Permissibility of Torture
Taking Apart the Ticking Time Bomb Scenario
Introduced in Jean Lartéguy’s novel Les Centurions in the 1960s, the ticking time bomb scenario is a thought experiment exploring whether torture can ever be justified. The scenario can be formulated as follows:
Suppose that a person with knowledge of an imminent terrorist attack that will kill many people is in the hands of the authorities and that he will disclose the information needed to prevent the attack only if he is tortured. Should he be tortured?
Unsurprisingly, this is a divisive issue. A worldwide poll conducted by BBC indicates 59% against and 41% in favour of torture in the given scenario. This is said to reflect the split between deontological and utilitarian viewpoints. Where deontologists put forward a blanket rejection of torture on grounds of morality and humanitarianism, utilitarians justify it, citing the overall preservation of lives as a positive outcome that triumphs over the suffering of the tortured.
A closer look at the ticking time bomb scenario reveals the flaws of the utilitarian justification for torture. The assumptions embedded within the scenario question the success of torture, and consideration of the long-term implications of torture undermines the presumption of an overall positive outcome.
The first of two key assumptions made when mulling over the ticking time bomb scenario is that one has perfect knowledge. In Lartéguy’s world, the authorities know exactly what the plot is, they know that lives are endangered because of it, and they know unerringly that the apprehended is a terrorist involved. In the real world, we deal with suspicions (certainty of the attack and belief that the person possesses up-to-date operational knowledge) and suspects (those apprehended could very well be civilians mistakenly identified or caught up in the action).
In itself, justifying torture on limited knowledge is emphatically perilous. Exacerbating this is the second assumption – that torture is effective in extracting the required information. Simply put, it is not. Individuals being tortured have a propensity to make up information that may put a stop to their suffering. In addition, the psychological pressure often leads to confusion and memory loss, such that even those who wish to tell the truth cannot do so reliably. From the writings of the jurist Ulpian in the second century CE to reports compiled by the U.S. Intelligence Science Board to the personal testimony of Khmer Rouge Kang Kek Iew, the consensus seems to be that information gained via torture is largely inaccurate.
The minimal success of torture must be weighed against the significant proven costs associated with the act. Such costs go beyond that incurred by those tortured and include: detrimental reliance on inaccurate information, loss of international stature and credibility, and toxic societal effects. While the latter is noticeably less tangible, it is perhaps the most dangerous long-term implication. Luckily, this does not go unrecognised. Torture has been likened to a “cancer of democracy” and strong support exists for the assertion that “civilisation is at once compromised if, in defence of other freedoms, it decides to regress, to accept the possibility of torture as it is seen in the movies”.
There exists no plausible justification for torture. Therefore, solace may be found in the unconditional prohibition of the “repugnant, abhorrent, and immoral” act being entrenched as a jus cogens norm – a fundamental, overriding principle of international law – as well as in the domestic laws of most countries.
Yet, Amnesty International reported the continued use of torture in more than 122 countries in its 2016 report. In such countries, torture is either “redefined” (e.g. the Bush administration changed the parameters of what it means to ‘torture’ between 2002-08), carried out covertly (e.g. the British Army allegedly carried out acts of torture in Northern Ireland in the 1970s), or turned a blind eye to (e.g. acts of torture are common in Palestinian Authority controlled territories).
Convincing support for torture is not uncommon either – Richard Posner, legal scholar and judge of the United States Court of Appeal, wrote “If torture is the only means of obtaining the information necessary to prevent the detonation of a nuclear bomb in Times Square, torture should be used – and will be used – to obtain the information … No one who doubts that this is the case should be in a position of responsibility.” More recently, the use of torture has also been endorsed by US President Donald Trump who commented, “torture works […] and if it doesn’t work, they deserve it anyway”.
Such statements unequivocally play a part in dismantling the global effort to combat torture. Where such efforts rely heavily on international pressure from credible nations, an endorsement from these very nations gives license to dictators and human rights violators to do the same – or worse, escalate the use of torture – without being condemned.
This Article was written by Thiyana Ilangchizian (2nd year, LLB Law), in conjunction with Dicta 2017.