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Torture, The State and the Individual

Published online by Cambridge University Press:  16 February 2016

Sanford H. Kadish
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The Report of the Landau Commission puts a painful question for public debate: can it ever be morally acceptable in a liberal democracy for the state to use cruel measures against a person to compel him to reveal information needed to prevent grave harms, such as the loss of lives? The question, of course, belongs to a class of questions that has baffled and divided people for generations. Are some actions inherently and intrinsically wrong, so that they may not be redeemed by the net good consequences they produce on balance? Even if this is the case in general, can it be true regardless of the enormity of the consequences? Battle lines in moral philosophy are drawn in terms of how these questions are answered. For consequentialists the morality of all actions is solely determined by their consequences, near and long term. For deontologists the morality of all actions is always determined, at least in part, by their intrinsic wrongness, so that if they are wrong they are not made right by their desirable consequences. Each side has, so it seems, an unanswerable objection to the position of the other. Deontologists ask: then you mean you are ready to declare, for example, that punishment of innocent persons may be morally justified if it is necessary to prevent crime? And consequentialists (without answering) ask in turn: then you mean that even if the life of thousands and the preservation of the basic freedoms of a democratic community depend on it, you would regard it as morally prohibited to use any force against a single innocent person?

These questions are among the hardest of all hard questions. But they become even harder when they are asked in the context of a public debate over how a government should act in some immediate crisis.

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Articles
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Israel Law Review , Volume 23 , Issue 2-3: Symposium on the Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity , Spring–Summer 1989 , pp. 345 - 356
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 1989

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References

1 I am not here embracing a simple balance of evils test, according to which acts of torture or lesser forms of violence against the person are justified when the harm they do is less than the harm avoided by doing them. Where torture or other cruel methods are used against a person, the imbalance in favor of doing them must be extremely great. Moreover, in assessing evils I do not mean to treat all human dissatisfactions or dispreferences equally and sum them up, as some utilitarians would. It is only where the evil avoided in terms of its quality exceeds the evil done to the individual that cruelty to the person may be justified.

2 See Israeli Penal Law (L.S.I. Special volume), sec. 277.

3 International Convention with Respect to the Laws and Customs of War, 1899, U.S. T.S. 403, 32 Stat. 1803.

4 Convention Concerning the Laws and Customs of War on Land, 1907, U.S.T.S. 539, 36 Stat. 2277.

5 ibid., Art. 44.

6 Geneva Convention Relating to Treatment of Prisoners of War, 1949, 75 U.N.T.S. 135.

7 ibid., Art. 3.

8 ibid., Art. 13.

9 ibid., Art. 17.

10 Geneva Convention Relating to the Protection of Civilian Populations in Time of War, 1949, 75 U.N.T.S. 287.

11 U.N.G.A. Res. 217 A(III), U.N. Doc. A/810, at 71 (1948).

12 An. 29(2) provides: “In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society”. This could not be readily interpreted, however, as a qualification of the prohibition of torture in Art. 5, since that provision is cast in the form of a prohibition against the use of torture rather than (as other provisions are) the grant of a right to the person.

13 Art. 15(1) and (2). Europ. T.S. No. 5, Sept. 3, 1953.

14 Arts. 7 and 4(1) and (2). U.N.G.A. Res. 2200 (XXI). 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1967). The American Convention on Human Rights incorporated virtually the same provisions in Arts. 5 and 27. OAS Treaty Series No. 36, at 1–21 (1969). The Banjul Charter on Human and Peoples' Rights (Organization of African Unity, 1981 ) also prohibits “torture, cruel, inhuman or degrading punishment” in sec. 7. See Blaustein, A.P., Clark, R.S. and Sigler, J.A., eds., Human Rights Sourcebook (1987) 632.Google Scholar

15 Multilateral Treaties Deposited with the Secretary General, at 128, U.N. Doc. ST/LEG/SER.E6, U.N. Sales No. E.88.V.3 (1988).

16 G.A. Res. 3452 (XXX), 30 U.N. GAOR, Supp. (No. 34) at 91, U.N. Doc. A/10034 (1975).

17 G.A. Res. 39/46, 39 U.N. GAOR, Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984).

18 Multilateral Treaties Deposited with the Secretary General, at 174, U.N. Doc. ST/LEG/SER.E6, U.N. Sales No. E.88.V.3 (1988).

19 Art. 16 provides: “Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment which do not amount to torture as defined in article 1, when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. In particular, the obligations contained in articles 10, 11, 12 and 13 shall apply with the substitution for references to torture of references to other forms of cruel, inhuman or degrading treatment or punishment”. Arts. 10 through 13 have to do with training of personnel, review of interrogation rules and practices, investigation by state authorities, and allowing for complaints to be made.

20 The separate treatment of torture and cruel, inhuman or degrading treatment was apparently deliberate and was the subject of some controversy. An earlier document did not make this distinction. See the Summary and Analysis accompanying the Letter of Submittal from the Department of State to the President of the United States. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Message from the President of the United States, 100th Congr. 2d Sess., Senate, Treaty Doc. 100–20 at p. 15, where it is observed: “Initially, the Convention provided much the same obligations with respect to torture and CIDT [that is, cruel, inhuman or degrading treatment]. The United States as well as a number of other countries expressed concern with this approach, noting that the attempt to establish the same obligations for torture as for lesser forms of ill-treatment would result either in defining obligations concerning CIDT that were overly stringent or in defining obligations concerning torture that were overly weak. This view prevailed, and Article 16 thu:s creates a separate and more limited obligation with respect to CIDT not amounting to torture”.

21 Olmstead v. United States, 277 U.S. 438, 485 (1928).

22 It is also possible, practically as well as theoretically, that the legal system might over time, in a variety of ways, come to grant a degree of legal legitimation to its officials taking it upon themselves to depart from the strictures of the legal ban in certain circumstances. And all without modifying the legal force of the ban. These lines of argument are pursued in a book written by Professor Kadish, M.R. and myself, Discretion to Disobey – A Study of Lawful Departures from Legal Rules (1974)Google Scholar, and I will not try to restate them here.