Can torture be justified in exceptional circumstances? In this timely work, Michelle Farrell asks how and why this question has become such a central debate. She argues that the ticking bomb scenario is a fiction which blinds us to the reality of torture and investigates what it is that that scenario fails to represent. Farrell aims to reframe how we think about torture, and critically reflects on the historical and contemporary approaches to its use in exceptional situations. (...) She demonstrates how torture, from its use in Algeria to the 'War on Terror', has been misrepresented, and appraises the legalist, extra-legalist and absolutist assessments of exception to the torture prohibition. Employing Giorgio Agamben's theory of the state of exception as a foil, Farrell deconstructs these approaches and goes on to propose her own theory of exceptional torture. (shrink)

The conventional dictionary definition of a term is important to the citizen and soldier obeying laws and judging actions that might fall under the term. The “Convention Against Torture” is both binding U.S. law and gives a clear, conventional definition of torture. But the Bush Administration’s standards for interrogating foreign detainees, originating from the Attorney General’s office, failed to respect the prohibitions of torture in the Convention and two other important international human rights documents. I criticize these (...) standards on seven grounds. The directives from President Bush and his Administration thus ordered or allowed most of the terrible recent tortures of Afghanis and Iraqis at Bagram Air Force Base, Guantanamo Bay and Abu Ghraib prisons. (shrink)

The right to be secure from torture, a right that encompasses moral as well as legal strictures against the practice, is supported by increasingly stringent human rights instruments. In this essay, I have discussed the principal instruments and their place in the anti-torture field considered broadly. The phenomenon of these international instruments foreshadows an ever-widening range of legal initiatives against torture, and is emblematic of the increasing importance attached to respect for human life and human dignity. The (...) diversity of international treaties providing against torture such as, for example, The Convention on the Prevention and Punishment of the Crime of Genocide (1948), The Supplementary Convention on the Abolition of Slavery (1956), The International Convention on the Elimination of All Forms of Racial Discrimination (1965), and The International Convention on the Suppression and Punishment of the Crime of Apartheid (1973), indicates the interconnectedness of a wide range of human rights issues.The boundaries that have been drawn around the violation constituted by torture are clearer at present than are those bounding many other rights. Rights commonly categorized as of an economic nature - the right to food and to development, for example - are undergoing processes of definition and implementation. One challenge of this paper is to generate procedures presently attached to such specific human rights violations as torture to rights with less clear parameters. In this way, the growing effectiveness of procedures against torture can serve in the long term to strengthen the bases of international human rights law while in the short term helping to expand the armory of procedures for the protection of less clearly-defined, rights. International human rights law offers a practical tool towards eliminating torture from states' instruments for governing and provides a model for the development of procedures in other categories of rights, while bringing universally declared moral aspirations and legal authority into closer alignment. (shrink)

The conventional dictionary definition of a term is important to the citizen and soldier obeying laws and judging actions that might fall under the term. The “Convention Against Torture” is both binding U.S. law and gives a clear, conventional definition of torture. But the Bush Administration’s standards for interrogating foreign detainees, originating from the Attorney General’s office, failed to respect the prohibitions of torture in the Convention and two other important international human rights documents. I criticize these (...) standards on seven grounds. The directives from President Bush and his Administration thus ordered or allowed most of the terrible recent tortures of Afghanis and Iraqis at Bagram Air Force Base, Guantanamo Bay and Abu Ghraib prisons. (shrink)

The book is a multi-disciplinary philosophical exploration of the nature and ethics of torture. it offers a defence of the unconditional prohibition of torture.

In a recent article, Gross argues that physicians in decent societies have a civic duty to aid in the torturing of suspected terrorists during emergency conditions. The argument presupposes a communitarian society in which considerations of common good override questions of individual rights, but it is also utilitarian. In the event that there is a ticking bomb and no other alternative available for defusing it, torture must be used, and physicians must play their part. In an earlier article, Jones (...) also argues in favour of physician participation in torture, going so far as to enthusiastically endorse the allocation of research resources as well to ensure that the ability to meet emergency situations is as efficient as scientifically possible. I argue against both these views and defend the absolute prohibition against torture generally, and against any participation by physicians in particular. I show that these arguments are incompatible with liberal or decent societies, and that the institutional requirements for making torture effective would constitute an unacceptable degradation both of medical ethics and practice, as well as of political institutions in general. (shrink)

THIS ESSAY ARGUES AGAINST LEGAL, POLITICAL, AND ETHICAL JUSTIFICAtions for torture. In the expository sections of the essay, I juxtapose international prohibitions against torture with the current U.S. administration's justifications for harsh interrogation methods on the basis of military necessity and presidential prerogative. I examine the systematic and individual causes of the specific abuses at Abu Ghraib that were tantamount to torture. In the constructive sections of the essay, I retrieve the evolving standards of decency from Supreme (...) Court cases and jus cogens peremptory norms from international law. I contend that torture is deontologically wrong and that the administration's arguments on solely teleological grounds are ethically flawed and contradictory. Engaging numerous interlocutors in law, philosophy, and Christian ethics, I reconceptualize the rule of law in terms of moral vision and an emerging moral consensus, and I hold that these terms provide a more adequate framework for evaluating and repudiating the practice of torture. (shrink)

The text aims to explore legal and moral aspects of torture. Under the legal aspect the text compares three definitions of torture: UN definition, Brazilian definition, and Spanish definition. In this regard, neither the UN formulation nor the Brazilian formulation are ideal, because the Brazilian legal definition restricts the element of action by the part of the perpetrator of torture, and the UN convention restricts the effect on the victim, given that pain or suffering should be severe. (...) The hypothesis is that a better proposal could be linked to the Spanish Penal Code, which in its art. 174 defines torture as the submission of someone “to conditions or procedures that, due to their nature, duration or other circumstances, involve physical or mental suffering, the suppression or decrease of their faculties of knowledge, discernment or decision, or that otherwise undermine their moral integrity”. Concerning the moral meaning of the repulse to torture it is intended to defend the paradigmatic character of the human right to not be tortured in at least two respects. The first aspect refers to its universalizing vocation in the full sense, since it can be extended to all sentient beings. In this regard, the prohibition of torture goes beyond the dominium of personality to advance in the direction of a domain of suffering not determined by the mask of personality. The second aspect is that the prohibition stands for an absolute right with no exceptions, precisely because of its deeper moral content.Keywords:radical evil, torture, perpetrator. (shrink)

