Is Torture Ever Justifiable?

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Jakob von Metzler, an eleven-year-old German boy, vanished one afternoon on his way home from school.

He was supposed to leave with his family for a holiday the next day, but he had been kidnapped by a man who later left a ransom note in his front yard.

The boy’s father worked at the oldest and most prestigious bank in Germany.

His kidnapper was observed by police when collecting the ransom money.

Police then followed and filmed him depositing some of the money into a bank account.

But the next day, there was still no sign of Jakob.

Police then arrested Magnus Gäfgen.

Under the threat of torture, Gäfgen admitted that Jakob was dead and told police where to find the body.

Sure enough, police found the body right where Gäfgen said it would be.

Gäfgen was convicted of murder and sentenced to life imprisonment.

Gägfen then tried suing the state for compensation for his alleged trauma after being threatened with torture.

He was unsuccessful.

But perhaps surprisingly, the prosecutor who threatened to torture him also faced criminal charges, and the court ultimately ordered police to pay 3,000 euros to Gägfen for the threats.

This case raises the question of whether torture is ever justifiable.

Popular opinion

According to a survey released by Amnesty International last year, approximately one-fifth of Australians think that torture is justified in certain circumstances.

The survey found that 21% of Australians believe that “torture is sometimes necessary and acceptable” to gain information that may protect the public.

In the UK, 29% of respondents agreed with the statement that “torture is sometimes necessary and acceptable”, and so did 46% of US respondents.

A separate survey in the US last year found that 58% of Americans think that it is “sometimes or often” justified to use torture.

Does torture work?

Many CIA officials are of the view that torture does not work, as the person being tortured (or threatened with torture) is likely to say anything they think the torturer wants to hear, whether true or not.

And the US Senate was not impressed by statements from those who supported one operation, saying that the same information was available from other sources anyway.

While agreeing with the use of torture in certain circumstances, CIA Director John Brennan has openly admitted that CIA operatives act illegally at times by using “enhanced interrogation techniques” when they do not have the power to do so.

Of course, “enhanced interrogation techniques” is just a nicer way of saying “torture”.

Israel is another example of a country that has allowed for “moderate physical pressure” to be applied in urgent situations.

Throughout history, torture has been used to secure “confessions” from those suspected of certain types of conduct, including during the Spanish Inquisitions and Salem Witch hunts.

But numerous studies have found that it is unlikely to elicit credible and useful information.

This is because, as stated, torture (or the threat of torture) will ordinarily cause a person to say almost anything, making any resulting confession inherently unreliable.

And of course, there are the (ever diminishing) human rights and abuse of power concerns – which are the ideas that humans should never be subjected to inhumane or degrading treatment, and that those who are given the power to torture are likely to abuse it.

The ‘ticking bomb’ justification

But what about this: A terrorist announces that bombs have been planted in various locations and will detonate in 2 hours.

Police track down the suspected terrorist. There is an hour to go.

Would it be justified to use torture to locate the bombs in an effort to save lives?

In this situation, it is easy to see how people could be tempted to answer ‘yes’.

But the logical process behind legitimising torture is not as flawless as its proponents might think.

Like the “death penalty”, it relies on the assumption that the person being tortured is the culprit; when in reality, many of those that are tortured (or who receive the death penalty) are not the culprits.

How about taking it a step further:

What about if torturing the suspected terrorist didn’t work.

Would it be justifiable to torture their innocent children?

And down a slippery slope we go – all for the possibility of eliciting credible information.

Human Rights

As touched upon already, human rights advocates would argue that, just as suspected murderers and terrorists have a right to a fair trial, freedom from being tortured is a right that belongs to all human beings, regardless of how atrocious their alleged actions may be.

Torture impinges on human dignity, and that dignity is inalienable, no matter what a person might have done.

Under this view, torture is never justifiable.

Abuse of Power

Also touched upon is the danger that those in authority will abuse their positions and go beyond what is permissible; which the CIA Director has admitted does occur.

A good example is the atrocious use of gratuitous torture by US military personnel in Abu Ghraib prison in Iraq, where hundreds of photographs were released depicting officers getting enjoyment from humiliating, terrifying and inflicting injury on Iraqi prisoners, and even laughing while watching a dog rip apart and kill one man.

You can click here if you wish to see some of those disgraceful photographs.

It is notable that the photos were made public by the efforts of a brave few, which makes you wonder: how many other places is this occurring/ has this occurred?

The argument is that giving people the power to torture will lead to inexcusable abuses: or as George Orwell put it, “absolute power corrupts absolutely”.

What does Australian law say about torture?

Australia has signed and ratified UN anti-torture convention which took effect in 1987.

Torture is therefore a crime under Commonwealth law.

Torture is defined in the Criminal Code Act as conduct which inflicts severe physical or mental pain or suffering on the person by a government official (or person acting under their authority).

The maximum penalty is twenty years imprisonment.

Terrorism has brought the issue of torture to the forefront of public discussion again, but Australia seems committed to preventing its use.

You might remember last year, a proposed amendment to Australian security laws caused concerns that it may allow ASIO to use torture

Shortly after its proposal, Attorney General George Brandis stated that torture would be explicitly ruled out in the legislation.

The Australian stance is that torture is not acceptable, under any circumstances, and it appears that the majority of Australians still agree.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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