by William J. Aceves

Nov 21, 2001

Aceves is Associate Professor of Law at California Western School of Law.  He teaches on human rights and international law.

After years of struggle, civilized nations now recognize that acts of torture are inconsistent with human dignity and respect for the rule of law. It was a hard fought victory — and it is now in jeopardy. In the aftermath of the horrific attacks of Sept. 11, it has been suggested that torture may be necessary in the war against terrorism. Innocence must be defended at all costs. While such comments are understandable, they are ultimately incorrect.

The arguments for using torture are deceptive, and the scenarios compelling. “A suspect knows the location of a bomb that will lead to catastrophic injuries. Should torture be used to reveal the location of the ticking time bomb?”

This scenario falls apart, however, upon careful scrutiny. First, it assumes that law enforcement has the right person in custody. That is, the suspect knows where the bomb is and when it is scheduled to detonate. What if there is only a 50 percent chance that the suspect knows the information? What if this number is only 10 percent?

Second, it assumes that torture will be effective in gaining access to the critical information. In fact, however, torture is notoriously unreliable.

What if there is only a 60 percent chance that the suspect will reveal accurate information? How about 20 percent? How low are we willing to go?

How should we make the decision whether to torture? How many people must be endangered before the torture option can be considered?

What type of torture is permissible? Can family and friends be threatened and harmed? How about children? If the end truly justifies the means, the answer must be “yes.”

Apart from these practical limitations, the “ticking time bomb” scenario suffers from even more fundamental flaws. It is now firmly established that torture is inconsistent with the basic values of humanity.

International instruments, from the Universal Declaration of Human Rights to the Convention against Torture, establish the prohibition of torture as a jus cogens norm — a binding obligation that applies to all states. These instruments do not recognize a right of derogation under any circumstances.

The laws of war, as codified in the 1949 Geneva Conventions, also prohibit torture. Even prisoners of war may not be subject to torture, and people that commit such grave breaches are subject to criminal prosecution.

Various international tribunals, from the Nuremberg Tribunal to the International Criminal Tribunal for the former Yugoslavia, have prosecuted and convicted individuals who committed acts of torture. These tribunals refused to accept any defenses as justification for torture.

How would this new practice affect the international community? It certainly goes against decades of U.S. foreign policy, which has struggled to affirm the universality of human rights and the binding nature of the prohibition against torture.

It violates countless international agreements the United States has signed and ratified, including the 1949 Geneva Conventions, the International Covenant on Civil and Political Rights, and the Convention against Torture. And it would set a dangerous precedent.

If the United States justifies its own acts of torture, how can it possibly condemn Afghanistan, China, Cuba, Iraq or North Korea for similar acts? If torture can be used to defend the integrity of the nation, then Habre, Milosevic, Papa Doc, Pinochet, Pol Pot, Stalin and Stroessner, were correct in their methods.

U.S. courts have been prominent advocates in the struggle against torture, ever mindful of the fragile nature of democracy and the delicate balance between civil liberties and national security. Twenty years ago, one court acknowledged the dangers posed by the flagrant disregard of basic human rights and the universality of the right to be free from torture.

As noted in a more recent decision that condemned acts of state- sponsored torture, “justice must always be mindful of the affirmative values it protects and the perils it guards against. Like the contours and relation of hand and glove, justice must stay outside and above the evil it encloses, while not becoming a part of it.”

Torture injures the victim and degrades the perpetrator. It threatens the core values of civilized nations — respect for human dignity, justice and the rule of law. This explains why the torturer has been long been referred to as hosti humani generis — an enemy of all humanity.

Sadly, innocence cannot be protected at all costs because the price of such cost-benefit analysis is simply too great for us to bear.