A perceived national emergency creates the temptation to abandon principled constraints to official action in order to pursue whatever is thought necessary to confront the crisis. Principled constraints are thought good precisely when they are least needed - during normal times - and thought obstructionist when they are most needed to guide and constrain official action - during times of perceived exceptional circumstances. We are accustomed to thinking of constitutional rights not as absolutes, but as subject to balancing against compelling (...) governmental need. When compelling government interest is expressed in terms of necessity, otherwise prohibited actions, such as torture, may be justified in specific circumstances. In this Article, I argue that we should reject the temptation to rely on necessity to justify extralegal responses to emergencies. Moreover, we should also reject the claim that the Constitution contains a core principle of necessity that frees executive officials to act unfettered by other constitutional constraints under some circumstances. One problem with necessity is that it displaces constitutional commitments to constrained action because necessity, not constitutional principle, becomes the ultimate authority for official action. A second problem with necessity is that when it is used to justify the practice of torture, it undermines the liberal conception of the person that grounds the political legitimacy of the State. Finally, when we prioritize necessity, we change how we look at the world in ways that have pervasive legal and cultural consequences for how we employ other constitutional rights. When we rely on necessity to override principled commitments, such as the prohibition against torture, we change our practices and principles, creating the conditions for changing fundamental aspects of our constitutional culture. I argue that although it is always subject to change, our constitutional culture does not support a worldview that legitimates treating persons as objects of torture, and that arguments to change our culture in light of the needs of necessity are insufficient. (shrink)

The torture prohibition is not just one rule among many. Its status as an absolute prohibition in both domestic and international law suggests that it lies at the very foundation of the rule of law. Yet, the prohibition is oddly discontinuous with other practices of state sanctioned violence. I argue here that the prohibition functions as much as symbol as norm. To explain what it symbolizes, I deploy some of the interpretive methodology Freud used to (...) interpret dreams. The torture prohibition is a kind of waking dream. As with other dreams, we must pierce the manifest content to reveal the unconscious meaning. The prohibition, I argue, comes less from a concern about victims than about torturers, for the right to torture was a claim of the sacral monarch. The affective weight of the prohibition emerges from the relationship of law to sovereignty, and to the violent, sacrificial demand of even a popular sovereign. (shrink)

Torture is unethical and usually counterproductive. It is prohibited by international and national laws. Yet it persists: according to Amnesty International, torture is widespread in more than a third of countries. Physicians and other medical professionals are frequently asked to assist with torture. -/- Medical complicity in torture, like other forms of involvement, is prohibited both by international law and by codes of professional ethics. However, when the victims of torture are also patients in need (...) of treatment, doctors can find themselves torn. To accede to the requests of the torturers may entail assisting or condoning terrible acts. But to refuse care to someone in medical need may seem like abandoning a patient and thereby fail to exhibit the beneficence expected of physicians. -/- In this paper, we argue that this dilemma is real and that sometimes the right thing for a doctor to do, overall, is to be complicit in torture. Though complicity in a wrongful act is itself prima facie wrongful, this judgment may be outweighed by other factors. We propose three criteria for analyzing how those factors apply to particular cases of medical complicity in torture. (shrink)

How can we eradicate violence against women? How, at least, can we reduce its prevalence? One possibility offered by Catharine MacKinnon is to harness international human rights norms, especially prohibitions on torture, and apply them to sexual violence with greater rigour and commitment than has hitherto been the case. This article focuses particularly on the argument that all rapes constitute torture in which states are actively complicit. It questions whether a feminist strategy to reconceptualise rape as torture (...) should be pursued, suggesting that we retain the label ‘rape’ due to its gendered meaning and powerful associations. It is also claimed that we may lose sight of the commonality of rape in calling it torture, as well as obscuring the varied responses of women survivors. Finally, the article canvasses the idea that we recognise the different circumstances and contexts in which rape takes place, which may mean different criminal offences for different rapes; for example, preserving the label ‘torture’ for those rapes in which state officials are participants. (shrink)

Asymmetric conflict is changing the way that we practise and think about war. Torture, rendition, assassination, blackmail, extortion, direct attacks on civilians, and chemical weapons are all finding their way to the battlefield despite longstanding international prohibitions. This book offers a practical guide for policy makers, military officers, students, and others who ask such questions as: do guerillas deserve respect or long jail sentences? Are there grounds to torture guerillas for information or assassinate them on the battlefield? Is (...) there room for nonlethal weapons to subdue militants and safeguard the lives of noncombatants? Who are noncombatants in asymmetric war? What is the status of civilians who shelter and aid guerillas? And, do guerillas have any right to attack civilians, particularly those who aid and shelter members of the stronger army? If one side can expand the scope of civilian vulnerability, then why can't the other? (shrink)

Despite nearly universal condemnation, torture remains a tool for interrogation, intimidation, and punishing. Even many who abhor torture are willing to consider its use in extraordinary situations. Both the deontological absolute prohibition of torture and the consequentialist justification of torture are inadequate ethics to address the issue. Dershowitz, Walzer, and Elshtain, among others, have attempted to redress the problem with more finely-tuned approaches, of which Elshtain's rejection of justification in favor of grace and forgiveness appears (...) the most promising. Confronting the practice of torture is also difficult because there is no generally accepted definition of what constitutes torture. Not all coercion is torture, and some coercion is both legal and moral. Torture, in any case, remains a wrongful act. (shrink)

This book addresses a dilemma at the heart of counter-terrorism: Is it ever justifiable to torture terrorists when innocent lives are at stake? The book analyses the moral arguments and presents a passionate defence of prohibition. It also examines current State practice and the models of legalising torture suggested in Israel and the US.

