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Thursday, September 01, 2005

Is torture okay?

In a recent edition of the legal publication Capital Letter, the editorial discussed a legal article titled "Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable".

Some select excerpts from the editorial follow:
In the era of the well publicised suicide bomber, the "Dirty Harry" school of jurisprudence was always going to gain some traction... [T]he authors, Mirko Bargaric and Julie Clarke are professor and lecturer in law, respectively, at the Deakin Law School, Western Australia. The explicit purpose of the article is to "convince readers that torture is justifiable in some circumstances and to set out the variables that are relevant to such an inquiry".
Torture...is prohibited in the UN Convention against Torture (1984), and many other international and national legal instruments. The prohibition is unqualified.
But this is a relatively modern view. From Roman times until the seventeenth century, torture was a reasonably respectable means of finding facts for the purposes of executive and judicial decision making in Europe, at least.
The Bargaric and Clarke article contends that official torture is widespread and, in appropriate circumstances, is morally defensible as well as pragmatically desirable. Indeed, their conclusion is that the..."absolute prohibition against torture is morally unsound and pragmatically unworkable ... A legal framework should he established to properly accommodate [those] situations" where the use of torture is appropriate. The pragmatic limb of the argument draws support from the liberal US lawyer, Alan Dershowitz, and the proposition that "if the United States is going to continue to torture people, we need to make the process legal and accountable".
The moral limb of the article's thesis involves utilitarianism, and a challenge to the modern dominance of "rights" discourse. With reference to Bentham and Mill, the thesis is that "torture is clearly justifiable where the harm caused to the agent will be offset by the increased happiness gained to other people".

The editorial continues by saying the justification
...is within a moral context where in some circumstances (notably war) there is punishment of the innocent.
The preliminary summary offered in the article is that torture might he used as an information gathering device to avert a grave risk, having regard to:

1. the number of lives at risk;

2. the immediacy of the harm;

3. the availability of other means;

4. the level of wrongdoing of the agent; and

5. the likelihood that the agent does actually possess the information.

The article is provocative. But terrorism and torture are twin topics which are unlikely to fade away in the near future.

Later on in the publication, there is further excerpts from the article. I like the following:
It is not surprising then that nowadays all sorts of dubious rights claims have been advanced. Thus, we have a situation where individuals are able to hold a straight face and urge interests such as 'the right to a tobacco‑free job', the 'right to sunshine', the 'right of a father to be present in the delivery room', the 'right to a sex break', and even the 'right to drink myself to death without inference'. A further flaw with many rights theories, including those of Dworkin and Nozick, is that an absolute right does not exist. Not even the right to life is sacrosanct. This is evident from the fact that all cultures sanction the use of lethal force in self‑defence. And, indeed, torture – in the circumstances that we indicate is morally permissible – is in fact a manifestation of the right to self‑defence, which extends to the right to defendant another.
The key consideration regarding the permissibility of torture is the magnitude of harm that is sought to be prevented. To this end, the appropriate measure is the number of lives that are likely to be lost if the threatened harm is not alleviated. Obviously, the more lives that are at stake, the more weight that is attributed to this variable. Lesser forms of threatened harm will not justify torture. Logically, the right to life is the most basic and fundamental of all human rights – non‑observance of it would render all other human rights devoid of meaning.
Torture violates the right to physical integrity,, which is so important that it is only a threat to the right to life that can justify interference with it. Thus, torture should be confined to situations where the right to life is imperiled".
Where's this leading us?

In the UK they are trying to introduce a law that allows torture. Whether it will get past the ECHR (European Convention on Human Rights) is doubtful but the Brits are trying. Guantanamo Bay also, of course, comes to mind.

In my view the utilitarian focus is somewhat stretched but I can understand it. Still, can't see a "National Security (Torture Warrant) Bill" on our agenda anytime soon.

Posted by Gooner | 9/01/2005 10:03:00 PM