Since 1974, medical work against torture has been undertaken in Copenhagen, Denmark. It started with four volunteer doctors, and now extends to nearly 200 rehabilitation centers for torture victims worldwide: ‘wonderful that it exists’.
The anti-torture movement provides rehabilitation to the victims of torture, and it
strives to put the problem of torture on the agenda, to raise awareness of where torture is used, and how destructive torture is for every democratization process. All this work is aimed at breaking the silence which surrounds the problem of torture. The current debate in newspapers and on radio and television has shown that this aim has been achieved: ‘A shame that it is necessary’.
Danish politicians, the Chief of Defense, newspapers, editorials and non-governmental organizations all agree: ‘torture should not take place’. Many facts have been presented, and many proposals for improvements have been put forward. One aspect seems to be missing, however, and the aim of this article is to emphasize that the necessary international instrument already exists. This instrument takes all problems regarding torture into account – it only needs to be put into effect. This instrument is the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. It was adopted – by consensus – by the UN General Assembly on 10 December 1984 (the day which, in 1948, was made UN Human Rights Day), and it came into force on 26 June 1987.
Since 1997, following Denmark’s initiative, the Convention has been ratified by 134 countries. The provisions of the Convention always apply during wartime, when the so-called Geneva Conventions apply, and they always apply during peacetime, when the Geneva Conventions do not apply. This means that the excuse which was used in Afghanistan – ‘we are not at war, so the Conventions do no apply, they are not prisoners of war’ – is invalid. The Convention against Torture always applies. Contrary to some other conventions, it cannot be suspended, not even partly, and not even temporarily. So, let us use the Convention as our legal framework – if it is good enough! We will now take a look to see if it is.
Article 1 defines torture – not ‘other cruel, inhuman or degrading treatment or punishment’. These concepts are not defined and probably never will be. Four conditions must apply in order to fulfill the definition of torture. If one of these conditions is missing, it is not torture.
The act must:
- 1. cause ‘severe pain or suffering, whether physical or mental’
- 2. be ‘intentionally inflicted’
We think that most people know – or can easily imagine – that torture makes you
ill. Torture is the only illness that is ‘intentional’ – all other illnesses are caused by bacteria, viruses, cancer, and so on. Torture is inflicted by another human being, and this absurdity makes the after-effects even more unbearable.
- 3. The act of torture must be perpetrated for a purpose. The Convention mentions many possible purposes. The most well known, presumably, is the wish to get information or to obtain a confession, but the Convention also mentions intimidation or coercion of the victim or a third person (please remember the pictures from Iraq!).
Torture is a very bad way of obtaining confessions or information: after some time, the victim will always say whatever the perpetrator wants to hear, and will be willing to sign blank pieces of paper. When we teach, we usually say to the police: ‘Do you want the truth, or do you want a confession?’
- 4. The torture must be inflicted by or with the consent or acquiescence of a public official.
This just makes matters worse: the state is behind the torture. Article 2 prohibits the use of torture with complete clarity: ‘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.’ This means no torture. It means no torture of terrorists. It means torture can never be justified with reference to a ‘ticking bomb’, not even if we use the justification that ‘we can save 200 lives if we torture one man’. Torture as defined in article 1 should never take place.
Section 3 of Article 2 states: ‘An order from a superior officer or a public authority may not be invoked as a justification of torture.’ This must be one of the most far-reaching provisions, and it also applies to the armed forces. The basic premise within the armed forces is that you obey an order, otherwise it is mutiny. If the order (or the content of a written instruction) is to ‘use all means’, then the answer is: ‘no, not torture’. ‘If I, (the subordinate) use torture, I am guilty of a criminal offense and should be punished. And the person who gave the order is also a criminal and should be punished.’ Article 2 therefore offers protection against every kind of torture at the same time as it offers legal protection to those people who refuse to torture others.
No less than 5 Articles (nos. 4 to 8) deal with the punishment of perpetrators. In summary, it is the obligation of the state to ensure:
- that torture, as defined in article 1, is an offense under the criminal law of the country
- that persons who are accused of torture are taken to court and, if found guilty, are given penalties which take into account the ‘grave nature’ of the offenses.