Although torture is prohibited in international law, a consequentialist justification of it has occasionally been professed on the belief that torture is indispensable andeven morally obligatory as an information-gathering device in so-called 'ticking bomb' situations. The author adheres to the conviction that torture is an evil that could never justifiably be done. Objecting to the moral stand of consequentialism, he emphasizesthe distinctive terribleness of torture, drawing attention to the victim's infinite preciousness or 'sacredness', which even the (...) concept of autonomy, or the concepts of democracy and civilization never can reach. Of course, some might call this a question of the heart, and not of the head, and affirm — with Kant, for one — that cognitive content should be separated from resonant form if thought is to survive distortion. To this there is no argument apart from the vital testimony of goodness and pure love, where understanding involves head and heart inseparably combined. This is not just an appeal to the supererogatory, which belongs to a different perspective, as a feat of moral character. Saintly love not only affirms human dignity, it actively reveals and makes visible adignity that is inalienable from the victims humanity. Torture therefore never can fullfil the requirement that it be administered without degrading the intrinsic preciousness of each human being. (shrink)

Scenes of violence and incisions into the flesh informeethe demand for law. The scene of little girls being held down in practices of female circumcision has been a defining and definitive image that demands the attention of human rights, and the intervention of law. But the investment in protecting women and little girls from such a cut is not all that it seems.eeLaw's Cuteeon theeeBody of Human Rights: Female Circumcision, TortureeeandeeSacred Flesheeconsiders how such imageseecome to inform laweeand the investment of (...) advocates of law in an imagination of this scene. Drawing on psychoanalytic andeepostcolonialeetheory, and accompanying ideas in political theology, Juliet Rogers examines the language, imagery and excitement that accompanies recenteeinitiatives to legislate against what is called 'female genital mutilation'. The author compliments this examination witheea consideration of the scene of torture exposed in images from Abu Ghraib and Guantanamo Bay.eeRogers argues that the modes ofeefascination and excitement that accompanyeesceneseeof torture and female circumcisioneebetray the fantasy of aeepolitical conditioneeagainst which the subject of liberal law is imagined; this is subjectivityeein aeestate of non-mutilation, non-prohibition or, in a psychoanalytic idiom, non-castration.eeTo support the fantasy of this subject,eethe mutilated subject, the authors suggests, is rendered as flesh cut from the democratic nation state, deserving of only selective human rights, or none at all. (shrink)

Though the recent election of American President Barack Obama and his signing of the executive order to close the prison at Guantanamo Bay signals a considerable shift away from the policies of the Bush era, the lessons to be learned from the war on terror will remain relevant and necessary for many years to come. In the aftermath of 9/11, the United States government approved interrogation tactics for enemy combatant detainees that could be defined as torture, which was outlawed (...) in Europe in the eighteenth century as well as prohibited by the Geneva Conventions and the United Nations Convention Against Torture. In conjunction with these policies, the Bush administration vocally defended torture as a necessary tool in its war on terror. In _Torture and the War on Terror_,_ _Tzvetan_ _Todorov argues that the use of the terms “war” and “terror” dehumanize the enemy and permit treatment that would otherwise be impermissible. He examines the implications and corrupting impact of the attempt to impose “good” through violence and the attempt to spread democratic values by unethical means. Todorov asks: Can violence overcome violence? Does the need to protect one’s own country justify violating human rights? Invalidating one by one the political and ethical arguments in favor of torture, Todorov likens institutional torture to a cancer that is eroding our society and undermining the very fundamental democratic ideas of justice and right. __ _Torture and the War on Terror _is a significant work in ethics, human rights, and political and social history by one of the world’s leading intellectuals, and its arguments will be influential in shaping our policies to come. (shrink)

Ticking time-bomb cases famously—or infamously—invite us to imagine a scenario wherein the torture of one guilty terrorist will lead to the acquisition of information that can be used to save the lives of many innocents. Despite the contemporary focus on such cases, they have a long tradition, dating to the early 1800s. And, throughout their history, they have appeared in various guises, from the literary to the public to the philosophical. The principal moral question suggested by these cases is (...) whether one harm can be effected such that a worse one is not; while there is certainly dissent, most moral philosophers would answer this question in the affirmative. That said, there is substantial doubt as to whether torture would be the lesser harm or, more generally, whether ticking time-bomb cases gain any purchase in the real world or are otherwise relegated to philosophical fiction. But even if they gain such purchase, then what? In other words, even if torture can be morally justified in exceptional cases, should we authorize it? I n the literature—and conceptually—there are three basic approaches to authorizing torture. The first is not to authorize it at all, which is to say that torture—even if justified—requires some sort of punishable civil disobedience . Another approach is to authorize torture ex ante, such as through torture warrants. On this approach, torture remains prohibited except for when a judge grants permission for its application. Torture warrants have been defended by Alan Dershowitz, and we will evaluate that debate . Finally, torture can be legitimized ex post, which is to say that torture remains illegal but can nevertheless be justified or excused; our discussion will focus on the justifications of self-defense and necessity. (shrink)

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.”. (shrink)

Until recently, torture was regarded as an unthinkable act. But in the dark years following September 11, 2001, many people have defended it openly as they have many other kinds of action previously considered taboo. And the underlying issues are complicated. Yet at least a virtually absolute prohibition on interrogational torture can be rationally defended.

Many of us want to say that there is an absolute—or at least a virtually absolute—prohibition on torturing people. But we live in a world in which firm moral restraints of all sorts are hard to defend. Neither contemporary conventional morality, nor any of the available moral theories, provides adequate support for the deliverances of the “wisdom of repugnance” in this area. Nor do they support casuistry capable of distinguishing torture from (sometimes legitimate) forms of rough treatment. I (...) here make some suggestions concerningthe improvement of this situation. (shrink)

Medical complicity in torture is prohibited by international law and codes of professional ethics. But in the many countries in which torture is common, doctors frequently are expected to assist unethical acts that they are unable to prevent. Sometimes these doctors face a dilemma: they are asked to provide diagnoses or treatments that respond to genuine health needs but that also make further torture more likely or more effective. The duty to avoid complicity in torture then (...) comes into conflict with the doctor’s duty to care for patients. Sometimes the right thing for a doctor to do requires complicity in torture. Whether this is the case depends on: the expected consequences of the doctor’s actions; the wishes of the patient; and the extent of the doctor’s complicity with wrongdoing. Medical associations can support physicians who face this dilemma while maintaining a commitment to clear principles denouncing torture. (shrink)

