‘Torture can be justified if it serves the greater good’ critically discuss this statement with reference to human rights theories

Torture, and consequently its definition, has changed through time. A Roman lawyer once stated, ‘torture is the inquiry after truth by means of torment’ (cited in Peters, 1985). This definition is the foundation for the understanding of torture in modern times. It is now looked at not only in terms of physical pain, but mental stress and damage as well, (ScienceDaily, 2009). The United Nations Committee against Torture is responsible for monitoring states and ensuring that they are complying with their duties depicted in the treaty’s resolutions and articles, (McQuigg, 2011).

The Universal Declaration of Human Rights, (UDHR) states that “Noone shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, (United Nations Human Rights, 2013). Theorists arguing for torture stand upon the utilitarian argument that it is for the ‘greater good’. However, torture is illegal and often considered immoral, which underpin the arguments of many anti-torture criminologists. These theories are flawed when asking the question: ‘If put into a situation whereby the choices offered are both immoral, which would be the ‘lesser of two evils’?

’ Using human rights theories and commonly-used arguments such as, consequentialism, utilitarianism, social contract theory and more, the justification of torture can be critically analysed to result in a fully supported and reasonable conclusion. To fully understand the arguments made in this essay, it is imperative to differentiate between morals, ethics, laws and the definitions of the ‘greater good’, ‘moral absolutism’ and torture in itself. Torture is, for the needs of this writing, defined as: “the intentional in?

iction of extreme physical [or mental] suffering on some non-consenting, defenceless, other person for the purpose of breaking their will”, (Miller, S. n. d. ). Morality, as portrayed by Chazelle, is the difference between right and wrong. Ethical codes are used to transform moral judgment or intuition into a decision around action, (Chazelle, B. 2009). The laws surrounding torture, within the human rights domain, depict that, “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. ” (United Nations Human Rights, 2013). The ‘greater good’, often used in utilitarian argument, seeks to ensure the greatest happiness for the greatest number of people. This statement in itself has much to explain, but for the use in this essay, it will factor the ‘greater good’ as the greatest number of people in any one circumstance according to Western values.

Moral absolution, explains the feeling that something is absolutely right or wrong no matter of the circumstance or consequence, usually a Kantian viewpoint, (Barry, P. n. d. ). Using these terms and relevant theories, this essay will discuss the justification of torture for the ‘greater good’. The state, as elected by the citizens of the country, has a responsibility to protect its citizens and to protect the rights to security and life that the people hold.

Their aim, to ensure protection from various acts such as crime, human right violations and safety from terror and pain, can only be properly ensured if the state is able to use methods such as torture to gain important information against potential terrorist attacks, (McLaughlan, K. 2009). This idea justifies the use of torture in exchange for the safety of the people and bases its arguments on the promise that the torture would ensure the safety of a society over the harm of an individual.

It would also imply that if a state were not to use such measures to enforce the protection over its people then the state are risking the lives of their trusting population. On the other hand, arguments against the use of torture in the ‘war against terrorism’, claim that the state are not forfeiting the security of the individuals living within it if torture is prohibited, but that the state should be able to come up with a means of protection that is within the framework of human rights to be able to conquer the ‘war on terrorism’, (Hoffman, P.

2004). This is empirical for absolute deontologists, who suggest that there is absolutely no reasoning behind the torture of anyone and that it is intrinsically wrong, even if this is to stop the deaths of millions of people, (Burgess-Jackson, K. 2007). Furthermore, as a state starts to undermine the human rights of its people (being the supposed terrorists), the state starts to lose legitimacy. So long as a country is trying to fight a ‘war on terror’, there should be no domestic terror or torture taking place, (Hoffman, P. 2004). This undercuts

the principles that the state has tried to set out for other people to follow, as well as showing that they are unable to ‘lead by example’. For instance, the debate surrounding Guantanamo Bay has started to impact on the way that the world views America on its standpoint within Human Rights, (Hoffman, P. 2004). This lack in state legitimacy not only weakens the international relation between the country and others, but declines public support for its elected body, thus creating an unstable population and country as a whole in terms of the global picture, (Moghaddam, F.

2010). In a case such as the above, it would seem that the reasons for torture cannot live up to both an unstable country and an apparent misguidance that the state provides leading to a weak argument towards the justification of torture. In contrast, it is possible to fall upon the theory of a ‘social contract’. As members of a community, there is an unwritten contract that, from birth, is signed up to and acknowledged, throughout life. The citizens give up some of their human rights, in exchange for protection from the state, (Binmore, K.

1998). This ‘social contract’ is what some pro-torture criminologists construct their arguments around. The terms of this contract dictate that the body elected to be in control of the state are there to protect the members of it. The argument is that if someone is willing to reject the social contract theory and place their rights above the other citizens then there is no option but to take state action to prevent this and maintain the safety of the greater number, (Binmore, K. 1998).

The safety of the citizens that abide by the laws and mind-set of those in power should not, therefore, have to succumb to the fear and terror applied by the ‘terrorist’ and justifies, to an extent, the use of torture, not only as deterrence, but a means of safe-guarding those within the protection of the state. The ‘social contract’ theory stands upon assumptions that a society fully understands and agrees (at least the majority that saw them into power) with their beliefs and stand points. However in places such as South Africa, Nelson Mandela was seen as a ‘terrorist’ by the elite in apartheid, (Boehmer, E.

2008). This led to the torture and incarceration of a man that is now believed to be a cultural revolutionist who is commended on his struggle to break down the segregation of the black community. This then lends the question of who decides the difference between a ‘freedom fighter’ and a ‘terrorist’. That decision should not be at the mercy of a body of people that may have prejudice and differing values. People should be able to take action in their autonomic lives to make a difference and change the world for the better, (Miller, S, n. d. ).

