Abstract

Despite the fact that torture of prisoners has been condemned by every major document in international law, it has seemed to some, especially those in the Bush Administration, that terrorism creates a special case for how prisoners are to be treated. The prisoner may belong to a “cell” of those who have committed themselves to the use of tactics that risk horrible consequences for many innocent people. The prisoner may have information about future attacks on civilian populations that could, if learned, be instrumental in the prevention of these attacks. Nonetheless, I will argue that normally even suspected international terrorists should be treated humanely in that they are not subject to torture when captured and imprisoned. Our humanity demands as much.I will ask what it is about humanity that might restrict or prohibit the use of torture and other forms of physical coercion in the treatment of prisoners. I will attempt to explain why torture has been so roundly condemned and yet why torture, especially in ticking time-bomb cases, has been seen as justifiable. In section 1, I argue that humane treatment should be seen as the centerpiece of international humanitarian law. In section 2, I discuss a 1999 case from Israel concerning soldiers who committed torture to obtain information from suspected terrorists in the Occupied Territories. In section 3, I discuss how the principle of proportionality complicates the picture, and end with some conclusions about what restrictions should be recognized in times of war, concerning what are sometimes called “the laws of humanity.”