A large and impressive literature has arisen over the past fifteen years concerning the emergence, transfer, and sustenance of political norms in international life. The presumption of this literature has been, for the most part, that the winds of normative change blow in a progressive direction, toward greater or more stringent normative control of individual or state behavior. Constructivist accounts detail a spiral of mutual normative reinforcement as actors and institutions discover the advantages of normative self- and other evaluation. There (...) is also now much interesting research focused on the question of how to predict the emergence of future norms.I focus, however, on a different issue here: the death of norms that had once seemed well internalized and institutionalized. The issue arises in relation to one of the most dramatic features in the defense policy of the United States since 2001: the crumbling of highly restrictive normative regimes prohibiting interrogatory torture and assassination as part of the “global war on terror.” My aim here is to sketch what I take to be the central features of cases in which even norms that are clearly defined and apparently well internalized in a democracy nonetheless lose their grip on policy. The ultimate lesson, however, is an unappealing irony: While democracies surely do better than authoritarian regimes in adopting and internalizing certain kinds of constraints, in part because of a greater sensitivity to public mobilization around normative questions, that same sensitivity makes the long-term survival of these norms precarious. In particular, I suggest that force-constraining norms are most effectively internalized by coherent and relatively insulated professional cadres who see themselves as needing to act consistently over time. But in a democracy the values and arguments of those cadres are susceptible to being undermined by a combination of public panic and the invocation by policymakers of a public interest that can override the claims both of law and pragmatic restraint. Democracy, hence, can be at the same time both fertile and toxic: fertile as a source of humanitarian values and institutions, but toxic to the very institutions it cultivates.The model I will describe may be of predictive use in helping us to see the special vulnerability of normative orders in democracies. But my hope is that it is also constructive in showing us how states and institutions committed to maintaining a certain normative order, especially democratic states, might best try to entrench those norms. While my argument is conceptual and philosophical, it draws on this recent history. I also add two qualifications to this article's title. First, I am not addressingallnorms, but specific norms concerning the state use of force in national security policy. I therefore do not make claims about the generalizability of the conflict I describe to other norms, for example, norms of racial, sexual, or religious orthodoxy or hierarchy, or norms of reciprocal interaction. Second, reports of a norm's death are frequently exaggerated, since norms can be latent, then resurrected. Arguably, the anti-torture norm was resuscitated by President Obama in 2009 when, as one of his first official acts as chief executive, he moved to prohibit cruel, inhuman, and degrading treatment of detainees. I write here about the path of decay, whether or not that path is unidirectional, and why previously salient norms no longer seem to govern policy choice among political decision-makers. (shrink)

In this chapter, I examine the ways in which “harsh interrogationInterrogation” methods, such as indefinite detention, hooding, use of vicious brutality (such as the use of dogs), and force-feedingForce feeding, function as acts of tortureTorture. Although singularly they may only be “abusive,” when used together or in tandem (“clustering”), they cross the line into torture. TortureTorture is an issue of public moralityMorality. My focus is on the role of medical professionals who have enabled torture by standing by, keeping (...) silent, or actively participating in the abuse of detaineesDetainees. To understand how this occurs, we need to look at the context and the ways the language as well as the practice have an effect. For example, there is widespread use of euphemisms; e.g., “stress positions,” “sleep adjustment,” “takeout,” and “waterboardingWaterboarding” to create a climate of acceptance. Key medical associations such as the American Medical Association (AMA) and the World Medical Association have issued declarations prohibiting doctorsDoctors from participating and calling for them to step forward. However, we must go beyond whistle-blowers taking personal risks, however commendable, and, thus, put in place scaffolding to make it easier to report and investigate suspected abuse or torture. I set out guidelines for doing so in my essay. (shrink)

The example of a political leader who has to decide whether he would allow the torture of a suspect in order to get information about a ticking bomb has become notorious in ethical discussions concerning the tension between moral principles and political necessity. The relation between these notions must be made as clear as possible before a sincere moral evaluation of ticking bomb situations can be given. The first section of this article considers whether the concept of political obligation (...) is different from moral and legal obligations or whether it is a special kind of moral obligation. In the second section, the idea that the dirty hands problem confronts us with the ambiguities of moral life is rejected because it would imply an untenable moral paradox. The thesis that is developed is, namely, if there is such a thing as political necessity, it must be some form of moral obligation. The third section analyses the concept of political necessity and concludes that it cannot overrule basic moral principles and that the international legal prohibition of torture must be considered to be a categorical imperative. In the last section, these ideas concerning political and moral necessity are brought in against the defence of torture, which should be tolerated in the ‘War on Terror’. There it will be argued that the use of the ticking bomb argument not only supports a highly hypocrite political practice but is also deceptive as a moral and political argument. (shrink)

Many of us want to say that there is an absolute—or at least a virtually absolute—prohibition on torturing people. But we live in a world in which firm moral restraints of all sorts are hard to defend. Neither contemporary conventional morality, nor any of the available moral theories, provides adequate support for the deliverances of the “wisdom of repugnance” in this area. Nor do they support casuistry capable of distinguishing torture from forms of rough treatment. I here make (...) some suggestions concerningthe improvement of this situation. (shrink)

Medieval Muslim scholars unequivocally prohibited the torture of prisoners of war out of a concern for maintaining theoretical constructs about the boundaries of the Muslim and non-Muslim communities. Muslim scholars worried that the torturing prisoners of war would compromise values and ideals predicated on such constructs, and that the demands of citizenship trumped any benefit to the Muslim community that might accrue from torture.

