From the US to India: Is torture alright if it curbs terror?

Fritz Knöchlein walked to the gallows in 1946, until the end protesting his innocence. The Nazi officer had confessed to killings of 126 British prisoners of war, he claimed, under torture—beatings; having to clean lavatories with a tiny rag while buckets of freezing water were thrown over him; running in circles carrying heavy logs. Prisoners with him told the same stories: stories of starvation, whipping, intimidation with red-hot pokers and the threat of electrical shocks.

Now, from the path-breaking research of Ian Cobain, we know it was true. Perhaps hundreds of Nazi prisoners of war were tortured in several locations—most infamous, the London Cage, located in a row of grand villas in Kensington Palace Gardens, where homes now retail for £50 million and more.

Earlier this week, a bipartisan Task Force held the United States guilty of torture—finding that the war against terror which followed 9/11 violated every known international law and human rights standard. Task Force member Asa Hutchinson said their findings showed US intelligence personnel, "in many instances, used interrogation techniques on detainees that constitute torture".

These findings are certain to spread the warm glow of moral smugness across the world: among Americans, who believe that their nation is founded on a special willingness to uphold moral values; Europeans who will find their belief in their cultural superiority over their western ally reaffirmed; Indians who, long at the receiving end of lectures on human rights, will take pleasure in the hypocrisies of great powers.

 From the US to India: Is torture alright if it curbs terror?

Smugness, though, doesn’t explain why torture has proved so universal in times of war. AFP

Smugness, though, doesn’t explain why torture has proved so universal in times of war. There are some discomfiting questions that need answering about the inevitable moral costs that come with fighting wars, insurgencies and terrorism.

Ever since the Universal Declaration on Human Rights in 1948, torture has been taboo—even though the historical record shows great powers generally felt comfortable confining their moral qualms to their home. In 2012, for example, veterans of the Kenyan Mau Mau rebellion of the 1950s won the right to sue the United Kingdom for what their lawyers say were “unspeakable acts of brutality”, including beatings, sexual assault and castration. There is no shortage of evidence that the United States practiced large-scale torture and secret executions in its war against Vietnam. In 2009 alone, Last year, 33 separate allegations of torture and sexual abuse were brought against British soldiers in Iraq, The Telegraph reported.

In 1978, the philosopher Henry Shue wrote a seminal paper addressing itself to this global reality. “Torture”, he wrote, “is indeed contrary to every relevant international law, including the laws of war. No other practice except slavery is so universally and unanimously condemned in law and human convention. Yet, unlike slavery, which is still most definitely practiced but affects relatively few people, torture is widespread and growing”.

Hypocrisy, though, wasn’t an argument against the principle. In his paper, Shue accepted there were some extreme circumstances in which torture might be permissible. He suggested “anyone who thinks an act of torture is justified should have no alternative but to convince a group of peers in a public trial that all necessary conditions for a morally permissible act were indeed satisfied”.

Later work by Shue, and others, went further—rejecting the notion that there might be any conditions at all in which torture was permissible. “If torture is not wrong”, Jamie Mayerfeld wrote in 2008, summing up the consensus, “nothing is wrong. No one should be subjected to the pain and terror that torture entails”.

In a provocative 2010 paper, though, Uwe Steinhoff challenged this orthodoxy. He argued that since human beings had a right to kill in self-defence, they also had “a right to self-defensive torture against culpable aggressors”. Steinhoff proposed that since “most forms of torture are not as bad as killing, then people must also have a right to torture a culpable aggressor if this, too, in the circumstances, is a proportionate and necessary means of self-defence against an imminent threat”.

There are philosophers willing to go with less caveats. In a 2005 book, When the Unthinkable is Morally Permissible, Mirko Bagaric and Julie Clarke argued that “given the choice between inflicting a relatively small amount of harm on a wrongdoer and saving an innocent person, it is verging on moral indecency to prefer the interests of a wrongdoer.” Legal scholar Alan Dershowitz went further, arguing in a 2002 book for a legal framework for torture. “The current situation,” he argued, “is unacceptable: it tolerates torture and encourages hypocritical posturing”.

Intelligence and military practitioners across the world tend to agree that some level of torture is necessary. In 2010, John Sawers, the then-head of the British Secret Intelligence Service, said that if “we know or believe action by us will lead to torture taking place, we’re required by UK and international law to avoid that action, and we do, even though that allows that terrorist activity to go ahead.” Yet, he went on, “if we hold back, and don’t pass that intelligence out of concern that a suspect terrorist may be badly treated, innocent lives may be lost.”

Though opponents of torture sometimes make the argument that such techniques doesn’t work, Steinhoff points to at least two cases where it did. In 2002, mere threats of torture sufficed to make child-kidnapper Magnus Gäfgen disclose the location of his victim—who he had, however, already murdered. Eight year old Denis Mook was rescued after the actual torture of his kidnapper.

Evidence of the successes or failures of torture is, of course, hard to come by. Few will confess to engaging in torture—and the testimony of those who must necessarily be treated with caution, either way. For as long as torture remains illegal, and hidden away, there’s simply no empirically-robust way of knowing whether it works or not.

Most humans are intuitively repelled by the idea of torture (though, interestingly, other higher primates like chimpanzees also engage in the practice suggesting that cruelty may be more a part of us than we care to acknowledge). The fact is, however, that moral intuitions are complex things. Few would endorse the butchering of an innocent to harvest organs for five other innocents certain to die—but what if those five were children we somehow knew would invent life-saving drugs, while the victim was a serial killer? No-one would say it was right to push a man in front of a speeding train—but what if this slowed it down enough to save a thousand?

These puzzles, and many others like them, will be familiar to philosophy undergraduates. These are issues that consequentialists and deontologists have long debated. The sad truth is that no ethical system offers entirely satisfying moral solutions to all our real-world ethical dilemmas.

In India, these dilemmas aren’t abstractions. There is no doubt at all that torture in India has reached epidemic proportions—targeting everyone from protestors to small-time criminals and the merely poor. This has to change.

There’s no doubt, either, that in a nation beset by small wars, insurgencies and terror, the choices that face police aren’t always simple. Punjab police officers fighting the Khalistan insurgency engaged in savageries—but, as KPS Gill pointed out in an angry open letter to former Prime Minister IK Gujral, they did so in a war fought after the state had been all but extinguished by terror. From Jammu and Kashmir to the North-East, from the Maoist heartlands to our megacities, police and military officials sometimes kill in cold blood—exercising that choice because, given the state of the criminal justice system, the option is letting terrorists walk free.

Law, order and justice, aren’t the same things. In war, sometimes one can have the one or the others.

The New Delhi-based historian Dilip Simeon likes to tell the story of Johann Georg Elser—the carpenter who attempted to assassinate Adolf Hitler in 1939. Elser had no way to see in to the future, and there’s no disputing killing in cold blood was wrong—but his success might have saved the lives of 50 million people.

Perhaps as we contemplate the torture debate, this question must then be asked: can what is morally wrong also sometimes, if only sometimes, at once be praiseworthy?

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Updated Date: Apr 19, 2013 12:37:26 IST