Arash Naraghi's Article on the Ethics of Torture

Torture has been one of the most significant instances of violence in human relations, at both the individual and collective levels. In this essay, I wish to examine three main questions concerning torture:

First question: What is torture and what are its main types?

Second question: Is torture morally impermissible under any circumstances?

Third question: If, hypothetically, certain types of torture are morally permissible under specific conditions, should torture, at least in those specific cases, also be legally permitted?

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First question: What is torture and what are its main types?

A comprehensive and precise definition of “torture,” like many other concepts, is no easy task. Article 1 of the “United Nations Convention against Torture”[1] (1984) considers torture an act that possesses several key characteristics: (1) it causes severe pain and suffering, whether physical or mental; (2) it is intentionally inflicted upon a person or a third person; (3) its purpose is for such things as: obtaining information, extracting a confession, punishing a person or a third person for an act they have committed or are suspected of having committed, intimidating or coercing the person or a third person to perform a specific act, and the like; (4) the perpetrator or instigator is a public or state official; and finally (5) if pain and suffering arise necessarily or incidentally from lawful conventional punishments, it should not be considered an instance of torture. For example, imprisoning a murderer is an intentional act by a state official and causes severe pain and suffering to that murderer with the intent of punishing them, but according to this Convention’s definition, this type of pain and suffering cannot be called an instance of “torture.” The truth is that this definition is not comprehensive and precise. For instance, if an ordinary citizen kidnaps a child and abuses that child in a savage manner, such as burning their body or administering electric shocks, their act should undoubtedly be considered an instance of “torture,” but the Convention’s definition does not encompass this particular instance. Perhaps the reason for the definition’s lack of comprehensiveness is that the aforementioned Convention was a treaty among states aimed at preventing crimes committed by states against citizens. In any case, however, it seems that the Convention’s definition is a useful approximation, at least for practical considerations in the political and social sphere.

The set of behaviors considered instances of “torture” can be divided into two groups based on the severity of the pain and suffering they cause: “severe torture” and “mild torture.” “Severe torture” is the infliction of intense pain and suffering that leads to severe physical injuries, such as mutilation or even death, or causes severe psychological trauma that persists for extended periods—for example, several months or years. Acts such as waterboarding[2], administering powerful electric shocks to a person, or savage beatings are often considered instances of “severe torture.” But so-called “mild” torture refers to violent behaviors that are not as intense as severe torture, yet are sufficiently harmful. For example, behaviors such as chaining a person in extremely painful bodily positions, suspending a person from the ceiling, or prolonged solitary confinement can be considered instances of “mild torture.”

همچنین “شکنجه” را می توان بر مبنای غایات شکنجه گران از این عمل به انواع متفاوتی تقسیم کرد.[3]  برای مثال، پاره ای از انواع شکنجه برای کسب اقرار است، یعنی (برخی) نظامهای قضایی، در مقام تحقیق جرم، شکنجه متمهان را برای کسب اقرار مجاز می داند، مثلاً مأموران قضایی فردی را که متهم به قاچاق مواد مخدر است به نحو وحشیانه مورد ضرب و شتم قرار می دهند تا به جرم خود اقرار کند و علیه خود شهادت بدهد.  پاره ای از انواع شکنجه نقش تنبیهی دارد، یعنی مجازات قانونی فرد مجرم متضمن رفتاری به غایت قساوت آمیز و خلاف کرامت انسانی است.  در پاره ای موارد، غرض از شکنجه درهم شکستن شخصیت و هویت انسانی فرد مورد شکنجه است به طوری که آن فرد کرامت خود را درببازد و خود را موجودی حقیر و بی ارزش بداند. پاره ای از انواع شکنجه بیمارگونه است.  در این موارد، فرد شکنجه گر از شکنجه دادن قربانی خود لذّتی بیمارگونه می برد، و لزوماً غایتی را فراتر از این لذّت بیمارگونه در نظر ندارد.  به گمانم امروزه جامعه اخلاقی تقریباً یک صدا و قاطعانه تمام این انواع شکنجه را ناروا و مردود می داند.  اما مسأله اصلی مناقشه بر سر نوع خاصی از شکنجه است که می توان آن را “شکنجه برای کسب اطلاعات بسیار مهّم و ضروری” دانست.   من بحثم را در این نوشتار به این نوع اخیر منحصر می کنم.