Abstract This paper explores brutality and torture in the history of British counter-insurgency campaigns. Taking as a pretext the British government's announcement in January 2012 to scrap a judicial review into the rendition and torture of UK citizens at Guantanamo Bay by American intelligence operatives with the complicity of British intelligence agencies, the paper posits that the actions this review was supposed to evaluate are not restricted to counter-terrorism. By examining the historical usage of interrogation methods by the (...) British in counter-insurgency campaigns against suspected IRA members in the first decade of the ?Troubles? in Northern Ireland, this article builds a wider frame of reference for the recent controversies surrounding the treatment of detainees during the British occupation of southern Iraq. Although the detention and interrogation of suspects in counter-insurgency campaigns is a necessary security measure, the oft-heralded British adherence to ?minimum force? is heavily mythologised given the prevalence of the brutal treatment of detainees. Considering the detrimental impact (in an ethical, legal and security context) that the existence of torture during detention and interrogation had in these cases, the article upholds an absolutist position on the prohibition of torture. (shrink)

Some of our most fundamental moral rules are violated by the practices of torture and war. If one examines the concrete forms these practices take, can the exceptions to the rules necessary to either torture or war be justified? Fighting Hurt brings together key essays by Henry Shue on the issue of torture, and relatedly, the moral challenges surrounding the initiation and conduct of war, and features a new introduction outlining the argument of the essays, putting them (...) into context, and describing how and in what ways his position has modified over time. The first six chapters marshal arguments that have been refined over 35 years for the conclusion that torture can never be justified in any actual circumstances whatsoever. The practice of torture has nothing significant in common with the ticking bomb scenario often used in its defence, and weak U.S. statutes have loop-holes for psychological torture of the kind now favoured by CIA in the 'war against terrorism'. The other sixteen chapters maintain that for as long as wars are in fact fought, it is morally urgent to limit specific destructive practices that cannot be prohibited. Two possible exceptions to the UN Charter's prohibition on all but defensive wars, humanitarian military intervention and preventive war to eliminate WMD, are evaluated; and one possible exception to the principle of discrimination, Michael Walzer's 'supreme emergency', is sharply criticized. Two other fundamental issues about the rules for the conduct of war receive extensive controversial treatment. The first is the rules to limit the bombing of dual-use infrastructure, with a focus on alternative interpretations of the principle of proportionality that limits 'collateral damage'. The second is the moral status of the laws of war as embodied in International Humanitarian Law. It is argued that the current philosophical critique of IHL by Jeff McMahan focused on individual moral liability to attack is an intellectual dead-end and that the morally best rules are international laws that are the same for all fighters.Examining real cases, including U.S. bombing of Iraq in 1991, the Clinton Administration decision not to intervene in the 1994 Rwandan genocide, NATO bombing of Serbia in 1999, and CIA torture after 9/11 and its alternatives, this book is highly accessible to general readers who are interested in the ethical status of American political life, especially foreign policy. (shrink)

This essay explores the philosophical sources of the modern prohibition of torture by tracing different systematic steps in the difficult moral struggle against torture. It will be shown that the reluctance to embrace an outright ban on torture does not originate only from ancient convictions but also from the internal tensions between sovereignty and freedom in the context of the legitimation of the modern state. Starting with the universally empathic approach of 16th century’s humanists the moral (...) condemnation of torture shifted its focus successively from matters such as pity or the protection of bodily integrity to the recognition of human self-determination. During the Age of Enlightenment, the ambiguity of the modern concept of the state is even more clearly revealed. Political arguments against torture are put forward by utilitarians only stressing, again, the futility of bodily pain. Kant and Hegel, however, though developing human dignity as a matter of principle stick to retribution and the strict enforcement of the rule of law. Their approach overemphasizes certain notions of sovereignty and leads to perplexing consequences. This can be shown also with regard to the actual debate concerning exceptions from the general prohibition of torture. (shrink)

ABSTRACT How should physicians act when faced with corporal punishment, such as amputation, or torture? In most cases, the answer is clear: international law, UN resolutions and universal codes of medical ethics absolutely forbid physicians from countenancing torture and corporal punishment in any form. An acute problem arises, however, in decent societies, but not necessarily liberal states, that are, nonetheless, welcome in the world community. The decent society is often governed, in whole or in part, by religious laws, (...) and while these states abridge various human rights they are peace loving, generally tolerant, and offer their citizens wide avenues for political participation. Under these circumstances the prohibition against corporal punishment and torture weakens, often compelling physicians to participate. This is true in two cases. In Rawls’ hypothetical nation of Kazanistan, Islamic law is the order of the day, and amputations and corporal punishment play an integral part in the execution of traditional Islamic justice. In Israel, torture is sometimes used to elicit the information needed to thwart impending terror attacks. In each case, a physician's participation is essential. In light of the near universal condemnation that accompanies torture and corporal punishment, physicians can only appeal to norms anchored in collective well‐being and concern for life that override respect for human dignity in these societies. Western societies have consistently rejected this reasoning, but it is part and parcel of life in the decent society. (shrink)

ABSTRACT How should physicians act when faced with corporal punishment, such as amputation, or torture? In most cases, the answer is clear: international law, UN resolutions and universal codes of medical ethics absolutely forbid physicians from countenancing torture and corporal punishment in any form. An acute problem arises, however, in decent societies, but not necessarily liberal states, that are, nonetheless, welcome in the world community. The decent society is often governed, in whole or in part, by religious laws, (...) and while these states abridge various human rights they are peace loving, generally tolerant, and offer their citizens wide avenues for political participation. Under these circumstances the prohibition against corporal punishment and torture weakens, often compelling physicians to participate. This is true in two cases. In Rawls’ hypothetical nation of Kazanistan, Islamic law is the order of the day, and amputations and corporal punishment play an integral part in the execution of traditional Islamic justice. In Israel, torture is sometimes used to elicit the information needed to thwart impending terror attacks. In each case, a physician's participation is essential. In light of the near universal condemnation that accompanies torture and corporal punishment, physicians can only appeal to norms anchored in collective well‐being and concern for life that override respect for human dignity in these societies. Western societies have consistently rejected this reasoning, but it is part and parcel of life in the decent society. (shrink)

The state has a duty to protect individuals from violations of their basic rights to life and liberty. But does the state have a duty to criminalize such violations? Further, if there is a duty on the part of the state to criminalize violations, should the duty be constitutionally entrenched? This paper argues that the answer to both questions is positive. The state has a duty not merely to effectively prevent violations of our rights to life and liberty, but also (...) to criminalize such violations. Further, the duty to criminalize ought to be constitutionally entrenched. In the absence of criminal prohibitions on violations of the right to life and liberty individuals live ‘at the mercy’ of others. In the absence of a constitutional duty to criminalize, life and liberty of individuals is contingent upon the judgments and inclinations of the legislature. In both cases citizens’ rights are ‘at the mercy of others’. I also show that the decisions of the German Constitutional Court concerning abortion can be justified on such grounds. (shrink)

