The torture “debate”
A recent, sinister development in the human rights industry has been the preparedness of mainly American, but also some English academics, to “debate” the legality of torture. The prospect of academic lawyers “debating” the proposed legalisation of torture is appalling. There should be no “debate”. Torture is non-negotiable. This is beyond discussion in most civilised countries.
Article 3 of the European Convention on Human Rights states that no-one shall be subjected to torture or to inhuman or degrading treatment or punishment. This provides absolute protection. In no circumstances can such treatment be made legal. States are never able to argue that such treatment is acceptable or justifiable. The drafters of the European Convention had experience of legalised torture under the Nazi regime. They were determined that this would never be repeated.
The definition of torture, and its distinction from inhuman or degrading treatment, is problematic. Article 1 of the UN Convention against Torture gives the following definition:
Torture means any act which by severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third party information or a confession.
In 2005, in the case of A and Others v Secretary of State for the Home Department, seven Law Lords decided unanimously that evidence which may have been obtained by torture is inadmissible in English courts, regardless of where or by whom the alleged torture has been perpetrated.
This judgment was described as the leading judgment on torture which would reverberate around the world, putting beyond doubt that the ban on torture was absolute in civilised countries.
Lord Bingham commented that from its earliest days, the common law set its face firmly against the use of torture. The principles of the common law, standing alone, compelled the exclusion of third party torture evidence as unreliable, unfair, offensive to ordinary standards of humanity and decency, and incompatible with the principles which should animate a tribunal seeking to administer justice. Torture was prohibited by statute in 1640 in England and in 1708 in Scotland.
Those who seek to “debate” the legalisation of torture have introduced, as justification, the “ticking bomb hypothetical”. This is a devised scenario involving a large number of lives at stake in the immediate future, where the torture of suspects is the only means of dealing with the threat. It has been suggested that there is anecdotal evidence that this scenario has some basis in reality. Those who put forward this argument have never produced independent evidence to support their claims.
Academic discussions of legal torture conveniently avoid the realities of the torture chamber. For example:
Who will be the torturers? The police? Prison officers? It is to be hoped that their trade unions would have some points to make in this connection. How will the torturers be trained? Will there be accredited courses in torture techniques, with diplomas awarded for successful trainees?
How will the torturers deal with the health and safety aspects of spattered blood from the victims’ wounds?
Will there need to be risk assessments for torture workers who use electric drills to pierce victims’ bones?
Will judges be delegated to sit in on torture sessions? It is to be hoped that the English judiciary would have nothing to do with this.
Presumably, doctors would have to be present at legal torture sessions to ensure that victims do not die. Again, it is hoped that the medical profession would find itself precluded, on the grounds of professional ethics, from assisting in the torture chamber.
What kinds of torture will be legalised? Pliers to extract fingernails? The rack? Electric batons? Wall handcuffs? Beatings? A more recent example of a torture technique is to make incisions in the victim’s penis with a scalpel and then to pour hot and irritating liquid onto the wounds. Any proposal to legitimise torture must face up to these disgusting realities.
Will licences be granted for the manufacture and supply of instruments of torture?
Apparently, there is a huge body of academic research into the legalisation of torture. It should be asked whether these researches, presumably funded in part by the taxpayer, are more worthwhile than, for example, the reasons why there are only two Law Centres in the Southeast of England outside London, or the effects of the abolition of legal aid in most civil cases on the most vulnerable and deprived members of society.
The appalling realities of the torture chamber have been examined by the European Court of Human Rights in a number of cases. For example in the Greek case (1969) torture took the form of falanga (the beating of the soles of the feet with a wooden or metal stick or bar) which, if skilfully done, breaks no bones, makes no skin lesions and leaves no permanent and recognisable marks, but causes intense pain and swelling of the feet; severe beatings of all parts of the body; the application of electric shock; mock execution and threats to shoot or kill the victim; squeezing of the head in a vice; pulling out of the hair from the head or pubic region; kicking of the male genital organs; dripping water on the head and intense noise to prevent sleep.
This illustrates the horrific reality of the torture chamber. If falanga is to be “skilfully” applied, then its practitioners will have to be trained. Torturers must develop the skills of extracting information by the use of very severe and cruel suffering without killing the victim or, in an ideal world, leaving no permanent and recognisable marks. Can anyone seriously contemplate a legalised training school for torturers in Britain?
In 1949, during discussion on the proposed Universal Declaration of Human Rights, the British representative at the United Nations is reported to have made the following comment:
All forms of torture, whether inflicted by the police, military authorities or members of private organisations, are inconsistent with civil society, are offences against heaven and humanity and must be prohibited. This prohibition must be absolute and torture cannot be permitted for any purpose whatsoever, either for extracting evidence, to save life or for the safety of the state. It would be better for society to perish than for it to permit this relic of barbarism to remain.
The last word on torture should go to Albie Sachs, who was subjected to torture by sleep deprivation by the South African security forces. He makes the point that his experience was not the hypothetical situation of the kind discussed by some academics in relation to the costs and benefits of governments using torture. In his case, as in 99.9 per cent of torture cases, there was no ticking bomb. The object of the torturers was not to obtain information but to humiliate and degrade their victim so as to achieve power and dominance.
In 1988, Sachs lost an arm and the sight of an eye when his car was bombed by South African security agents. It appears that he was bombed because he was an intellectual who challenged the claim of the South African apartheid government that no political system could be found to enable black and white to live together as equals in South Africa.
Sachs makes the point that when the African National Congress was a liberation movement in exile, a Code of Conduct was drawn up which prohibited torture in any circumstances.
Lord Bingham has pointed out that the Bush administration rewrote the definition of torture to mean “physical pain of an intensity akin to that which accompanies serious physical injury such as death or organ failure”. This excludes “enhanced interrogation techniques”.
Recent disclosures have indicated that the United Kingdom has been involved in torture. In January 2010 the UN Human Rights Council declared that the UK had been complicit in the rendition, unlawful detention and torture of terror suspects.
In the case of Binyam Mohamed (a torture victim), the Court of Appeal stated that MI5 had failed to respect human rights, deliberately misled Parliament and had a culture of suppression which undermined government assurances about its conduct. The lawyer acting for the government demanded that the Court of Appeal should change the wording of its judgment to be less critical of MI5.
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