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پرسش دوّم: آیا شکنجه (برای کسب اطلاعات بسیار مهّم و ضروری) تحت هر شرایطی اخلاقاً نارواست؟

بسیاری از افراد معتقدند تمام انواع شکنجه، صرفنظر از آنکه معطوف به کدام غایت باشد، از جمله شکنجه برای کسب اطلاعات بسیار مهّم و ضروری، همیشه و تحت هر شرایطی اخلاقاً نارواست.  این موضع را گاهی “مطلق گرایی اخلاقی” در این خصوص می نامند.  مطلق گرایان غالباً برای تحکیم این مدعا دو نوع دلیل اصلی ارائه می کنند[4]:

دلیل اوّل مبتنی بر باور به ارزش و کرامت ذاتی انسان است.  مطابق این استدلال، انسان فاعلی اخلاقی و صاحب عقل است، و  به این اعتبار واجد ارزشی ذاتی است.  نقش حقوق اساسی انسانها از آن حیث که انسان هستند، پیش و بیش از هر چیز صیانت از این کرامت یا ارزش ذاتی است.  این حقوق اساسی “سلب ناشدنی” است، به این معنا که هیچ کس از جمله فرد صاحب حق نمی تواند آن حقوق را از خود سلب کند یا به دیگری جواز نقض آنها را بدهد- مگر آنکه از اساس صاحب حقّ بودن انسانها از آن حیث که انسان اند، انکار شود.  به بیان دیگر، مطابق استدلال ایشان، یا انسانها اساساً حقّی ندارند یا اگر حقّی به ایشان نسبت داده می شود، لاجرم باید این دسته حقوق (به مثابه پیش شرط تحقق هر حقّ دیگری) برای ایشان مفروض انگاشته شود.  مطلق گرایان حقّ مصونیت از شکنجه را از جمله مصادیق این حقوق اساسی و سلب ناشدنی می دانند.  در چارچوب این تلقی، هیچ مصلحت عملی ای- هرچند که مهم باشد و به خیرعمومی عظیم بینجامد- نمی تواند نقض این حقوق را موّجه سازد.  نقض این حقوق سلب ناشدنی- از جمله حقّ مصونیت از شکنجه- صرفاً نقض یک حق در عرض سایر حقوق نیست، نفی اصل صاحب حقّ بودن انسانهاست از آن حیث که انسان اند.  بنابراین، شکنجه انسانها تحت هیچ شرایطی موّجه نیست- مگر آنکه از اساس “انسان به مثابه موجودی صاحب حق” را منکر شویم.

دلیل دوّم، صرفاً فایده گرایانه و مبتنی است بر فرض ناکارآمدی شکنجه (خصوصاً در مقام کسب اطلاعات موثق)، و چربیدن زیانهای فاحش و فراوان آن بر فواید اندک و نامحتمل اش. مطابق این استدلال، فردی که مورد شکنجه قرار می گیرد در غالب موارد به اموری واهی اعتراف می کند که صرفاً خوشایند شکنجه گران است.  و مهمتر از همه برسمیت شناختن شکنجه به گسترش فرهنگ شکنجه در جامعه می انجامد و بسرعت دامنگیر انسانهای بیگناه می شود.

On the other hand, some believe that under very specific conditions, torture can be considered morally permissible. Proponents of this view, to prove their point, construct hypothetical situations in which the application of torture inevitably appears morally justified and defensible. One of these hypothetical scenarios, known as the “ticking bomb,” is as follows[5]: Suppose a terrorist has been arrested, and the police know that he has planted a very powerful automatic bomb in an unknown but highly trafficked location, and if that bomb is not discovered in time, its explosion will certainly result in the deaths of hundreds of innocent people, both children and adults. The police do not have enough time to search all possible locations, and the timely evacuation of suspected areas is not practically possible. The police's only option is to force the terrorist to talk under the pressure of torture. It is highly likely that torturing that terrorist could make him talk and help identify the location of the bomb before it explodes. Under these circumstances, is torturing that terrorist to save the lives of hundreds of innocent people morally permissible, or is torturing that individual impermissible even under these conditions, and must one wait hopelessly for the deaths of hundreds of innocent people? Those who believe that in these exceptional circumstances, torturing the terrorist to save the lives of innocent people is morally permissible do not necessarily deny the inherent moral repugnance of torturing a human being. But their argument is that if violating the right to immunity from torture of that terrorist, as a fundamental and inalienable right, is morally impermissible, violating the right to life of hundreds of innocent people, as their fundamental and inalienable right, is far more impermissible from a moral standpoint. And if safeguarding the right to immunity from torture of one terrorist is a necessity, safeguarding the right to life of hundreds of innocent people is of a far greater necessity.