In 2011 the European Court of Human Rights delivered 10 judgments in cases against the Republic of Lithuania. In 9 judgments the Court found at least one violation of rights and freedoms guaranteed by the European Convention on Human Rights. Article 6 which provides the right to a fair trial, remains dominant in the applications against Lithuania, since in 7 out of 10 delivered judgments the Court declared violations of Article 6 (mostly paragraph 1 concerning the length of proceedings). In (...) 2011 the Court as well declared violations of prohibition of torture, right to respect for private and family life and the right to free elections. (shrink)

As in every religious issue, the two main resources of Islām which are the Qur’ān and the Sunnah/ḥadīths are the first reference sources for deciding the things that are forbidden by Islam. There is no evidence in the Qur’ān that suggests specific types of animals are forbidden to eat except pork. Other than pork, only the animals which are slaughtered without the name of Allah, their blood and their carcass are forbidden to consume. Except these restricted ill-gotten meats, in the (...) Qur’ānic verses there are no other limitations referring to different animals. However, in Ḥadīth sources there are some narratives referring to the Prophet Muḥammad, implying that He named some other forbidden animals beside the ones specified in the Qur’ān. Collecting the narratives and evaluating them as a whole will contribute for a better understanding of the rules and principles of prohibitions that the Prophet Muḥammad imposed on this issue. Moreover, it will help to identify whether those rulings on some animals are unconditional and world-wide or cause-related and thus changeable according to the conditions. Furthermore, in this matter, although some animals‘ meat are not mentioned as forbidden in the Qur’ān, they are banned by the Prophet Muḥammad. This brings the need to highlight the importance of the capacity of the Prophet Muḥammad on deciding what is permissible (ḥalāl) and forbidden (ḥarām) in the religion.SummaryWhile the authority for determining what is ḥalāl (lawful) and what is ḥarām(forbidden) belongs essentially to Allah, the Prophet Muḥammad is also authorized to appoint what is ḥalāl-ḥarām by Allah.Authority of the Prophet Muḥammadrelated to the issue is not absolute and stems from the Qur’ān. Ḥalāland ḥarāmin the Qur’ān prescribed by Allah can be included in the concepts of maʿrūf (right) - munkar (wrong) andṭayyibāt (clean) - hkabāis (filthy). It is understood that the Prophet Muḥammadgrounded his commands in the concept of hkabāis.Prohibitions related to animal meats in the Qur’ānare limited to four: carcass, blood, pork and animals, which are not slaughtered in the name of Allah. However, in the Ḥadīth resources there are some narratives about the Prophet’s prohibition on consuming some types of animals other than the forbidden animals specified in the verses. These narratives can be classified in three titles:1. Animals, which are prohibited to be eaten 2. Animals, which are prohibited because of the way they are fed and slaughtered3. The matter of prohibition of the animals, which are commanded or forbidden to be slaughtered by the Prophet Muḥammad.At the end of the studies conducted based upon ḥadīth resources, in particular Kutūb al-Sittah (the well-known six ḥadīth books), it has been discovered that the animals, which are mentioned as not being permissible in the narratives, they are limited to domesticated donkey and the species of “predatory animals, predatory birds”, namely wolf, fox and cat. Even though the narratives about hyena imply as eatable, hyena is included in this article as it’s a predatory animal.The narratives regarding the prohibition of meat of domesticated donkey were transferred by approximately twenty Companions in respect to the time of the Battle of Khyber. This prohibition is generally stated in the ḥadīthresources as: “We were having dire hunger at the nights of Khyber. When the day for Khyber came, we encountered domesticated donkeys. We immediately slaughtered them. When we put the meat in the pot and started to boil it, crier of the Prophet Muḥammadcalled “Knock over the pots and don’t eat any of the donkey meat”. Regarding the issue there are such statements of some Companions like “we were banned from eating domesticated donkey”, “The Prophet banned the meat of domesticated donkey” among the narratives about the ban. In addition to a large number of narratives about the prohibition of domesticated donkey meat, there are two narratives related to permission of the Prophet for eating domesticated donkey and a narrative that Ibn ‘Abbās did not accept the ban. One of the said narratives is not among the narratives in the Kutūb al-Sittah while the other one is stated solely in the Sunanof Abū Dāwūd and thought to be acceptable by the traditionists. Even though this narrative’s authenticity is accepted, it is understood that there is an implication for the permission based on a necessity. According to the narrative, Ibn ʿAbbās referred to 145thverse of the surah al-An’am as a proof to his view saying “What ḥalālis what Allah allowed, what ḥaramis what Allah forbidden and the things about which there is no judgement of Allah are mubāḥ (permissible)”. As for us, the fact that Ibn ʿAbbās did not accepted the prohibition implies that he did not recognize the Prophet’s command related to the prohibition as an absolute prohibition. The conveyances of many Companions, which are consistent with each other, about the Prophet’s prohibition on eating domesticated donkey during the Battle of Khyber, proved that the prohibition was applied. Even though there is no dispute about prohibiting domesticated donkey, it is controversial whether the prohibition is absolute, constant or provisional based on certain reasons. It is more reasonable to accept that this prohibition was provisional and it was based on certain reasons. Because there are many narratives bearing information that this prohibition was due to several reasons and this is a situation which needs to be considered. Accordingly, there are three reasons, nearly all of which are attributed to judgement of the Companions. These were the facts that domesticated donkey was used in transportation; it used to eat filth and it was slaughtered/consumed without distributing booty/paying taxes. The seeking of the Companions for any reason for this prohibition indicates that they needed to comprehend this prohibition and that the prohibition is not absolute and constant.There is no explanation neither in the resources where the narratives are included nor in the annotation about when, where, why and in which context the prohibition regarding the predatory animals was realized. It is highly possible to assume that the Prophet prohibited these animal as they eat carcass. Another interesting issue within this regard is the fact that there are narratives and views indicating permissibility of eating hyena, which is a predatory, while predatory animals are forbidden in the narratives. Statements of the Prophet related to permissibility of eating hyena, which are considered authentic by traditionists and information about the Arabs who used to eat hyena and some of the Companions who praised eating hyena indicate that urf (custom) has a primary and decisive role about permissibility of eating meats. Regarding this matter about the hyenas, the narratives pointing out some Companions like ʿĀʾisha bint Abī Bakr and Ibn ‘Abbās who viewed prohibition of animals other than the prohibited animals in the Qur’an as inapplicable and other issues referring to the dispute indicate that prohibition of the Prophet Muḥammadfor predators can not be accepted as an absolute and unquestionable prohibition. Some of the prohibitions mentioned in ḥadīth narratives, except these animals, stem from the way of feeding and slaughtering of some animals. It is understood that consuming meat and milk of the animals that eat filth is prohibited in order to abstain from the things harming human health and mujassam (killing an animal with an arrow, etc. by fastening it as a target) is prohibited as carcass is banned and it is not permissible to torture and harm animals. Some of the prohibitions are related to the some animals, which were allowed and banned to slaughter by the Prophet. As the Prophet commanded some animals to be slaughtered and some animals not, meat of these animals was considered as forbidden. There is a dispute among the scholars, whilst there is not any statement of the Prophet about whether the animals included in this group can be eaten or not. It is seen that the Prophet ordered to slaughter some of the animals and prohibited to slaughter some other animals based on several reasons. (shrink)

