Is Torture Permissible During Times of Warfare - Essay Example

Name: Instructor: Course: Date: Permissibility of Torture in Warfare Torture is a global issue and that association gives it a broad description as a matter of, not only judicial but also great social concern that affects human population both locally and internationally. It is also shared among the diverse societies of humanity, within the global community. There are numerous definitions of torture that are either formally or legally certified, depending on the context of use. It is therefore, necessary that this paper appreciates a conventional legal definition of torture. Reidy refers to a definition as proclaimed by the principles of the United Nations convention: The term "torture" means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind. (11) Comparatively, this various definitions are in different orientations but the commonality here is the association of torture to inhumanity, punishments and treatment that degrade one’s health condition either physically, emotionally or mentally. Legal institutions and instruments that prohibit torture also define certain acts or behaviours that correlate to it. This acts and behaviours can be prohibited as well depending on the legal implications they present. However, classification of such is yet to be distinctly definitive sine common acceptable standards are yet to be established. Criminal Responsibility on Matter the Of State Agents Criminal responsibility is easily comprehensible when it is on individual level and presided over by a local judicial system for a locally committed crime according to existing domestic law. When the scenarios witness international legal systems, the doctrines of act of state comes into view in the context of international laws. Judicial organs of various states have therefore, in agreement formed international laws and international statues that bind the nation members. Nevertheless, the primary methods of judicial enforcements that these international laws picture are the domestic courts of the state where the human rights violation or international crime occurs and the courts of the state responsible for that violation. Consequentially, international law imposes responsibility on states to prosecute those who have committed international crimes within their territory. This is a contrary observation to the doctrine of act of state which postulates that one state has no jurisdiction over the operations and acts of another (Sliedregt, 214). The end result of this is that when an individual commits crime when in international duty in a capacity of an agent of state, that foreign state has power to prosecute. Strict and impartial judicial systems and institutions that are justice-oriented consider shielding persons from their individual criminal responsibilities as an unethical practice. It goes against the basic principles upon which a judicial system is laid. The International Criminal Tribunal for the former Yugoslavia (ICTY) is a United Nations court of law which in its essence, presides over issues of international crime violation. It had been dealing with cases of war crimes that took place during the conflicts in the Balkans. Since establishment it has irreversibly changed the landscape of international humanitarian law and provided victims with the opportunity of voicing their experiences. A socially conspicuous effect of this court was witnessed when it presided over the case against Anto Furundzija, in which its judgement amended the definition of torture. Anto Furundzija was charged with two violations of article three of the statute common to the Geneva conventions. The article addresses torture and legal implications of violations of the laws or customs of war. On both accounts, the ICTY found the accused guilty, for perpetration of torture and aiding and supporting outrageous acts against personal dignity. In the United Nations Convention, the article covers all serious violations of a rule of customary international law with humanity aspects, alongside the individual criminal responsibility of the person violating the rules (Reidy, 12). Torture is particularly prohibited by treaty laws and international conventions. Therefore the ICTY trial chamber, in the case of Anto Furundzija, reflected on the international law prohibition of torture in warfare. Contentious Issues in the Legal Definition of Torture The legal descriptions and definitions of torture have three particular aspects that are of a contentious nature. In the definition of torture as provided by the United Nations convention, the three broad areas of prohibition are distinct but related to fully define torture. These are; Infliction of server pain and suffering to the mental or physical Intentionality in the infliction of pain or suffering of any forms Unnecessary the pursuit of a specific purpose, such as gaining information, punishment or intimidation It is thus vital to understand the types of behaviours and acts prohibited and their classification and postulated by the legal implications of each term or statement. This is embedded in the comprehension of the legal definition of torture and as presented by the three contentious issues. For this reason, in the article by Reidy (11), the European Court of Human Rights uses the terms torture, inhuman and degrading treatments with the intention of distinguishing