The Absolute Nature of the Prohibition of Torture: An Analysis of the Ticking Bomb Scenario

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Article 3 of the European Convention of Human Rights (ECHR) establishes that “[n]o one shall be subjected to torture or to inhuman or degrading treatment or punishment”. The European Court of Human Rights (ECtHR) has been consistent in its approach to this provision, stating in Ireland v. United Kingdom (1978, para. 163):

The Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the victim’s conduct. Unlike most of the substantive clauses of the Convention and of Protocols 1 and 4, Article 3 makes no provision for exceptions and, under Article 15(2), there can be no derogation therefrom even in the event of a public emergency threatening the life of the nation”.

The absolute nature of the prohibition was re-affirmed in Chahal v. United Kingdom (1997) and Saadi v. Italy (2008). It means that Article 3 is subject to no exception in any circumstance whatever and that it will override all the other Convention rights with which it may conflict (Greer, 2015). In response to the pressure exerted by various states to dilute the absoluteness of the provision in cases of terrorism, the ECtHR said:

Article 3 enshrines one of the most fundamental values of democratic society. The Court is well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct” (Chahal v. United Kingdom, 1997, para. 79).

One of the primary arguments used by states to defend the use of torture as a means of preventing terrorism is illustrated through the “ticking bomb scenario”, where a terrorist suspect in police custody admits to have planted a time-bomb capable of killing a high number of innocent people. He refuses to reveal the location of the bomb, so the police is confronted with two options: should they try to locate the bomb through any other legitimate means, or should they torture the terrorist to get the information? With hundreds of innocent lives at stake, the arguments goes, torture is morally permitted, even required, in order to safeguard the national security (Mayerfeld, 2008).

On the other side, it has been argued that torturing the terrorist would undermine the human worth, whose protection is the principal aim of Article 3. The idea is that human worth must remain inviolable, because without the principles of human dignity and self-determination, which are inherent to the notion of human worth, there cannot be any human rights protection at all (van der Berg, 2016). The practice of torture violates these two principles by annihilating the human personality and robbing the victim of what makes him a human being. It is arguably one of the most heinous violations of human rights and should, therefore, be prohibited in all circumstances (Rowe, 2002). Even a single exception to this prohibition would strip human kind as a whole of its absolute right not to be tortured, because the relativity of the prohibition would have then become a fact (van der Berg, 2016).  

Furthermore, it would be difficult to determine the precise circumstances in which torture should be allowed since the scope of Article 3 is not clearly defined. The ECtHR has expressly stated that the Convention is a “living instrument which must be interpreted in the light of present-day conditions”, and that certain acts which were classified in the past as torture or inhuman and degrading treatment could be classified differently in future (Selmouni v. France, 1999). In the 1978 case of Ireland v. United Kingdom, for example, the Court found that the so-called “five techniques” (hooding, subjection to noise, deprivation of sleep and deprivation of food and drink) used by British forces for interrogation purposes amounted to a practice of inhuman and degrading treatment, but did not cause suffering of the particular intensity and cruelty implied by the word torture. Various scholars have argued that if the Court would be confronted with the same facts now, these techniques would be qualified as torture (van der Berg, 2016; de Londras , 2014).

Notwithstanding the above, should a legal exception be created to accommodate a “ticking bomb scenario”, it would lead to a “slippery slope” where the use of torture becomes less and less exceptional (Association for the Prevention of Torture, 2007). The creation of exceptions to deal with largely unknown future risks can undermine the effectiveness of the underlying prohibition in the present. This is because the exception must be expressed in broad terms in order to encompass any possible situation that may appear in the real world. However, when the exception is too broad, it may end up being applied to situations much different from those for which it was originally intended (Ibid.). In addition, states adopt a risk-averse approach when it comes to national security, and can be expected to increase the scope of any exception if they deem it necessary, especially when facing the threat of international terrorism (Ibid.).

Furthermore, the authorization of torture is subject to practical issues. It can never be predicted with certainty that the torture of the ticking bomb terrorist will truly prevent the explosion. It is possible, for instance, that he remains silent or that he gives misleading or false information. The margin of error is very broad, and the consequences can be disastrous (van der Berg, 2016). This is best exemplified by the case of Ibn al-Shaykh al-Libi, who was tortured by CIA agents or their Egyptian partners into falsely stating that Saddam Hussein trained Al Qaeda in the use of weapons of mass destruction. His statement was later used to justify the Iraq War, in which hundreds of thousands of people were killed. This is the ticking bomb scenario in reverse, but it clearly demonstrates the dangers of torture (Mayerfeld, 2008).

Finally, in the long term torture actually breeds terrorism. The use of torture by states that purport to stand up for the protection and promotion of human rights allows other states to more easily justify their own use of torture. Also, it is very likely that both its victims and their sympathizers, driven by anger and despair, end up being radicalized, making it easier for terrorist organizations to recruit them. This would only lead to more attacks, thus creating a vicious cycle (Association for the Prevention of Torture, 2007). All things considered, society has much more to lose by creating a legal exception to the absolute prohibition of torture than by maintaining it.

*****

Table of cases

Chahal v. United Kingdom, 23 EHRR 413 (ECtHR 1997).

Ireland v. United Kingdom, 2 EHRR 25 (ECtHR 1978).

Saadi v. Italy, 49 EHRR 730 (ECtHR 2008).

Selmouni v. France, 29 EHRR 403 (ECtHR 1999).

References

 Association for the Prevention of Torture. (2007). Defusing the Ticking Bomb Scenario: Why we must say No to torture, always. Retrieved from http://www.apt.ch/content/files_res/tickingbombscenario.pdf

 de Londras, F. (2014). Revisiting the Five Techniques in the European Court of Human Rights. European Journal of International Law: Talk! Retrieved from https://www.ejiltalk.org/revisiting-the-five-techniques-in-the-european-court-of-human-rights/

 Greer, S. (2015). Is the Prohibition against Torture, Cruel, Inhuman and Degrading Treatment Really ‘Absolute’ in International Human Rights Law? Human Rights Law Review, 15(1), 101-137. 

Mayerfeld, J. (2008). In defense of the absolute prohibition of torture. Public Affairs Quarterly, 22(2), 109-128.

Rowe, C. E. (2002). The Scope of Article 3 of the European Convention on Human Rights in relation to Suspected Terrorists. Exeter Paper In European Law No. 10.

van der Berg, E. (2016). Should Torture be Justifiable? The Prohibition of Torture Revisited in the Counter-Terrorist Era. In Euroculture Intensive Programme. Olomouc. Retrieved from https://eurocultureip2016.files.wordpress.com/2016/06/should-torture-be-justifiable160208.pdf

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