The Nobel Prize in Literature laureate Mario Vargas Llosa (2020) praises the legal protection of bullfighting by a Peruvian law that prohibits the torture of animals except in case of cultural traditions, such as bullfighting and cockfighting. He claims that his defense of bullfighting follows from his liberal point of view, and advances three reasons in favor of its preservation: It is a tradition, it is a fine art, and the individuals should be constitutionally free to choose what to (...) see and where to go. I argue that his arguments are morally irrelevant and logically unsound. (shrink)

The ticking bomb case is meant to challenge absolute prohibitions on the use of torture. In “Imaginary Cases,” Michael Davis attempts to show that such cases can only be legitimately employed within certain limited parameters. In this paper, I explain how the ticking bomb case, suitably revised, does not run afoul of Davis’s prohibition on impossible content. The fact that torture could elicit the necessary information is enough; we need not stipulate a guaranteed result. I also defend (...) philosophers’ use of the case to identify our moral intuitions and to evaluate our theoretical assumptions. Although our responses to actual events are better at mapping our actual commitments, imaginary events can also reveal our pre-theoretic intuitions. Ultimately, however, I reject the use of the ticking bomb case on practical grounds, because the imaginary case distorts our moral reasoning in actual cases and leads to our acceptance of torture more generally. (shrink)

Philip Quinn, John A. O’Brien Professor at the University of Notre Dame from 1985 until his death in 2004, was well known for his work in the philosophy of religion, political philosophy, and core areas of analytic philosophy. Although the breadth of his interests was so great that it would be virtually impossible to identify any subset of them as representative, the contributors to this volume provide an excellent introduction to, and advance the discussion of, some of the questions of (...) central importance to Quinn in the last years of his working life. Paul J. Weithman argues in his introduction that Quinn’s interest and analyses in many areas grew out of a distinctive and underlying sensibility that we might call “liberal faith.” It included belief in the value of a liberal education and in rigorous intellectual inquiry, the acceptance of enduring religious, cultural, and political pluralism, along with a keen awareness of problems posed by pluralism, and a deeply held but non-utopian faith in liberal democratic politics. These provocative essays, at the cutting edge of epistemology, the philosophy of religion, philosophical theology, and political philosophy, explore the tenets of liberal faith and invite continuing engagement with the philosophical issues. “Philip Quinn was admired enormously throughout the world of professional philosophy.... His reputation for rigor, his tireless service to the profession, and his essentially ‘non-dogmatic,’ but philosophically sophisticated faith is widely admired... The essays in this volume are first-rate contemporary philosophy along with an excellent introduction to Quinn’s work.” —_Charles Taliaferro, St. Olaf College_ "The papers that form _Liberal Faith_ give insightful treatments of three types of questions: first, how can we conscientiously believe something when there are many people we admire who do not believe it, and what is the underlying relation here between justification and rationality; second, what does it mean to desire union with God, and can Christians properly believe in the possibility of eternal self-annihilation; third, how should liberal democracy accommodate the religious convictions of its members, whether some comprehensive doctrine such as a religion is required to justify a commitment to human equality, and whether there is an absolute moral prohibition on the state use of torture. The volume has an unusually good introduction putting the papers into dialog with each other and with the work of Philip Quinn. The papers are cohesive because the central themes of Philip Quinn's work hold together into a picture of how Christianity and Liberal Democracy fit together." —_John Hare, Noah Porter Professor of Philosophical Theology, Yale Divinity School _ “This is a collection of high quality essays dealing with various topics related to Philip Quinn’s work. The book makes an original contribution by virtue of its individual papers, each of which is new. These essays will be of interest to scholars and students who followed Quinn’s work, especially in philosophy of religion and political philosophy.“ —_John Greco, The Leonard and Elizabeth Eslick Chair in Philosophy, Saint Louis University _. (shrink)

Since Henry Shue’s classic 1978 paper on torture, the “ticking-bomb case” has seemed to demonstrate that torture is morally justified in some moral emergencies (even if not as an institution). After presenting an analysis of torture as such and an explanation of why it, and anything much like it, is morally wrong, I argue that the ticking-bomb case demonstrates nothing at all—for at least three reasons. First, it is an appeal to intuition. The intuition is not as (...) widely shared as necessary to constitute the required demonstration. Second, the intuition is not as reliable as necessary for such a demonstration. We lack the experience that would vouch for it. And, third, Shue’s own discussion suggests that what we are intuiting (if we share Shue’s intuition) is an excuse rather than a justification. (shrink)