Furthermore, there is no period of limitation for the crime of torture, and it is not possible to grant amnesty for the crime of torture. So, if President Bush, shortly before the November elections, wishes to pardon soldiers who have committed crimes during the fighting in Iraq, he will have to exclude the perpetrators of torture. In the rehabilitation centers we often say that perhaps the victims can forgive the perpetrators, society cannot do so on their behalf.
Torture is an international crime to a greater degree than crimes against humanity or genocide. An example illustrates this: a Danish citizen has, on an order from the United States Department of Defense, tortured a Jordanian citizen while he was in Afghanistan. Later, the Dane is on holiday in the United Kingdom. It will then be the obligation (not just a possibility or a right) of the United Kingdom to take the Dane into custody, or to take other legal measures to ensure his presence while investigations are made. The prosecutor is then obliged to deal with the case as he or she does with all other cases of a serious nature, and if the inquiry leads to proceedings being brought, then the case should proceed in a British court, unless the Dane is extradited to a country where legal proceedings would be instituted.
In addition to the perpetrator, there is also a victim, perhaps several. This is dealt with in Article 14. The state is obliged to offer the victim of torture a ‘fair and adequate compensation, including the means for as full rehabilitation as possible’, and this means medical rehabilitation. It is the state that has the duty to offer this. The victim must not be required to press charges against the perpetrators or the state. Recently, initiatives have been taken to offer medical rehabilitation to the victims of torture in Iraq.
Is torture right or wrong morally?
In approaching issues of right and wrong, philosophers have usually been divided into two camps. First, there are those whose decision making process is keyed to the accomplishment of some societal goal (the good). We call that approach “teleological” (from the Greek word “telos,” meaning “end” or “goal”). “Teleological” means ends-oriented – focusing on the goal, not the means to achieve that goal.
The other major school of Western moral philosophy has been characterized by a decision making process keyed to something other than the accomplishment of a societal goal. Instead of being concerned with accomplishing something “good,” these thinkers are concerned with acting in a way consistent with some kind of “first principle,” usually based on a view of required human rights or individual responsibilities. We call such approaches “deontological” (from the Greek word “deon,” meaning “that which is required”).
The best-known of the teleological schools is probably Utilitarianism, which is most closely associated with the writings of Jeremy Bentham and John Stuart Mill. Utilitarians are most concerned with achieving “the good,” which they define as the maximization of human happiness. The Utilitarian attempts to determine how a particular act affects the sum of human happiness and well-being (the good). If an act causes a net increase in human happiness and well-being, then that act is a good thing. Obviously, on the other hand, if the act causes a net decrease in human happiness and well-being, then that act is not a good thing.
The other major school, Deontology, does not judge the rightness or wrongness of acts by looking at the results of the actions – like the maximization of human happiness and well being – as Teleologists do. For Deontologists, the results of the action are less important than some set of “first principles” (usually those principles which purport to define what is “just”). These just principles are usually principles concerning the basic obligations of human beings to each other – or the basic human rights of the individual.
Deontological focuses on the duties owed by the individual. According to this duty-oriented Deontological approach, perhaps most closely associated with the philosophy of Immanuel Kant, there are general principles of human responsibility that can be derived logically and applied universally. A Kantian believes that certain behavior is simply in and of itself right (or just), and other behavior is simply in and of itself wrong (or unjust) – utterly regardless of the results or consequences of that behavior (including the maximizing or minimizing of the sum of human happiness, the Utilitarian’s “good”). For a deontologist, where does one look to find these fundamental, universal obligations or human rights? There are several sources for these fundamental beliefs: religious doctrine (religions commonly lay out what is often described as God’s Law); the tradition of Natural or Higher Law (the law of nature, God, or the universe – whatever you choose to call this higher power – which takes precedence over, and trumps, human-made law); and, finally, the commands of individual conscience.
Originally spoken in, omg wow… April 14th, 2005!