims.

In planting the bomb or capturing the hostage, the terrorist makes him morally liable to be harmed as a means of preventing him from harming innocent people. But his closed one has done nothing to become liable to be tortured as a means of saving the parent’s potential victims.

One of the most important objections 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. As I indicated earlier, 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 be used rarely.

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 be used rarely.

Conclusion

After analyzing all the three theories and understanding why the absolutist theory cannot be used in it completion, I would like to conclude by stating that there has to laws and certain exception which needs to be given to certain authorities in order for them to use torture in a limited way.There is a need for torture treatment for the greater good of people. With this it can be made sure that there is no illegal use of torture. There are other ways also which are discussed in the paper which can be used so that there is no misuse of torture, but prohibiting torture completely might lead to greater loss as seen in the case of ticking bomb scenario.