After revelations of participation by psychiatrists and psychologists in interrogation of prisoners at Guantánamo Bay and Central Intelligence Agency secret detention centers, the American Psychiatric Association and the American Psychological Association adopted Position Statements absolutely prohibiting their members from participating in torture under any and all circumstances, and, to a limited degree, forbidding involvement in interrogations. Some interrogations utilize very aggressive techniques determined to be torture by many nations and organizations throughout the world. This paper explains why psychiatrists (...) and psychologists involved in coercive interrogations violate the Geneva Conventions and the laws of the United States. Whether done with ignorance of professional ethical obligations or not, these psychiatrists and psychologists have crossed an ethical barrier that may best be averted from re-occurring by teaching medical students and residents in all medical specialties about the ethics principles stemming from the 1946–1947 Nuremberg trials and the Geneva Conventions, together with the Ethics Codes of the World Medical Association and the American Medical Association; and, with regard to psychiatric residents and psychological trainees, by the teaching about The Principles of Medical Ethics With Annotations Especially Applicable to Psychiatry and the Ethical Principles of Psychologists and Code of Conduct, respectively. In this way, all physicians and psychologists will clearly understand that they have an absolute moral obligation to "First, do no harm" to the human beings they professionally encounter. (shrink)

Dr Erskine's 'embedded cosmopolitanism' embraces the perspective of local loyalties, communities and cultures in the theory of why we have duties to 'strangers' and 'enemies' in world politics. Taking examples from the 'war on terror', she examines duties to 'enemies' through norms of non-combatant immunity and the prohibition against torture.

In this paper, I argue for the permissibility of torture in idealized cases by application of separation of cases: if torture is permissible given any of the dominant moral theories (and if one of those is correct), then torture is permissible simpliciter and I can discharge the tricky business of trying to adjudicate among conflicting moral views. To be sure, torture is not permissible on all the dominant moral theories as at least Kantianism will prove especially (...) recalcitrant to granting moral license of torture, even in idealized cases. Rather than let the Kantian derail my central argument, I directly argue against Kantianism (and other views with similar commitments) on the grounds that, if they cannot accommodate the intuitions in ticking time-bomb cases, they simply cannot be plausible moral views—these arguments come in both foundationalist and coherentist strains. Finally, I postulate that, even if this paper has dealt with idealized cases, it paves the way for the justification of torture in the real world by removing some candidate theories (e.g., Kantianism) and allowing others that both could and are likely to justify real-world torture. (shrink)

The collapse of confidence in anonymization as a robust approach for preserving the privacy of personal data has incited an outpouring of new approaches that aim to fill the resulting trifecta of technical, organizational, and regulatory privacy gaps left in its wake. In the latter category, and in large part due to the growth of Big Data–driven biomedical research, falls a growing chorus of calls for criminal and penal offences to sanction wrongful re-identification of “anonymized” data. This chorus cuts across (...) the fault lines of polarized privacy law scholarship that at times seems to advocate privacy protection at the expense of Big Data research or vice versa. Focusing on Big Data in the context of biomedicine, this article surveys the approaches that criminal or penal law might take toward wrongful re-identification of health data. It contextualizes the strategies within their respective legal regimes as well as in relation to emerging privacy debates focusing on personal data use and data linkage and assesses the relative merit of criminalization. We conclude that this approach suffers from several flaws and that alternative social and legal strategies to deter wrongful re-identification may be preferable. (shrink)

In this paper, I argue for the permissibility of torture in idealized cases by application of separation of cases: if torture is permissible given any of the dominant moral theories (and if one of those is correct), then torture is permissible simpliciter and I can discharge the tricky business of trying to adjudicate among conflicting moral views. To be sure, torture is not permissible on all the dominant moral theories as at least Kantianism will prove especially (...) recalcitrant to granting moral license of torture, even in idealized cases. Rather than let the Kantian derail my central argument, I directly argue against Kantianism (and other views with similar commitments) on the grounds that, if they cannot accommodate the intuitions in ticking time-bomb cases, they simply cannot be plausible moral views—these arguments come in both foundationalist and coherentist strains. Finally, I postulate that, even if this paper has dealt with idealized cases, it paves the way for the justification of torture in the real world by removing some candidate theories (e.g., Kantianism) and allowing others that both could and are likely to justify real-world torture. (shrink)

The article argues that the prohibition of abortion in Chile, other than when the mother's life is in danger, is a form of human rights violation targeting women specifically. The Pro-Birth Policy was established in Pinochet's Chile as a response to the previous government's attempts, under Allende, to encourage family planning and to educate and inform women about their choices. This had been done to put an end to the increase in back-street abortions with the inevitable toll on women's (...) lives. Pinochet's regime reversed these women-oriented family planning policies, and criminalized abortion, on the basis of costs to the state and, more importantly, the need to increase the birth rate for reasons of national security. Women's bodies were used by the Pinochet regime, both by sexual violence and torture, and by the denial of women's reproductive and sexual rights, as a means to impose discipline and order on society. The fact that this is still not acknowledged in the construction of a collective memory indicates that the issue has not yet been resolved in democratic Chile. (shrink)

Butterfield's (1992a,b,c) claim of the equivalence of absence of Lewisian probabilistic counterfactual causality (LC) to Hellman's stochastic Einstein locality (SEL) is questioned. Butterfield's assumption on which the proof of his claim is based would suffice to prove that SEL implies absence of LC also for appropriately given versions of these notions in algebraic quantum field theory, but the assumption is not an admissible one. The conclusion must be that the relation of SEL and absence of LC is open, and that (...) they may be independent. (shrink)

A detailed, clear, and comprehensive overview of the current philosophical debate on. The question of when, and under what circumstances, the practice of torture might be justified has received a great deal of attention in the last decade in both academia and in the popular media. Many of these discussions are, however, one-sided with other perspectives either ignored or quickly dismissed with minimal argument. In On the Ethics of Torture, Uwe Steinhoff provides a complete account of the philosophical (...) debate surrounding this highly contentious subject. Steinhoff’s position is that torture is sometimes, under certain narrowly circumscribed conditions, justified, basing his argument on the right to self-defense. His position differs from that of other authors who, using other philosophical justifications, would permit torture under a wider set of conditions. After having given the reader a thorough account of the main arguments for permitting torture under certain circumstances, Steinhoff explains and addresses the many objections that have been raised to employing torture under any circumstances. This is an indispensible work for anyone interested in one of the most controversial subjects of our times. (shrink)

From 2002 to 2003, the United Kingdom's Human Fertilisation and Embryology Authority carried out a review of the available methods of sex selection, the central aims of which were, in the words of the subsequent report.