But here a distinction must be made between two moral concepts: “the goodness of a state of affairs” and “the rightness of an action.” It seems that torturing a human being, even in the exceptional circumstances mentioned above, is, from a moral perspective, a morally bad and undesirable state of affairs. In other words, if states of affairs A and B are identical in every respect except that state A includes the torture of a terrorist and state B lacks that torture, then it seems we would always prefer state of affairs B over A. However, from the fact that a state of affairs is bad, it does not necessarily follow that bringing it about under any circumstances is a morally wrong action. In some cases, an individual is faced with two evil states of affairs and has no way but to choose one of the two options. Under these conditions, bringing about the state of affairs that has lesser evil compared to its alternative may be the morally right thing to do. Assuming this basis, one can claim that torturing a human being (any human being, even a terrorist) is morally bad, but under specific conditions, doing it is the right action. In other words, proponents of torture in the “ticking bomb” scenario can consistently claim that torturing that terrorist, even under those exceptional circumstances, is a morally bad state of affairs but a morally right action.

It seems that under the specific conditions depicted in the ticking-bomb example, it is difficult to absolutely rule out the use of torture. However, some critics of this view believe that the ticking-bomb example is misleading.[6] According to these critics, the ticking-bomb example, as a moral justification for torture, assumes imaginary conditions that have no real-world instance. The real world is a world of doubt and suspicion, not certainty and conviction. The real issue is not the confrontation between the suffering of one guilty person (the terrorist) and the lives of hundreds of innocent people. In the real world, how do we know that the accused is actually a terrorist? How do we know that a bomb is actually involved? How do we know that the accused has information about the bomb's location? In most cases, torturing an individual for information is shooting an arrow into the heart of darkness. It is entirely possible that our information about the accused and the information they possess is incorrect. Legitimizing torture quickly goes beyond exceptional cases and provides a pretext for those in power to unjustifiably label situations as exceptional and to torture and abuse their opponents and critics. Psychological research shows that we (psychologically) judge the rightness or wrongness of behaviors based on what we consider

Third, it is of course always possible that our information about the terrorist and the information they may possess is erroneous, in which case an individual is tortured who is either innocent or does not have the information in question. As previously stated, our world is not a world of certainty and certitude, but a world of conjecture and doubt. However, this situation is not unique to the case of torture. For example, in conditions of self-defense, it is also entirely possible that our information about the (apparent) attacker is incorrect. That is, it is entirely possible that the person who appears to be attacking us has, in reality, lunged toward us to save our life. It seems that in the case of self-defense, the fallibility of our judgments does not prevent us from taking the necessary actions to preserve our life, even if these actions cause serious harm to the (apparent) attacker. In other words, in many cases, conjecture can also provide a justified basis for action.

Fourth, it is entirely possible that some may try, by justifying torture in highly critical circumstances, to provide a license for torture in non-critical cases. For example, these individuals might use torture as a customary method to secure their political objectives or to eliminate rivals and opponents, and in justifying their savage and violent behavior, claim that the situation was sufficiently “critical” and that torturing the accused or criminals was the only way to prevent a greater catastrophe. But it seems that here we must distinguish between two stages of the discussion: the stage of proof and the stage of realization. The discussion at the stage of proof is more or less a theoretical discussion. At this stage, we try to clarify the moral status of a specific behavior under certain conditions by examining the reasons for and against it. For example, we might ask whether an innocent person has the right to defend their life against an unjust attack by an aggressor, or not? Or whether, under “ticking bomb” conditions, torturing a terrorist to obtain vital information is justified or not? But the discussion at the stage of realization is more of a practical discussion. At this stage, we must determine, for example, whether in this specific case, person A truly attacked person B without any justifiable reason, or not? Did person B, in self-defense, have no other way but (for instance) to kill the attacker? Or in the case of torture: Is this individual truly a terrorist? Did they truly (or with considerable probability) have access to vital information, or not? Was there truly no other way besides torture to obtain the vital information? Have other methods truly been tested, or not, and if so, was mild torture used before severe torture, or not? Has a ticking bomb truly been planted in a crowded place, or not (or what is the probability of such a thing)? Is this specific case an instance of torture in critical conditions, or not? And so on. Judging the moral status of a behavior at the stage of proof does not, in itself, determine the ruling for external instances. For example, from the ruling that self-defense under conditions A is morally permissible (a ruling at the stage of proof), it does not follow that Ali’s defense of his life against Reza’s attack is necessarily an instance of “self-defense” and morally permissible (a ruling at the stage of realization). Therefore, recognizing torture in highly critical circumstances (assuming its moral permissibility) does not necessarily mean recognizing torture in any other situation. Of course, the concern is entirely valid and important: if torture is recognized in critical circumstances (a ruling at the stage of proof), how can the path to its abuse in non-critical cases be blocked (a question at the stage of realization)? Can legalizing torture and defining its precise limits by competent authorities block the path to the abuse of the permission for torture in critical circumstances?

