Torture is supposed to be an absolute wrong: a thing wrong at all times, in all places, and under all circumstances. That is not only an ethical claim; it is the position in law. The absolute bar is the explicit position of all the relevant international conventions, and—exceptionally among the protections we enjoy under the European Convention and Human Rights Act—the Article 3 bar on “torture… inhuman or degrading treatment” is unqualified. No caveats or provisos: no ifs or buts.
Very few legal prohibitions come shorn of all exceptions in this way, and so—you might think—the authorities would understand that any thought of complicity in torture is unacceptable, too. That, however, is not the case, even in what are called liberal democracies.
The UK, for example, has been recently taking advantage of torture, and on a significant scale. This is not the claim of some hyperbolic campaign group but the measured 2018 finding of parliament’s Intelligence and Security Committee. The figures disclosed are horrifying. Between 2001 and 2010 the committee found 13 incidents where British personnel witnessed at first hand a detainee being mistreated by others.
It gets worse. There were 198 cases where UK personnel received intelligence from liaison services that had been obtained from detainees who they knew (or should have known) had been mistreated. There were 232 cases where UK personnel continued to supply questions or intelligence to liaison services after they knew or suspected mistreatment. This is systemic complicity in torture. These totals were only what the committee could ascertain. It had not been able to see every document or interview all individuals. The authorities did not always co-operate fully: the real picture could be worse.
With much of the evidence—including the figures I quote—dating back to the last Labour government and the post-9/11 years, it would not have been hard in political terms for Conservative ministers to make a clean break. But in the face of the findings, the government has proved evasive. The committee recommended a judge-led inquiry, and the government initially indicated that this would happen.
But in July, while Westminster was distracted with Brexit and the Tory leadership battle, this commitment to an independent judicial inquiry was quietly dropped. It should have been a scandal, but ignored by the media, it registered barely a shrug. Ministers baldly insisted that new published “principles” meant there was nothing for us to worry about, and they seem to have got away with it.
Why was the reaction so muted? How can a thing which the law classes as absolutely wrong be so easily permitted and permissible? The answer appears to be that there is a mismatch between the high principles enshrined in the law and what many people are at ease with the state getting away with in practice.
If you doubt there’s a political appetite for getting cruel and unusual, just look at the US, where the current president says that torture is not an absolute wrong but instead a thing which “absolutely works”— a rather different absolutist view. Even some legal pundits go so far to say torture should be allowed. Alan Dershowitz has suggested torture should be a licensed activity: if the government is going to do it anyway, he reasons, then there should be some system of accountability. This is the culture in which no senior US military personnel were disciplined after the abuses, as well as the sexual and other humiliations, of Abu Ghraib came to light. Few in America today seem to care about what happens at Guantánamo Bay.
One chilling effect of the discrepancy between the bold legal prohibitions on torture and the wants of “practical” politicians, soldiers and bureaucrats is that the law seems to have little or no application. The law seems not to be making any real difference. On the one hand torture is banned, but on the other hand it has been commonplace. How can both things be true? The sordid truth is: often with the help of ingenious government lawyers, who find ways around the ban when instructed to do so by politicians. There is no lawyers’ equivalent of the Hippocratic Oath. The deliberate infliction of severe pain on a fellow human being for the purpose of interrogation is just one legal opinion away.
That this has been the case is detailed in the 2008 book Torture Team by Philippe Sands; in the “war on terror,” lawyers fudged definitions and adopted elaborate reasoning so as to rob torture conventions of any effect. You might have hoped that, as 9/11 fades into history, permitting cruelty would be less of a temptation. But if British politicians were in a mood to move on, then—surely—they would have allowed that inquiry. So why didn’t they?
No sane person wants to be tortured, but then few imagine themselves as the person on the receiving end. More identify with the power of the torturer than the powerlessness of the tortured. Then there is the allure of the “ticking time-bomb” scenario, a thought experiment set up to subvert the absolute wrongness of torture by postulating circumstances where it is the only way to stop some other absolute wrong—namely an explosion which causes the deaths of innocent people. Often this fallacy is the only contention needed to get people to nod along with torture as a potentially practical measure in any circumstance.
The ticking time-bomb attempt at rationalisation is not a real justification at all. The circumstances are contrived and no account is taken of the many and documented perverse effects on investigations and evidence that torture can introduce. And there is no proof that it works.
Banning torture has not stopped it, nor has it been stopped by a demonstrable lack of efficacy. Too many people need no reason to justify torture; they just want an excuse. Brazen politicians like Trump will talk blithely about it. But there is almost as much to fear from the hypocritical ones, those who quietly ensure that no independent investigations take place even after complicity has been demonstrated.