them. There is then, a difference between torture and other forms of ill treating of other persons and it all depends on the severity or intensity of the act. This intensity is measured by the mental and physical effects it has on the victim, duration, method and manner of execution. Use of Torture and Its Effectiveness Individuals and states justify the use of torture, despite the legal and moral implications, by claiming that it is the most efficient method of collecting information. For certain states like America, torture is an appropriate way of attaining information from their victims. In these situations, one is usually dealing with people who harm other innocent civilians to further their own personal ideals, or committing a crime for greed. To the American system, these crimes at time are just because the perpetrators hate anyone associated with a particular group or nationality that they just happen to dislike or disagree with. To help possibly prevent further unnecessary loss of life, at particular scenarios torture is justified, according to the American judicial system. In this context, the government prioritizes gathering of intelligent information and so employs torture as an effective method (Costanzo & Gerrity, 182). Torture can also be applied when there is a specific pressure in terms of time limitation and there is not any knowledge of any other possible way to retrieve the information. So then, apart from need for acquisition of immediate information, time pressure can be a reason for use of torture. The account of time pressure on any circumstance, the cost of every alternative comes into question. This gives another reason of torture which is that it might just be cheaper and less time consuming to carry out, yet even if it were costly as it probably may be, on a utilitarian basis, to many nations and individuals the benefits outweigh the cost ((Costanzo & Gerrity, 182). This is because the method gives results in, probably, a shorter time. The third possible reason is based on assumption. Since the alleged criminal who is under interrogation is assumed to be guilty, the thought, which may be wrong, is that the victim deserves The perspective here is that the effectiveness of torture is defined by the end results from the exercise, once it has been brought to the picture as the chosen way of achieving the desired goal. If the intention is merely to inflict pain and suffering into another person by mental and physical subjects, then the method can be considered very effective. This is because of the effects that are witnessed in torture survivors. Nevertheless, using torture for the purpose of inflicting pain and suffering is rather paradoxical in comparison to the purpose of obtaining information. With respect to the purpose of forcefully driving absolutely correct information out of people, torture turns out to be only effective in making people talk and say what they think the torturer wants them to say. According to an article by Global Security organization (34), experience indicates that forceful interrogation does not gain the cooperation of a source. It only gives unreliable results in which the source says whatever is pleasing to ease the pain and suffering. Ineffectiveness of torture is evidenced by the fact that intense pain and force likely fabricates false confessions. The process is in short time and so gives no room to the interrogated to collect themselves and even think about the situation. It beats the logic and objective of any interrogation which is to obtain the maximum amount of truthful and useful information possible in the least amount of time possible. For this reason of getting the source’s cooperation, the interrogator must remain in charge throughout the process since with that he has certain advantages at the beginning of an interrogation which enhance a grasp to the initiative and assist him in maintaining that (Global Security organization, 34). Some of these researches which are scientific reveal the evidences of how repeated and extreme stress and pain affect memory and executive functions. This suggests that these torturing techniques are unlikely to do anything constructive other than putting the interrogated on a defensive side. The ineffective nature of torture as revealed by the various scientific researches only make the end result of the continue practice of the ineffective torture a ticking time bomb. In this scenario it gets associated to the situation that terrorism presents. Terrorism is an international item that all researches show that the perpetrators use the item of surprise and therefore, gives no time for response and so presents the scenario of time pressure. Once again, the time pressure effect forces the security agencies to implement torture as the most immediate and most viable method of acquiring intelligence information from suspects. Now torture is only like a ticking-time bomb given that currently it has only taken to the global stage, attracting international attention and various institutions and organizations are prohibiting it. This is also because its adverse effects on the victims are yet to be revealed and to be effectively felt across border. When that happens, the impacts of torture, generally, to the society will be mc severe. Globalizing torture makes it a social issue that questions the orientation it has to matters ethics. Social and