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It seems that under the specific conditions depicted in the ticking bomb example, it is difficult to absolutely negate the application of torture. But even if we accept that under those specific conditions, torturing a terrorist to save the lives of hundreds of innocent people is morally permissible, we face another important question: Can torture be recognized as part of a country’s legal system, and can the conditions and limits of permissible torture be clearly defined in the text of the law?

Here it is useful to distinguish between two concepts: the recognition of a particular act, and the recognition of an institution. To clarify this distinction, I will give an example: some philosophers (including John Rawls) distinguish between “punishment as a legal institution” and a particular act that falls under the heading of punishment.[8] For example, we sometimes ask, “Why was Mr. A sent to prison last month?” Here our question concerns a particular act that is considered punishment (namely, sending Mr. A to prison last month). But sometimes we ask, “Why do we send people to prison in the first place?” Here our question concerns “imprisonment” as an institution. It seems that the appropriate answer to these two questions is not the same. For example, in the first case, to justify sending Mr. A to prison, we might answer: “Mr. A robbed such-and-such a bank, and after trial was sentenced to prison.” But this is not an appropriate answer to the second question. In answer to the second question, we might well say, “Prison exists so that we can protect honorable citizens from the evil of wicked citizens.” Thus, the first question is about Mr. A and the particular punishment designated for him, but the second question concerns prison as an institution of punishment and the basis of its justification. On this basis, one can also formulate the difference between the role of the judge and the legislator in this regard: the judge, in the capacity of judgment, looks to the past (i.e., the crime) of the criminal to decide on a punishment proportionate to that crime. But the legislator, in the capacity of enacting law, looks to the future to establish an institution of punishment in society that brings the greatest good to the greatest number of citizens. Here it seems that the legislator justifies the institution of punishment on a utilitarian basis (i.e., maximizing the public good), but the judge justifies the punishment of the criminal on a non-utilitarian basis (i.e., the criminal’s desert based on the crime they committed). In other words, when we ask the legislator why they established prison as an institution for punishing criminals, they answer that establishing this institution secures the public good more effectively—for example, the punishment of prison serves as a lesson to the criminal and others to respect the boundaries of the law, and also provides an opportunity for the reform of offenders, all of which ultimately promotes the public good in society. But when we ask the judge why they sentenced Ali to five years in prison, they answer because he deserved this extent of imprisonment by virtue of his crime. Therefore, the justification of the act of punishment is not necessarily the same as the justification of the institution of punishment. Here the institution of punishment is justified on a utilitarian basis, but the particular act of punishment on a non-utilitarian basis.[9]

By the same analogy, one can distinguish between torture as a legal institution and the act of torture in a particular case.[10] Here, however, my suggestion is that we must, on a non-utilitarian basis, deem torture as a legal institution absolutely rejected and unjustifiable. In other words, the recognition of the institution of torture in the text of the law must be considered a violation of human dignity and the fundamental and inalienable right of "immunity from torture." And the law must declare torture absolutely prohibited under any circumstances. But in some cases (such as the "ticking bomb" situation), it may be possible to justify some instances of torture on a purely utilitarian basis and excuse its perpetrators. The situation of "torture" is to some extent and in some ways like "self-defense." The law prohibits the killing of citizens by citizens under any circumstances. But suppose person A kills person B, and it is proven in court that person B had attacked person A without any justifiable reason with the intent to kill them, and they had no way to defend themselves other than killing person B. In this case, the law can deem this particular instance of a citizen killing another citizen justified and its perpetrator excused. By the same analogy, the law must declare torture prohibited under any circumstances. But now suppose person A tortures person B. In this case, person A must be taken to court to stand trial for the crime of torture. But if person A can prove in court that person B was, for example, involved in a terrorist act, and the life and death of a large group of innocent citizens depended on very sensitive information they possessed, and there was no way to obtain that information other than torturing that person, then the court may be able to deem the act justified and its perpetrator excused, and reduce the perpetrator's punishment or exempt them from punishment. In other words, my suggestion is that although the institution of torture can never be justified, some instances of torture can be justified under specific conditions and its perpetrator excused. In this respect, the legislator should never recognize torture as a legal institution, but a judge may be able to exempt a particular case of torture from the scope of legal punishment under very specific conditions.

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The upshot is that the torture of a human being (even a terrorist) must be considered an intrinsically bad state of affairs from a moral perspective under any circumstances. On the other hand, one must distinguish between torture as a (legal) institution and torture as a particular act. Assuming this distinction, one can claim that the legislator should under no circumstances recognize torture as a permissible and legal institution and procedure in society, and anyone who commits torture for any reason or motive must be considered a criminal from the perspective of the law and tried in court. But the court can deem some instances of torture justified under very specific conditions (such as the "ticking bomb" situation), and excuse the perpetrator and exempt them from legal punishment.

Author: Arash Naraghi

23 June 2013

Moravian College, Pennsylvania

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