This argument begins to looks at the cultural relativism of some rights. Rights change throughout out time and what is believed to be right a true now, could change in years to come, (Lauren, P. 2011). This would therefore prohibit the use of torture due to the discrepancies in views and perceptions of what is right and wrong. Conversely, some consequentialists, those that look at an act on a case-by-case basis, alongside utilitarian criminologists, would argue that torture is necessary in certain circumstances to benefit the greater good, (Binmore, K.

1998). Under their scrutiny, it is empirical that the outcome of torture as a sole act would benefit the majority of people concerned, (Burgess-Jackson, K. 2007). This ideology was the basis for the works of Dershowitz, whom after the 9/11 bombings, argued the need for torture in extreme cases. For example, when, hypothetically, there is unequivocal understanding that a suspect is withholding information that would stop a bomb exploding in the middle of a city that would kill thousands of people. This is known as the ‘Ticking Time Bomb’ (TTB) scenario.

This utilitarian outlook is underpinned by the obligation to provide the greatest happiness for the ‘greater good’, (Binmore, K. 1998). The TTB scenario features in many pro-torture arguments and is the main question faced when trying to oppose torture. TTB scenario offers a solution in an ideal world. Dershowitz argued that at times where the knowledge is fully supported and there are no other methods of extracting information, a ‘torture warrant’ should be gained and used in the hope for benefitting the ‘greater good’.

This would then keep the use of torture limited to cases of extreme terrorism and would reduce the amount of harm inflicted on any one person, unless unmistakable evidence had been sought against a suspect. This theory is, however, completely hypothesised. A situation like this has never arisen and is highly unlikely to do so, (Burgess-Jackson, K. 2007). Hence there are many flaws with the TTB scenario, yet it continues to cast a moral questioning over the torture argument. Correspondingly, this framework for gathering information relies on various assumptions.

Firstly, that the only way to gather the information needed from a suspect is to torture him/her and/or his/her family. For this to be correct, it must be assumed that the suspect knows the supposed information. It also assumes that they are likely to give the information over and that they have the correct knowledge, (Barry, P. n. d. ). Even if both of the above are true, it would anticipate that the secret services that have identified the suspect as a threat or potential source of information are not able to gain the information in other ways.

If a suspect has, illegally or legally, been detained under the suspicion that they hold valuable information, then it is unlikely that the secret services will not have already imparted some knowledge about the case, thus resulting in torture being unnecessary and ‘inhumane’. In cases where torture is used and it is not true that the suspect holds the information that is ‘required’, the torturer bares the risk of imposing a self-fulfilling prophecy onto the otherwise innocent victim, (Hagan, F. 2008).

Moreover, Mclaughlan argues that the actors in a real version of the TTB scenario may not be acting rationally. She states that the time pressures and other such importance placed on their decision would affect the rational decision that they make along with the probably neglect towards their ethical codes and moral conducts, (McLaughlan, K. 2009). It is a widespread belief that torture is immoral and that that is enough reason to prohibit it. Kant has argued that the use of a person as a means to an end is immoral and unjust, (Sung, C.

2003), (this is also true of Dershowitz, even though he did argue that the use of torture should be limited by warrants), (Barry, P. n. d. ), (Dershowitz, A. 2002). However, in the TTB scenario, the ‘moral judgement’ is no longer valid. Either choice would result in an immoral outcome, the harm and torture of one, or the death of thousands, maybe hundreds of thousands of others. This idea dismisses that the moral implications at threat in the TTB scenario can be the only thing stopping it from happening.

Therefore it would be down to the ethical code of the torturer (or state enforcing the torture) as to whether it is ‘right’ or ‘wrong’. The argument that torture should be legalised and monitored in certain circumstances, gives potential for the abuse of the use of torture in situations that either are not deserving of torture, or more severe forms of torture being used, (Hoffman, P. 2004). The torturers would then be seen as doing a norm rather than an exception and the impact on the victim could be greater than necessary.

A process such as legitimately torturing could also standardise the use of torture and it would be used in cases where it is inappropriate and on ‘lesser’ cases such as missing persons or murder. If this slippery slope were to happen, more and more people would succumb to torture and therefore the utilitarian argument that torture is used to benefit the greater good not only starts to crumble, as it is being used in more ‘trivial’ cases where the greater good are not being implicated, but starts to infringe upon itself creating little justification for the use of torture under any circumstances.

Consequentialists that adhere to a set of rules or morals rather than looking at an act individually would argue that torture, more often than not, does not actually favour the ‘greater good’. Therefore if a group of torture victims was looked at as a community of their own, torture does not provide the greatest happiness for the greatest number of people. This attacks the foundation of their beliefs and therefore the rule that usually torture does not benefit more people that harm, cannot stand alone.

Consequentialists, of this kind, therefore adhere to a general rule that torture must be prohibited, regardless of individual cases. In summary, although there is much debate about the ‘moral dilemmas’ associated with torture, it is necessary to evaluate what is more important, the morals that you hold as a person, or the morals that are portrayed to others. In this instance, it is easiest to say that torture is unjust and wrong to satisfy judgment from others, but when faced with the TTB scenario which involved close family members, most could not be umpired for the way they react.

To conclude, regardless of the judgement that may be enforced, the unlikely eventuality of ever such a TTB scenario should occur minimises the justification of torture. Although there is argument to monitor the use of torture, the possibility of it becoming a norm is too great for it to be justified. The rights of one person should not be cast aside as and when the state feel it is right to do so. With torture permitted, the world would turn into an ugly place with more and more terrorists being form due to a self-fulfilling prophecy. ‘One man’s terrorist is another man’s freedom fighter’ – Attorney General Ramsey Clark.

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