ethical questions arise because of the manner and secrecy in which states carry out the processes of torture. The effects are evidence of violation of human rights. Since the effects are mostly mental and physical, most torture survivors are left mentally or physically denatured. The argument here is that nations, including those that legally disallow torture, end up justifying torture when they need to use it in critical situations. The on and off reference to torture only ensures that its effects to the society remain. As identified by Singh (1), after a number of terrorist attacks to the United States of America, its security agency, The Central Intelligence Agency (CIA) initiated programmes of detaining and torturing those who had been suspected of perpetrated the act of crime. Point of notice here is that these CIA programmes involve American prisons that were situated outside the United States, where the detainees were interrogated by extreme methods such as torture, and the processes were carried out in secrecy and state confidentiality. Alan Dershowitz’s view The ethical aspect is also seen in the view that since the programmes were classified, the detainees must have been transferred to foreign countries without legal process and putting them in the custody of foreign governments for interrogation. Regardless of whether the United States government and other states should use torture as a method of interrogation on suspects, has become a social issue and is now a subject of debate in the global stage. What is in the CIA example above and that Alan’s view poses that really, the debate is whether any treatments associated with torture should be carried out within or outside a nation’s legal system (Finkelstein, 1). This clears his position that for torture to take place, it has to be authorized. This point of view takes the position that torture can be necessary. It gives room for torture in the society such that the only limiting factor is law, which can be manipulated to authorize the method. The view appreciates the supremacy of the law and legal the respect of legal systems in a well organized and open society. It recognizes that democracy, upon which most governments are built, demands transparency, responsibility and accountability for actions. Given that torture is an extraordinary step in any judicial system, questions of ethics, legality and social acceptance come to fore most immediately. This is why compliance to law becomes most important. However, this view prioritizes compliance to law and democracy above any other aspects, aspects like the morals within the practice. Because of the consideration of factors or morality and social ethics, some departments and human rights organizations, including professional and academic leaders completely reject torture (Finkelstein, 1). The idea is that firstly, it degrades the human health to critical conditions such that the result required seems to be more important than the life of the victim of torture. Alan’s view is one that savages efforts of advocacy for human treatment of suspects and terrorists. Conclusion The above discussion has explored torture with respect to humanity, legal systems, social morals and ethics. The subject is a sensitive one in which there is a global interest and so any statements made on it must be definitive. The paper recognizes this and adopts the definition of torture as legally defined by the United Nations convention. A view of the different perspectives held by entities and personalities lead to various thought on the subject. For the ticking-time-bomb theory, the conclusion is that it has always served as a blanket justification for torture in a manner that misguides the ordinary public that security should take precedence over human rights. This is controversial since it only seems like threatening the life of one person matters not when protecting the life of another, a take that values other lives than others. Another is Alan Dershowitz’s view which takes the position that torture should be used when necessary, like in the ticking-time-bomb scenarios, only by authorization through the law. This perspective only puts off torture for a while like a file that is retrievable when needed. Prohibition of torture holds that the social morals, ethics and especially humanity are important factors that alone do not allow for torture in whatever circumstance. It also holds that since the human mind works under certain limits, stress, which torture puts the victims through, will never be able to accurately assess the likely success of torture in obtaining information. Work Cited Costanzo, Mark & Gerrity, Ellen. “The Effects and Effectiveness of Using Torture as an Interrogation Device: Using Research to Inform the Policy Debate.” Social Issues and Policy Review 3.1 (2009): 179-210. Finkelstein, Seth. Alan Dershowitz's Tortuous Torturous Argument. Feb. 2002. Web. 9 Feb. 2013 Global Security organization, Interrogation and the Interrogator. 2005. Web. 9 Feb. 2013. Reidy, Aisling. The Prohibition of Torture. Germany: Directorate General of Human Rights Council of Europe, 2003. Print. Singh, A. Open society institute: globalizing torture: CIA secret detention and extraordinary rendition. 5 Feb. 2013. Web. 8 Feb. 2013. Sliedregt, Elies. Individual Criminal Responsibility in International Law. Oxford: Oxford University Press, 2012. Print. Read More