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From a just war to justified torture

Posted by Georges Tsaï on 31 August 2010

The Fondation Chirac invited me to write about conflicts and peace on its blog from time to time. Though I belong to a generation that is ante-blog (though not necessarily anti-blog), I was very attracted to the idea of an electronic dialogue over a theme that is as old as humanity. I will therefore present three texts in the coming months. After this trial period, we will see if there is interest and whether it is worthwhile to continue the experiment.

My first text concerns torture, especially the mental contortions performed by its supporters to justify it. This subject has received extensive coverage, especially since the beginning of the war on terrorism undertaken by the United States. I have nevertheless chosen it because I believe many of my contemporaries display a certain indifference to torture, even tacitly supporting its use.

It goes without saying that the ideas expressed in this blog are yours and mine and do not therefore implicate the Fondation Chirac.

The six conditions for a just war

Caught between the “eye for eye, tooth for tooth” of the Code of Hammurabi, the Old Testament, and the Sermon on the Mount of the New Testament, generations of scholars, both religious and secular (from Sun Tzu to Michael Walzer, without forgetting St. Augustine, St. Thomas Aquinas, Francisco de Victoria, Francisco Suarez, and Hugo Grotius), have sought, over the years (and swords), to define the conditions needed to defend a just war and thereby allow their sovereign – be it the State or the Church – to engage forces with a clear conscience.

The modern theory of a just war is well known with its three installments (before, during, and after the conflict) and its sometimes rather twisted casuistry, which appears at each new conflict. The war in Iraq is the most “perfect” of recent examples. It states, for example, that six conditions must be met to justify a war (a declaration by a legitimate authority, a just cause, the right intentions, means that are proportional to the ends, a reasonable hope of success, and as a last resort).

These same theorists, or others, were much less daring in their efforts to provide a moral basis for torture. According to the American psychologist Stanley Milgram, who conducted controversial research in the 1950s and 1960s, almost any human being is capable of becoming a torturer. This may explain why, despite an international legal framework that clearly prohibits any form of torture, many states continue to torture. They either are directly involved or have it carried out by complacent regimes ready to do the “dirty work”, free of undue protests by public opinion.

I know, there are admirable organizations and individuals who struggle incessantly against what the Canadian author, Serge Patrice Thibodeau, called “the disgrace of humanity”, but it sometimes feels as if they are preaching in the desert. Indeed, major countries with strong democratic traditions, and who, for the most part defend human rights, continue to turn a deaf ear to calls to halt this practice.

Torture, an unjustifiable act

The justifications given are essentially twofold: first there utilitarian considerations: the famous scenario of a suspect who may perhaps have information that would help locate and defuse a ticking bomb and thus save tens, or hundreds, even thousands of lives.

The second argument given by proponents of torture is that we are no longer dealing with painful physical torture. Since the beginning of the Cold War, thanks to an army of psychologists and research centers affiliated with prestigious universities, mostly U.S. and Canadian, humanity possesses refined, psychological ”means”, which have nothing to do with the vulgar forms of torture formerly practiced by the Inquisition or dictatorships of all kinds.

Neither of these arguments stand up to even a quick examination. In sum, there are very few concrete cases that prove the usefulness of torture (it can sometimes win a battle – that of Algiers, for example – but it will always contribute to losing the war). Furthermore, the argument distinguishing between physical and psychological torture – an argument used systematically by the United States – is hypocrisy of the most sinister sort, because we know the lasting effects of what is euphemistically called in English “enhanced interrogation techniques”, often coupled with moderate physical pressure.

Another finding: in order to be effective, torture must be used on a large scale (the return on investment of selective torture would be most inconsequential). We can therefore paraphrase Arnaud Amaury: Torture them all, God will recognize his own.

George W. Bush’s government appealed to leading academics to justify certain forms of torture. Alan Dershowitz, a distinguished Harvard University Professor proposed a legal framework for torture with the use of warrants that would-be torturers must obtain from judges. We can only imagine the holder of the public office waking a judge in the middle of the night, “Hurry your Honor, please sign this warrant – I think I have a suspect that perhaps knows that there may be a bomb waiting to explode somewhere in New York”.

As for Michael Walzer, always ready to confront the most complex ethical dilemmas, he rejects the idea of legalizing torture, opting instead for an approach based on each individual’s personal conscience: torture – because it may sometimes be necessary to do so – if your conscience so dictates, but be prepared to accept all the consequences (trial, imprisonment, etc…) that may result from your decision.

Why do the media and politicians maintain such discreet silence when it comes to torture?

In conclusion, I have two questions for the readers of this blog: why do the media and politicians maintain such discreet silence when it comes to Torture? And of the four basic positions one can defend concerning torture, which do you prone?

1. Any form of torture is justified when State interest is at stake

2. Torture can be performed in exceptional circumstances within a clear legal framework

3. Torture is justified in exceptional circumstances on the basis of the principle of individual responsibility

4. Total prohibition of torture

Suggested readings:

  • Michel Terestchenko, Du bon usage de la torture : Ou comment les démocraties justifient l’injustifiable, La Découverte, 2008
  • Alfred W. McCoy, A Question of Torture: CIA Interrogation, from the Cold War to the War on Terror, Metropolitan Books, 2006
  • Sanford Levinson (ed.), Torture: A Collection, Oxford University Press, 2004
  • (the following work includes two important essays: Michael Walzer’s Political Action: The Problem of Dirty Hands and Alan Dershowitz’s Tortured Reasoning)
  • Serge Patrice Thibodeau, La disgrâce de l’humanité : Essai sur la torture, VLB Éditeur, 1999

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